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Butzel, J. George J. Kolowich, of Iiamtramck, Michigan, was convicted of embezzlement and the felonious abstraction and misapplication of bank funds, as defined in section 66 of the general banking act (Act No. 66, Pub. Acts 1929; 3 Comp. Laws 1929, § 11963). The first count of the information charges that on the 15th day of May, 1930, defendant, as president, director, agent, servant, and employee of the State Bank of America of Hamtramck, Michigan, came into possession of $82,933.58 of the bank’s moneys, and that he fraudulently and feloniously embezzled it, etc. The second count, substantially like the first count, charges that he abstracted the money. The third count charges him with misapplication of the funds. All of the counts charge that he disposed of and converted to his own use the personal property of the value stated, and that, without authority of the board of directors of the bank, he drew orders, bills of exchange, and drafts with intent to injure and defraud the bank, and that he made false entries in books, reports, and statements of the bank with intent to deceive his fellow officers of the bank and the State bank examiner. It is claimed that defendant’s motion to quash the information should have been granted because the evidence taken on the examination was insufficient to sustain the charge. The testimony on the hearing appears in the record and was sufficient to justify holding the defendant for trial. Defendant claims further that he was entitled to a directed verdict, and that the verdict was against the great weight of the evidence. For this reason, it is necessary to detail some of the facts. Defendant occupied a prominent position both in public life and in financial circles. He had been very successful in the years previous to 1929, and had amassed a considerable fortune, represented by real estate, land contracts, stocks, etc. He had been actively engaged in the banking and real estate business, and at one time he, with several others, owned a private bank in Hamtramck, known as the Merchants & Mechanics Bank, and herein referred to as the “private bank.” His wife purchased the interests of those previously, associated with him, so that he became virtually the sole owner and proprietor of the private bank, owing to the inability of a married woman to become a copartner of her husband. Just previous to its failure, the bank did a flourishing business and had many depositors, consisting principally of working men and trades people. The State Bank of America of Hamtramck, Michigan, was incorporated under the State banking laws with a capital of $100,000. Defendant owned 650 shares and his brother Adolph 100, so that together they held 75 per cent, of the stock. The board of directors consisted of defendant, his brother, and four others, three of whom owned only 10 shares apiece, and one held 25. The bank was supposedly run under the direction of the board, officers, and loan committee, with usual powers. One Willard Babcock was a director and the cashier. He had been advanced to this position after a short period in a less important capacity. Defendant, who was responsible for his employment, turned over to him without consideration 10 shares of stock so as to enable him to qualify as a director. Babcock testified that he never took instructions from any member of the board other than defendant while -acting as cashier and director. They had frequent conferences, and, during the fiscal month in which defendant is alleged to have committed the crimes charged,' Babcock saw defendant daily at his private bank, discussing with him the affairs of the State Bank of America. The business of the private bank was conducted by defendant with the assistance of John W. Kempisty, acting as cashier and manager. There were also a number of tellers, bookkeepers, messengers, etc. The private bank deposited its funds with the State Bank of America, and also had a checking account with two Detroit banks. During the 30 days during which the alleged embezzlements, etc., took place, the private bank deposited over $500,000 with the State Bank of America, but its withdrawals far exceeded this amount. Defendant authorized Kempisty to sign drafts of the private bank on the State Bank of America. The drafts were printed with the words “President-Cashier” appearing below the line reserved for the signature. When Kempisty signed the drafts, the word “president” was stricken out. Due to his frequent absences from the private bank, Kempisty made a practice of signing blocks of 25 or more drafts in blank, leaving the spaces for the date, name of the payee, and amount, to be filled in by the tellers as funds were needed. When the demands of depositors were particularly heavy, and additional cash needed, the blank spaces in the drafts would be filled in by a teller and the drafts sent over to the State Bank of America, where they would be honored, and the cash brought back to the private bank. During the 30 days following May 15, 1930, 11 drafts, signed by Kempisty and aggregating $82,933.58,.were paid by the State Bank of America, though there were no funds to the credit of the private bank with which to pay them at the times they were presented. All of them, with the exception of one made payable to M. J. Meehan & Company, brokers, in the amount of $9,980, represented cash withdrawals by the private bank. During this 30-day period, there was a run on the private bank by its depositors, so that there was an immediate need of funds to prevent the closing of the bank’s doors. Defendant claims that he had no idea of the extent of the overdrafts, that there was no intention on his part to overdraw, his account, and that he always had good reason to believe that he would have no difficulty in making good any overdrafts; that he was not guilty of any crime, even though he may have committed a misdemeanor as defined in 3 Comp. Laws 1929, § 11932. This section provides that any officer or employee of a bank who knowingly, wilfully, and persistently overdraws his account shall be guilty of a misdemeanor. There is competent testimony showing that when these overdrafts reached the State Bank of America, where they were paid under orders given by Babcock, they were carried as cash items in order to avoid the appearance of the overdrafts on the books. Babcock claims he was acting under the express instructions of the defendant. The State Bank of America’s records were falsified so as to make it appear that the overdrafts were cash on hand, consisting of a large number of bills of particular denominations, never actually in the possession of the bank. Defendant had previously issued overdrafts but had always taken care of them. He claims he did not know of the extent of the overdrafts until they had all been honored by the drawee bank. He alleges that he did not know of the practice of overdrawing. On June 16,1930, when defendant’s attention was called to the large amount of the overdrafts, he immediately attempted to secure a loan from a number of Detroit banks, where he had reason to believe that he had a large line of credit. The Detroit banks refused to come to his assistance, owing to the fact that his assets were not sufficiently liquid in nature. Without delay, he reported the condition of the bank and his overdrafts to the State banking commissioner. Defendant immediately turned over to the State Bank of America, with the consent of its board of directors, valuable real estate that apparently would have been more than ample security to protect the bank against loss had it not been for bankruptcy proceedings in which Kolowich and his private bank were involved, with a resultant setting aside of the preference. The State Bank of America went into the hands of a receiver, and the prosecution of defendant followed. There are many facts that tend to show a lack of criminal intent on the part of defendant in the entire transaction. However, Babcock’s testimony that he was acting* only under the instructions and directions of defendant; that he saw defendant daily during the time the money was being taken from the bank; that overdrafts were carried as cash items in accordance with instructions received by Babcock from defendant and transmitted by him to the teller; that he told defendant that overdrafts wer& being carried as cash items; that, according to additional testimony, defendant was at the private bank at least four hours each day while the moneys were being withdrawn from the State Bank of America; that, at the very time in question, defendant was making heavy withdrawals by issuing drafts on the drawee bank for the payment of stock and bonds in which he was dealing, as well as many other facts, tend to overcome defendant’s claims. There was sufficient testimony to justify the verdict of the jury. It was not against the great weight of the evidence. Numerous other errors are assigned. Defendant contends that, even looking at his conduct in the most unfavorable light, he was only guilty of overdrawing. Defendant’s acts are repeatedly referred to by the prosecution as “overdrafts.” There is no question that this terminology is correct. However, securing the funds by overdraft is only the means that defendant is charged with having used in committing a much more serious offense. One may be guilty of a lesser offense in committing a much more serious one. If one, with the connivance of a bank officer whom he has under his control, secures possession of the bank’s funds by means of an overdraft and converts them to his own use with intent to defraud the bank, continuing such conduct over a protracted period so as to secure possession of a large amount of the bank funds, he becomes guilty of more than the misdemeanor defined by the ba.uking law, 3 Comp. Laws 1929, § 11932. An overdraft of itself may or may not be a misdemeanor. An act apparently innocent on its face, or under certain circumstances a misdemeanor may become a much more serious offense when committed with the purpose of defrauding the bank. See People v. Comstock, 115 Mich. 305; Brock v. United States, 79 C. C. A. 121 (149 Fed. 173); Breese v. United States, 45 C. C. A. 535 (106 Fed. 680); State v. Kortgaard, 62 Minn. 7 (64 N. W. 51); State v. Larson, 123 Wash. 21 (211 Pac. 885); State v. Kubli, 118 Ore. 5 (244 Pac. 512); State v. Owen, 119 Ore. 15 (244 Pac. 516). Over defendant’s objections, the prosecution was permitted to show'by the books of the private bank that, during the time the overdrafts were being issued, large sums were being paid for stocks and bonds by the private bank through checks or drafts drawn on the State Bank of America. Kempisty testified that the private bank was buying “quite a bit” from a firm of stock brokers, and one of the tellers of the private bank stated that large amounts of money were paid during the 30-day period to stock brokers for the purchase of stocks and bonds. While the law does not prohibit the purchase of stocks and bonds, nevertheless, when the owner of a private bank is engaged in purchasing stock and at the same time illegally taking the funds of another bank under his control, his general conduct in the course of his business becomes a matter of vital importance in so far as the determination of intent is concerned. Under section 27 of chapter 28 of the criminal code (3 Comp. Laws 1929, § 17320), it is provided: *• “In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved,-whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.” When defendant is charged with defrauding the bank and he claims an absence of criminal intent as a defense, it becomes important to show defendant’s other transactions at the time, for the purpose of showing his financial condition, the reasons for making his withdrawals, and other facts, all as bearing on his motive and intent. See People v. Armstrong, 256 Mich. 191; Dimmick v. United States, 70 C. C. A. 141 (135 Fed. 257); State v. Kubli, supra; People v. Rowland, 12 Cal. App. 6 (106 Pac. 428); Quertermous v. State, 95 Ark. 48 (127 S. W. 951); Ambrose v. United States, 45 App. D. C. 112; Camp v. State, 31 Ga. App. 737 (122 S. E. 249); State v. Lindstrom, 180 Minn. 435 (231 N. W. 12). Defendant contends that these three acts, embezzlement, abstraction, and misapplication, are entirely different crimes, so inconsistent in nature that they may not be joined in the same information. We can see no.merit in this claim. The fact that the legislature named them in the same section of the statute, even in the same sentence, is strong’ indication that their inclusion was designed to prevent escape from just punishment through technical evar sions based upon possible slight variations in the elements of these crimes. There was no error in drawing these counts so that one of them might be found to meet the evidence as presented. In Jewett v. United States, 41 C. C. A. 88 (100 Fed. 832, 53 L. R. A. 568), the court said: “Nevertheless, while ‘embezzlement’ and ‘misapplication’ are not convertible terms, ‘misapplication’ is the broader, and covers ‘embezzlement.’ The statute, in this particular, is one of those frequently found in criminal legislation, as well as in other legislation and in private instruments, where there is first used a word of narrow application, and after-wards a broader one, and so continued until there is a certainty that the entire purpose sought to be accomplished is accomplished. It is not necessary, under sncli circumstances, to apply the rule that every word in a statute must have its effect, to such an extent as to hold that the generic term is to be so peculiarly construed, contrary to its settled meaning, as to exclude from its scope the narrower word, which, precedes it. ’ ’ It would seem that, even assuming there is some merit to defendant’s contentions, he was not injured by the alleged error in joinder, inasmuch as a verdict of guilty was returned on all three counts and identical sentences imposed for each count, to run concurrently. Defendant, however, claims that the prosecution should have made an election as to which count it relied upon. Where one is charged with several crimes very similar in character, each carrying the same punishment and calling for much the same testimony, it does not at all become necessary for the prosecution to make an election. People v. McKinney, 10 Mich. 54; People v. Aikin, 66 Mich. 460 (11 Am. St. Rep. 512); People v. Dyer, 79 Mich. 480; People v. Warner, 201 Mich. 547; People v. Sachse, 252 Mich. 275. In People v. Grabiec, 210 Mich. 559, the court again approved of the rule which it quoted from People v. Warner, supra, as follows: “Election between counts cannot be required on the ground that distinct offenses are charged, where they are committed by the same acts, at the same time, and the same testimony must be relied on for conviction. ’ ’ The precise question as to whether the statute intended separate punishments for embezzlement, felonious abstraction, and misapplication arising out of the same transaction, is not properly before us. Under the facts in the case, there may be some question, as to whether defendant could be guilty of embezzlement and fraudulent abstraction in the same transaction. The court should have instructed the jury that the defendant could not be guilty of both embezzlement and abstraction under the evidence. The prosecutor asked Babcock on redirect examination as follows: “Q. You took your orders from Mr. Kolowich, didn’t you? “A. Yes, sir. “Q. Did you ever try refusing one of these drafts when Kolowich told you to cash it?” An objection to this question was overruled, and witness answered: “I never tried it.” The question was absolutely improper, because it assumed points in controversy not yet proved. As the case must be tried again, we call attention to the error. See People v. Lange, 90 Mich. 454; Branch v. Klatt, 173 Mich. 31; Nelson v. Hunter, 140 N. C. 598 (53 S. E. 439); White v. City of Boston, 186 Mass. 65 (71 N. E. 75). Error is further charged in admitting the testimony of the bank examiner showing loans made to defendant’s wife, his friends, and corporations in which he was interested. No irregularity is shown as to most of these loans. They were well secured at the time the money was loaned, and were made long before May and June, 1930. Some of them were repaid. The tendency of such testimony in the present case would be to impress the jury with the fact that defendant had looted the bank. Almost all of these loans and the aggregate amount of them have no bearing upon the intent or motive for the commission of the crimes charged. However, such loans as were irregularly made would tend to show defendant’s control of the bank’s affairs. On a retrial, testimony as to loans made in the regular course of business should not be admitted unless it is shown that the loans were made in order to aid defendant directly or that the transactions otherwise throw light upon defendant’s financial condition. In the closing argument, defendant’s attorney, in addressing the jury, argued that Kolowich was the victim of the general business conditions that resulted in so many bank failures. The argument was possibly provocative in character, but the prosecution went far beyond any reasonable bounds in its reply. The assistant prosecutor, in his closing argument, said: “I haven’t much more to say to you. I ask you to do what you think is right in this case, but I ask you to remember that there are more ways than one for justice to work. I ask you to remember that those poor people out there who put their money in this bank have a right, the same as he has, in this country, and counsel may say it is conditions. Of course, it is conditions, I suppose he would also tell you that the Bob Allan transaction had nothing to do with the American State Bank failure.” A short time preceding defendant’s trial, one Robert Allan had been convicted of felony in connection with the failure of the American State Bank, a very large banking institution in the city of Detroit. The trial, lasting several weeks, and the conviction itself, held the public interest. Complete accounts occupied the front pages of the newspapers, and the blame for the failure was attributed to the conduct of Allan, its president. The familiarity of the public •with the case is shown by the very language used by the prosecutor in reference to the failure and Allan’s connection with it. He must have assumed that the jury, in common with the general public, knew about the failure and Allan’s conviction. One natural inference would be that Allan’s guilt indicated that of the defendant. The remarks were made without the opportunity of the trial judge to prevent them and he instructed the jury in no uncertain manner to disregard them. The loss wrought by a bank failure is visited on' its many innocent depositors, whose indignation and resentment justly follow., When, as has been brought to our attention, there have been so many bank failures during recent years, the entire public conscience is aroused. If the failures are due to the dishonest acts of bank officers, the zeal of the prosecutor in vigorously prosecuting the offenders, in line with his duties, is to be highly commended. However, with public indignation at its height, it still remains his duty to see that the constitutional right to a fair trial is afforded the accused. This duty is neglected when, in a trial of this kind, the prosecutor in his final address to the jury, calls its attention to a different bank failure, to the very recent trial of its president, and his conviction, attended by very great publicity, despite the fact that it is not in the remotest degree related to the case being tried. It was highly prejudicial in the instant case when the intent of defendant, a very close question, became the pivotal point in the case. It is true that the trial judge expressly instructed the jury to disregard the remarks, but the damage was done. An ini?: spot may be blotted out in part, but the stain still remains. We have at times refused to reverse cases on account of improper statements of counsel made in the heat of argument, when the entire record shows that the result has not been affected thereby and that there has been no miscarriage of justice. 3 Comp. Laws 1929, § 15518. In the present case, however, the intent of defendant was the all important question for the jury to determine, and the verdict, based largely on the decision of an exceedingly close question, may well have been affected by the reference to the failure of another bank and the conviction of its president. The remarks were so highly prejudicial that we cannot say defendant had a fair trial. In Michigan, it has been held that refusal by the trial court to sustain an objection to references to another unrelated crime constitutes reversible error, if such references tend to exert a prejudicial effect upon the jury. People v. Nixon, 243 Mich. 630. Cautionary instructions by the court may be insufficient to cure the damage done. Burrows v. State, 38 Ariz. 99 (297 Pac. 1029); People v. McLaughlin, 337 Ill. 259 (169 N. E. 206); People v. Chrfrikas, 295 Ill. 222 (129 N. E. 73). It is law in Michigan and most other jurisdictions that inflammatory remarks irrevelant to the issue may be so prejudicial that they cannot be cured by the instructions of the court to disregard them. Solomon v. Stewart, 184 Mich. 506 (Ann. Cas. 1917 A, 942); Cluett v. Rosenthal, 100 Mich. 193 (43 Am. St. Rep. 446); Hillman v. Railway, 137 Mich. 184; Wells v. Moses, 87 Minn. 432 (92 N. W. 334); Dannals v. Sylvania Township, 255 Pa. 156 (99 Atl. 475); Bloodgood v. Whitney, 200 App. Div. 56 (192 N. Y. Supp. 383); Seaboard Air Line R. v. Smith, 53 Fla. 375 (43 South. 235); Ernst Zobel Co. v. Canals, 188 App. Div. 231 (176 N. Y. Supp. 537); Mittleman v. Bartikowsky, 283 Pa. 485 (129 Atl. 566); Robinson v. United States (C. C. A.), 32 Fed. (2d) 505 (66 A. L. R. 468). See, also, 78 A. L. R. 1438 for a complete annotation of this subject. The conviction is set aside, and a new trial ordered. McDonald, C. J., and Potter, Fead, and Wiest, JJ., concurred with Butzel, J.	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Potter, J. Plaintiff sued defendant William Bolles in assumpsit. A writ of garnishment issued to Fidelity & Guaranty Fire Corporation. It disclosed liability for loss under an insurance policy. Dorothy Bolles, wife of defendant William Bolles, intervened and claimed the fund in controversy. The trial court sustained her claim. Plaintiff appeals. Defendant William Bolles owned land in Monroe county. He desired to plat and sell it. To carry out his plan, the property was deeded to the Commerce Guardian Trust & Savings Bank of Toledo, Ohio, in trust. Subsequently a new trustee was appointed. Dorothy Bolles, wife of William Bolles, the principal defendant, bought a lot from the trust company and built a house thereon. She sold this house and lot on land contract to George D. and Jeanette T. Wuerfel. The Wuerfels defaulted in payments to be made on the contract. Notice of forfeiture of land contract was given. Before Dorothy Bolles recovered possession of the premises, the house burned. The land contract purchasers had insured the house and contents in Fidelity & Guaranty Fire Corporation, loss, if any, payable to Dorothy B. Bolles, George D. Wuerfel, and Jeanette Wuerfel, as their interest might appear. Defendant William Bolles joined with the insured iii making proof of loss under the policy. He verbally claimed the lot was deeded by him to the trust company by mistake. His signature was included on the proof of loss by the adjuster for the insurance company to shut him off from making any claim under the policy. After the adjustment, plaintiff sued William Bolles and garnisheed the insurance company. The trial court held the proceeds of the insurance policy belonged to Dorothy B. Bolles.and George D. Wuerfel and Jeanette Wuerfel his wife, that William Bolles had no insurable interest in the property, and plaintiff was not entitled to recover in the garnishment proceedings. We think the trial court was correct. Judgment affirmed, with costs. McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Btitzel, JJ., concurred.	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Cynar, J. Defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2), after a jury trial in Wexford County Circuit Court in March, 1984. He was sentenced to from 30 to 50 years for armed robbery and two years for felony-firearm. Defendant appeals from his convictions and sentences to this Court as of right. Debra Richardson was working as a sales clerk in a Payless Shoe Store in Cadillac, Michigan, on February 1, 1982. She testified that defendant entered the store late that afternoon, ostensibly to purchase shoes. Defendant locked his arm around her neck and placed what Richardson took to be a weapon behind her left shoulder. He forced her into the back room and demanded she show him the safe. Defendant made her sit in the back room and used tape to fasten her wrists behind her back. When two customers entered the store, he released her and instructed her to wait on the customers. Richardson assisted the women and they left. Defendant then made Richardson put the money from the register and safe into a paper bag along with a pair of shoes. Defendant left Richardson in the store’s bathroom after securing her hands and ankles with tape. Defendant’s girlfriend, Pam Stefan, was waiting outside of the store in an automobile. Stefan testified that he came back to the automobile with a gun stuck in his pants, a new pair of shoes, and a shoe box filled with money. Stefan said defendant told her to drive away carefully. Defendant later related other details of the robbery to Stefan. On March 11, 1982, Detective Eugene Ambs of the Michigan State Police received information that defendant may have been involved in the robbery and was now in Missouri. The information came from defendant’s probation officer, Robert La Pisto. A photographic lineup was held for Richardson’s benefit on March 12, 1982. Richardson identified defendant. Ambs was soon informed that defendant was under arrest in Bridgeton, Missouri, for armed robbery. Ambs obtained an arrest warrant and informed the Bridgeton Police Department of that fact. The warrant was entered into the Law Enforcement Information Network (LEIN) and Ambs requested that the Bridgeton Police Department place a "hold” on defendant. They informed Ambs that a hold had already been placed on defendant by the Michigan Department of Corrections for violation of parole. Defendant was convicted of larceny from a person in Missouri. He was sentenced to one year in the county jail. On December 15, 1982, he was transferred from the Missouri jail to the Muskegon Correctional Facility to serve time for violation of his parole. On June 2, 1983, defendant was brought to the Wexford County jail. The preliminary examination began June 14, 1983. It was continued on July 7, 1983, after an adjournment requested by the defendant so that a corporeal lineup could be held. Defendant was bound over for trial. After numerous pretrial motions by defendant, the trial was scheduled for January 24, 1984, but was postponed until March 13, 1984, at defendant’s request. Defendant was found guilty on March 14, 1984. He made a motion for a new trial which was denied in an opinion issued by the trial court on May 23, 1984. Defendant was subsequently sentenced on June 18, 1984. Defendant’s first claim is that the charges should not have been brought against him because the Interstate Agreement on Detainers (IAD), MCL 780.601; MSA 4.147(1), was violated. In order for the IAD to apply a detainer must be lodged against a defendant. People v McLemore, 95 Mich App 536; 291 NW2d 109 (1980). Article III of the IAD provides that: "(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ jurisdiction written notice of the place of his imprisonment and his request for a final dispostion to be made of the indictment, information or complaint * * * "(c) The warden, commissioner or corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.” (Emphasis added.) There is no exact definition of the term detainer. It has been held that an index card marked with the notation "detainer” and sent to the prison authorities of another jurisdiction is a detainer for the purposes of the act. People v Paulus, 115 Mich App 183; 320 NW2d 337 (1982). A letter from the court clerk to prison authorities may be considered a detainer for purposes of the IAD. People v Beamon, 83 Mich App 121; 268 NW2d 310 (1978), lv den 403 Mich 850 (1978); People v Browning (On Rehearing), 108 Mich App 281; 310 NW2d 365 (1981). A letter accompanied by an administrative warrant has also been considered a detainer. People v Office, 126 Mich App 597, 602; 337 NW2d 592 (1983), lv den 418 Mich 883 (1983). However, a writ of habeas corpus ad prosequendum, filed with state authorities directing the production of a prisoner for trial on federal criminal charges, is not a detainer for the purposes of the IAD. United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978). The generally recognized definition of a detainer is a notification filed with the institution in which an individual is serving a sentence, advising that the prisoner is wanted to face pending charges in the notifying state. People v Bentley, 121 Mich App 36, 41; 328 NW2d 389 (1982), lv den 417 Mich 877 (1983). Senate Report 91-1356, 91st Cong, 2d Sess, 3 US Code Cong & Admin News, p 4865 (1970). Applying the Bentley, supra, definition it is clear that no detainer was filed. The notification was not made in writing, therefore the definitions of a detainer in Beamon, supra, Browning, supra, and Office, supra, do not apply. Furthermore, while a "hold” was placed on the LEIN there is no indication that this was acknowledged by the sender in Michigan or the recipient in Missouri as a detainer. These less formal communications are insufficient to activate the IAD. This case is unlike Beamon, Bentley and Office where the authorities clearly invoked the act, albeit informally. In this case the authorities in Michigan had not invoked the act. Furthermore, when defendant was finally returned to Michigan it was not under the aus pices of the IAD, but for violation of parole for leaving the state. The IAD is not applicalbe to parole violation detainers. Buchanan v Dep’t of Corrections, 50 Mich App 1; 212 NW2d 745 (1973). We hold that a telephone call and entry of a notation in the LEIN system is not a detainer within the scope of the IAD. Because the authorities did not file a detainer, the IAD does not apply to defendant. People v Barnes, 93 Mich App 509; 287 NW2d 282 (1979); Beamon, supra. Defendant’s next claim is that the trial court lost jurisdiction over him because he was not brought to trial within 180 days of his incarceration in Michigan as required by MCL 780.131; MSA 28.969(1). The 180-day rule only applies to inmates in state penal institutions in Michigan. The statute imposes three basic conditions for the 180-day rule to affect an untried charge: (1) the charge must be against a prison inmate; (2) the offense must be one for which a prison sentence might be imposed upon conviction; and (3) notice must be received of the outstanding charges and a request to act on the charges must be delivered to the appropriate prosecuting attorney. People v Woodruff, 414 Mich 130, 136; 323 NW2d 923 (1982). It is clear from the record that the first two conditions apply to this situation. Defendant was a prison inmate and the charges carried potential prison terms. However, the record before us does not show if the Department of Corrections was aware of the outstanding warrants or when the prosecutor was informed that defendant was within the custody of the Department of Corrections. It is thus impossible for us to determine when the 180-day period began to run. It could have started on December 15, 1982, upon defendant’s return to Michigan, if the Department of Corrections had received notice of the outstanding warrants. It could also have started at a later date depending on when the prosecutor had notice that defendant was in the custody of the Department of Corrections. We cannot decide the issue on the record before us. We are therefore remanding the case to the trial court for a hearing to determine when the Department of Corrections had notice of outstanding charges and when the prosecutor had notice that defendant was in the custody of the Department of Corrections. The trial court must then determine if the prosecutor made a good faith effort to bring the case promptly to trial. People v Woodruff, 106 Mich App 155; 306 NW2d 432 (1981), aff'd 414 Mich 130; 323 NW2d 923 (1982). Defendant’s next claim is that he was denied constitutional and statutory rights to a speedy trial. There was a delay of 15 months between the time that officials in Wexford County became aware of defendant’s arrest in Missouri on March 12, 1982, and his arraignment in Wexford County on June 3, 1983; his preliminary examination was begun on June 14, 1983, and continued on July 7, 1983, after defense counsel requested an adjournment. Defendant filed a number of pretrial motions on various dates after the preliminary examination which further delayed the trial. The trial was finally held on March 13 and 14, 1984. The question presented is whether the prosecution was obligated to attempt to extradite defendant from Missouri, and, if so obligated, at what point was the prosecution required to begin extradition proceedings consistent with defendant’s right to a speedy trial. The period between arrest on March 12, 1982, and sentencing in Missouri in July, 1982, cannot be charged to the prosecution. This delay was not an attempt to hamper his defense in Michigan. Disposition of the criminal charges in another state should not be considered to be the responsibility of the Wexford County prosecutor. Hoag v New Jersey, 356 US 464, 472 fn 6; 78 S Ct 829; 2 L Ed 2d 913 (1958); People v Bradley, 54 Mich App 89, 96-97; 220 NW2d 305 (1974)._ The record indicates that the prosecution knew or should have known that the defendant had been sentenced in Missouri by September, 1982. Nonetheless no attempt was made to secure his presence in Michigan. As noted above, no detainer was filed and there was no attempt to extradite him. In Smith v Hooey, 393 US 374; 89 S Ct 575; 21 L Ed 2d 607 (1969), the United States Supreme Court ruled that a state has an obligation to make a good faith effort to bring a defendant to trial once the defendant demands a speedy trial. No demand was made by the defendant. While it cannot be presumed that defendant waived his right to a speedy trial by not making a demand, his failure to make such a demand may be considered. Defendant testified that he made such a demand verbally in Missouri after he was sentenced in July, 1982, although no written demand was made. This factor cannot be weighed heavily against him but it also does not weigh heavily against the prosecution in this case. Another factor to be considered is the length of the delay. Defendant became a Michigan prison inmate on December 15, 1982, in Muskegon for parole violation. Wexford County officials learned that defendant was brought back to Michigan on January 31, 1983. Defendant was returned to Wexford County on June 2, 1983, and arraigned on June 3, 1983. Examination took place on June 14, 1983, and July 7, 1983. His trial ended on March 14, 1984. This was a delay of 21 months. On its face the amount of time would appear to be presumptively prejudicial to defendant. However, an examination of the reasons for the delay reveals otherwise. We have already noted that the case proceeded steadily toward trial after arraignment; most of the delay was attributable to the defendant. The delays after he was returned to Wexford County on June 2, 1983, which were attributable to the prosecution were consistent with its good faith obligation to bring defendant to trial. The prosecution’s failure to attempt to extradite defendant can be attributed in part to the charges being prosecuted against the defendant in Missouri. The record also indicates that the prosecution expected defendant to be returned to the custody of the Department of Corrections. Extradition would have been more expedient, but this case does not show the egregious type of conduct on the part of the prosecution that was the case in Moore v Arizona, 414 US 25; 94 S Ct 188; 38 L Ed 2d 183 (1973). The delay which is not attributable to the defendant was not in bad faith, unreasonable or part of a considered attempt to deny him a speedy trial. While this delay must be attributed to the prosecution, it does not weigh heavily as a factor in evaluating the speedy trial claim. The final factor to be considered is the prejudice to the defendant. Defendant has not enumerated any specific difficulties he faced in marshalling his defense because of the delay. No witnesses to the crime were unavailable as a result of the delay; there is no indication that evidence was lost. Defendant would have been incarcerated in Missouri and Michigan even if he had never faced the charges because of his conviction in Missouri and parole violation in Michigan. Furthermore, as noted in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), and Moore v Arizona, supra, the factors listed therein must be considered with any other circumstances which may be relevant. We note that defendant faced charges in Missouri which had to be disposed of by the Missouri courts and that defendant was subject to the jurisdiction of the Department of Corrections for violation of parole. These are relevant circumstances which ameliorate the delay in this case. We conclude that defendant, in this factual context, was not denied his right to a speedy trial. Defendant’s next claim is that he was denied his constitutional right to the presence of counsel at the photographic lineup held for the benefit of Debra Richardson on March 12, 1982, at about 9:15 a.m. Defendant had been taken into custody by Missouri authorities at about 12 midnight. The record indicates that the Wexford County authorities did not know that defendant was in custody in Missouri when the lineup was conducted; he was certainly not in the custody of the Michigan authorities. He was also not readily available. The record before us also indicates that, while he was a suspect, he was not yet the clear focal point of the investigation which would require the presence of counsel. Defendant was not entitled to the presence of counsel at the time that the photographic lineup was conducted. People v Harrison, 138 Mich App 74; 359 NW2d 256 (1984). Defendant’s next claim is that error occurred when the prosecution failed to indorse the two customers who entered the store and departed during the course of the robbery. The issue is properly before this Court because it was raised as part of defendant’s motion for a new trial. People v LeFlore, 96 Mich App 557; 293 NW2d 628 (1980), lv den 409 Mich 927 (1980). The defendant sought a hearing under People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). The trial court denied the request. It is clear that the women were res gestae witnesses because they observed part of the contin uum of the criminal transaction. People v Rivera, 114 Mich App 419; 319 NW2d 355 (1982). There has been no showing of due diligence on the part of the prosecution in producing the evidence. The evidence cannot, on the record before us, be considered cumulative; the women’s descriptions of the robber conflicted with other testimony. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). The women were not participants in the crime. The defendant did object to the prosecutor’s failure to indorse. The prosecution should have indorsed the witnesses. The defendant’s failure to move to indorse the witnesses does not excuse the prosecution’s failure. People v Reynolds, 93 Mich App 516, 522, fn 1; 286 NW2d 898 (1979). This case must be remanded for a Robinson hearing to determine if the prosecution was diligent, if the women’s testimony would have been cumulative, and if defendant was prejudiced by the prosecution’s failure to indorse and produce the two women at trial. Defendant’s next claim is that error was injected into the trial by the prosecutor’s closing argument. The claim was not preserved by a timely objection and no manifest injustice has been shown; therefore, it has not been preserved for appellate review. People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977). Defendant’s final claim is that his sentence was based on inaccuracies in the presentence report, not supported by sufficient reasons, excessive in length and that he was not given sufficient credit for time served. Our review discloses that the sentence is not excessive. People v Coles, 417 Mich 523, 542-543; 339 NW2d 440 (1983). The court imposed the sentence it did because of defendant’s prior record, the fact that he was unlikely to reform himself, the abuse of his other opportunities for reform and because he presented a danger to society. These were valid reasons for the sentence. Coles, supra. Defendant’s claim that the trial court sentenced him based on inaccurate information is also without merit. Defendant claims the trial court took into account unprosecuted crimes. However, the trial court specifically stated that it would not consider that information in sentencing. Defendant also states that the trial court referred to the fact that he threatened to shoot the clerk and possessed a gun during the robbery. There was no need to address the "inaccuracies” because the proofs at trial supported these statements in the report. Defendant’s claim that the trial court believed he was convicted by a guilty plea is without merit; the trial judge presided over his jury trial and it was unnecessary to respond to this point on the record. Defendant’s claim that he should have been given credit for the time he served in the Missouri jail is also without merit. The time he spent in jail in Missouri was unrelated to this charge and he cannot receive credit. People v Manifee, 112 Mich App 705, 710; 317 NW2d 232 (1982). He is also not entitled to credit for the time spent in the Michigan facility for his parole violation. People v Patterson, 392 Mich 83, 88-89; 219 NW2d 31 (1974). The case is remanded for an evidentiary hearing on the 180-day rule claim and the res gestae witness claim. The convictions are otherwise affirmed. We do not retain jurisdiction. US Const, Am VI; Const 1963, art 1, §20; MCL 768.1; MSA 28.1024. The following motions and attendant proceedings occurred after the conclusion of the preliminary examination on July 7, 1983: July 18, 1983; defense motion for psychiatric examination. July 25, 1983; order authorizing psychiatric examination. August 1,1983; psychiatric examination. September 21,1983; defense motion to hire a private investigator. September 21, 1983; order granting motion to hire a private investigator. September 28, 1983; defense motions for: speedy trial, return of personal property, dismissal of the felony-firearm charge, suppression of identification testimony, discovery, additional psychiatric examination, and use of a law library by defendant. October 11,1983; amendment to September 28,1983, motion. October 19, 1983; motion hearing rescheduled from October 24, 1983, to October 31,1983, by order of the court. October 31,1983; hearing and disposition of some defense motions. November 21, 1983; prosecution memorandum in apparent response to supplemental brief mailed to court on November 11, 1983, and entered in file January 5, 1984. January 3,1984; opinion disposing of various defense motions. January 5, 1984; supplemental brief dated November 11, 1983, filed with brief dated October 31,1983. January 9, 1984; defense motion to reschedule trial and change venue. February 2,1984; motion for rehearing brought by defense counsel. February 10,1984; notice of hearing. February 10, 1984; prosecution motion to add witnesses; notice of hearing February 13,1984. February 15, 1984; supplemental brief filed by defense counsel regarding speedy trial issues. February 15,1984; opinion on reconsideration filed. March 5, 1984; amended information motion to add witnesses and notice of hearing filed by the prosecution. March 13 and 14, 1984; order granting immunity to Pamela Stefan, jury trial. It is clear from this list of activities that the case steadily was proceeding toward trial after the preliminary examination was concluded. The prosecution need only make prompt good faith efforts to bring the case to trial. People v Freeman, 122 Mich App 260; 332 NW2d 460 (1982), lv den 417 Mich 1052 (1983). It is clear the prosecutor was doing so. Furthermore the numerous delays attributable to defense motions are not chargeable to the prosecution. People v Pelkey, 129 Mich App 325; 342 NW2d 312 (1983).	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Per Curiam. Following a bench trial conducted on June 29-30, 1983, defendant was convicted of fleeing and eluding a police officer, MCL 750.479a; MSA 28.747(1). On July 11, 1983, defendant was sentenced to imprisonment for one year, to be served consecutively to a sentence he was already serving at the time of trial. He appeals as of right, claiming that the trial court committed error by granting the prosecution’s request to amend the information to add the present charge. We agree and reverse defendant’s conviction. The prosecution’s case against defendant turned on whether defendant assaulted a police officer with a dangerous weapon, namely a pistol, on the evening of January 20, 1983. The evidence introduced by the prosecutor was that two police officers were pursuing an automobile when, after this automobile stopped, the passenger thereof exited from the vehicle and fired a pistol at one of the officers. Defendant was the only person apprehended following the incident. The other individual made his escape into the night. At trial, defense counsel indicated during her opening statement that her client did not do the shooting but, rather, he was the driver of the pursued automobile. Thereafter, during trial, defendant took the witness stand in his own defense and testified that indeed he was the driver, rather than the passenger, of the automobile and, therefore, he could not have been the person who committed the felonious assault. At the close of all the proofs, the prosecutor sought to amend the information to add a count of fleeing and eluding a police officer, which is not a cognate or lesser included offense to the original charge. The trial court granted the prosecutor’s request, found defendant not guilty of felonious assault, and convicted defendant of committing the offense of fleeing and eluding a police officer. Although this Court has held that an information can be amended when a criminal defendant reveals a crime during trial, see e.g., People v Johnson, 110 Mich App 735, 738; 313 NW2d 93 (1981), we are unwilling to permit such amendments unless the defendant’s revelation at trial results in actual surprise to the prosecution. See and compare People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). In this case, the record reflects no surprise to the prosecution. The prosecutor knew before charging defendant with felonious assault that defendant may have been the driver of the automobile. Likewise, during defense counsel’s opening statement, it was indicated that defendant was not guilty of the assault offense because defendant was the driver of the automobile, not the passenger. Not until after defendant took the witness stand in his own defense to testify that he was indeed the driver, rather than the passenger, did the prosecution seek this amendment to the information. We review the prosecutor’s tactic not as being in response to defendant’s "surprise revelation” but, rather, as the prosecutor’s possible assessment of a weak case. Accordingly, we conclude that the amendment was improperly allowed. Defendant’s second claim of error is without merit. Reversed. We do not retain jurisdiction.	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O’Hara, J. This is an appeal on leave granted to defendants American Tank Company and its workmen’s compensation insurer, Pacific Employers Insurance Company. One basic question presented is whether an insurance company, although admitted to do business in this state as well as in many other states, can limit its liability to the benefit schedule of a state to which a particular contract of insurance is made applicable. The policy involved in this case reads as follows: "Item 3. Coverage A of this policy applies to the workmen’s compensation law and any occupational disease law of each of the following states: Missouri.” In addition to the above-stated question, several others have arisen by reason of the nature of the holding of the referee in the original hearing. They include the effect of the appeal by plaintiff to the Workmen’s Compensation Appeal Board; the silence of the opinion of the board as to that issue; the effect of the order of the board as opposed to its opinion; the claimed estoppel of appellant Pacific Employers to deny its liability and the differing legal status if any as between appellant insurer Pacific and its insured American Tank Company. It may be an understatement to observe at the outset that the legal and procedural issues do not want for complexity. The facts are not in dispute. The right of the injured employee to the benefits due him under the Michigan schedule of benefits vis-a-vis the Missouri schedule is not contested. The question is who is obligated to pay them. We do not suggest by the foregoing statement that liability is limited to just one of the parties litigant. Robert Woody was grievously injured and suffered tragic residuals in an industrial accident that arose out of and in the course of his employment. He is totally and permanently disabled. If there were a category of injury greater than total and permanent disability he would qualify for it. He was knocked from the ladder upon which he was working when a section of an old water tower owned by the City of Fremont was being disassembled by his employer American Tank. The employer had been engaged by the city to do the work. The City of Fremont is a Michigan municipal corporation. It carries workmen’s compensation insurance afforded by Citizens Mutual Insurance Company. Thus plaintiff is a resident of Missouri employed by a Missouri company which was performing services for a Michigan municipal corporation in this state. To the extent that it may be relevant, American Tank was covered by Pacific Employers under the Assigned Risk Plan of the State of Missouri. It is the position of the Pacific Employers that its liability is limited to the benefits payable under the Missouri Compensation Act by reason of the clear unequivocal language of its contract with American Tank. Pacific further contends that if by its opinion and order the Michigan appeal board in legal effect held Pacific was estopped to assert its policy defense the board was without legal competence to do so, and that even if the board possessed such power it would not by the exercise thereof extend the doctrine of estoppel to providing coverage that did not originally exist. American Tank argues that under our statute which accords to the injured workman the right to recover his scheduled benefits directly from his employer irrespective of any insurance, and also the right to enforce in his own name the liability of any insurance company, the finding of the appeal board that Pacific was "on the risk” was a finding of fact, and completely impervious to judicial review in this state. The authority for this limit upon judicial review is so well established we eschew needless supporting citations. That limitation, however, does not answer the question of whether the action of the board in finding Pacific on the risk was indeed a finding of fact or a conclusion of law. If the latter, obviously the legal conclusion is subject to judicial review. The City of Fremont and its insurer Citizens are not engaged in any internecine warfare. They were represented before us by one counsel, and their position is set forth in a joint brief. First they challenge the right of plaintiff Woody to question the finding by the referee that the City of Fremont and its insurer are not "the employer or principal within the meaning of the Michigan Workmen’s Compensation statute” because plaintiff did not cross appeal from the opinion and order of the appeal board. Plaintiff did appeal the referee’s finding to the board, but did not pursue its appeal to this Court. The opinion of the board makes no mention of this appealed issue. The order simply states that "the decision of the hearing referee * * * is affirmed”. Plaintiff contends that though the board did not use the term "estoppel” in its opinion the effect of its opinion and order affirming the referee did operate to estop Pacific from denying coverage of American Tank as to all benefits due plaintiff under the Michigan act. He further argues that the issue of estoppel is cognizable by the bureau, i.e., the referee, even though the board did not point-blank answer the question. He vigorously supports the right of the board to read out of Pacific’s policy the limitation to the Missouri benefit schedule. Finally, plaintiff contends that if the immediate employer American Tank is found not to be covered by Pacific Employers then the City of Fremont and its carrier Citizens are liable by reason of the following provision of our act: Section 418.171 of the Workmen’s Compensation Act (MSA 17.237[171], former Part I, § 10, MCLA 411.10; MSA 17.150) provides as follows: "Sec. 171. (1) If any employer subject to the provisions of this act, in this section referred to as the principal, contracts with any other person, in this section referred to as the contractor, who is not subject to this act or who has not complied with the provisions of section 611, and who does not become subject to this act or comply with the provisions of section 611 prior to the date of the injury or death for which claim is made for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and if compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. A contractor shall be deemed to include subcontractors in all cases where the principal gives permission that the work or any part thereof be performed under subcontract.” With the battle lines thus drawn and various positions of the parties delineated, we will undertake to perform our limited role of judicial review. Before writing to each issue we consider properly before us, we commend all counsel upon the excellence of their briefs and their forceful oral presentation. When wé do not, as we will not, attempt to discuss each cited case and distinguish or reconcile apparent conflicts we refrain only because we fear we might well add to what must be conceded is a murky area of law. We will follow specific precedent where we believe our Supreme Court has spoken unequivocally. We will, as obligated, reach our own conclusions of law where such precedent does not control or where precedent is in our view in conflict. In so doing we will restate and collate the statement of questions involved from the composite of parties’ phraseology. They will not necessarily follow the order in which we set them forth earlier herein. First, we uphold as a matter of law the status of plaintiff to challenge the finding of the hearing referee that the City of Fremont and its carrier Citizens are not an employer or principal within the meaning of our statute. We do this on no particular case precedent but for the very pragmatic reason that remanding to the appeal board would serve no useful purpose. We will assume that the appeal of plaintiff from the finding of the hearing referee, and the failure of the appeal board to mention the issue in its opinion and the blanket affirmance of the referee in the order leaves the legal conclusion of the referee before us for review. It is manifest the facts relating to this legal issue could not be varied by resubmission. Thus, the procedural question of status we resolve in favor of plaintiff. Now as to whether American Tank, apart and distinguished from Pacific Employers, is liable directly to plaintiff. Of course, it is. American came into Michigan and performed services under a contract here. One of its employees was injured. The employee was entitled to all of the benefits of the Michigan act and the Michigan schedule of benefits for the simple and irreducible reason that our act makes it liable directly to him ("the person entitled to such compensation * * * shall, irrespective of any insurance or other contract, have the right to recover the same directly from the employer”). MCLA 414.2; MSA 17.196. As we noted with particularity earlier herein, the fact that American is directly liable to plaintiff does not carry with it the inevitable conclusion that no one else is. We mention it again here because it is relevant to our ultimate holding. We turn now to Pacific Employers, the carrier for American Tank. Its varying positions in the litigation like quicksilver are difficult to catch and hold long enough to analyze. On March 7, 1968, it directed a letter to Michigan’s Compensation Department, over the signature of the supervisor of its policyholders service, stating unequivocally: "This is to advise that this company, through the Missouri Assigned Risk Pool, does provide a standard Workmen’s Compensation policy for American Tank Company. However, this coverage is applicable to Missouri only. There is no coverage for any other jurisdiction. * * * We have notified the employer, American Tank Company, that, since our policy does not afford the employer coverage under Michigan law, no appearance will be made on his behalf if and when this Michigan claim comes up for hearing. ” (Emphasis supplied.) On April 5, 1968, by letter to Pacific, plaintiffs counsel (apparently made aware of this position indirectly; the record is unclear on the point) suggested that "it would seem that the retention of counsel to protect your interests might be a very wise step”. Despite this thoughtful and altruistic action on plaintiffs counsel’s part, neither Pacific nor its parent company, Insurance Company of North America, entered an appearance. This fact was also noted by the referee, after inquiring as to whether notice of the proceedings at Grand Rapids had been sent to North America. Thereupon, plaintiff’s counsel (with an assist by counsel for the City of Fremont) stated on the record that "it [the notice and failure to appear presumably] raises estoppel”. But plaintiffs counsel was careful to add "there is insurance here [by Pacific] despite estoppel”. Much time on oral argument and by brief was devoted to whether Pacific was estopped to deny coverage. It deserves more than passing notice that neither the referee nor the appeal board ever used the word "estoppel” in their respective findings, opinion or orders. We think it would be injudicious of us to write decisionally to a point that really is not before us by reason of any specific holding by the referee or the board that Pacific was estopped to deny coverage. Thus, it becomes unnecessary to dissect, quote and interpret a veritable avalanche of correspondence between Pacific and American Tank on the subject. However, to insulate the proceedings already long drawn out from an unnecessary remand to us should the Supreme Court review this matter and require us to pass upon the matter, we hold in that event our position would be that the appeal board is a statutory body exercising specific legislatively delegated powers. It is without inherent judicial power. Specifically, we hold the board lacks the jurisdiction of a court of equity to pass upon this issue as between Pacific and American Tank. We rest this position upon Michigan Mutual Liability Co v Baker, 295 Mich 237; 294 NW 168 (1940). It is all said in one brief quotation in Baker from Jones v St Joseph Iron Works, 212 Mich 174, 178; 180 NW 374, 375 (1920): "While the industrial accident board [the present Workmen’s Compensation Appeal Board] performs quasi-judicial duties, it is not possessed of judicial power.” Baker, supra, p 242; 294 NW p 170. If American Tank and Pacific need to enter the ring in that controversy, equity, we are sure, will dispose of the matter. Be that then as it may, the referee held Pacific "in” and the appeal board afiirmed. In so doing, while they talked the language of estoppel, they rested their finding on the following language: "The Workmen’s Compensation Act of Michigan provides in Compiled Laws of Michigan 418.621: " 'Sec. 621. (1) Every contract for the insurance of the compensation provided in this act for or against liability therefore, shall be deemed to be made subject to the provisions of this act and provisions inconsistent with this act are void.’ "[T]hus the limitation to benefits of Missouri is null and void and for the above reasons, the order of the referee is affirmed.” (Emphasis supplied.) To understand this holding all of the Bar not party to the proceedings themselves should understand that Pacific, after its initial denial of coverage, did get into the act. It modified its position, and paid plaintiff all benefits due him up to the time of oral argument before us, under the Missouri compensation act, which is much less beneficial to plaintiff than those provided by the Michigan schedule. We are urged by plaintiff that recent Federoff v Ewing and its appellate consolidated companion case Shannon v Star Wrecking Co, Inc, 386 Mich 474; 192 NW2d 242 (1971) controls and is totally dispositive. Federoff vo. this particular has not been judicially construed, and stands as the law for its own facts. To us then, its interpretation is of first impression. The interpretation of Federoff contended for by plaintiff seems to imply that an insurance carrier admitted to do business in Michigan as well as in many other states cannot write a policy restricted to coverage in one or several other states as a matter of private contract which is sustainable as between the carrier and the insured. Plaintiff suggests that the unilateral act of the insured of engaging in work in Michigan, and the injury of a workman in this state, vitiates the restrictive condition in the policy. We do not so read Federoff. Great is the power of the sovereignty. The broadest possible construction must be given by courts to effectuate the salutary objective of our act. We do not believe, however, that this power extends to reading the Michigan Workmen’s Compensation Act provisions into the limited insurance contracts made in the 49 other states. A similar holding by the other sovereign states would be to make 50 different contracts for every workmen’s compensation policy issued. We do not believe that is what Federoff, fairly read, holds. In the first place, Federoff was concerned with enforcement of benefits under a policy admittedly effective in Michigan. What the Supreme Court said, wisely and salutarily, is that an employee injured in Michigan, under a policy issued by an insurer which went into receivership, was not bound by the terms of a reinsurance contract between the defunct insurer and its reinsurer. In effect, said the Court, the injured employee is not to be required to go through , the interminability of filing a claim in the receivership, and exhausting his remedy against the primary insurer. The Court said further, that since the reinsurer was admittedly on the risk, over and above payments by the defunct primary insurer, the exculpatory language in the reinsurance contract was void. What the Court struck down and rewrote in Federoff is the following proviso: "The actual payment in cash by the company [the defunct insurer] of any loss shall be a condition precedent to any recovery under this agreement, and subject to such condition.” The Court held the reinsurer directly liable. In short, Federoff-Shannon is inapposite. Does this then mean that plaintiff Woody must be content with payments of the Missouri schedule which Pacific chose to make, meager as they are by Michigan standards? Emphatically we answer "no”. Neither must he, as his counsel suggested wryly, take over the business of and operate a tank disassembling company. The City of Fremont at its peril and to its own detriment and that of its compensation insurer engaged a company to perform services in Michigan that had inadequate, if any, Michigan insurance coverage. We reject the argument of Fremont and Citizens, that because the referee held that Fremont and its insurer are not the employer or principal within the meaning of the Michigan act, that is a finding of fact insulated completely from judicial review. We think it is clearly a question of statutory interpretation and thus just as clearly a question of law. It has been and remains the law of Michigan that the "contracting under” doctrine will protect the employee of an independent contractor and enforce his rights against the principal when injured while engaged in any task which can be seen to be a part of or necessary to the overall enterprise of the principal. The City of Fremont chose to tear down a water tower which admittedly it owned, so it could more advantageously sell the realty on which it stood. It let the job out on bids. American Tank was selected from the bidders. It was the burden of Fremont, as it was and remains the burden of every principal hiring independent contractors, to see that the selected contractor has clear, unquestioned, approved, and adequate workmen’s compensation coverage. We caution that a mere "certificate of insurance” of the existence of a policy, inadequate or inapplicable, does not suffice. See the litany of cases beginning with Burt v Munising Woodenware Co, 222 Mich 699; 193 NW 895 (1923), through and including cases on into 1959 (except Roman v Delta Broadcasting Co, decided in 1952, which we do not attempt to explain, distinguish or reconcile except to say that the weight of Supreme Court precedent is all contra). But says Citizens, what of the following statutory proviso: "A person employed by a contractor who has contracted with a county, city, township, village, school district or the state, through its representatives, shall not be considered an employee of the state, county, city, township, village or school district which made the contract, when such contractor is subject to this act.” MCLA 411.7; MSA 17.147. See current provision in MCLA 418.161; MSA 17.237(161). We think the city misreads the theory of plaintiffs case if it depends on the foregoing proviso. Plaintiff never contended he was an employee of Fremont. Clearly he asserted throughout that he was an employee of American Tank. However, we observe that if the proviso were to be read to exclude the enumerated units of government a most serious constitutional equal protection question would be raised. So now we have American Tank liable to plaintiff because American was his immediate employer who came into Michigan, subjected itself to our act and its schedule of benefits. We have Pacific Employers raising a valid policy coverage defense sustained by us to the degree that Pacific invoked it, namely a limitation to the Missouri benefit schedule. We also have Pacific estopped or not estopped to assert that defense as the case may be in a court of competent jurisdiction and thereby possibly liable to any one with status to assert the estoppel. We have the City of Fremont and its insurer, whose positions before us are identical, liable to plaintiff because it engaged an independent contractor whose insurance coverage was inadequate to meet the Michigan compensation benefit schedule. The question of first impression seems to be: where does this leave plaintiff as to enforcing his right to the full Michigan schedule of benefits? Certainly he should not have to proceed, in some manner, against American directly. As his counsel with righteous indignation observed in oral argument, "Mrs. Woody and her dependent children are not interested in, even if competent, to operate a tank company”. Certainly plaintiff should not have to wait until American or some other party with status can enforce the asserted estoppel of Pacific to deny full coverage of American. Thus, the query becomes, even though American Tank is the immediate employer, with the City of Fremont and Citizens liable directly to plaintiff only if the coverage by Pacific Employers is nonexistent or inadequate, can plaintiff proceed under our Workmen’s Compensation Act and enforce liability against Fremont and Citizens directly? We think that he can and moreover that he did. The caption of the stenographic record of proceedings before the referee is entitled, "Robert Woody, plaintiff vs. American Tank Company and [the] City of Fremont”. We think with or without Federoff, supra, but certainly strengthened by the ratio decidendi of that case, Fremont and Citizens are concurrently and not consecutively directly liable to plaintiff under our act. We see no reason in law or logic why this should not be so. The city owned the property and the tower on which it was located. It wanted to sell the realty and apparently according to the testimony would be better able to with the obsolete tower removed. Had it chosen to remove the tower itself the removal would have been an insured risk, (except perhaps under inexplicable Roman, supra, fn 3). We think we do no injustice to Citizens. It insured the city and collected its computed premium therefor. Thus we conclude that since we have held Fremont and Citizens concurrently liable, we adopt the rule that under the facts of this case and in cases of identical factual situations, it becomes the option of the. injured employee or his proper representative to proceed against the direct employer or the principal who engaged the independent contractor and its compensation insurer. We reverse the legal conclusion of the referee that the City of Fremont and its carrier Citizens are not liable directly to plaintiif under our act. To the extent that the order of the appeal board sub silentio or expressly affirmed this legal conclusion we likewise reverse the appeal board. We remand the cause to the board with instructions to enter its order finding the City of Fremont and its insurer co-equally directly liable to plaintiff with American Tank for the full benefits due plaintiff under the Michigan Workmen’s Compensation Act from the date of injury until further order of the board. We reverse the appeal board in its legal conclusion that Pacific Employers is liable directly to plaintiff for benefits beyond those provided under the Missouri act. We express no opinion as to the liability of Pacific Employers under the asserted estoppel theory and leave that issue to judicial determination in a court of competent jurisdiction at the instance of any party legally competent to assert that estoppel. Against whomever plaintiff chooses to enforce his right to all Michigan scheduled benefits, that party shall be credited with the payments thus far made to plaintiff by Pacific Employers. All defendants entered upon the appeal. They appeared and argued before us. We deem them all defendants of record. Not one of them prevailed in full as to his or its asserted position. Plaintiff prevailed in full and may tax costs equally against • all defendants. The cause is remanded to the appeal board for entry of an order embodying the legal conclusions and results reached herein. All concurred. MCLA 414.2; MSA 17.196, has since been repealed. The current provision is MCLA 418.651; MSA 17.237(651). MSA 17.237(621). 334 Mich 669; 55 NW2d 147 (1952).	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O’Hara, J. This is an appeal of right by defendant husband from an order denying modification of a judgment of divorce. The judgment was entered January 14, 1972. On April 26, 1972, appellant by counsel other than the attorney of record in the case in chief filed a petition to modify the judgment. The petition recites that: "Defendant’s petition is based on the attached affidavit and on facts to be presented to the court by a hearing wherein defendant will show that the economic status of the parties has changed substantially since the judgment was entered and that the defendant can no longer afford and has not been able to afford to pay the support payments in the amount of sixty ($60) dollars per week in that he is no longer employed in the same capacity as he was at the time of judgment. "Petitioner further states that plaintiff no longer needs the sixty ($60) per week for the support of the children.” The accompanying affidavit tells us that instead of $238.23 per week take home pay at the time of the entry of the judgment, the defendant’s income as of the date of the execution of the affidavit is $77 per week unemployment benefits. Surely this is a classic case for relief based upon a change of financial circumstances. Because we were concerned we ordered up the total record, pleadings, docket entries and the transcript of the testimony upon the hearing of the motion to modify. We have reviewed the record with microscopic care. It makes interesting reading. In addition to examination by both counsel of record, the Friend of the Court entered an appearance and also examined defendant. This examination elicited the information that between the time of the entry of the judgment of divorce and the date of the hearing on the motion to modify it, defendant managed to accumulate an arrearage of approximately $1,100. It further established that defendant was not laid off until April 12, 1972. Thus except for seven or eight weeks defendant’s income was the same as it was at the time of the entry of the judgment. The record strongly suggests, though it does not conclusively establish, that the terms of the judgment were arrived at by negotiation between defendant’s then counsel and counsel for plaintiff wife. It would have been better practice to make of record the fact that the terms of the judgment were a matter of stipulation — if indeed they were. The transcript establishes that defendant is a certified welder and a licensed pipe fitter. It further establishes that except for waiting for a call back to work from his former employer he made no effort to find work in his skilled trades elsewhere. Defendant candidly admitted that the time of year of the hearing of his petition and the time of year since his layoff was the season generally known as the best part of the year for pipe fitters and certified welders. The trial judge noted on the record: "I think I have heard as much as I care to in this case. I refer the matter to the prosecutor’s office. * * * I think after a proper investigation, you [Friend of the Court] make your report to the court and give counsel a copy and then I’ll make my decision * * * .” The investigation was made and á detailed report was submitted to the court. So far as the record shows both counsel received a copy. At least appellant does not complain that he did not. The trial judge entered a detailed order denying the petition to modify the judgment and providing for payments of support at the original figure of $60 per week together with "such other additional payments to reduce the delinquency now due on such child support payments in such amount as shall be set by the office of the Friend of the Court for the County of Alpena”. A stay of execution was issued upon the furnishing of a bond. In the order staying the execution the trial court ordered that the defendant pay $40 per week as child support and that: "Defendant shall still be responsible * * * for the $20 per week payment which this court is hereby staying execution upon and shall constitute an arrearage should the Court of Appeals affirm the order of this court appealed from.” The appeal in this case, to consolidate the grounds asserted, amounts to claimed error on the part of the trial judge in using "extraneous evidence not presented at the time of hearing and clearly abusing its discretion in ignoring defendant’s testimony completely”. As to the "extraneous matter” issue, the trial court made crystal clear to both counsel that he was seeking a report from the Friend of the Court’s office, and that each counsel would receive a copy thereof, and after the report was delivered to the court, he would make his decision. If either counsel had any objection it was his duty to speak up — as the saying goes — loud and clear. Whatever the merit of this claimed error, if any, clearly it is not before us. As to the abuse of discretion in disregarding completely defendant’s testimony, we think rather the trial judge not only did not disregard it, he was led to his conclusion by it. We find no merit in the claimed errors. Haskins v Haskins, 11 Mich App 487; 161 NW2d 415 (1968), cited by appellant, if authority for anything relevant hereto, supports our legal conclusion that it was received by agreement. This is especially true when appellant stated from the stand he would itemize for the Friend of the Court’s office all his expenses. The wording of the order we quoted earlier herein providing for "such other additional payments to reduce the delinquency * * * as shall be set by the office of the Friend of the Court” is both unfortunate and legally infirm. It may have slipped into the record without notice by the learned trial judge. Obviously, the office of the Friend of the Court cannot "set” payments of delinquencies or any other kind of payments. Recommend it can, exercise judicial functions it cannot. To this extent the order quoted is vacated and held for naught. The trial judge reserved to himself continuing jurisdiction to modify the stay order "should the Court of Appeals affirm”. We do to the extent that we affirm the order denying the petition for modification of the judgment of divorce. We remand to the trial court for the limited and specific purpose of allowing the trial judge to enter a separate order incorporating the payments of child support and delinquency payments which were embodied in the order staying execution of the judgment. We retain no jurisdiction. In view of the fact that appellee neither filed a brief nor in any other way participated in proceedings in this Court, no costs of this Court are awarded. All concurred.	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Danhof, J. These four workmen’s compensation cases have been consolidated for appeal. At issue is the potential liability of the Second Injury Fund in cases where an alleged employer has neither admitted liability under the act, nor been adjudicated liable, but rather where liability has been redeemed pursuant to the first provision of MCLA 412.22; MSA 17.172, currently MCLA 418.835; MSA 17.237(835). Plaintiffs appeal from decisions of the Workmen’s Compensation Appeal Board which hold that liability of the Second Injury Fund is derivative from that of the employer, so that the fund cannot be subjected to a separate, independent hearing as to liability for differential payments once the employer’s alleged prospective liability has been redeemed via a negotiated settlement. - For the factual circumstances out of which these disputes arose, we have drawn extensively from the four opinions of the Workmen’s Compensation Appeal Board. John B. White was a race driver who was injured on June 14, 1964 while driving one of defendant Weinberger’s vehicles at Terre Haute, Indiana. His injuries included partial severing of the spinal cord, leaving him described by medical testimony as a tetraplegic. There was strong disagreement over his actual employment status at the time of his injury and defendant and its insurer never admitted to liability. No voluntary compensation was paid until a redemption agreement was reached in the amount of $75,000. This was paid in the form of a six-month "jurisdictional payment” in the amount of $1,539 at the time of the redemption hearing, with the balance paid subsequent to the approval by the referee and director of the bureau. The record reveals that plaintiff was completely aware of his options before the redemption was consummated. Plaintiff and his counsel made clear their intent to proceed against the fund for additional benefits, but plaintiff acknowledged that he would be willing to redeem for the stated sum regardless of the outcome of his pending claim against the fund. No hearing on the merits of plaintiffs claim against defendant Weinberger was ever held, nor was any decision ever entered in that regard. John Boyko was injured when struck in the back by a hi-lo truck on October 19, 1957 and has not worked since November 14, 1957. Defendant Chrysler Corporation voluntarily paid total disability weekly benefits to the end of the statutory 500-week period. Plaintiff Boyko then petitioned for permanent and total disability, claiming loss of industrial use of both legs. The claim was denied by Chrysler. A redemption was entered into between plaintiff and Chrysler in the amount of $5,400 and was approved by the referee. The Second Injury Fund was dismissed as a defendant "without prejudice to plaintiffs right to re-file against said defendant in the future”. Hansel O. Moorhouse fell from a ladder while in the employment of defendant Candler Company, at age 70, on September 11, 1956. His injury was reported as "severe spinal injury”, and voluntarily weekly benefits were paid for 500 weeks. At the end of this period, plaintiff petitioned for permanent and total disability based on the loss of industrial use of his legs. A redemption of defendant firm’s prospective liability was approved by the referee in the amount of $5,000. No proofs were taken on the claim of loss of industrial use. The record reveals that plaintiff and counsel intended to proceed against the Second Injury Fund subsequent to the redemption, but were also aware that the redemption involved possible waiver of plaintiffs right to proceed against the fund. Roosevelt Pitts froze the fingers of both hands while working for a gas station on January 1, 1968 in sub-zero weather. This resulted in amputations through the middle phalanges of the four fingers of the left hand and through the middle phalanges of the index and middle fingers of the right hand. No weekly benefits were paid because of a lack of insurance being carried by the gas station proprietor, and because there was (quoting plaintiffs brief) "substantial question as to whether the Citron Oil Company was a statutory employer within the meaning of Section 10(a) of Part I of the Workmen’s Compensation Act”, formerly MCLA 411.10; MSA 17.150, currently MCLA 418.171; MSA 17.237(171). The liability of defendant gas station and defendant oil company was redeemed for $9,000 in an action approved by the referee. Plaintiffs counsel stated on the record at the redemption hearing that he believed "there is a good chance of perhaps collecting benefits from the second injury fund even though this Redemption is approved”. Plaintiff thereafter petitioned for benefits from the fund, claiming loss of industrial use of both hands. Plaintiffs make the following arguments in support of their contention that the redemptions agreed to should not foreclose a hearing on the merits of their claim against the Second Injury Fund. (1) Since the Silicosis and Dust Disease Fund specifically now states that redemption of liability with the employer or an insurance company shall remove all liability of this fund, failure to so specify in the Second Injury Fund sections of the statute should be interpreted to mean that redemption does not effect that fund’s liability; (2) That there is no jural identity between the employer and the Second Injury Fund; (3) That the fund’s liability is not based on the contract between the employer and the employee, but is based solely on the employee’s status as a totally and permanently disabled person. The Attorney General on behalf of the Second Injury Fund contends that the fund’s differential payments to the totally and permanently disabled were intended as a supplement to basic compensation payments, not as a substitute for them; that the fund is liable for differential payments only if the employer’s liability for total and permanent disability benefits has been established through admission or adjudication. Finally the Attorney General points out that the long standing practice of the fund has been to adopt whatever position the employer/carrier adopted whether it be to pay voluntarily, to defend, to appeal, or not to appeal; that the fund’s passive-derivative role is to the advantage of claimants who are thereby spared the financing and delay of two trials, one with the employer/carrier and the other with the fund, before receiving the full benefits under the act. The primary purpose of the Second Injury Fund, one not involved in this appeal, is to enhance the prospects of employment of certain handicapped persons who had previously sustained specific losses. Verberg v Simplicity Pattern Co, 357 Mich 636, 643; 99 NW2d 508, 512 (1959); Whitt v Ford Motor Co, 383 Mich 726, 730-731; 178 NW2d 917, 919 (1970); 2 Larson’s Workmen’s Compensation Law, § 59.31 et seq. The statutory source of the fund’s liability for differential and additional benefits is contained in MCLA 412.9(a); MSA 17.159(a) and read at the time of White’s, Boyko’s, and Moorhouse’s injuries as follows: "Any permanently and totally disabled person as defined in sections 8a and 10 who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of this amendatory act receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now receiving per week and the amount per week now provided for permanent and total disability with appropriate application of the provisions of paragraphs (b), (c), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this act for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.” The intent of the statute would seem to be clear, i.e., to protect the totally and permanently disabled employee who is entitled to compensation under the act from inflation by passing on legislative improvements in benefits without assessing a single employer for benefits not in effect at the time of injury. Rasar v Chrysler Corp, 382 Mich 169, 175; 169 NW2d 303, 306 (1969). Although the wording of the statute was slightly different at the time of Pitts’s injury, none of the parties contend that the issue should turn on this variation. Rather, our task is to determine whether the longstanding practice of making the fund’s liability derivative is reasonably grounded in the plain meaning of the statute. The redemption agreements in all four cases were voluntary compromises entered according to the first provision of MCLA 412.22; MSA 17.172, as opposed to lump-sum advances under the second provision, and were final settlements of all liability under the act of the respective employers and their carriers. Wehmeier v WE Wood Co, 377 Mich 176, 185, 189; 139 NW2d 733, 737 (1966). The voluntary weekly benefits paid to Boyko and Moor-house, the jurisdictional payments to White and Pitts, and the amounts under the redemption agreements themselves cannot be construed as admissions or adjudications of liability. MCLA 413.6; MSA 17.180. These four redemption agreements operated to foreclose among other things determination under the act as between the alleged employers and claimants of the following issues: jurisdiction over out-of-state injuries (in White’s case); whether there was a contractual or statutory relationship of employer-employee (hotly disputed in White’s and Pitts’s cases); whether the claimed disabilities could be defined as total and permanent under the act; whether the disabilities resulted from personal injuries arising out of and in the course of employment. The statute is clearly to the effect that a claimant must be "entitled to receive payments of workmen’s compensation under this act” in order to participate in the fund’s differential and additional benefits, and it makes no provision for those who might have been entitled to receive payments had they not redeemed. If plaintiffs are allowed a determination of issues previously compromised for the sole purpose of adjudicating the liability oí the fund, the litigational and investigatory burden would no doubt be shifted to the fund by the employers who have no further interest in the outcome. The direction that a fund participant receive differential payments "without application” would become meaningless and we would chart an uncertain course as to whether the fund could contest issues not contested by the employer. As the Attorney General points out in his brief, "The term 'without application’ was removed from the above section by 1968 PA 227, effective July 1, 1968, but the practice remains in filing against the employer without a separate application directed to the fund”. Were we to judicially redefine the traditional passive-derivative role of the fund, a role we have seen to be well-grounded in the statute, we would risk upset of an orderly administrative procedure which usually works to the benefit of claimants. As stated in the controlling opinion of the appeal board in the case of John B. White: "To find an independent liability on the part of the Fund would be to not only impose investigatory, administrative and litigation responsibilities heretofore unanticipated, but would issue license to take an independent stance on any and all cases pending before the Bureau or this Board. The Fund could then dispute cases not disputed by the employer/carrier, in addition to joining in defenses of employer-defendants. "Thus we tell the injured claimant that he has not one case, but two to prove before the full benefits of this Act become due him. Finding such a separate liability could well benefit John White, who chose to redeem the liability of his case before legal entitlement had been admitted or proven, but we would place before other injured Michigan employees twin hurdles to leap on their road to the full enjoyment of legislated benefits.” 1972 WCABO 1506. We therefore affirm the holding of the Work men’s Compensation Appeal Board that the establishment of employer liability, either by admission or adjudication prior to redemption, is an absolute prerequisite to Second Injury Fund liability. We note, as did the appeal board, the case of Derouin v Director of Workmen’s Compensation Department, 19 Mich App 309, 313; 172 NW2d 463, 466 (1969). There employer liability was redeemed after there had been decisions establishing both employer and fund liability. In holding that the fund’s statutory obligation to pay differential benefits was not terminated by the subsequent redemption agreement, this Court stated: "Although payment from the fund is dependent in the first instance upon the employee being a permanently and totally disabled person, as defined in the act, who on or after June 25, 1955, is entitled to receive payments of workmen’s compensation, once these facts are determined affirmatively, the Second Injury Fund is required to pay the increased benefits as stated in the act.” (Emphasis added.) Larson cites Derouin and Levi v Special Indemnity Fund, 389 P2d 620 (Okla, 1964), for the proposition that fund liability is purely derivative, making an award against the employer a condition precedent to differential benefits. Larson, supra, § 59.31, p 88.123, fn 61 (1973 Cum Supp): "Derouin v Yeager, [19 Mich App 309;] 172 NW2d 463 (Mich App 1969). Claimant suffered compensable injuries that left him totally disabled. His employer was ordered to pay compensation, and the Second Injury Fund was ordered to make supplemental payments. The employer terminated its obligation by entering into an agreement for the payment of benefits in a lump sum, and the Fund ceased making its payments. The Court held that the Fund’s obligation to pay, once it was ordered to do so, was separate and apart from that of the employer, and the discharge of the employer’s obligation did not discharge the Fund.” (Emphasis added.) In the case of John B. White, the dissenting members of the appeal board refer to the case of Bugg v Fairview Farms, Inc, 385 Mich 338, 351-352; 189 NW2d 291, 297 (1971), where it is stated: "In any event, in this case, we need not determine the abstract question of whether an approval of a redemption agreement is a determination of the conditions of liability under the act by the compensation commission. * * * 'There is no good reason why parties may not settle any part of a controversy upon which they may reach agreement and leave the controverted part for litigation.’ Wolverine Insurance Co v Klomparens, 273 Mich 493, 497 [263 NW 724, 725] (1935). * * * The conditions of liability under the act are necessarily determined by the compensation department for the purpose only of approving a redemption agreement. But this does not necessarily adjudicate the issue for all purposes.” The Bugg case does not, however, portend the result that should be reached in the present case. That case involved a wrongful death action brought by the widow-administratrix against the employer and fellow employee of plaintiffs decedent. The employer’s liability for compensation had been earlier redeemed, with an express reservation by the parties of the issue of whether the deceased had died in the course of his employment. The specific holding of the Supreme Court was that defendants were estopped to raise the redemption agreement as a defense because the disputed issue as to whether workmen’s compensation was to be the exclusive remedy against the employer was reserved for determination in the law action. In the instant case, we are not concerned with the defense of res judicata, but rather with specific statutory language mandating certain prerequisites to the liability of the Second Injury Fund. Plaintiffs argue that the Legislature specifically provided that redemption of liability with the employer/carrier eliminates all liability of the Silicosis and Dust Disease Fund and that failure to make the same provision for the Second Injury Fund shows the intent of the Legislature to make the latter fund’s liability separate and independent. However, the Silicosis and Dust Disease Fund as first created on May 1, 1966 provided, MCLA 417.5; MSA 17.223(1): "(i) The trustees of the fund or their authorized representatives shall be permitted to compromise its liability by redemption in conjunction with a redemption entered into by the employer or its insurance carrier. A redemption of liability with the employer or its insurance earner shall in no way affect the liability of the fund unless it participates therein. ” (Emphasis added.) In order to clearly designate a change in legislative intent, it was necessary in the Workmen’s Compensation Act of 1969 for the Legislature to enact the following provision, MCLA 418.545; MSA 17.237(545): "Sec. 545. After a carrier has paid an employee $12,500.00 for disability or death due to silicosis or other dust disease, the trustees may compromise the liability of the silicosis and dust disease fund by entering into a redemption of liability directly with the employee if in the judgment of the trustees it is in the employee’s best interest to do so. Redemption of liability shall terminate all liability of the fund. A redemption of liability by a carrier for compensation paid for disability or death from silicosis or other dust disease made with the employee prior to the actual payment by the carrier of $12,500.00 in compensation benefits shall eliminate all liability of the silicosis and dust disease fund.” Thus the reference to redemption in the current statute reflects a legislative change of mind about the desirability of the silicosis and dust disease fund having a liability apart from that of the employer where there has been a redemption and therefore, does not support plaintiffs’ argument. Of interest also is the new chapter 9 added to the workmen’s compensation law in 1971, effective July 1, 1972. MCLA 418.901 et seq; MSA 17.237(901) et seq. Based on that chapter, a vocationally handicapped person as defined in the act may also under certain circumstances receive payments from the Second Injury Fund. However, MCLA 418.935; MSA 17.237(935) provides that redemption of employer liability before actual payment by the employer of those benefits which have accrued during the period of 104 weeks after the date of injury eliminates all liability, including vocational rehabilitation, of the Second Injury Fund. Lastly, the opinion of the dissenting members of the appeal board in the case of John B. White cites an opinion of the Attorney General, 1 OAG, 1955, No 2244, p 475 (September 20, 1955) for the proposition that the Second Injury Fund has failed to follow the orders of the Attorney General to participate in redemption agreements and pay its pro rata share thereof. However, a careful reading of that opinion reveals that it was premised upon a person receiving compensation for permanent and total disability — payments which already included differential payments from the Second Injury Fund. In the case at bar, the fund has not made payments to plaintiffs because the employers’ lia bility was never admitted or adjudicated. Had employer liability for permanent and total disability been established, and had lump-sum payments in advance been approved by the commission under the second provision of MCLA 412.22; MSA 17.172, amounts due from the employer and the fund could have been commuted on the present worth thereof in accord with the opinion of the Attorney General. Affirmed. All concurred.	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Targonski, J. The plaintiff, Vinnia Goodman, moved to Michigan in 1959, after doing industrial work in other states from 1941 to 1959. After moving to Michigan, she worked steadily, though at four different places of employment, until November 8, 1968. As of that date, she was disabled due to pulmonary emphysema, chronic bronchitis, probable bronchiectasis, probable byssinosis, and kyphosis of the dorsal spine. The plaintiff then brought an action under the Workmen’s Compensation Act against her prior Michigan employers for the past ten years. The Silicosis and Dust Disease Fund voluntarily entered an appearance. A hearing was held on February 17, 1970, and the hearing referee dismissed the case against all the plaintiff’s prior employers except for Bay Castings and Color Grafters. The referee found that the plaintiff was suffering from a "dust disease” and ordered that Bay Castings pay compensation to the plaintiff. The referee further ordered Color Grafters to reimburse Bay Castings to the extent of 49.25% of the amount that the latter had to pay to the plaintiff. The decision was appealed to the Workmen’s Compensation Appeal Board. The board ordered the referee’s determination of the liability of the dust disease fund stricken from the record but affirmed the rest of the referee’s decision. From this affirmance Color Grafters brings this appeal and Bay Castings appeals that portion of the board’s decision that finds plaintiff does not have a "dust disease” within the provisions of Part VIII, Section 4, Workmen’s Compensation Act. I The first claim of error raised by the appellants is that the deposition of Dr. Ira Avrin was improperly admitted since they were never notified of its taking. This claim would seem to be well taken since it is well settled that a deposition may not be used against a party who was not notified of its taking. GCR 1963, 302.4; White v Dirks, 380 Mich 1; 155 NW2d 165 (1968). However, a review of the record reveals that the following colloquy took place prior to the admission of the deposition and while counsel for the appellants was present: "Mr. Libner: At this time I would offer the deposition of Dr. Ira Avrin taken on December the 10th, 1969, in Southfield, Michigan. "The Referee: Are there any objections other than as therein contained? "Mr. Hale: No. "The Referee: Go ahead, Mr. Libner.” Mr. Hale, who stated he had no objections, was representing Bay Castings but Color Crafter’s counsel was in the courtroom and had an opportunity to object to its introduction. The necessity for objecting to the admission of a deposition is stated in 9 Michigan Law & Practice, Depositions, § 23, p 383, as follows: "In general, defects, irregularities, or omissions in a deposition, its introduction, or its taking, are waived by failure to object at the proper time and in the proper manner.” See also In re Zick’s Estate, 205 Mich 681; 172 NW 382 (1919); 3 Callaghan’s Michigan Pleading & Practice (2d ed), § 35.85, at 306. In the instant case, the appellant had an opportunity to object and the failure to do so precludes it from challenging its admissibility in this Court. The board is affirmed on admissibility of Dr. Avrin’s deposition. II. The appellant next contends that the hearing referee erred in ordering apportionment because the exposure with the last employer was of a separate and distinct nature from such exposure with prior employers. The governing statute is MCLA 418.435; MSA 17.237(435) which states in relevant part: "The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If any dispute or controversy arises as to the payment of compensation or as to liability therefor, the employee shall give notice to and make claim upon the last employer only and apply for a hearing against the last employer only. If the employee was employed by prior employers in an employment to the nature of which the disease was due and in which it was contracted, the hearing referee to whom the case is assigned or the director on motion made in writing by the last employer shall join any or all prior employers, mentioned in the motion, as parties-defendant. * * * The hearing referee shall enter an order determining liability for compensation as between the employee and the last employer. The hearing referee shall apportion liability for compensation among the several employers in proportion to the time that the employee was employed in the service of each employer in the employment to the nature of which the disease was due and in which it was contracted and shall enter a separate order in favor of the last employer and against prior employers for their proportionate share of liability, which order may be enforced in the same manner as an award for compensation.” The appellants contend that under the statute two tests must be met before the last employer is entitled to apportionment. First, and employee must have been employed by prior employers in an employment in which the disease was contracted. Secondly, the employee must have been employed by prior employers in an employment to the nature of which the employee’s disability was due. As to the first contention, we feel the statute does not require proof that the disease was actually contracted while working for a prior employer. This interpretation was given to our statute in 3 Larson, Workmen’s Compensation Law, § 95.32, p 508.161, which stated: "Several statutes which place initial liability, so far as the employee is concerned, upon the employer who provided the last injurious exposure, follow this provision with a procedure whereby liability may be apportioned among previous employers whose employments have contributed. ” (Emphasis supplied.) Larson, supra, at 508.161. Therefore, if the prior employments contributed to the disease this is sufficient to hold the prior employers liable under the statute. Furthermore, the determination of whether or not the employee was employed in an employment to the nature of which the employee’s disease was due is primarily a question of fact. In the instant case the employee was exposed to paint fumes while in the appellant’s employ and to dust while in the employ of Bay Castings. The depositional testimony of Dr. Ira Avrin was to the effect that exposure to paint fumes can aggravate, accelerate, or cause pulmonary emphysema. The appellants, in an attempt to discredit findings, rely on other testimony to support their theory that the plaintiff was not exposed to fumes which caused her condition while employed by them. However, this Court must affirm, if there is any evidence in the record to support the findings made by the Workmen’s Compensation Appeal Board. Couch v Saginaw Malleable Iron Plant, 42 Mich App 223; 201 NW2d 681 (1972); Lemanski v Frimberger Co, 31 Mich App 285; 187 NW2d 498 (1971). In the instant case there was sufficient evidence to support the board’s findings and we must affirm as to Color Grafters subject to modification set forth hereinafter. III. The hearing referee determined that with respect to the right to seek reimbursement from the Silicosis & Dust Disease Fund after the payment of $12,500, Bay Castings would be entitled to such reimbursement while Color Crafters would not. The Workmen’s Compensation Appeal Board or dered any reference to dust disease stricken, stating: "His [referee’s] decisions are modified only to the extent of striking any reference to dust disease as defined by the Act. In accord with Graham v Chrysler Corp, 1971 WCABO 875, and subsequent 1971 decisions of this Board, defendants shall seek reimbursement from the Dust Disease Fund, if they deem that appropriate after payment of $12,500.00.” (1972 WCÁBO 74, 79.) What the appeal board said in Graham, supra, and seems to be saying in the instant case, is that the referee has no jurisdiction over the dust disease fund until the employer has paid $12,500 in benefits and a dispute has arisen over the employer’s right to reimbursement from the fund. The relevant statutes are MCLA 418.531; MSA 17.237(531) and MCLA 418.541; MSA 17.237(541). MCLA 418.531 reads as follows: "Sec. 531. In all cases in which any carrier shall have paid, or cause to be paid, compensation for disability or death from silicosis or other dust disease either to the employee, or to another employer under the provisions of section 435, the carrier shall be reimbursed from the silicosis and dust disease fund for all sums so paid in excess of $12,500.00, excluding payments made pursuant to sections 315, 319, and 345 which have been paid by the carrier as a portion of its liability.” MCLA 418.541 reads in relevant part: "Sec. 541. (1) All payments from the funds shall be determined by the trustees and made upon an order signed by a trustee. If a dispute arises between the trustees and a carrier as to any determination by the trustees or the obligation of any carrier to make payments on behalf of the second injury fund, the dispute shall be deemed to be a controversy concerning compen sation and shall be determined in accordance with this act. "(2) In all cases in which the carrier shall be entitled to be reimbursed, notice of claim for reimbursement shall be filed with the trustees within 1 year from the date on which the right to reimbursement first accrues. After the carrier has established a right to reimbursement, payment shall be made promptly on a proper showing periodically every 6 months.” In Graham v Chrysler Corp, supra, the Workmen’s Compensation Appeal Board discussed the fact that the employer himself is liable under the statute to the sum of $12,500 at which point the employer is eligible to make application for reimbursement by the Silicosis & Dust Disease Fund for any payments in excess thereof. It is then the burden of the employer to show that his liability is limited by statute and that he is entitled to such reimbursement. The board further took the position that at the time an employee’s cause of action accrues the Silicosis & Dust Disease Fund is not an indemnifier of liability imposed upon the employer and that the payment of $12,500 as a minimum and the filing by the employer of an application for reimbursement within one year after such right to reimbursement accrues are prerequisites to any liability of the fund. The board felt that allowing the issue of reimbursement from the fund to be determined at the initial hearing where the employee’s rights are determined would effectively determine the liability upon the fund where none in fact may ever exist. To wit, the employer may never make payments in excess of the sum of $12,500 and, even in the case of admitted disability due to silicosis, the fund may never become liable because of the lack of payment of the sum required. The board was of the opinion that there should be no hearing or adjudication as to the liability of the fund until the maximum employer limit had been paid and that, when the employer made application in event of dispute with the fund, at that point then the employer could satisfy his burden of proof by introducing into evidence the record of any hearing which may have previously been held upon any dispute which might have existed between the injured employee and the employer. Such introduction of the prior record, in the opinion of the board, would serve as prima facie evidence, rebuttable by evidence submitted on behalf of the fund at any hearing held pursuant to statute to resolve disputes relating to the rights and liabilities existing between the employer and the Silicosis & Dust Disease Fund. This dismissal of the dust disease fund from the proceedings by the board was predicated upon the board’s opinion in Graham v Chrysler Corp, supra, hence the decision will be examined in considerable detail. The board in Graham assumed that the presence of the dust fund in the employee’s suit for compensation would require that the employee prove both his claim against the employer and show that his employer’s liability is limited to a certain sum. In Felcoskie v Lakey Foundry Corp, 382 Mich 438, 446; 170 NW2d 129, 132 (1969), it was stated: "Hence whenever an employer asserts that the limitation of section 4 should be applied to the dust disease causing the disability for which compensation is sought, such employer shall bear the burden of proving that such disease is so common and widespread as to present a threat to the industry comparable to silicosis, phthisis, or pneumoconiosis. ” (Emphasis supplied.) Clearly from the above it is established that the burden of proof is upon the employer and not upon the employee. The employer must establish the $12,500 ceiling upon his liability and the employee need only show a permanent disability due to occupational disease. If the employer seeks reimbursement from the dust disease fund for expenditures over and above $12,500 it is his responsibility to show that he merits reimbursement from the fund contrary to the assumption of the board in its Graham opinion. The board in Graham also indicated a fear that if the dust fund liability, although contingent upon the employer’s prior payment of $12,500 in benefits, is determined in the initial proceeding as done in this case the procedure would effectively eliminate the statutory requirement for the minimum payment and the filing of the application for reimbursement within one year after accrual of right to reimbursement. There is no basis or substance to such a fear and the dust fund in its brief has cited no instance where such consolidation resulted in the lack of fulfillment of the above-mentioned statutory requirements. Any fair interpretation establishes that the statutory requirements for minimum payment and application for a reimbursement must be complied with and the only question that need not be litigated would be the liability of the dust fund, as this would be established in the initial hearing. The employer would have no right to reimbursement until he made a showing of the payment of $12,500 in benefits as a condition precedent. The board in Graham also makes the objection that if the future liability of the dust fund is determined at such an early stage the fund’s liability may be determined where none in fact may ever exist. There is some merit to this objection, as the fund would have been put to the expense of litigating liability even though the liability might never ensue because of other developments which would preclude the employer’s payment óf the sum required for reimbursement. The disadvantage which this possibility indicates is outweighed by the economy of consolidation. The board in Graham indicated that the record of the hearing as to the injury óf the employée " * * * may well have become res adjudicata [sic] of the rights and liabilities [which might have existed] between the employee and his employer and could well serve as prima facie evidence of the possible subsequent liability imposed upon the Silicosis & Dust Disease Fund.” Graham, supra, at p 886. Such conclusion is contrary to the rules of evidence. If the dust fund’s participation in the original hearing is stricken the record of the prior decision could not be used against the dust fund at the later reimbursement hearing since the doctrine of res judicata requires identity of parties. Johnson v Nationwide Life Insurance Co, 7 Mich App 441, 446; 151 NW2d 840, 842 (1967). Furthermore the dust fund’s right of cross-examination of the witnesses against it would be vitiated by the admission of the record of the original compensation proceeding intó evidence if the dust fund was not a party to such original hearing. As further justification for striking the dust fund as a party the appeal board in Graham stated: "Consolidating these hearings which deal with rights and liabilities of different parties and which accrue at different periods of time contrary to the intent of the Legislature does not facilitate the administrative duties imposed upon anyone but tends to complicate and confuse and results in the shifting of responsibilities placed upon an employer by the Legislature to the injured employee or else requires the employee to at least wait until the employer proves his right to something that may accrue in the future.” Graham, supra, at 887. To require two separate hearings as the appeal board has done will result in more time consumption and confusion and not less as urged in Graham. With all parties present at the first hearing, including the dust fund, the referee can get all the necessary information at one time and at a time reasonably proximate to the contraction of the disease. We fail to see any basis for confusion in having the referee in the same proceeding determine the employer’s liability to the employee and the dust fund’s future liability to the employer. If this is not done at the initial hearing, at the second hearing after payment of the sum of $12,-500 over a period of years, the employer will be obliged to bring back witnesses who were present at the first hearing in order to have them testify all over again since the record of the first hearing would be clearly inadmissible. It appears that it is more convenient and more administratively efficient to consolidate these actions. The dust fund in this matter could have relied upon the same reasoning as employed in Graham and could have fought its joinder to the original hearing. The dust fund instead elected to resolve the matter and any dispute in this one hearing. We must encourage economy of judicial settlements and not frustrate it. The procedure of joining the dust fund was followed for a period of years prior to Graham. We find from reading the applicable statutes that there is no apparent reason to preclude simultaneous resolution of the employee’s claim against the employer and the employer’s claim against the dust fund. Bay Castings and Color Crafters both contend that even if the Graham decision is correct it would make no difference in the instant case because there was no objection to the participation of the dust fund in the hearing as a named party. Consequently, these two parties claim that the dismissal of the dust fund was erroneous because the fund had participated in all proceedings and should be bound by the judgment entered against it. The dust fund, on the other hand, argues that the appeal board could properly dismiss the fund from the action because the appeal board’s review is de novo and further because lack of subject matter jurisdiction can never be waived. It is true that the Workmen’s Compensation Appeal Board hears cases de novo. Fawley v Doehler-Jarvis Division of National Lead Co, 342 Mich 100; 68 NW2d 768 (1955). It is well settled that the question of lack of jurisdiction over the subject matter cannot be waived and can be raised at any stage of the proceedings. Millman Brothers, Inc v Detroit, 2 Mich App 161; 139 NW2d 139 (1966). Thus, if the appeal board in Graham and in the instant case was correct in its interpretation of the statutes the fact that the dust fund participated in the original hearing and made no objection to such participation would be of no consequence because the action before the referee with reference to the liability issue would be absolutely void. Fox v Board of Regents of the University of Michigan, 375 Mich 238, 242-243; 134 NW2d 146, 148 (1965). Both Bay Castings and Color Crafters claim that the issue of reimbursement was not properly before the appeal board because the dust fund did not file a claim for review. This claim fails in light of the fact that the appeal board’s hearing is de novo. Pulley v Detroit Engineering & Machine Co, 1 Mich App 346; 136 NW2d 762 (1965). Perhaps it would have been better procedure for the appeal board to indicate that it was going to consider the role of the dust fund. An application for review was filed by the fund as indicated by the file of the proceedings below. In any event the employers are charged with the knowledge that the review by the appeal board is de novo. Despite this the employers did not seek to limit the scope of the board’s inquiry to the question of finding that the plaintiff had an occupational disease. They filed general claims for review. By this action they knowingly opened up the entire matter to review. Thompson v Continental Motors Corp, 320 Mich 219; 30 NW2d 844 (1948). For the reasons indicated in this portion of the opinion we conclude that the board’s interpretation of the applicable statutes in Graham and in this case is not correct. The referee did have jurisdiction of the subject matter of the employers’ claim against the dust fund and it is proper to dispose of both the issue of the occupational disease and the liability of the dust fund in one hearing at the outset of the case. In fact we urge it for sake of efficiency and minimizing delay as an appropriate form of action in all future proceedings of this nature. IV. We find no error on the question of the referee’s apportionment of liability between the two employers and sufficient evidence in the matter before the appeal board to sustain affirming such apportionment of liability and as a consequence we likewise affirm this finding. The hearing referee found that, with reference to the employment at Bay Castings, the plaintiff had a dust disease but that she did not have such dust disease as pertains to her employment at Color Crafters. The net result of such finding is that Bay Casting’s compensation payments to plaintiff would be the subject of reimbursement by the dust fund after Bay Castings became eligible and made application. The statute makes no provision for reimbursement to the Silicosis & Dust Disease Fund; thus Color Crafter’s apportionment payments would continue to go to the last employer, to wit, Bay Castings, even after the latter began to receive reimbursement from the dust fund which could get nothing from Color Crafters. The referee’s order that plaintiff was suffering solely from a dust disease as to her employment with Bay Castings without apportionment of the amount of disability between that due to the dust disease and that due to other compensable causes creates a novel situation. MCLA 418.535; MSA 17.237(535) provides: "Sec. 535. If an employee’s disability is caused by a combination of silicosis or other dust disease and other compensable causes, a hearing referee shall apportion the amount of disability between that due to silicosis or other dust disease and other compensable causes. The trustees of the silicosis and dust disease fund shall reimburse the employer liable for compensation for that portion of the compensation paid in excess of $12,500.00 that the silicosis or other dust disease disability bears to the total disability.” Thus we are led to the conclusion that the referee was of the opinion that the plaintiff was suffering solely from a dust disease. On the other hand, in ordering Color Crafters to pay 49.25% of the compensation as reimbursement or contribution to Bay Castings the referee found that plaintiff did not have a dust disease. These two positions are inconsistent. Bay Castings cannot have the benefit of an apportionment payment from Color Crafters and reimbursement from the dust fund for the excess benefits over and above $12,500 as this definitely was not within the contemplation of the Legislature in creating these benefits. Bay Castings in its brief disclaims any desire for such double benefits. We therefore conclude that once the dust fund has commenced making reimbursement to Bay Castings, Color Crafters should not be required to contribute any further funds. Since there is no provision for reimbursing the dust fund in a case such as this, Bay Castings would actually be making a profit with no intent on the part of the Legislature to create such an incongruous situation. However, where hospital and medical benefits are concerned Bay Castings, even after payment of $12,500, would be required to continue to make payments for such benefits and Color Crafters should also continue to be liable for its 49.25% of these payments. MCLA 418.531; MSA 17.237(531) specifically excludes reimbursement for such hospital and medical expenses. Therefore with respect to these benefits the apportionment order should stand. V. We find that the Workmen’s Compensation Appeal Board’s opinion in Graham v Chrysler Corp, supra, is too restrictive in taking the position that the Silicosis & Dust Disease Fund can never par ticipate in the hearing of a compensation claim until $12,500 in benefits have first been paid. There is no justification for such blanket prohibition in the statutory law nor do we find any case law to justify such prohibition. In the instant case the dust fund was a party to the hearing without objection and the results of that hearing with respect to the future liability of the dust fund are binding upon the fund. We encourage the joinder of the dust fund at such first hearing so that witnesses concerning the plaintiff’s illness can be heard at one time and that time is more proximate to the contraction of the disease. The employer must still make application for reimbursement within the statutory period and prove that he has in fact paid out more than $12,500 in benefits. We affirm hereby the findings of the Workmen’s Compensation Appeal Board except that we modify the same to terminate contribution by Color Crafters when the dust fund reimbursement to Bay Casting commences, except for hospital and medical benefits for which contribution by Color Crafters shall be a continuing obligation. We reverse the board’s order striking the dust fund as a party to these proceedings and thereby reinstate the fund as a party as in the initial instance in this case. And further, we reverse the order of the board striking the referee’s finding that plaintiff in fact has a dust disease and thereby reinstate the referee’s finding on this point. We further find that the admission of Dr. Avrin’s deposition was proper. Affirmed in part and reversed in part and remanded to the board for entry of an order consistent with this opinion. All concurred. Formerly MCLA 417.4; MSA 17.223: Now MCLA 418.415; MSA 17.237(415), MCLA 418.411; MSA 17.237(411). 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J. H. Gillis, J. Defendant, Joseph Kelley, was convicted by a jury of first-degree murder on November 23, 1962. He appeals upon delayed leave granted. Because of the unique history of this case, an explanation of events that led to defendant’s arrest and trial is necessary for full understanding of the issues raised on appeal. On October 4, 1960, David Lipton, the proprietor of a drug store in Detroit, was shot and killed during a holdup. A clerk in the store, Sue Valentine, gave descriptions of the three men who perpetrated the robbery to police who arrived at the scene. She subsequently identified Linberg Hall, Robert Clark, and Secóla Kuykendall as the culprits at a lineup and at their trial. In 1961, those three persons were convicted of first-degree murder. At the insistence of Mr. Max Silverman, the assistant prosecutor who tried the first case, the matter was reopened for investigation. The prosecutor, with the help of Lt. John Ware, uncovered evidence leading to the arrest of Ronald Gilliam, Kenneth Anderson, Edward Lake, Gene, Adams, and defendant Kelley. The convictions against Hall, Clark, and Kuykendall were vacated upon the motion of the prosecution. Before defendant’s case came to trial, his alleged accomplices, Gilliam, Anderson, Lake, and Adams were convicted of the first-degree murder of David Lipton. The prosecution’s evidence at defendant’s trial showed Miss Valentine and the decedent were alone in the drug store when, at about 9:30 p.m., a tall, slender man wearing a large bandage under his right eye entered. The man spoke to the decedent while two more men entered. One of the men ordered Miss Valentine to the floor and seconds later she heard a volley of gunfire. After the trio left the store she found Lipton shot. The details of her positive identification of Hall, Clark, and Kuykendall were thoroughly explored on cross-examination and she made no identification of defendant or his alleged accomplices. Johnnie McCoy, owner of a restaurant across the street, from the drug store, and his wife both testified they heard the gunfire and looked out the window of their establishment. Both Mr. and Mrs. McCoy stated they thereafter saw three men, one of whom wore a patch under his eye, leave the store and turn onto a side street. They could not identify defendant or his alleged accomplices and so testified. Defendant was shown to have been in an altercation on September 27, 1960 with Wendell Smith who testified he inflicted facial injuries to defendant’s right cheek. Delphine Coleman testified she was with Lake, Adams, and Gilliam on October 4, 1960. She stated the four of them rode in Lake’s car that night and picked up the defendant, who wore the bandage on his face, and met Anderson thereafter. The group then drove to the drug store where defendant, Gilliam, and Adams left the vehicle and entered the store. Anderson, she said, left, as well, but walked away. Shortly thereafter she heard gunfire and when the trio returned it was announced that Lipton had been shot because he had first fired upon Kelley, striking him in the forearm. Edward Lake corroborated that testimony. However, on cross-examination defense counsel brought out the fact that Lake was not charged as a principal in the case until after he testified at preliminary examination. It was revealed that at the examination stage, where Kelley, Gilliam, Adams, and Anderson were charged, Lake recounted a different story exculpating everyone, and that thereafter Lake was charged with the crime as well. On redirect, Lake admitted his testimony at the examination was false and testified he had, prior to that time, told police his present trial testimony. Redirect examination also revealed Lake thereafter stood trial for the Lipton murder. Defense counsel’s first question on recross-examination (and Lake’s responses) were as follows: 'rQ. What are you serving time for now, Eddie? "A. Armed robbery. "Q. Not murder, is that right? 'A. That’s right.” The prosecution then revealed that while Lake had been convicted of first-degree murder, he had been allowed to plead guilty to armed robbery. Anderson, Gilliam, and Adams were called as witnesses for the prosecution. Each admitted to having stood trial for the Lipton murder. Anderson corroborated Delphine Coleman’s version of the events, but denied knowledge of the robbery and murder, stating he left the scene on his own without incident. Gilliam denied complicity but stated he was present when Adams drew a gun. Kelley, according to Gilliam, was not present. His memory was refreshed with a prior statement where he indicated the contrary. Adams echoed Gilliam’s responses that Kelley was not present. Adams’ memory was also similarly refreshed. Prior to trial, defendant, an indigent, moved for production of the trial transcript of the Hall, Clark, and Kuykendall case on the basis that most of the witnesses against him testified at that trial. Only the testimony of Sue Valentine was produced. Defendant asserts on appeal that the failure to produce the balance of testimony was error. We disagree. We find no significant deprivation by the non-production of prior testimony which established the chain of custody of certain of the exhibits, the identity of the body of Mr. Lipton, or the drawing of maps and diagrams of the scene of the crime. The cause of Mr. Lipton’s death was largely uncontested. We find the prior testimony of the witnesses who established those facts was not so essential for impeachment purposes or discovery so that deprivation denied due process. We realize a financially able defendant could have obtained a transcript of this prior testimony and considerations of equal protection of law are relevant to this issue. See Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 891 (1956); Britt v North Carolina, 404 US 226; 92 S Ct 431; 30 L Ed 2d 400 (1971). However, through hindsight, we perceive the prior testimony sought, but not produced, did not establish crimination of defendant, but only the corpus delicti of the incident, an issue which defense counsel practically conceded at the outset of trial. Moreover, the testimony defendant sought to be produced did not even criminate Clark, Hall, or Kuykendall. Of those who testified in both trials, only Sue Valentine’s testimony tended to establish the guilt of any particular person. Thorough examination of the record reveals defense counsel was well versed in the details of the evidence produced in the prior trial, and we are not satisfied that transcription of the testimony there adduced was the only means for obtaining that information. See, e.g., Miles v Clairmont Transfer Co, 35 Mich App 319; 192 NW2d 619 (1971); People v Dellabonda, 265 Mich 486; 251 NW 594 (1933). We do not attempt to fashion a rule in this regard for the benefit of the trial bench for each and every case. Our decision here is based on hindsight, but we recognize the dilemma facing our brethren who preside over trials where this issue initially arises. People v Joines, 46 Mich App 427; 208 NW2d 193 (1973), announces that the state must provide indigent defendants with transcripts of prior proceedings when needed for preparation of an effective defense. In that regard, we note that while a financially able defendant might have seen fit to pay for the production of the Hall-Clark-Kuykendall transcript, it is apparent it would have been an unnecessary expenditure. Clearly, prior testimony offered against a particular defendant is valuable for both discovery and impeachment purposes. People v Glass, 38 Mich App 735; 197 NW2d 140 (1972). However, we decline to rule that production of prior testimony establishing a rather mundane corpus delicti of the same crime in another case against another defendant is necessary in order to provide a subsequent defendant with a fair trial. Defendant made a tape recorded statement showing his involvement in the crime. Before the confession was introduced, the detectives who had interviewed defendant indicated the statement was taken in Marquette Prison. That information, although inadvertently given in response to legitimate inquiry, was objected to and formed the basis of defendant’s motion for mistrial. The transcript provided on appeal shows that after defendant’s motion was denied, the tape-recorded statement was played, in its entirety, to the jury. The introductory remarks of the taped statement clearly show it was obtained in Marquette Prison, and contained therein is the following passage: By defendant]: I been back in jail now over a year, I been locked up over a year now, ever since I been back in jail, I just been more or less waiting for [an investigation of defendant’s involvement].” The basis of defendant’s motion for mistrial concerned the prejudicial effect on the jury of the revelation of defendant’s criminal record. The transcript does not show any argument to the jury on what effect, if any, such a history should have on their deliberation, and it must be remembered that this trial took place at a time when the jury was called upon to determine the voluntariness of a defendant’s confession. Pursuant to that now abolished rule, prior precedent indicates all the facts surrounding the confession were to be shown to the jury. People v Cleveland, 251 Mich 542; 232 NW 384 (1930); People v Hepner, 285 Mich 631; 281 NW 384 (1938). In at least one case, the fact of incarceration at the time of confession was considered a principal factor on the issue of voluntariness. See People v Barker, 60 Mich 277; 27 NW 539 (1886). Since the record only shows the fact of incarceration, and then only as it related to the circumstances surrounding obtaining the confession, we cannot say the trial court erred in denying the motion for mistrial. See also People v Harry Fleish, 321 Mich 443; 32 NW2d 700 (1948). Defendant contends it was error to allow the prosecution to impeach Anderson, Gilliam, and Adams by asking if they had been tried for the Lipton murder. While it is true that the prosecution may not seek to impeach the testimony of accomplices, People v Green, 32 Mich App 482, 486; 189 NW2d 122, 124 (1971); People v Virgil Brown, 15 Mich App 600; 167 NW2d 107 (1969), or argue that their prior conviction for the same crime by another jury is evidence of another’s guilt (see People v Eldridge, 17 Mich App 306; 169 NW2d 497 [1969]), we know of no rule of law that prohibits the prosecution from asking unflattering questions of its own witnesses not designed to accomplish such an unlawful purpose. Review of the record shows the questions put to these accomplices were not designed to impeach their testimony. Their convictions were not put forward by the prosecution. The inquiry served to establish that the prosecution had not "singled out” one defendant for prosecution as well as showing that those witnesses, protected by the doctrine of former jeopardy, had no motive for lying. The fact that some of their subsequent testimony did not precisely establish defendant’s culpability does not mean the questions were designed to impeach credibility. The transaction concerning the production of Edward Lake’s testimony is not error. If a prosecution witness has received leniency in return for his testimony, it is incumbent upon the prosecution to show the details. Rehabilitation of a witness sought to be impeached with prior inconsistency by showing an earlier consistency is proper. Affirmed. All concurred. The tape recorded statement was not transcribed by the court reporter. However, in 1968 a Walker hearing was held where the text of the statement was reported. It is from that hearing that the content of defendant’s confession is taken.	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Per Curiam. Beattie Eugene Mellon was employed by Vettese Brothers Contracting Company (hereinafter referred to as Vettese Co.), subcontractors engaged by defendant Edward Rose & Sons, Inc. (hereinafter referred to as Rose, Inc.), to install cellar foundations for private residences. Rose, Inc. was the owner of the land upon which the residences were built and acted as general contractor for the construction of the homes. On November 16, 1965, Vettese Co. was in the process of installing a cellar foundation for Rose, Inc. Power lines belonging to defendant Detroit Edison Company (hereinafter referred to as Edison) were located over the construction site. Beat-tie Mellon was the "hook-up man” whose job was to watch the crane being used to set forms for foundations to make sure it did not come into contact with the overhead wires. Mellon never signaled the crane operator that the crane was too close to the wires. It came into contact with them, and Mellon was electrocuted. This action for wrongful death resulted. At the time of the accident, pursuant to the Construction Safety Act of 1963, MCLA 408.711 et seq.; MSA 17.469(1) et seq., "General Safety Rules and Regulations for the Construction Industry” had been promulgated. Rule 1303 of these regulations dealt specifically with overhead wires. There was extensive testimony at the trial as to whether defendants had violated Rule 1303, and whether the work being done by deceased was inherently dangerous. At the close of all proofs, both defend ants moved for directed verdicts. The trial judge granted the motions. From such grant, plaintiff has appealed. Issue I Were defendants subject to "The General Rules and Regulations for the Construction Industry” and, if so, did the testimony create a question of fact as to whether violation of such safety rules proximately caused decedent’s death? MCLA 408.712(b); MSA 17.469(2)(b) provided at the time of the accident: "(b) 'Construction industry’ means construction firms and contractors (but not including ñrms or companies, whose principal business is other than construction work, and whose construction work consists only of maintenance construction work performed on their own property by their own employees) whose classification as construction industry is in accordance with the standard industrial classiñcation manual prepared by the technical committee on industrial classifications, office of statistical standards, 1957 edition, and who are subject to the workmen’s compensation law other than by voluntary assumption of the law.” (Emphasis added.) The principal business of Edison- is the production, transmission, and distribution of electrical energy. Edison is not defined as part of the construction industry by this statute. It is expressly excluded. The opening paragraph of the introduction to the "Standard Industrial Classification Manual” states: "Purpose of the Classification. "The Standard Industrial Classification was developed for use in the classification of establishments by type of activity in which engaged; for purposes of facilitating the collection, tabulation, presentation, and analysis of data relating to establishments; and for promoting uniformity and comparability in the presentation of statistical data collected by various agencies of the United States Government, State agencies, trade associations, and private research organizations.” The Manual’s discussion of "contract construction” opens with the following paragraph: "This division includes establishments primarily engaged in contract construction. The term 'construction’ includes new work, additions, alterations, and repairs. Three broad types of contract construction activity are covered; namely, (1) building construction by general contractors, (2) other construction by general contractors, and (3) construction by special trade contractors. Operative builders who build on their own account for resale or lease, and investment builders who build structures on their own account for rental, are classifíed in Major Group 65, Real Estate. ’’(Emphasis added.) The "Standard Industrial Classification Manual” defines "operative builders” as: "Builders primarily engaged in construction for sale on their own account rather than as contractors”. Rose, Inc. was engaged in building residences "for sale on their own account rather than as contractors”. Under the provisions of the "Standard Industrial Classification Manual”, Rose, Inc., would be classified as being in the real estate business and not the construction business. Therefore, neither Rose, Inc., nor Edison was subject to the safety rules and regulations known as the "General Safety Rules and Regulations for the Construction Industry”. Plaintiff nevertheless contends that evidence of the violation of such rules by Rose, Inc., or Edison would constitute evidence of negligence on their part. Rule 1303 of the "General Safety Rules and Regulations for the Construction Industry” provides: "Overhead electric power line. "Equipment shall not be operated in close proximity to overhead electric power lines, until the owner of the lines has been notified and operation coordinated with them. "In addition, such operations shall not be conducted unless 1 of the following conditions are satisfied: "Power has been shut off and positive means taken to prevent lines from being energized. "Equipment being used, or any part thereof, does not have the capability of coming within 10 feet of contacting lines. If equipment does have the capability of making contact, it shall be positioned and blocked so as to assure no part thereof can come within 10 feet of the line. A notice of the 10-foot limitation shall be posted at the operator’s position. "Public utility contractors working on overhead power lines shall be exempt from the proximity requirement.” It is plaintiff’s contention that both Edison and Rose, Inc., violated the above regulation. In granting the motion for directed verdict on Edison’s behalf, the trial court found that Edison was not apprised of the fact that a crane would be operated close to the electric wires on the date in question, and was not asked to take any precautions. The trial court further found that Rose, Inc., had absolutely no control over the work performed by Vettese Co. The following review of the undisputed evidence confirms the findings of the trial judge: Clare F. Andrews, chief of the Construction Safety Division, Department of Labor, testified that under the Construction Safety Act of 1963, supra, there was recognized one relationship, that of employer-employee. Andrews put responsibility under the act on the superintendent in charge of the work, who has control over work operations and equipment. Jack R. Rose, secretary of Rose, Inc., testified that a superintendent employed by Rose, Inc., was on the job at the time of the accident, with the responsibility of expediting and coordinating the various subcontractors. Rose stated that Vettese Co. excavated and poured the walls at the site of the accident. Gerald Durkin, the superintendent of Rose, Inc., had no authority to direct or control the actions of any employee of Vettese Co. There was no written contract between Rose, Inc., and Vettese Co. Dominic Vettese, one of the owners of Vettese Co., testified that deceased was employed as a laborer. Rose, Inc., had no control over the equipment or the men of Vettese Co. Durkin assigned only the lots to be worked on. Dominic Vettese was in control whenever he was at the job site; otherwise Bob Osantowski, the crew leader, was in control. No one from Rose, Inc., had attempted to exercise any control over the men or equipment of Vettese Co. On the morning of the accident, Dominic Vettese gave Osantowski instructions on where to place the crane and truck so as to avoid the hazard of the overhead wires. Vettese was not at the site at the time of the accident. The truck had not been placed where he had instructed. No one from Vettese Co. had informed Edison that a crane was at work at the construction site on the date of the accident. If the truck had been placed where Vettese had instructed, there would have been a 25-foot clearance between the wires and the crane. Robert Osantowski, the crew leader for Vettese Co., testified that he, along with deceased and three others, had been instructed on where to place the truck and the crane. The truck was not so placed because it got stuck, and the employees were going to move it after they had lightened its load. The only reason the truck was not moved after its load had been lightened was because the men forgot to move it. Osantowski did not call Edison on the day in question because he thought the equipment was in a safe position. Dale Case was the crane operator at the time of the accident. On the morning of the accident, he and his coworkers discussed the overhead wires and the position of the truck and crane. Deceased was the "hook-up man”, part of whose job was to signal when the crane was too close to the wires. Deceased never signaled that the crane was too close. The standard to be applied in deciding a motion for a directed verdict is to take all of the facts and view them most favorably to the party opposing the motion and then decide whether reasonable men must agree on the question of negligence. See Brown v Page, 39 Mich App 50; 197 NW2d 74 (1972); Mackey v Island of Bob-Lo Co, 39 Mich App 64; 197 NW2d 151 (1972); Simonetti v Rinshed-Mason Co, 41 Mich App 446; 200 NW2d 354 (1972). Applying this standard to the uncontroverted facts in the present case, it is clear that the trial judge did not err in finding that neither defendant was guilty of negligence as a result of a violation of Rule 1303 or otherwise. Issue II Was there testimony creating a question of fact for the jury as to whether defendant Edison was negligent in not warning deceased or deceased’s employer regarding the danger in working close to the overhead transmission lines? Edison, since 1954, had assumed the duty of going to the field to communicate with construction workers at job sites about the hazards of working in close proximity to overhead transmission lines. It is clear from Michigan case law that Edison was not negligent under these facts in maintaining the power lines in the vicinity of the construction work. Koehler v Detroit Edison Co, 383 Mich 224; 174 NW2d 827 (1970); Dees v LF Largess Co, 1 Mich App 421; 136 NW2d 715 (1965). In Prosser, Torts (4th ed), § 56, p 343, it is stated: "Where the duty is recognized, it is agreed that it calls for nothing more than reasonable care under the circumstances. The defendant is not liable when he neither knows nor should know of the unreasonable risk, or of the illness or injury. He is not required to give aid to one whom he has no reason to know to be ill.” While Edison had engaged in a program to educate people in the construction industry regarding the dangers of working in close proximity to overhead wires, it is undisputed that Edison had no knowledge a crane was to be used at the construction site on the date in question. Since the contractor failed to inform Edison of the use of equipment in close proximity to the lines, no duty on the utility’s part arose to inform the contractor or his employees of the hazard of working near overhead transmission lines, a hazard of which they were all admittedly well aware. Issue III Did the testimony create a question of fact as to whether or not the work performed by plaintiff’s decedent was inherently dangerous? The doctrine of inherently or intrinsically dangerous activity, like the now extinct-in-Michigan doctrine of assumption of risk grows increasingly more complex, involved, and confused with each litigated case. The latest pronouncements by the Michigan Supreme Court are set forth in three opinions in McDonough v General Motors Corp, 388 Mich 430; 201 NW2d 609 (1972). While all three opinions recognize the doctrine, they do not agree upon the extent to which it may be applied. For purposes of decision in this cáse, it may be noted that in McDonough Justices Black and Swainson signed the per curiam opinion, Justice Black added a separate addendum, Chief Justice Kavanagh’s opinion was signed by him and Justice Adams, Justice Williams concurred with the per curiam opinion and the Chief Justice’s, and Justice Brennan’s opinion was joined in by Justice T. G. Kavanagh. Chief Justice Kavanagh wrote (p 449; 201 NW2d at 617): "On the other hand, I find as quite cogent the reasoning of Justice T. E. Brennan’s opinion, relating to reliance upon the independent contractor’s and likewise his employees’ expertise to perform the job and/or repairs for which they were hired. It is fair to assume that the landowner retains the independent contractor because of the latter’s expertise to perform the task properly and carefully. Absent special factors, such as supervening control by the landowner, the method and means of executing the task are entrusted to the independent contractor and his employees.” Justice Brennan wrote (p 456; 201 NW2d at 620): "Thus, if I employ a contractor to remove a tree stump from my yard by use of explosives, I am liable to my neighbor whose garage is damaged by the concussion. This is because it is I who have set the project in motion; it is I who have created the unusual peril; it is for my benefit that the explosives were used. As between myself and my neighbor, I ought not to be permitted to plead that it was the contractor’s negligence and not my own which damaged his property. "But if the contractor should blow up his own truck, I should not be liable. He is the expert in explosives and not me. I had neither the legal right nor the capability to supervise his work. The same would be true if the contractor’s workman had injured himself, or been injured by the carelessness of a fellow workman or the negligence of his employer. Neither the contractor nor his employees are 'others’, as contemplated in Cooley’s statement of the rule. Indeed, they are privy to the contract which creates the peril.” It would therefore seem that a majority of five Justices are in agreement as to the limitation of the doctrine set forth above. For the purpose of passing on this issue, we assume that the work was inherently dangerous. Applying McDonough to the undisputed facts in this case, we conclude that "the method and means of executing the task [were] entrusted to the independent contractor and his employees”, and that, absent any control by Rose, Inc., no duty to plaintiff arose. Issue IV Was it proper for the trial court to ñnd as a matter of law that deceased's contributory negligence was the proximate cause of the accident in question? Plaintiff objects to the following statement by the trial court: "Parenthetically an additional item, in addition the court finds after due consideration of the presumption of due care which is due the deceased, that there is clear evidence of contributory negligence and such contributory negligence was the proximate cause of the accident and the jury could not decide other than the decedent was in fact contributorily negligent.” Both defendants are correct in stating that this issue had nothing to do with the trial court’s decision to grant the motions for a directed verdict. The judge begins his statement with the words "parenthetically an additional item”. The issue is without merit. Affirmed. Costs to defendants. See Feigner v Anderson, 375 Mich 23; 133 NW2d 136 (1965). In McDonough v General Motors Corp, 388 Mich 430, 447; 201 NW2d 609, 616 (1972), Chief Justice Kavanagh wrote: "I am unwilling to foreclose, by exclusive and restrictive reliance upon this doctrine, the applicability to this or future cases of other rules of tort law which affix liability upon the landowner who, for economic benefit or otherwise, engages an independent contractor and then negligently injures an employee of the independent contractor. To base liability of negligent landowners upon a single doctrine ignores the innumerable factual circumstances giving rise to the cause of action and varying relationships of the parties.” Query: Are not the other rules of tort law fully capable of meeting a plaintiffs claim in terms of duty, proximate cause, etc? The trial court found: "There is testimony that high voltage electric wires are inherently dangerous but there is no testimony in this case from which the jury could find that the operation carried on with the crane was inherently dangerous because of the Detroit Edison line. 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Per Curiam. Defendant was convicted on his plea of guilty to the charge of armed robbery, MCLA 750.529; MSA 28.797, and sentenced to a term of 7-1/2 to 20 years in prison with credit for time spent in jail prior to sentencing. Defendant appeals from denial of his motion to vacate the guilty plea and grant a new trial, and motion, in the alternative, for resentencing. He was approximately 16-1/2 years old at the time of the offense. Jurisdiction was waived by the Juvenile Division of Kent County Probate Court after a full hearing in which defendant was represented by retained counsel. Defendant was originally charged with breaking and entering an occupied dwelling with the intent to commit a felony, MCLA 750.110; MSA 28.305, and assault with attempt to rape MCLA 750.85; MSA 28.280, as well as armed robbery. On appeal he challenges the validity of his guilty plea. He claims the plea was negotiated on the basis of the prosecutor’s agreement to drop the remaining charges for a plea of guilty to the charge of armed robbery. Defendant does not claim that promises on the part of the prosecutor were unfulfilled. People v Bartlett, 17 Mich App 205; 169 NW2d 337 (1969); People v Merkerson, 35 Mich App 395; 192 NW2d 656 (1971). He claims, however, there was insufficient evidence to support the charge of assault with intent to rape. He further argues that the breaking and entering with which defendant was charged was an integral part of the armed robbery offense to which he pled guilty. He argues that any breaking and entering was merely preparation for the intended crime of armed robbery. He reasons that as mere preparation, the lesser offense would of necessity be absorbed within the greater charge and could not properly be treated as a separate offense or prosecuted as such. He concludes, finally, that since separate convictions could not have been obtained under the charges dismissed, any plea bargains based on them were illusory and fallacious bargains. Normally, this Court would review the transcript of the preliminary examination in order to determine whether there was a sufficient factual basis to support a charge, such as assault with intent to rape in this case. Defendant, however, waived his right to preliminary examination and thereby failed to preserve a record from which such a determination could be made. Arguments that defendant’s waiver of preliminary examination was involuntary and uninformed are digressive. He failed to preserve it as a side issue in the proceedings below and fails to treat it directly with authority and arguments on appeal. Matter does appear in defendant’s brief on appeal suggesting that there did exist a factual basis to support the attempted rape charge. Appended to defendant’s brief is the petition for waiver of jurisdiction addressed to the Juvenile Division of the Kent County Probate Court and filed by the prosecutor in this case. The petition contains the following charge: "(d) The said KENNETH ROGERS did assault [name of victim], 85 years old, on January 21, 1971, with intent to commit the crime of rape, by stripping off her panties, wrapping them around her neck and dragging her into the living room of her home, contrary to Section 28.280 of Michigan Statutes Annotated, as amended.” A full hearing was held on the waiver petition in which defendant was represented by counsel. Opportunity was had to challenge the sufficiency of the attempted rape charge at that time. While the waiver hearing is not taken as a direct equivalent of a preliminary examination, nevertheless, defendant was put on notice as to the factual nature of the charge resting against him and any serious doubt as to the sufficiency could have been raised before he entered his plea. In view of the fact that no record was preserved from which we can test the sufficiency of the attempted rape charge on appeal and that no direct challenge has been made on appeal to the factual matters contained in the prosecutor’s petition, we must reject defendant’s general challenge to the sufficiency of the charge. Next we take defendant’s challenge of the breaking and entering charge. In substance breaking and entering is a distinct and separate offense from that of armed robbery. Appellate counsel fails to provide authority establishing that breaking and entering is a lesser included offense to that of armed robbery. That defendant broke into and entered the victim’s house merely in preparation for the intended crime of robbery and that the two constituted a single transaction is merely a defense theory of the case. It is in no way binding on the trier of fact. Had the matter been submitted to a jury, the members would have been as free to find two separate intents and two separate crimes as they would have been to find a single crime. Accordingly, we fail to find that defendant has established any insufficiency or impropriety in the charges presented against him and cannot conclude to any error in the acceptance of his guilty plea. Moreover, while the trial court is obliged to inquire into the truth of the guilty plea, People v Blewett, 18 Mich App 327; 17 NW2d 897 (1969), rev’d 382 Mich 793 (1969); People v Coates, 32 Mich App 52; 188 NW2d 265 (1971), we have not gone so far as to require additional inquiry into every other matter raised against the pleader. Defendant raises additional questions on appeal. He claims his attorney committed serious and prejudicial mistakes and he was thereby denied effective assistance of counsel. Examination of the record and briefs fails to disclose the contended serious mistakes on the part of the defendant’s attorney. Moreover, nothing in the record and briefs indicates that defendant has properly preserved the issue of effective assistance of counsel by requesting a full Jelks hearing and making a testimonial record in connection with his motion for a new trial or relies on anything brought out at such a hearing. People v Jelks, 33 Mich App 425, 431; 190 NW2d 291, 294-295 (1971); People v Melvin Harris, 36 Mich App 231; 193 NW2d 339 (1971). Finally defendant contends that the trial court erred by considering his juvenile record in setting sentence. The law in this state is to the contrary. The trial court is entitled to examine a defendant’s juvenile record for the purpose of determining sentence. People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973). In closing it should be noted that we are not unaware of People v Fields, 388 Mich 66; 199 NW2d 217 (1972), which deals with the validity of the procedures for waiving juveniles in criminal cases from probate to circuit court for trial. However, Fields is inapplicable to the instant case inasmuch as it is now on rehearing before the Supreme Court. Therefore in the event Fields is approved and made retroactive, the defendant may, without prejudice, file a motion for rehearing on the question of his waiver from probate to circuit court, otherwise defendant’s conviction and sentence are affirmed.	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Bashara, J. Plaintiff instituted suit against defendant for breach of a contract to install electrical equipment alleging damages in excess of $100,-000. The same day plaintiff filed affidavits for writs of prejudgment garnishment under the authority of GCR 1963, 738.2. The affidavits alleged indebtedness in the same amount as stated in plaintiff’s complaint. The affidavits further stated: " * * * that Plaintiff is justly apprehensive of the loss of said sum * * * unless a Writ of Garnishment is issued for the reason that said defendant has failed to pay its debts as they mature and may have incurred debts in excess of its assets and without said writ of garnishment may at any time release, remove, secrete, transfer, dispose of or withdraw its assets or prefer other creditors, thereby leaving itself without sufficient assets to satisfy plaintiffs judgment.” After service of writs of garnishment on six Detroit area banks, one garnishee defendant disclosed indebtedness of about $3,000. Defendant H & S Electric Co. sought a bill of particulars. Plaintiff eventually replied, revising damages to $69,035.58 to reflect the amount plaintiff alleged was paid out in excess of the original contract price as a result of defendant’s failure to complete the contract. Defendant moved to quash the writ of garnishment contending that plaintiff failed to set forth facts sufficient to support its claim as required by GCR 1963, 738.2(3). It was defendant’s further contention that the writ stated an incorrect indebtedness as shown by the plaintiff’s bill of particulars. The trial judge granted defendant’s motion to quash. This Court has granted plaintiff’s application for leave to appeal from that order. Plaintiff contends on appeal that the statement contained in its affidavit was specific enough to satisfy the rule. GCR 1963, 738.2(3) provides that the writ shall issue if plaintiff or his representative avers that: "the plaintiff is justly apprehensive of the loss of his claim against the defendant unless a writ of garnishment is issued and setting forth the facts in support of this claim. ” (Emphasis supplied.) The question regarding the degree of specificity of the affidavit on prejudgment garnishments under the present court rule appears to be one of first impression in the appellate courts of Michi gan. In Tsingos v Michigan Packing Co, 272 Mich 7; 260 NW 783 (1935), the Court stated that the purpose of garnishment is to impound security for satisfaction of a demand where the plaintiff or affiant is justly apprehensive of the loss of the security unless a writ of garnishment issue. GCR 1963, 738.2(3), which requires the affidavit, is meant to impose a limitation on the power of the plaintiff to impound such security by requiring him to show that he is not only apprehensive of loss, but to also set forth the facts in support of his claim. The principal defendant is thereby given notice of the allegations which have caused a freezing of his assets and may come forward to deny or repel such allegations. Two interesting West Virginia decisions appear to shed some light on the problem. Roberts v Burns, 48 W Va 92; 35 SE 922 (1900), required the statement of material facts to be certain and definite in legal point of view in order to inform the defendant of facts he must repel. In ruling on the necessary degree of specificity of facts supporting an affidavit for writ of attachment, the West Virginia Court cited with approval an earlier case, Delaplain & Co v Armstrong, 21 W Va 211, 214 (1882). The Court there stated: "The manifest object of the statute in requiring the material facts to be stated, is to guard the property of the debtor against improper seizure and to enable the court to judge and determine whether the information, thus supplied by the affidavit, furnishes reasonable proof of the main fact involved — the fraudulent intent of the debtor.” The inherent difficulty in requiring specific facts in affidavits for prejudgment garnishments is that there has been no opportunity for discovery. GCR 1963, 738.9 (1)(4); GCR 1963, 302-313. Were discov ery available, however, and defendant put on notice, the plaintiff’s apprehension of loss could well become a reality. This could defeat the security the rule means to provide. The court rule was intended to force the plaintiff to a disclosure of some facts beyond the mere conclusion of apprehension of loss. This disclosure would enable the principal defendant to have notice of, and an opportunity to repel, those more specific allegations upon which the writ is founded. Application of the foregoing principles to the instant affidavit results in the following analysis: Plaintiff claims it fears loss because defendant failed to pay its debts as they matured. Such an allegation, if supported, provides notice to the defendant of a fact he must repel, tends to prove plaintiff’s apprehension of loss, and notifies the court of potential risk. Plaintiff next alleges that defendant’s liabilities may exceed its assets. While defendant claims such a statement is conclusory and speculative, without discovery greater specificity of supporting facts is improbable. Plaintiff further notifies the defendant, by this allegation, of a fact he must repel. Defendant next argues that the trial court order should be upheld because plaintiff stated an incorrect amount of indebtedness in the initial writ. When damages are ascertainable by standards established in the contract, the amount stated in the writ need not be absolutely correct: "The statute requires that the affidavit in garnishment shall state that the principal defendant is indebted to the plaintiff in a given amount. This requirement was met by plaintiff’s garnishment affidavit; and it is not required that the amount be stated with absolute correctness as determined by the amount ultimately found due to plaintiff in the principal suit. In the case at bar, the damages may be ascertained by the standards set up in the alleged contract, if proven.” (Emphasis by the Court.) Talbert v Solventol Chemical Products, Inc, 304 Mich 557, 565; 8 NW2d 637, 640 (1943). See also Geistert v Scheiffler, 312 Mich 36, 39; 19 NW2d 477, 479 (1945), and Goldblum v United Automobile, Aircraft & Agricultural Implement Workers of America, Ford Local No 50, 319 Mich 30, 40-41; 29 NW2d 310, 314 (1947). The contract here provides: "If, for any reason, the Contractor shall fail to complete any of the portions or the whole of this contract within the time specified, ALCO may have the work done by others and the cost of completion of said work shall be charged to Contractor.” The damages were ascertainable by reference to the cost of completion standard in the contract. Plaintiffs estimate of the cost of completion was as reasonable as could be expected at the time the complaint and affidavit were filed. It is, then, our opinion that the trial judge was incorrect in quashing the writ of garnishment on the facts before us. We, therefore, reverse and remand with direction to reinstate the original writ. Holbrook, J., concurred.	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O’Hara, J. The tortuous trail of this litigation began in 1967 in the case of Jordan v CA Roberts Co, 379 Mich 235; 150 NW2d 792 (1967). Since then it has been reported on rehearing in 381 Mich 91; 158 NW2d 901 (1968), and as Jordan v Whiting Corp, 42 Mich App 448; 202 NW2d 477 (1972), in the Court of Appeals. Presently it is before us on rehearing from our decision in the latter case. The order granting the rehearing provides: "It is further ordered that plaintiff shall file a brief with supporting record references to sustain her contention that the trial court erred in directing a verdict in favor of defendants. The brief and supporting record references shall be specific as to the duty defendants owed plaintiff’s decedent, how it was breached, what implied warranty is relied on and how it was breached. Plaintiff shall have 30 days to file and serve her brief.” Thus it becomes our duty to discuss the relationship of each of the three defendants to plaintiff’s decedent as to the claimed negligence and the breach of an implied warranty of fitness. We start with the undisputed facts. C. A. Roberts Company, decedent’s employer, wanted an overhead crane for its place of business. It ordered one from Dearborn Fabricating & Engineering Company. Dearborn in turn purchased certain component parts of the whole unit from Whiting Corporation, which manufactured them. The whole unit depended upon electrical power to function. Dearborn engaged N & K Electric Company as a subcontractor to do some of the electrical work to energize the unit. Next, we recite facts that while not totally undisputed are on required favorable view to plaintiff to be taken as true for the purpose of testing the grant of a directed verdict in favor of all three defendants in the trial court. Plaintiffs decedent was at work on the overhead crane. Under permissible inference on favorable view he was there to repair it. He was found dead lying across the unit. His death was caused by electrocution. There were no witnesses to his' death. He was presumed to have been in the exercise of due care for his own safety. This presumption was raised to the level of substantive evidence by the majority opinion in In re Wood Estate, 374 Mich 278; 132 NW2d 35 (1965), and Wirtanen v Prudential Ins Co, 27 Mich App 260; 183 NW2d 456 (1970). First, we analyze the relationship of N & K Electric as to negligence. The modern view which has been incorporated in general terms and in basic principle into our tort law is expressed by Professor Prosser as that duty is that obligation "recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Prosser, Torts (3d ed), § 30, p 146. This concept incorporates the historic element of reasonable foreseeability. Under a written contract, which became an exhibit in the trial court, N & K undertook to install certain electrical controls, do some wiring and extend the feeders to the crane’s power lines. It manufactured nothing. It sold nothing. It designed nothing. It simply supplied the materials and did the wiring so the unit could be electrically energized. Among the things it included was a lockbox by which the electric current to the crane could be shut off, leaving the unit inert. The switch was not in the "off” position when plaintiff’s decedent was electrocuted. His wife was permitted to testify in substance that he always shut off the power before making any repairs to the crane. There is no off-record explanation as to how it came to be "on”. There is no allegation of any general or specific act of negligence on the part of N & K Electric. Bench questioning on rehearing as to what negligent act plaintiff relied upon to sustain its case in negligence against N & K elicited a generalized answer, with the candid statement by appellate counsel that he was not authorized to agree to dismissal of any party. There simply is no case against N & K in negligence or in warranty. Short of stationing a guard at the lockbox, N & K could have done nothing to prevent decedent’s electrocution. The trial judge was right when he initially directed a verdict in favor of N & K. We were in error when we affirmed his grant of a new trial as to it. We direct the reentry of the directed verdict in the trial court as to defendant N & K Electric. We turn now to the case against Whiting Corporation. This defendant manufactured components which were ordered and bought from it by Dear-born. As to foreseeability and tort liability, Whiting could not have known — at least so far as the record shows — how these components were to be fashioned or fabricated into the completed unit. The obligation that generates the duty to avoid injury to another which is reasonably foreseeable does not — at least yet — extend to the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit designed, assembled, installed, and sold by another. We test the claimed liability against Whiting by the specific allegations of negligence and breach of implied warranty. Three of them relate to alleged failure to (a) use reasonable care in relation to installation of the crane’s electrical lockout box; (b) failure to provide adequate warnings on the electrical lockout box; and (c) failure to ground the electrical system of the crane. Manifestly, Whiting had nothing to do with any of the foregoing. The point is so clear as to warrant no discussion. The fourth allegation was: "(d) Failure to design, sell, and install a crane with interlocking arms of sufficient strength to avoid a repairman having to climb atop the crane to straighten the arm.” The general nature of the allegation would certainly have been the proper subject of a motion to make the allegation more specific as to defendant Whiting. But then it is not part of the function of an appellate court to tell defendant how to try its lawsuit. Under our adversary system Whiting may well have chosen to say in effect "let plaintiff prove all of that; it has nothing to do with us”. Whiting, according to the record, did not design and did not install a crane. Neither did it sell a crane to anybody. It sold certain units to be assembled into a crane which in turn was fabricated or assembled and sold by another to a purchaser of the completed unit. The only vestigial connection Whiting might have had was to manufacture interlocking arms which would never need repairs. We are cited no law and extensive independent research reveals none which imposes that duty in law. The last of plaintiff’s allegations against all defendants is: "(e) Failure to install insulating covers on the crane trolley wires or buss /sic/bars.” Plaintiff does not specify whose burden it was to install the covers. Mayhaps she did not know. Mayhaps she conceived it the burden of the three named defendants to establish whose failure (assuming the "failure” was actionable) it was. As previously noted it surely was no failure by or duty of N & K. Whiting in its reply brief concedes that it "also made a cover for the electrical buss [sic] bars and would have been glad to sell the plaintiffs (decedent’s) employer a cover”. The brief further recites that the "employer * * * did not want to buy a cover”. We can hardly be expected to hold, since the exposed bars did not violate any electrical code legislatively imposed (a fact conceded by plaintiff), that Whiting had the obligation, and more importantly the right to insist that the purchaser buy the covers. The case against Whiting fails in negligence because whatever the claimed defects of manufacture or the interlocking arms Whiting could not possibly be held reasonably to foresee that a repairman would be involved in servicing that part of the total assembled units when the adjacent wires were "hot”. The case against Whiting fails in warranty because there is no testimony that decedent was at the place where he was electrocuted in order to repair the allegedly defective arms. True there was testimony by the one witness that problems had been experienced previously because an arm would bend and the crane would not lock in position. Another witness testified that if, and we emphasize the "if’, the arm were designed too "soft” or too long it might bend (again the emphasis is ours) and become inoperative. Two witnesses agreed that the component could have been de signed so it would not bend. In the last analysis breach of warranty by Whiting would have to rest upon the premise that Whiting was obligated to manufacture a component that would not need repairs. We are cited no law, nor has our very extensive research disclosed that any such a duty exists under the theory of either negligence or warranty. This standing alone, of course, is not reason enough to deny recovery against Whiting. Any time a new duty is judicially promulgated some court has to say it for the first time. We do not believe it would be within the realm of reason to proclaim such a duty. Reasonable performance can be demanded in warranty. Perfection and the non-requirement of repairs seems to us to exact more of a manufacturer than human limitations can meet. However, this issue might become subject to review by the Supreme Court. That Court might take a contrary view. Therefore we hold additionally that even in warranty there must be evidence of causation. Because a device had needed repairs before the question of the cause of the electrocution of a repairman who might possibly have been making additional repairs does not become jury-submissible with only that quantum of proof and no more. The trial judge was right initially when he directed a verdict in favor of defendant Whiting. We were in error when we affirmed the grant of a new trial. As in the case of N & K, we direct the reentry of the directed verdict in favor of defendant Whiting. Finally, we examine the case against Dearborn Fabricating and Engineering Company. Under Dearborn’s statement of facts the following is its position in the litigation: "Dearborn Fabricating received an order for an over head crane from the C. A. Roberts Company, which order particularized the kind of crane Roberts desired and the respective parts that were to make up the crane. The order was sent by Dearborn Fabricating to defendant Whiting Corporation, which delivered the respective parts to defendant Dearborn Fabricating. Dearborn Fabricating then assembled the parts into a crane and installed it for C. A. Roberts.” The statement of facts also recites that "Dear-born * * * sold it to decedent’s employer”. It is, of course, obvious that Dearborn is somewhat more involved in the case than either Whiting or N & K Electric. True the purchaser specified the parts to be used to make up the completed unit. However, Dearborn did assemble it, sell it and install it. We recognize that Dearborn’s duty and liability, if any, are to be tested essentially by the same legal principles that control the duties and liability of N & K and Whiting except as the additional facts of the case may vary the relationship between plaintiff’s decedent and this defendant. Earlier herein we set out verbatim plaintiff’s allegations of the conduct of the three defendants upon which she depended for sustaining her cause of action. We need not set them out with that specificity again. We will discuss them, however, as they relate to Dearborn. The case against Dearborn fails in negligence as to all of the alleged duties save one because Dear-born too could not possibly have foreseen reasonably that an employee of the purchaser would be undertaking any service or repair of the unit while electricity was being fed to the unit when there was a lockbox which could cut off the power and which could be locked in the "off” position. Yet manifestly it was not off or plaintiff’s decedent could not possibly have been killed. The case against Dearborn fails in warranty in all particulars save one because as we noted earlier even in warranty under the most strict liability there must be some evidence that will establish or support a reasonable inference of causation before a jury-submissible question is made out. The one exception we note is the failure to ground the electrical system. Since N & K was limited to the items specified in a written contract, and this item was not included, N & K cannot be held for this omission, if it be actionable. Since Whiting did not install the crane in the purchaser’s building, it too is excluded from the force of this allegation. Dearborn did install it. In this particular we cannot find of record a clear unequivocal direction by the purchaser not to ground the unit as was the case in the choice not to insulate (other than by isolation) the bus bars or trolley. This brings us to the thus far undiscussed question of the difference in degree of duty of a manufacturer, designer, seller or installer to one operating the device and one who in any other lawful way is exposed to and injured by a claimed malfunction or defect in design, selection of material, or assembly of components. Obviously in law and in reason there must be a difference. Defendant cites Shanks v Insurance Co of North America, 211 So 2d 729 (La App, 1968), for the proposition that the duty of care a manufacturer owed to users and the general public does not exist as to a repairman engaged in making repairs when injured. Plaintiff counters not with cited precedent, but with the provocative inquiry if it will become the law of this state that "repairmen are expendable” and no duty is owed. We think the rule of reason lies somewhere in between. We would be imprudent to undertake to fashion it inflexibly. We think that either in negligence or warranty this principle obtains and should be our controlling law. The repairman by the very nature of his undertaking exposes himself to hazards the injurious results of which might be actionable by a user or the general public but not actionable by him. Where then lies the line of demarcation? We think we must revert to the long-standing legal principle (it has been called by many the "legal fiction”) that when the minds of reasonable men cannot differ the question is one of law for the court and will require a purely legal determination. Where the facts adduced may fairly be said to support differing conclusions or inferences the question must be submitted to the trier of the facts be it jury or court sitting without a jury. It is not an exact rule, we know, but neither is law an exact science. The appellate adjudication does its best within its manifest and recognized limitations. By this test then let us try to weigh the issue as between plaintiff and Dearborn as to the failure to ground the crane which plaintiff says gives rise to a question of fact in either negligence or warranty. Under the order for rehearing calling for specifics as to legal duties and supporting transcript references Dearborn in compliance with the Court’s order says: "As the last duty allegedly breached by defendants, plaintiff points to a claimed failure to ground the electrical system of the crane. It has been pointed out that defendant Dearborn Fabricating did not perform the electrical work. Furthermore, Mr. Joseph A. Daoust testified that the crane was grounded (T. 674) and Mr. Stephen Squillace testified repeatedly upon cross-examination that he didn’t know if the crane’s grounding system had anything at all to do with decedent’s electrocution. (T. 408, 411, 439). Thus, the testimony of plaintiff’s own expert makes any inquiry into the crane’s grounding system irrelevant.” Plaintiff replies: "[T]he question of defendants’ failure to ground the crane was likewise for the jury. Only the trier of fact could determine whether, in light of Mr. Squillace’s testimony, defendants were negligent in failing to ground the crane. In a similar case in Mulcahy v Argo Steel Construction Co, 4 Mich App 116; [144 NW2d 614] (1966), this Court stated in view of the testimony that grounding might have prevented the injury that: " 'The question that must be answered in this regard is not whether [defendant] or its employees were aware or realized the benefits to be derived from the use of the grounding devices on the power crane, but whether or not a reasonably prudent person in the position of [defendant], would have realized the benefits of grounding devices and equipped the power crane with such devices. This is a question of fact for the jury to be determined from the evidence. ’ ” 4 Mich App at 122; 144 NW2d at 617 (plaintiff’s own emphasis). Let us try to distill the voluminous record into those facts and that testimony that either does or does not create a jury submissible case on the one narrow and last remaining issue raised by the complaint. We will set forth what we consider controlling numerically in an attempt to pinpoint the reasons for our holding. 1. Plaintiff’s decedent was electrocuted at the place of his employment where he had a right to be in the performance of duties he had performed in the past. 2. There was a lockbox that had been installed which would shut off the electric current carried into certain components of the whole unit. If the current had been shut off the decedent could not have been killed. 3. No one knows with certainty why defendant was where he was at the time of his death. He was found dead. Under the majority opinion of In re Wood Estate, supra, he was presumed to have been in the exercise of due care for his own safety. The same majority holding raises that presumption to the status of substantive proof. No inference adverse to decedent can be taken from the fact that the power was not shut off. 4. Dearborn sold and installed the whole unit. 5. A witness, qualified as an expert and thus allowed under our system to give opinion evidence, testified that the crane was improperly grounded. He testified further and drew a diagram to explain why that had it been properly grounded decedent would have had a 70 to 80 percent chance of survival even though brought into contact with the "hot” wires or bars. 6. That same witness also testified under cross examination: ”Q. [T]hen you don’t know whether the grounding had anything to do with his death or not, do you? ’A. That’s right. I don’t.” So there is the whole remainder of the lawsuit. Was it controlling and dispositive that the expert who testified to improper grounding, also testified he could not testify opinion-wise to any causal relationship between the alleged improper grounding and decedent’s death? We must say in candor that much of the testimony concerning "built-in” grounding, external grounding, lack of grounding and testimony of another of plaintiffs witnesses that the crane in fact was grounded makes out at best what must be called a close case. Yet there is no gainsaying that the testimony is there and our appraisal of its weight is not to the point. We would not be understood to mean than any testimony, however preposterous, however much discredited by cross examination which results in a testimonial conflict, is not susceptible of judicial disposition by the trial or appellate bench. Such is not the situation here as we view it. While the question is close — very close — as the Supreme Court very recently held: "A very close question is presented, but * * * the doubtful case in each instance calls for jury instruction and jury verdict rather than a verdict by order of the court.” Washington v Jones, 386 Mich 466, 471; 192 NW2d 234, 237 (1971). We vacate the original order of the trial judge granting a directed verdict as to defendant Dear-born, and affirm our holding of a grant of a new trial as to defendant Dearborn in 42 Mich App 448; 202 NW2d 447 (1972), above cited. Because our decision here is on rehearing granted and because our opinion here renders all issues other than plaintiffs allegation of failure to ground the unit res adjudicata in the trial court and this Court, we limit the proceeding in the trial court to the pleadings now of record in that court. We respect the request of the trial judge that in the event of the grant of a new trial the cause be assigned to another trial judge. It is so ordered. The question of taxing costs is no less complex than the questions in the case. We have examined both GCR 1963, 526 and 822 and the annotations thereunder. Plaintiff did not improve her position upon rehearing and cannot be considered a prevailing party. Dearborn improved its position by reason of narrowing the scope of its exposure to liability, but only as to plaintiff. As to N & K and Whiting, whose interests were to a degree adverse to Dear-born, Dearborn did not prevail. Thus Dearborn cannot be said to have prevailed in full. N & K and Whiting prevailed in full as to plaintiff and in full as to Dearborn to the extent their interests were adverse. N & K and Whiting may each tax its costs apportioned as follows: one half the costs of each against plaintiff, one half the costs of each against Dearborn. Dearborn prevailed in part as to plaintiff and may tax one half of its costs against plaintiff. We deem the foregoing to be compliance with GCR 1963, 526.1. All concurred. Subsequently, the trial court reversed its position after a limited order of remand by this Court, and granted a new trial. In our original reported opinion, 42 Mich App 448; 202 NW2d 477 (1972), we affirmed the grant of a new trial. The basic issue abides, however, the propriety of the direction of a verdict in favor of all defendants. For a useful discussion relative to "foreseeability” see Elbert v Saginaw, 363 Mich 463; 109 NW2d 879 (1961). See generally Piercefield v Remington Arms Co, 375 Mich 85; 133 NW2d 129 (1965); Heckel v American Coupling Corp, 384 Mich 19; 179 NW2d 381 (1970); Parsonson v Construction Equipment Co, 386 Mich 61; 191 NW2d 465 (1971). We note with interest but without comment since we find no specific testimony on the point that N & K’s "quote” provides: "Power wiring to insulate bar to be done by others”. Defendant Dearborn alone cites Shanks, supra.	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McGregor, J. In this child custody case, appellants raise two substantial issues: (1) whether the appellants have been denied their parental rights without due process of law, and (2) whether the statute giving the probate court jurisdiction over neglected children is void for vagueness. The initial proceedings in this matter were instituted in probate court under MCLA 712A.2; MSA 27.3178(598.2) by petitions alleging that the children involved fell within the jurisdiction of the court under section (b)(2) of the act, which provides that the probate court shall have jurisdiction over any child in the county "whose home or environment, by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in”. There are two sets of children involved in this case, the Smith children and the Brown children. According to the allegations in the petitions, the home was rendered unfit because the mothers were living together in a state of lesbianism which created an immoral atmosphere. A hearing was held on May 13, 1970, at which it was represented to the court that the families were no longer living together. The probate judge indicated that he believed that the court should take jurisdiction but he continued custody with the mothers on the condition that they live apart. The written order of the court omitted the condition that the women live apart. On June 5, 1970, another hearing was held, at which an officer of the Michigan State Police testified that on June 3, 1970, he was called to the Smith home where there had been some kind of a fight, and that Mrs. Brown had tried to kill herself. Unfortunately, the trooper’s testimony is almost entirely subject to objections, either as hearsay evidence or that the trooper lacked personal knowledge of the facts to which he was testifying. At the conclusion of this hearing the probate court ordered the children placed in foster boarding homes. By an order entered on June 20, 1970, the custody of the Brown children was awarded to the maternal grandparents. After a hearing on July 15, 1970, custody of the Smith children was awarded to their father. A hearing involving only the Brown children was held on August 5, 1970, at which Mrs. Brown was represented by court-appointed counsel, and at which it was indicated that Mrs. Brown consented that the grandparents have custody of her children. At another hearing on June 22, 1971, it developed that the grandparents were unable to continue their custody of the children because of illness, and the court restored custody of the children to their mother. On December 30, 1970, a hearing concerning only the Smith children was held, at which it was shown that Mrs. Smith had taken her children to her home. After a subsequent hearing on February 9, 1971, the court restored custody of the Smith children to their mother. On October 29, 1971, a hearing was held involving both sets of children, at which both women were represented by the same attorney. When it was shown that the families were again living together, the court ordered that the children be placed in foster homes. This probate order was appealed to the circuit court, which affirmed the order, after hearing the matter on the probate court record. Mrs. Smith and Mrs. Brown appeal to this Court on leave granted. Appellants first submit that they were deprived of their parental rights without due process of law. A more specific statement of appellants’ conten tions in this regard appears in their brief, as follows: "Three subjacent facets of 'due process’ are proposed for the court’s consideration, viz.: "1. Were the respondents entitled to counsel at the determinative proceedings of May 13, 1970? "2. Were the allegations propounded by the prosecutor proven? "3. Was the order of the probate court terminating custody the appropriate consequence of the proceedings?” The answer to the first question is clear. The mothers were entitled to counsel at the May 1970 hearing. "The child, his parents, guardian, or custodian shall have a right to retained counsel and also to court-appointed counsel as provided in this rule; it shall be the duty of the court to so advise them at the first hearing before the court.” JCR 1969, 6.1. With regard to Mrs. Smith, no right-to-counsel problem exists; she was represented. Mrs. Brown had been represented by the same attorney but, at the hearing, he stated that he was withdrawing as Mrs. Brown’s counsel and was representing only Mrs. Smith. The court did not inform Mrs. Brown of her right to appointed counsel, if indigent. Since she later was represented by appointed counsel, it seems likely that she was indigent at that time. There was no waiver of counsel as provided in JCR 1969, 6.2 and JCR 1969, 6.3(A)(2)(b): "Unless waived as provided by Rule 6.2, counsel shall be appointed on the court’s own motion to represent the parents, guardian, or custodian of the child charged with offense against the child at hearings which may involve termination of their rights when legal aid or public defender counsel is not available, and they are financially unable to employ counsel to represent themselves.” It seems clear that Mrs. Brown was denied her rights under the court rule and that Mrs. Smith was not. Concerning the question of whether the prosecutor proved his case, appellants stress the fact that there was no testimony that the women were observed in homosexual activity. In evaluating this contention, the two-step nature of these proceedings is of some importance. First, a determination must be made that the jurisdictional facts exist. Second, if such facts exist, a proper order of disposition must be made. In re Franzel, 24 Mich App 371; 180 NW2d 375 (1970). The first step of these proceedings is referred to in the court rules as the adjudicative phase. "In absence of a valid plea in confession only competent, relevant, and material evidence is admissible at the adjudicative phase, subject to the general rules of evidence in civil proceedings.” JCR 1969, 8.3(A). Thus, if the finding that the court had jurisdiction is to be upheld, the record must contain sufficient evidence, admissible under the ordinary rules of evidence, to support the probate court’s finding. The record is clear that competent evidence was introduced to support a finding that the mothers were involved in a homosexual relationship. The state police trooper testified that, on January 3, 1970, he was called to the Smith residence because Mrs. Brown had allegedly assaulted Mrs. Smith with a rifle. On January 4, 1970, he returned to the residence and talked to Mrs. Brown. At that time Mrs. Brown admitted the assault and stated that she had tried to kill herself, Mrs. Smith, and the children, and that she had at tempted suicide. These statements are clearly hearsay, but it seems equally clear that they are admissions. When asked if she was living in a state of lesbianism, Mrs. Brown stated, "So you know about it”, and then stated that she wanted to break off the relationship. Again, it seems that this testimony would be admissible as an admission. The trooper also testified as follows, regarding a note written by Mrs. Smith to Mrs. Brown: "[S]he did write the note and this note indicated that, read briefly, 'why are you doing this to me. You know your driving me crazy. What you’ve done to me, doll, they are putting me in jail. I still love you * * * ’ it went on, explaining that she wished that Arlene Smith wouldn’t bring these charges against her and that she still loved her.” This seems to be a classic illustration of double hearsay. The note itself is hearsay, but it would seem to be admissible as an admission. However, the trooper’s testimony is hearsay on hearsay and does not fit within any exception to the hearsay rule. The trooper also testified that Mrs. Brown said that the whole dispute arose because Mrs. Brown wished to date a man. He also stated that he spoke to Mrs. Smith on the phone and she said that she wanted Mrs. Brown released and that she loved her. The trooper?s testimony also included the physical aspects of the home, which was a house trailer with some sort of an extension built on it; a total of nine people lived in this home, in which three rooms were used as bedrooms. In apparently unsworn testimony, the prosecutor indicated that he had received telephone calls from a person who identified herself as Mrs. Smith. The caller stated that she wanted Mrs. Brown released and that she loved her. The prosecutor further stated that he accused Mrs. Smith of living in a state of lesbianism and she answered that it was "nobody’s business but our own”. She further told him that she had visited a psychiatrist in Flint who had stated that there was nothing wrong in what she was doing and that it was their own business. There was sufficient evidence to support the conclusion that the women were engaged in a lesbian relationship. However, there is very little to support the conclusion that this relationship rendered the home an unfit place for the children to reside. In light of the fact that Mrs. Brown was not afforded counsel at the May 13, 1970 hearing, and that there was little, if any, material and admissible evidence to support the finding that the appellants’ homosexual relationship rendered their home unfit for their children, the case is remanded to the probate court for a full hearing relative both to its jurisdiction and the disposition of the children, if jurisdiction is found. Pending the probate court’s decision on remand, the children are to remain in their foster homes. Our disposition renders unnecessary consideration of appellants’ contention that the statute is void for vagueness. Reversed and remanded. All concurred.	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McGregor, J. Defendant appeals a jury verdict of guilty on the charge of breaking and entering general, MCLA 750.110; MSA 28.305. The information charged that this defendant with two companions did feloniously break and enter a building with the intent to commit larceny therein. The agreed statement of facts indicates that the police, responding to a silent alarm, arrived at the scene in time to see two individuals fleeing the building from the rear, inside a closed fence which surrounded the building. When requests to halt were ignored, the officers fired at the fleeing individuals, hitting this defendant as he was allegedly scaling the fence and causing him to fall to the ground inside the fence. Defendant contends that he was an innocent bystander and that he ran into the alley from a nearby gas station when he heard noise and saw lights. He further maintains that he heard a shout to halt and that he answered that he was not involved, and was then struck by gunfire and fell to the ground, outside the enclosure in the alley. At trial, the defense requested that the jury view the scene for the reason that proper comprehension of the scene could not be had from the picture admitted into evidence due to the congestion in the area. This motion of the defense was denied. Prior to the beginning of trial, the prosecution requested that rebuttal witnesses be endorsed upon the information. These witnesses were police officers who arrived upon the scene and were not res gestae witnesses. The prosecutor indicated that it was desirable to call these witnesses because the defense could not be "anticipated”. Counsel for the defense replied that the prosecution should put in all their witnesses in their main case. The court took this motion under advisement, and at the close of the defense’s case allowed these two witnesses to be called. In granting the motion to permit these witnesses to testify, the court stated that the prosecution could not reasonably anticipate this defense. Prior to his opening statement, however, the prosecutor stated, "I have reason to believe that there will be a defense that the defendant, Mr. Curry, was not inside the fenced in area * * * ”. Defense counsel contends that the court erred in allowing the rebuttal testimony. The applicable law on this issue has been concisely stated by this Court: "As a general rule, the admissibility of rebuttal testimony, which could have been offered by the prosecution during its case in chief, rests within the sound discretion of the trial court; and we will not disturb the trial court’s decision unless a clear abuse of that discretion has been shown.” People v Daleo, 43 Mich App 386, 390; 204 NW2d 315, 317 (1972). The question, then, narrows to an interpretation of the abuse of discretion by the trial court. De fendant has failed to present a case of clear abuse of discretion. The testimony of the two rebuttal witnesses in this case simply corroborated earlier testimony as to the location of the defendant when he was shot. In Michigan, it is clear that such rebuttal testimony which merely supports or expands previously admitted testimony is nonprejudicial. Since the testimony admitted was nonprejudicial per se, it is impossible to charge that the trial judge abused his discretion in allowing it. Defendant further contends that the trial court erred in denying his motion that the jury view the scene where the view would have enabled the jurors more clearly to comprehend the evidence already received. Michigan statutes provide: "The court may order a view by any jury empaneled to try a criminal case, whenever such court shall deem such view necessary.” MCLA 768.28; MSA 28.1051. It has been held by Michigan courts that the discretion of a trial judge may be exercised as provided by law when it is believed that a personal view of the scene would enable the jurors to comprehend more clearly the evidence already received. People v Winney, 196 Mich 347; 163 NW 119 (1917); People v Connor, 295 Mich 1; 294 NW 74 (1940); Snider v Jennings, 11 Mich App 562; 161 NW2d 594 (1968); People v Gauthier, 28 Mich App 318; 184 NW2d 488 (1970). The police testimony indicated that the individual who was struck by their gunfire was scaling the fence and fell within the enclosure which surrounded the subject building. Defendant maintains that he was struck while he was in the alley, and that he fell in the alley. The officers testified that they dragged the defendant under the fence, after he had been struck and had fallen inside the enclosure, to a position outside the fence to await the arrival of an ambulance. This led to the question of whether it was possible that defendant could have been pulled under the fence, which was described as 50 feet long, 10 feet high, chain link, with steel posts embedded in cement every 6 to 8 feet. The defense believed that a personal view of the scene by the jurors was necessary because photographs of the area could not portray the entire fence nor the exact spot where the defendant was alleged to have been pulled under the fence. Although the court agreed with the defense that it was difficult to present an exact description of the area to the jurors, the defense motion for a personal view of the scene by the jurors was denied. The trial court stated: "The view today, if it were viewed today, the jury would not be seeing the same site that existed back on October 22, 1971, because we are all familiar with the fact that snow and cold weather of the wintertime changes the terrain, undoubtedly did in this instance. "I think that with the use of the blackboard that you have been freely using, and at least four photographs now that have been received, that the jury can have a complete picture of the situation existing. I don’t feel a view of the property would be of any aid to the jury at this time, so your motion for a view is denied.” Such a reasoned and specific ruling cannot, in light of all of the facts of this case, be said to embody an abuse of discretion. Defendant’s additional assertion that only res gestae witnesses may be called in rebuttal is so insubstantial as to require no argument. Defendant has not shown the clear abuse of discretion by the trial court. Affirmed. All concurred.	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Per Curiam. City of Detroit appeals from the judgment of the trial court which denied the city recovery of 1969 personal property taxes assessed against Co-Med Drug Company, Inc. Appellee, the United States, has accepted the following statement of facts by appellant: "On November 26, 1969, Co-Med Drug Company, Inc., a Michigan corporation, having its principal place of business in the City of Detroit, State of Michigan, filed a petition for corporate dissolution. An order dissolving the corporation and appointing a permanent receiver was entered by the court. On February 15, 1970, the City of Detroit filed its claim against the subject debtor for 1969 and 1970 personal property taxes in the amounts of $1,760.66 and $751.52 respectively, the latter tax item being claimed as an expense of administration. On March 16, 1970, the United States Internal Revenue Service filed a proof of claim for various items of federal taxes assessed at varies [sic] dates in the amount of $13,407.92 and asserted priority thereon under Section 3466 of the Revised Statutes (31 USCA 191). On March 8, 1971, the Internal Revenue Service filed an amended claim in the amount of $11,764.18. All the assets of the debtor have been liquidated and the receiver has on hand for distribution to creditors the sum of $11,277.77. The total claims filed are substantially in excess of the funds available for distribution.” It is the position of the city that In re Dissolution of Ever Krisp Food Products Co, 307 Mich 182; 11 NW2d 852 (1943), dictates that its claim for 1969 personal property taxes has priority over the claim of the United States for its taxes. The United States contends that United States v Gil bert Associates, Inc, 345 US 361; 73 S Ct 701; 97 L Ed 1071 (1953), controls and establishes the priority of the United States tax claim. The trial judge agreed with the United States and overruled Ever Krisp, supra. The Court also ruled that the priority of the United States was subject to the prior payment of administration expenses allowed in the amount of $9,747.50. We agree. See also 31 USC 191. The amount of the lien filed by the United States exceeded the total assets of the estate. The policy decision that the United States may wish to allocate the administration expenses from that portion of its priority should not be disturbed by this Court. See In the Matter of the Estate of William H. Reynolds, 38 Misc 2d 278; 235 NYS2d 752 (1962). Affirmed. 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Van Valkenburg, J. The defendant, Richard L. Harley, was found guilty by a jury of uttering and publishing, MCLA 750.249; MSA 28.446, was sentenced to a term of 3 to 14 years, and appeals as of right without having made a motion for a new trial. The first issue arises as a result of testimony given by the defendant to the effect that the chief witness called him in the hospital, apologized for getting him into trouble by lying about the checks, and then indicated that he would straighten the matters out with the prosecuting attorney. During the conference on instructions, the trial judge indicated that he would instruct that such testimony could be used for credibility purposes only; however defense counsel insisted that it be considered as substantive evidence, since it might benefit his client. Naturally, the defense counsel did not object to the instructions as given. Defendant now asserts that the court should have given the original version of the instruction. In light of GCR 1963, 516.2, it is doubtful if this issue is properly before the Court. Exceptions to the "no objection-no error” language of 516.2 have been made where "manifest injustice” results. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965). However, the defendant has no basis for complaint where, as here, his trial strategy failed to produce the desired results. Secondly, the defendant asserts that he was denied a fair trial by virtue of the fact that the jury was coerced into a hasty verdict by certain remarks made by the trial court, citing People v London, 40 Mich App 124; 198 NW2d 723 (1972), and the cases cited therein. The trial court herein exhibited no impatience with the jury, but rather merely explained to the jury that if they were unable to reach a verdict within an hour, they would be taken to lunch at county expense. The court further indicated that it was necessary to limit the cost of this lunch. There was absolutely no attempt to force the jury to reach a verdict before lunch nor any attempt to convey to the jury that they should hasten their deliberations. The third, and perhaps most important, issue concerns certain threats made by the prosecutor to a res gestae witness to the effect that he would prosecute her for the same crime as defendant if she did not leave the county or for perjury if she testified favorably to defendant at trial. The trial court was apprised of the existence of these threats by the witness, whereupon the court in formed the witness that she should not hold back any pertinent evidence. The witness then took the stand and testified favorably to the defendant. There is no question that interference, intimidation and threats by the prosecutor to a witness constitutes grounds for reversal, since such actions usually deprive the defendant of his right to a fair trial. People v Pena, 383 Mich 402; 175 NW2d 767 (1970); People v Butler, 30 Mich App 561; 186 NW2d 786 (1971). While we condemn the prosecutor for his attempts to pervert the ends of justice, we find that no reversible error resulted therefrom. The record clearly indicates that the trial court’s assurances to the witness purged the possible taint left by the prosecutor’s actions. We would note further that neither a motion for a mistrial nor a motion for a new trial were made before the trial court. If the taint left by the prosecutor’s actions gave rise to any hesitancy to testify by the witness which would not appear from the cold words of the transcript, the proper place to raise the question would have been before the trial court who had the opportunity to observe the behavior of the witness. The remainder of the issues raised have been carefully examined and found lacking in merit. Not only was the question of improper remarks by the prosecutor not properly preserved for appellate review, but the remarks fell within the scope of permissible inferences from the evidence. The testimony concerning an assault made by defendant on one of the witnesses was introduced by defense counsel on cross-examination; therefore defendant has no cause for complaint. The question of the weight of the evidence is a jury matter and cannot be raised for the first time on appeal; a motion for new trial being a necessary prerequisite. See Peo ple v Ragland, 34 Mich App 673; 192 NW2d 73 (1971). There was sufficient evidence, if believed by the jury, to find defendant guilty beyond a reasonable doubt. Affirmed. McGregor, J., concurred.	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Griffin, J. A local ordinance purports to impose upon the owner of property abutting a public sidewalk the obligation to indemnify the City of Grand Rapids if the owner fails to maintain the sidewalk and if the city is required to pay damages to a person injured on the defective sidewalk. Because the city lacked authority to impose such an obligation, we conclude that indemnification is not available to the city under the circumstances presented here; and we affirm the result reached by the Court of Appeals. I In March 1989, Tara Bivens filed suit against the City of Grand Rapids and the Kent Country Club, complaining that she was injured when she was thrown from her bicycle while riding on a public sidewalk adjacent to property owned by the club. She alleged that the front tire of her bicycle hit a raised or uneven portion of the sidewalk, that the sidewalk was in a state of disrepair, and that the sidewalk was partially covered with ice and snow. In response to the complaint, the club, owner of property abutting the sidewalk, moved for summary disposition under MCR 2.116(C)(8), claiming that a cause of action had not been stated because it owed no duty of care to an individual user of the public sidewalk. The trial court agreed and granted the motion. No appeal was taken from that order. Shortly thereafter, the city filed a third-party complaint against the club, as the abutting property owner, seeking indemnification for any damages the city might be required to pay plaintiff Bivens for her injuries. In its third-party complaint, the city alleged that the club had breached a duty owed the city under its ordinance 4.84 by allowing the sidewalk to "break up and crumble, thus creating a dangerous condition.” This ordinance, according to the city, not only required the club to maintain the sidewalk in good repair, but also imposed upon the club, as the abutting owner, the obligation to "fully indemnify the City for any damages recovered against the City” as a consequence of the club’s failure to maintain the sidewalk. Once again, the club filed a motion for summary disposition under MCR 2.116(C)(8), and it was granted. The trial court relied on Figueroa v Garden City, 169 Mich App 619, 623; 426 NW2d 727 (1988), and its reasoning: "the city’s ordinance . . . does not create a private right to recover against the landowner and . . . accordingly, the city is not entitled to indemnification.” On appeal, the Court of Appeals affirmed. 190 Mich App 455, 458; 476 NW2d 431 (1991). While it adopted the same Figueroa reasoning, the panel also rested its decision on the ground that the city lacked authority to enact such an indemnification provision. 190 Mich App 458. We then granted the city’s application for leave to appeal. 439 Mich 1019 (1992). II At common law, a landowner is under no obligation to repair and maintain an abutting public sidewalk. Detroit v Chaffee, 70 Mich 80, 85; 37 NW 882 (1888); Levendoski v Geisenhaver, 375 Mich 225, 227; 134 NW2d 228 (1965). Such an obligation arises only when it is imposed pursuant to authority granted by the state. Chaffee, 70 Mich 85; Levendoski, 375 Mich 227; see also 2 Restatement Torts, 2d, § 288(c), p 29. Since 1918, the Grand Rapids city charter has included a provision adopted by vote of the electorate which in pertinent part reads: It shall be the duty of every owner of land situated in the City of Grand Rapids to build, rebuild, maintain and repair all sidewalks upon that part of the street or streets upon which said land abuts, at such times, in such manner, and of such materials as the City Commission may direct. Notice to .. . repair such sidewalks, shall be given in such manner as the City Commission may by ordinance or resolution provide, and if such owner shall neglect or refuse to comply with such notice, the Director of Public Service may cause the said sidewalks to be .. . repaired ... at the expense of the City, and . . . the City shall have a lien on such land for such amount, together with the costs, penalties and interests thereon, until paid. [Grand Rapids Charter, tit X, 208, § 23. Emphasis added.][ ] More recently, in 1984, the city commission adopted ordinance 4.84 which in pertinent part provides: All sidewalks . . . within the City shall be maintained in good repair by the owner of land adjacent to or abutting upon the same. . . . Said owner shall be liable to and fully indemnify the City for any damages recovered against the City by any person for neglect to keep these areas in good repair, and reasonably safe, fit and convenient for public travel. Said owner shall be liable to any injured person for violation of this Ordinance, and any injured person may recover the damages suffered by them directly from the property owner.[ ] [Emphasis added.] Notwithstanding the final sentence of ordinance 4.84, which purports to allow any person injured on a defective sidewalk to bring a civil action against the abutting property owner, the trial court ruled, as already noted, that plaintiff’s complaint failed to state a cause of action against the club. Because that decision was not appealed, the question whether a city may create such a private cause of action is not squarely before us. However, we find it unnecessary to reach that question in any event because the city’s indemnification claim must fall for another fundamental reason: it lacked the authority to impose by ordinance an obligation on abutting property owners to indemnify the city._ III Municipal corporations have no inherent power. They are created by the state and derive their authority from the state. Marxer v Saginaw, 270 Mich 256, 259; 258 NW 627 (1935). An ordinance enacted by the governing body of a home rule city is valid only if it is consistent with the powers conferred by the state in its constitution and statutes, and if it falls within the scope of authority delegated by the electorate in the city’s charter. See Const 1963, art 7, § 22; Home Owners’ Loan Corp v Detroit, 292 Mich 511, 515; 290 NW 888 (1940); Thiesen v Dearborn City Council, 320 Mich 446, 451; 31 NW2d 806 (1948). In this case, the city argues that it derived authority to enact ordinance 4.84 from its charter as well as from constitutional and statutory provisions. The city refers to language in the state constitution reserving to cities "reasonable control of their highways, streets, alleys, and public places . . . .” Const 1963, art 7, § 29. Likewise, the city relies on language in the Home Rule Cities Act that authorizes cities to provide in their charters "[f]or the use, regulation, improvement and control of the surface of its streets, alleys and public ways, and of the space above and beneath them.” MCL 117.4; MSA 5.2081(1). For charter authority to enact ordinance 4.84, the city in its argument points only to the first sentence of tit X, 208, § 23 of the Grand Rapids charter, which imposes upon property owners a duty to maintain and repair the abutting sidewalk. The city argues that the first sentence, when coupled with the cited constitutional and statutory provisions, provides authority for the city to impose upon abutting landowners a duty of care running to individual users of the sidewalk as well as an unlimited obligation to indemnify the city. However, in its argument, the city ignores limiting language which immediately follows that sentence: Notice to . . . repair such sidewalks, shall be given in such manner as the City Commission may by ordinance or resolution provide, and if such owner shall neglect or refuse to comply with such notice, the Director of Public Service may cause the said sidewalks to be . . . repaired ... at the expense of the City, and . . . the City shall have a lien on such land for such amount, together with the costs, penalties and interests thereon, until paid.[ ] By ignoring this language, the city violates the established principle that general language in a charter must yield to specific language. Brady v Detroit, 353 Mich 243, 248; 91 NW2d 257 (1958). As one leading commentator has noted, "[w]here the general provisions of a charter are followed by particular provisions, the general provisions are limited and restricted by the particular provisions.” 2 McQuillin, Municipal Corporations (3d ed), § 9.22, p 917. When read as a whole, it is clear that the 1918 charter provision imposes upon property owners only a limited public duty with respect to abutting sidewalks. First, the duty of maintenance imposed by the charter is not triggered until notice has been given by the city. Further, the liability of a landowner who fails to respond appropriately to such a notice is limited to the expense incurred by the city in repairing the sidewalk, "together with the costs, penalties and interests thereon, until paid.” In light of this limiting language, the ordinance enacted in 1984 by the city commission represents a wide and inconsistent departure from the charter provision approved earlier by the Grand Rapids voters. The ordinance not only eliminates the triggering requirement of notice, but it purports to establish a new and different method of enforcement that would expose abutting landowners to unlimited civil liability. Nothing in the charter provision relied upon by the city contemplates the imposition of such a private duty running to all individual users of a sidewalk or the imposition of an obligation to indemnify the city for all damages that it might be required to pay to those injured on the sidewalk. Surely, it could not be seriously contended that the Grand Rapids voters intended to assume such unlimited liability when they voted in 1918 to approve this charter provision. Indeed, in earlier cases this Court has interpreted language similar to that found in this charter as imposing only a public duty punishable "in some form of public prosecution, and not by way of individual recovery of damages.” Taylor v Lake Shore & MSR Co, 45 Mich 74, 77; 7 NW 728 (1881) (opinion of Cooley, J., emphasis added); see also Lynch v Hubbard, 101 Mich 43; 59 NW 443 (1894). Michigan is strongly committed to the concept of home rule, and constitutional and statutory provisions which grant power to municipalities are to be liberally construed. However, a city may not validly enact an ordinance that contradicts limitations expressly provided in the city’s charter. The charter of a city stands as its "constitution”; it is "the definition of [a city’s] rights and obligations as a municipal entity, so far as they are not otherwise legally granted or imposed.” Jackson Common Council v Harrington, 160 Mich 550, 552; 125 NW 383 (1910); see also Sykes v Battle Creek, 288 Mich 660, 662-663; 286 NW 117 (1939). Moreover, once adopted by a vote of the electors, a city’s charter may be amended only by a vote of the electors. In short, an ordinance must conform to, be subordinate to, not conflict with, and not exceed the charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state. [5 McQuillin, Municipal Corporations (3d ed), § 15.19, P 98.] To permit otherwise, and allow a city commission to enact an ordinance contrary to the charter, would enable the commission to effectively amend the charter without subjecting the amendment to the scrutiny and approval of the local electorate. See, e.g., Thiesen, supra, 320 Mich 453. Because the language used in the Grand Rapids charter imposes only a public duty of care upon abutting owners after proper notice from the city, and because the charter provides a different, specific remedy for breach of this duty, we hold that ordinance 4.84 is invalid. The city, therefore, may not maintain a third-party action for indemnity against the country club under this ordinance. IV For the foregoing reasons, the decision of the Court of Appeals is affirmed. Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, and Mallett, JJ., concurred with Griffin, J._ Grand Rapids city ordinance 4.84 reads: Responsibility and Liability for Sidewalks, Driveway Approaches and Retaining Walls. All sidewalks, driveway approaches and retaining walls within the City shall be maintained in good repair by the owner of land adjacent to or abutting upon the same. This maintenance shall include building, rebuilding and removing all obstacles, including snow and ice as required by Section 4.89. Said owner shall be liable to and fully indemnify the City for any damages recovered against the City by any person for neglect to keep these areas in good repair, and reasonably safe, fit and convenient for public travel. Said owner shall be liable to any injured person for violation of this Ordinance, and any injured person may recover the damages suffered by them directly from the property owner. The Court of Appeals determined that the city had no such authority in light of the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996 et seq., which, the Court said, occupies "the entire field of governmental liability . . . .” 190 Mich App 458. Our order granting leave to appeal did not limit or specify the issues to be considered. However, by subsequent order we invited additional briefing and requested that it focus on the questions whether a municipality may by ordinance delegate its duty to, or impose a separate duty upon, a private landowner to maintain a public sidewalk, provide for indemnification of the city for the landowner’s failure to do so, and create a private cause of action by an injured person against the property owner. Unpublished order of the Supreme Court, entered October 27, 1992 (Docket No. 92160). The complete text of this section of the Grand Rapids city charter is set forth in n 6. See n 1 for the complete text of the ordinance. The complete text of the charter provision reads as follows: It shall be the duty of every owner of land situated in the City of Grand Rapids to build, rebuild, maintain and repair all sidewalks upon that part of the street or streets upon which said land abuts, at such times, in such manner, and of such materials as the City Commission may direct. Notice to build, rebuild or repair such sidewalks, shall be given in such manner as the City Commission may by ordinance or resolution provide, and if such owner shall- neglect or refuse to comply with such notice, the Director of Public Service may cause the said sidewalks to be built, rebuilt or repaired, as the case may be, at the expense of the City, and an accurate account of the expense thereof shall be certified to by the Director of Public Service and filed with the City Treasurer, and a duplicate thereof with the City Assessors. Said certified account shall contain an accurate description of the land abutting on said sidewalk, the expense of building, rebuilding or repairing such sidewalk, and the name of the owner of the land, if known, and if not such fact shall be stated in such account; the City shall have a lien on such land for such amount, together with the costs, penalties and interests thereon, until paid. A copy of such certified account shall be mailed to the owner, if known, by the Director of Public Service: Provided, however, that nothing in this section shall interfere with building sidewalks in connection with and as a part of necessary street improvements. As explained in Brady: "It is an old and familiar principle . . . that where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.” [Id. at 249, quoting 50 Am Jur, Statutes, § 367, pp 371-372.] The wording of the Grand Rapids 1918 charter provision is similar to language construed in Levendoski, where this Court held that such a provision created only a public duty on behalf of the landowners to maintain abutting sidewalks. See also Taylor v Lake Shore & MSR Co, 45 Mich 74; 7 NW 728 (1881). The city cites Levendoski, supra, for support because that Court in obiter dictum ventured the observation that "[a]n ordinance of the type involved here does result in liability when it expressly provides for such liability.” Id. at 227. Aside from its status as dictum, this statement in Levendoski provides no guidance or authority in a case such as the one before us, where the ordinance relied upon is at odds with the city’s charter. Clearly, a city is without authority to impose private liability upon abutting property owners when to do so would exceed limits established by specific language in its charter. Alco Universal v City of Flint, 386 Mich 359, 363; 192 NW2d 247 (1971). Const 1963, art 7, § 34. Of course, although a city has no authority to enact an ordinance that contradicts its charter a city may have authority to exercise powers not expressly stated in the charter. As noted by this Court in Hanselman v Wayne Co Concealed Weapon Licensing Bd, 419 Mich 168, 187; 351 NW2d 544 (1984), cities possess those powers "expressly conferred upon them by the state constitution or state statutes or which are necessarily implied therefrom.” See also Inch Memorials v Pontiac, 93 Mich App 532, 535; 286 NW2d 903 (1979). Streat v Vermilya, 268 Mich 1, 6; 255 NW 604 (1934), citing Paulsen v Portland, 149 US 30; 13 S Ct 750; 37 L Ed 637 (1893). Const 1963, art 7, § 22; MCL 117.15; MSA 5.2094. MCL 117.21; MSA 5.2100. Because the city ordinance goes beyond the specific power conferred in the city charter, it is unnecessary to consider the alternative basis of the Court of Appeals decision, that home rule cities are preempted from imposing civil liability on abutting owners by the governmental immunity act.	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Kelly, J. Plaintiff-appellant was employed by defendant Chris-Craft Corporation for more than 2.5 years. Plaintiff received a severe electric, shock while operating an electric drill. He was driven to a physician’s office where he collapsed and from there was taken by ambulance to the Port Huron,, Mercy Hospital, where he was hospitalized for three weeks. After convalescing at home for four months, plaintiff returned to work but his heart condition made it impossible for him to continue such employment.; The hearing referee granted plaintiff compensation, finding a personal injury arising out of and in the course of employment. Defendants appealed on the ground that (1) plaintiff did not establish that his disability following myocardial infarction is causally related to Ms employment, and (2) plaintiff did not meet the requirements as to notice and claim. Two members of the workmen’s compensation appeal board, with two members concurring in the result only, held that the requisite of notice and claim had not been met and that a review and determination of causal connection between injury and disability would serve no purpose. The Court of Appeals denied leave to appeal because of a “lack of meritorious grounds for granting-same.” We quote the following- from the appeal board’s opinion on review: “Plaintiff relies entirely on his testimony quoted as follows to meet the prerequisites of notice and claim: “ ‘Q. All right. Now, did you in some manner inform your employer that you wouldn’t be in the following day? “ ‘A. Absolutely. My “Missus” went down and told the personnel manager— “ ‘Mr. Felher. I will object. “‘A. Beg your pardon? “ Mr. Freid. Wait a minute. Will you say for the purpose of notice and claim that she is his agent? “ ‘The Referee. Yes. “ ‘Q. (By Mr. Freid): Go ahead, sir. “ ‘The Referee. Your wife did what? “ ‘A. She went down and notified the personnel manager that I had been injured there at Chris-Craft. “ Mr. Felher. I am going to object, your Honor. “ ‘The Referee. And did you tell her the same story you told us? “ ‘A. Absolutely. I told my “Missus” that I had that jolt, and she went right down and told them, so they would be positive that something happened to me there because I couldn’t tell the doctor right off the bat until I come to over there in good shape.’ “The most elementary knowledge of evidence requires the above-quoted testimony to fall within the realm of hearsay and thus incompetent and objectionable.” Defendants’ cross-examination of plaintiff follows in part: “Q. All right. Now, Mr. Dinsmore is the person you stated on direct examination that your wife talked to? “A. That’s right, but he’s not there any more. “Q. She told you she talked to him? “A. Absolutely. “Q. All right. Mr. Dinsmore is no longer with Chris-Craft? “A. That’s right. “Q. Is he living? “A. At least the last I heard of him he’s still alive. “Q. Where does he live, do you know? “A. Marine City. At least that’s where I knew him last. “Q. You don’t know if he’s down in Florida? “A. I couldn’t tell you.” The requirement that a party objecting to the admission of evidence should make known the reason for the objection has been well established in this State since 1859, when this Court in Hoard v. Little (1859), 7 Mich 468, 470, 471 stated: “It is the duty of a party objecting to the admission of evidence, to state the ground of his objection with perspicuity, that the court and the opposing party may not be misled by it.” In Adams v. Novo Engine Co. (1933), 264 Mich 292, this Court in denying appellant’s claim that testimony introduced in a workmen’s compensation case was incompetent, stated (p 297) : “Regardless of the merits of the objection now asserted in appellants’ brief, it was not fairly presented at the hearing, and cannot be sustained in this Court. To hold otherwise would afford the means of tricking a party litigant into relying upon the record made at the hearing, where it might have been amplified.” Quoting appellant: “Plaintiff’s testimony as to notice was correctly admitted because the purpose of such testimony was not to vouch for the veracity of said statements but only to show that such statements were made. * * * “The testimony in question was admissible and competent. Certainly its incompetency was not so clear as to allow for a general objection by attorney for the defendant. This case seems to indicate the very reason specific objections are necessary. The trial judge must have taken the objection of defendant’s attorney to be merely preliminary because the record is clear that he never even made a ruling on the objection. Moreover the attorney for the defendant never insisted on a ruling. Furthermore, it is obvious plaintiff’s attorney was in doubt as to the nature of defendant’s objection as is noted by his request for a stipulation concerning Mrs. Meyer’s agency relationship to her husband vis-a-vis notice. This doubt on the part of plaintiff’s attorney was reinforced by the aforementioned failure of counsel for the defendant to request a ruling on his alleged objection and then to proceed to cross-examine Mr. Meyers concerning the same testimony in question. * * * “However, the record would indicate that counsel for the plaintiff was correct in assuming that counsel for defendant was not interested in, or serious about, his objection and that he was willing to allow evidence as to defendant company’s notice of plaintiff’s injury to go uncontested, One who clothes his objection in snch imperspicuity as to fail to inform both court and opposing counsel as to its nature and intent should not be heard, upon appeal, to complain of the damage caused by his own failure.” There is merit to appellant’s claim. Defendants’ objection was not fairly presented. The requirement of proof of notice has been complied with. The order of the appeal board is reversed. Plaintiff’s prayer that an order be entered “granting plaintiff compensation benefits in accordance with the order of the hearing referee,” is not granted. Defendants, calling attention to the fact that only part of their appeal was decided by the appeal board, state: “The issue of whether the shock caused the anteroseptal infarction was vigorously contested, but was not decided by the workmen’s compensation appeal board, as the board determined that there was a failure of proof as to notice of injury and claim for compensation benefits. Two members of the board concurred only in the result of denying benefits. We believe this would indicate that these members believed that a causal relationship between work and heart attack was not established.” Defendants are entitled to a decision by the workmen’s compensation appeal board as to whether the record established causal relationship between the work and the injury, and we are remanding solely for that purpose. Costs to appellant. Dethmers, C. J., and Black, T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred. January 7, 1963. — Reporter. See CLS 1961, § 412.15 (Stat Ann 1960 Rev § 17.165). — Reporter.	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Kelly, J. The parties to this appeal agree that “The sole question before this Court is whether the action the civil service commission took in filing suit in the Ingham county circuit court on August 20, 1964, was within the jurisdiction of the Ingham county circuit court.” Appellants contend that it is a mandamus action with relief sought being “equivalent to a writ of mandamus,” and, thus, the appellate court and not the circuit court had exclusive jurisdiction to consider such an action. The substance of the complaint follows: (1) The civil service commission endeavored between July, 1963, and December, 1963, to arrange an agreement with defendant Secretary of State Hare in regard to “bringing the Tee offices’ or Tee branch offices’ of the Secretary of State under civil service,” as required by article 11, § 5, of the Michigan Constitution of 1963. (2) On December 19, 1963, defendant Hare was notified that the commission took the following action.at its December 18, 1963, meeting: “The civil service commission finds, after extensive investigation, that the operation of fee branch offices in populous areas which could support a full-time State office is a violation of the civil service provision of the Constitution of the State of Michigan which requires that all such positions in the State- service be filled on the merit system basis. The commission also finds that it would not be feasible for the secretary of State to make an immediate change from fee offices to civil service offices. Therefore, the commission will continue to authorize fee payments as it has in the past until June 30, 1964. “After June 30, 1964, no fee payments will be approved by the commission to persons operating fee branch offices in the Detroit, Pontiac, Flint, Grand Rapids, Saginaw, Bay City, Muskegon, Kalamazoo, and Lansing areas.” (3) In the latter part of July, 1964, Secretary of State Hare submitted vouchers to plaintiff civil service commission, which the commission disap proved, for the nine branch offices for which the commission had notified the secretary of State it would not approve vouchers after June 30, 1964, and the commission advised the controller not to certify or process the disapproved vouchers. (4) Defendant controller, at the request of the defendant secretary of State, did process the vouchers contrary to plaintiff commission’s request and certified same for payment to defendant State treasurer, who signed same and turned the checks over to Secretary of State Hare for delivery by him to said fee branch managers. (5) “That unless restrained and enjoined, the defendants, Glenn S. Allen, Jr., controller of the State of Michigan; Sanford A. Brown, State treasurer; and the department of administration, a statutory agency of State government, respectively, will continue to receive, certify and process all vouchers pre7 sented by defendant secretary of State, representing payment for personal services rendered by the several fee branch office managers located in the nine metropolitan areas of the State under contract with the said secretary of State, and that warrants will continue to be issued by said defendants, signed by defendant State Treasurer Brown and delivered over by him to defendant Secretary of State Hare for delivery by the latter to the payees named thereon, all without the prior approval of plaintiff commission and in direct contravention of the mandate of the people of Michigan, as expressed in the Constitution of 1963.” After making the above allegations, plaintiffs prayed for an order of the court permanently enjoining the defendants from certifying or processing vouchers representing payments to be made from State funds for personal services rendered the secretary of State of the State of Michigan in the operation of the above named fee branch offices, which vouchers do not have the approval of the commission or which have been specifically disapproved by said commission. Defendants filed a motion to dismiss, claiming that “plaintiffs’ sole exclusive remedy, if any, is by way of petition for a writ of mandamus in the Supreme Court,” and, also, an answer and “affirmative defenses” wherein they claimed that: “Appointing authorities can contract for services with independent contractors when it is not administratively efficient to perform the services involved with employees of the State of Michigan. * * * The sole concern of the civil service commission in this case is to classify positions in the State service. The commission has exceeded its constitutional powers in demanding that the secretary of State, against his best judgment, abolish 36 fee offices and replace them with 21 salaried civil service offices and are therefore not entitled for the relief prayed for in their complaint.” The trial court in its opinion, denying defendants’ motion to dismiss, stated: “I cannot find that this matter is in the nature of mandamus or that it is in the nature of a mandatory injunction. My opinion is that it is one of restraint only.” In affirming the trial court, the Court of Appeals held : “It is abundantly clear from the communications between the commission and the secretary of State that the commission is desirous of effecting a significant change in the fee branch office setup of the secretary of State’s office as the appellant alleges. However, if the commission’s legal conclusion is correct that these fee branch managers are actually employees, it should effect the change. “This question can and should he determined in the trial court and the instant suit is a proper vehicle. “We do not agree that the instant suit is really a mandamus action. If the commission is correct these payments may he properly enjoined.” The substance of the complaint and the prayer for relief sustain the trial court and the Court of Appeals’ decision that the instant suit is not a mandamus action. The pleadings disclose a dispute as to whether the employees render personal services as claimed by plaintiffs, or are exempt from constitutional requirements as claimed by defendants. We agree with the Court of Appeals that: “This question can and should be determined in the trial court and the instant suit is a proper vehicle.” Affirmed. No costs, a public question involved. Dethmers, C. J., and Brennan, J., concurred with Kelly, J. “The classified state civil service shall consist of all positions in the state service exeept those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and -within each principal department, when requested by the department head, two other exempt positions, one of which shall be policymaking. * * * “The commission shall * * * approve or disapprove disbursements for all personal services. * * * “No payment for personal services shall be made or authorized until the provisions of this constitution pertaining to civil service have been complied with in every particular. Violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state.” 4 Mich App 1, 3, — Reporter.	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Souris, J. Plaintiff sued defendant city for'damages for injuries she incurred in 1963 while riding in an automobile which collided with another automobile illegally parked on a city street. She claimed that the city had notice of the presence of the illegally parked vehicle, but negligently failed- to remove it or to warn of its dangerous presence to others traveling lawfully upon the street. On defendant city’s motion, the suit was dismissed as to it on the ground that plaintiff had failed to serve written notice upon the city within 60 days from the occurrence of her injuries in accordance with the requirements of chapter 22, § 8 of PA 1909, No 283, as amended (CL 1948, § 242.8 [Stat Ann 19(58 Rev § 9.598]). The Court of Appeals affirmed, 1 Mich App 551, and we granted leave of appeal to this Court. Our decision in this appeal turns upon whether the city is liable in damages for injuries caused by its alleged negligent failure to remove an obstruction in a highway after it had notice thereof. That issue caused this Court some difficulty late last century and early in this one. Our Court, in City of Detroit v. Blackeby (1870), 21 Mich 84, had ruled that at common law a city was not liable for injuries caused by its neglect to keep its streets in repair. Thereafter, the legislature, in 1879, adopted a statute bearing upon the issue. PA 1879, No 244. This Court construed it in Joslyn v. City of Detroit (1889), 74 Mich 458, referring also to PA 1887, No 264, which superseded the earlier act: “This statute was passed in May, 1879. It makes the.city not only liable for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition reasonably safe and fit for travel. The duty is imposed in both cases, and the necessity for it exists in the one case just as much as in the other, and the liability is the same, and it is very manifest that the legislature intended to make it so. It was the object of the legislature in the passage of this statute to avoid the decisions of this Court, by which, before the passage of the act, the law by construction was made to relieve the municipality from all liability of this kind, and we think the statute should be so construed as to effect the object intended by the legislature. “If further evidence of the intention of the legislature upon this subject is desired, I think it may be found in the act of 1887, pages 345 and 346, when it discarded the narrow limits of the common-law liability entirely, as heretofore held by this Court and some others.” 74 Mich 458, 460. The 1879 act, in all relevant respects similar to PA 1909, No 283, which, as amended, was applicable in 1963 at the time plaintiff Kowalczyk’s cause arose, was construed by this Court in McEvoy v. City of Sault Ste. Marie (1904), 136 Mich 172. In McEvoy, we said: “This act was open to two constructions, — one, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use due diligence to keep their highways and streets in good repair. Under the first construction, there would be an obligation on the part of a municipality to remove obstructions within a reasonable time after it had knowledge or notice of their existence. Under the second construction, there would be no such obligation. In the case of Joslyn v. City of Detroit, 74 Mich 458, this Court deliberately adopted the first construction. The facts in that ease were very similar to those in the case at bar, and were these: On the evening of April 23, 1886, plaintiff was driving on Clifford street, in Detroit. Her carriage came in contact with a pile of sand, and was overthrown, and she was injured. This pile of sand was placed in the street to be used for building purposes. It had been there a month or more, during which time it had not been guarded, nor had signals of warning been placed upon it. There was no evidence, as was pointed out in the brief of defendant, that the defendant city permitted it to be placed in the street. The issue raised by these facts required the Court to determine whether municipalities were responsible for negligent failure to remove obstructions placed in the streets by third persons, and this Court deliberately determined that the statute created that obligation.” 136 Mich 172, 176. In both Joslyn and McEvoy dissenting opinions were filed, but the views of the two dissenters never have prevailed in this Court. We are not persuaded that we should abandon the carefully considered opinions of this Court in Joslyn and in McEvoy, in favor of the dissenters’ views, in applying now the relevantly similar provisions of PA 1909, No 283. It is our conclusion, therefore, that that statute imposed upon cities liability for injuries caused by their negligent failure to remove obstructions in th'eir streets after notice thereof. For her failure to comply with the requirement of section 8 of the act, that written notice be given the city within 60 days from the occurrence of her injuries, plaintiff was barred from suing the city. See Trbovich v. City of Detroit (1966), 378 Mich 79. It is not significant to plaintiff’s cause that her injuries occurred after our decision in Williams v. City of Detroit (1961), 364 Mich 231, in which this Court abrogated this State’s common law of immunity for municipal negligence. The cause of action she alleged was one covered, before and after our decision in Williams, by the statute and, therefore, all of its requirements, including section 8’s requirement of written notice, had to be met. In Williams, at p 261, we took care to note that our decision did not affect existing statutes. Affirmed. Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, O’Hara, Adams, and Brennan, JJ., concurred. The cited act has been repealed and now is superseded by PA 1964, No 170, effective July 1, 1985. See, also, Schelske v. Township of Orange (1907), 147 Mich 135, and Walls v. City of Detroit (1912), 171 Mich 612.	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Kelly, J. The facts and issues involved herein are so well and concisely stated in the opinion of the Court of Appeals, 3 Mich App 534-536, that we quote that opinion in its entirety: “Plaintiff Rose Mary Pokriefka commenced the instant actions on July 30, 1962, on behalf of herself and as. guardian of Margaret Pokriefka, a minor, against the defendant as owner of an automobile involved in an accident and operated by defendant’s daughter. The minor Margaret Pokriefka was injured when the defendant’s automobile, in which she was a passenger, ran into the rear of another automobile on the Edsel Ford expressway in Detroit. “At the time of the accident, on February 27, 1962, the plaintiff’s minor and defendant’s daughter were on their way home from classes at Marygrove College in Detroit. “The two girls were 18 years old at the time of the accident and pursuant to an agreement between themselves, plaintiff’s daughter had paid defendant’s daughter $2 a week for daily transportation to and from school. The complaint in each case alleged ordinary negligence rather than gross negligence and relied on the theory that since plaintiff’s daughter had paid for the ride the guest act did not apply, “At trial, defendant’s daughter, then 21 years old, was called to testify, whereupon she stated she desired to disaffirm the contract. A tender of $22 was made to plaintiff and witnessed hy the court. The court then dismissed plaintiff’s case on the basis of the holding in Brown v. Wood (1940), 293 Mich 148 (127 ALR 1436). “This Court considers itself bound by the ruling of the Supreme Court in Brown, supra, and feels that the case is dispositive o.f the issues herein. A reading of the Brown Case will reveal substantially similar facts and issues. “Plaintiff’s contention that the contract was not disaffirmed within a reasonable time after reaching majority is not well taken since a notice to that effect was filed in circuit court approximately 16 months prior to the 21st birthday of defendant’s daughter. “Affirmed. Costs to appellee.” In Brown v. Wood (1940), 293 Mich 148 (127 ALR 1436), this Court held that defendant’s disaffirmance of his contract to carry plaintiff for hire made plaintiff a. guest passenger because “holding the infant liable in tort would in effect enforce a liability arising out of his contract, then, since the infant cannot be held ex contractu, he cannot be held liable for his tort. The injured party is not permitted to enforce against the inf ant. indirectly by an action in tort a liability which he could not enforce directly against the infant by an action based upon contract. * * * Prom our review of this record we are unable to conceive-.how the tort aspect of these actions can be separated from the contractual relation which these minor plaintiffs entered into with the minor defendant.” We cannot agree with appellant that the facts and issues in Brown v. Wood can be distinguished from the instant case and, therefore, we devote the remainder of this opinion to consideration of appellant’s request that we overrule the Brown Case. Appellant urges that we overrule Brown v. Wood because: (a) This is a tort action and the only relation the contract bears to the suit is to establish the status of the parties at the time of the accident; (b) Margaret Pokriefka was a paying passenger in defendant’s automobile when the accident occurred and this Court should apply and follow our decision in Shumaker v. Kline, 333 Mich 346, where we held that the status is determined at the outset of the host-passenger relationship and is not subject to change on the basis of subsequent events; (c) The fact that a contract is involved should not enable the minor driver to avoid liability for his torts and this principle of law is widely accepted, as evidenced by 27 Am Jur, Infants, § 92, p 815, stating: “The mere fact that a cause of action grows out of or is connected with a contract will not shield an infant from liability for a tort which is not a mere breach of the contract, but is a distinct wilful and positive wrong in itself.” (d) While this Court has recognized the minor’s right to revoke executory contracts and contracts for the sale or purchase of goods, chattels, and real estate when such contracts are not necessities, we have held a definite contrary view in regard to a minor’s right to revoke an executed contract for personal services since our 1879 decision in Spicer v. Earl, 41 Mich 191 (32 Am Rep 152), where we held (p 193): “The principle laid down in the case of Squier v. Hydliff, 9 Mich 274, governs this case. It was there held that an infant was hound hy his executed contract of service if it was reasonable under all the circumstances, or not so unreasonable as to he evidence of fraud or undue advantage.” (e) The quotation from 1 Cooley on Torts (4th ed), § 66, p 204: “But if the tort is subsequent to the contract, and not a mere breach of it, hut a distinct, wilful and positive wrong of itself, then, although it may he connected with a contract, the infant is liable,” is applicable to the instant case because the contract was in fact performed, and appellant does not base her case on any failure to exercise the high degree of care urged by a carrier of passengers for hire to the passenger being carried; (f) Margaret Pokriefka never accepted the status of guest and she sustained her injuries as a passenger for hire. In Hunter v. Baldwin, 268 Mich 106, 109, we said: “On the other hand, not everyone riding in a car without payment is a guest.” This quotation was cited with approval in Hall v. Kimball, 355 Mich 333, 335. Also, in Hunter we made the point (p 109) that: “This statute [guest act], being in derogation of the common law, must he strictly construed,” and in Moore v. Palmer, 350 Mich 363, 390, we held: “The owner liability statutes [now CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101)] were aimed at situations in which the common law was helpless. While they were not passed as a substitute for the common law, they were adopted to complement the common law.” (g) The Brown v. Wood decision has never under similar facts been approved or cited as authority for decision in this or any other State. We quote the following from defendant and appellee’s brief as a summation of his position in regard to the Brown v. Wood Case: “Plaintiff-appellant claims that the holding in Brown v. Wood, supra, was erroneous in two respects. It is urged that the Brown Case was not based upon the voidable contract; rather it was based upon his status at the time of the accident and that revoking the contract did not affect the status. This argument is answered in the South Dakota case of Tennyson v. Kern, 76 SD 136 (74 NW2d 316). * * * “Justice Cooley states that the law will not permit the plaintiff to enforce a contract with a minor indirectly by counting on the infant’s neglect to perform it or omission of a duty'under it as a tort. The Oregon supreme court case of Steenson v. Robinson (1964), 236 Or 414 (389 P2d 27), as cited by plaintiff-appellant, completely overlooked this' reasoning as set forth in the Tennyson Case. “Plaintiff-appellant also claims that the Supreme Court in Brown v. Wood, supra, erred in assuming that, if plaintiff were not a paying passenger, she would be ipso facto a guest passenger. As in the case at bar, the sole claim of plaintiff was that plaintiff was a paying passenger. The Tennyson Case, supra, and Michigan cases have recognized that there are certain situations where a passenger may be something other than a guest; however, this is not the case at bar, inasmuch as the sole issue raised by plaintiff was whether or not the plaintiff had paid for. the ride. It should further he noted that in the case at bar the trial court gave plaintiff a chance to amend her claim and she declined to do so. “In summary, it is submitted that the case of Brown v. Wood, supra, should not be overruled, inasmuch as this reasoning is sound, as shown in Tennyson v. Kern, supra; and, further, plaintiff-appellant has claimed that plaintiff was a passenger for hire in his [sic] opening statement and in his [sic] statement of facts to this court and, therefore, that was the only claim before the trial court.” Quotations from the brief of amicus curiae in support of defendant’s position concerning Brown v. Wood follow: “If later and more recent decisions are to be discussed and reviewed as bearing on the propriety and authority of Brown v. Wood, the case of Payette v. Fleischman, 329 Mich 160 (1 NCCA 3d 71), must be brought forth. In Payette, although it arose from circumstances different from those in Brown v. Wood, the Supreme Court, in an opinion written by Justice Detumers, quoted the Brown decision extensively and approved it by application in that case. “A case decided by the supreme court of Oregon is cited by appellants as being ‘critical’ of Brown v. Wood. It rather clearly appears, however, that the so-called criticism is unfounded and the result of the same narrow analysis of the Brown Case as was applied by appellants. Appellants quote the court as saying, in part: “ ‘The status of the parties exists quite apart from the enforceability of their contract.’ * * * “Brown v. Wood has not existed since 1940 in a vacuum. It has been cited and discussed by numerous courts. While it has been ‘criticized’ by the Oregon supreme court, it has also been strongly approved and relied on by other courts. See Moblard v. Klippenstein (1965), 239 F Supp 274, and Tennyson v. Kern, 76 SD 136 (74 NW2d 316).” The only case called to our attention, or produced by our research, that would refute appellant’s claim that Brown v. Wood has never under similar facts been approved or cited as authority for decision in this or any other State, is the case cited by amicus curiae above, namely, the United States district court decision where the court stated (pp 276, 277): “The court is confronted with a decision by the highest court of the State of Michigan, which considered a situation virtually identical with the one in contest here. Brown v. Wood (1940), 293 Mich 148 (127 ALR 1436), involved a high school student who had agreed to transport classmates back and forth from school for 75 cents per week. He was involved in an accident and the passengers sued for damages, claiming that they were passengers for hire and not subject to the provisions of the ‘guest statute.’ The Michigan Supreme Court, North, J., held that to allow the suit in tort would be to give effect to the contract for hire, which the driver' had’ disaffirmed through his guardian, and the court therefore refused to allow the suit. The case has been cited with approval in Payette v. Fleischman, 329 Mich 160 (1 NCCA 3d 71), and followed in Tennyson v. Kern (1956), 76 SD 136 (74 NW2d 316). “Under the settled rule of Erie R. Co. v. Tompkins, 304 US 64 (58 S Ct 817, 82 L ed 1188), this court is compelled to apply the rule of the Brown decision and grant the motion for summary judgment.” This opinion carried the following important footnote : “However, the court feels that it should be noted that Justice Cooley, the eminent jurist of the Michigan Supreme Court, and respected text writer (cited the opinion of Brown v. Wood, supra) held, in the case of Spicer v. Earl, 41 Mich 191 (32 Am Rep 152), that an infant is bound by his executed contract of service, if such contract is, under all the circumstances, reasonable, or not so unreasonable as to evidence fraud or undue advantage. A consideration important to the mind of this court is that in such situations the policy protecting infants from overreaching is honored and the distinction; between infant’s contracts for services and those for goods and intangibles is recognized. For in the-; latter situation, restitution is almost always possible,..] so that an attempt can he made to place the respective parties in the status quo before the contract was entered into. However, in the area of service'-' contracts, the infant’s services, inasmuch as they aré executed are not returnable, and the disaffirm7 anee avoids not the contract, but the performance itself.” The Payette v. Fleischman case referred to in the above United States district court decision involved the question whether the infant defendant, who operated a business, could be held liable as principal for the tort of his agent in laying linoleum in plaintiff’s home. The South Dakota decision, Tennyson v. Kern, referred to above, was overruled April 4, 1967, when the South Dakota supreme court in Friedhoff v. Engberg, 82 SD 522 (149 NW2d 759), approved the-decision in Oregon’s Steenson v. Robinson (1964), 236 Or 414 (389 P2d 27). The South Dakota court held that an 18-year-old minor, whose employment status was not in dispute at the time an authorized passenger was injured, may not, after his negligent conduct has caused damages, disaffirm his employment agreement so as to change the status of a passenger to that of a guest and by so doing avoid liability for his negligent acts. Holding that once the carrier-passenger relationship has been established, the status exists quite apart from the enforceability of the contract of employment, the court said (149 NW2d 762): “To permit the infant to use the doctrine of disaffirmance here to relieve him of his personal tort for which he is otherwise liable would be an exten sion of the guest statute we cannot sanction. We hold an 18-year-old minor may not, after his negligent conduct has caused damages, disaffirm his employment agreement so as to change the status of a passenger to that of guest.” The Steenson v. Robinson decision repudiated Brown v. Wood, stating (pp 422, 423): “The trial court relied upon Brown v. Wood (1940), 293 Mich 148 (127 ALR 1436). Defendant asks this court to approve that decision and to hold that in Oregon an infant may engage to transport a passenger for hire and then, after an accident, dis-affirm his engagement and stand upon his right to avoid contracts as a method of avoiding tort liability. This we decline to do. * * * “Whether or not an infant passenger can avoid his promise to pay a carrier for transportation, or an infant carrier can avoid a promise to transport, once the carrier-passenger relationship comes into being the carrier owes a duty to exercise due care. The status of the parties exists quite apart from the enforceability of their contracts.” The 1959 Kansas supreme court decision in Ehrsam v. Borgen, 185 Kan 776 (347 P2d 260), considered a similar case where the trial court upheld the minor’s right to disaffirm, relying upon our Brown v. Wood decision. The supreme court disregarded our Brown decision, stating that the facts of agreement to transport differed from the facts in their case, but in reversing the trial court held contrary to Brown v. Wood, as follows (pp 779, 780): “There can be no question but what our guest statute was passed in order to cure certain well-known evils that existed prior to its passage, and that it was passed for the purpose of protecting the owner .or operator of an automobile. By the same token, the guest statute should not be extended beyond correction of the evils which it may be assumed were the motivating reasons for its enactment, and, certainly, it was never intended to create a greater evil than that which it attempted to correct. It may be noted that the statute applies to any owner or operator of a motor vehicle and makes no exception as to minors. The statute is plain and clearly reveals that if such owner or operator, whether adult or minor, transports his guest without payment, then such owner or operator shall not be liable in damages for injury to the guest, unless the owner or operator is guilty of gross and wanton negligence. However, if such owner or operator accepts payment or benefits from the passenger, then the act has no application (Sparks v. Getz, 170 Kan 287 [225 P2d 106]), and this is true whether the owner or operator is an adult or a minor. * * * “In the instant case, defendant, by the share-thericle agreement, accepted payment from plaintiff by way of benefits received and plaintiff thereby became a passenger for payment in defendant’s vehicle, with the result that the guest statute was no longer available to defendant as a defense. It is clear that in passing the guest statute the State legislature established the policy of protecting the owner or operator of an automobile, whether adult or minor, from liability for damages under certain specified conditions. It is not the purpose of the act to furnish to the owner or operator of an automobile an escape route for his common-law negligence in carrying passengers for payment. In using a trite expression, we may say that our guest statute was passed to serve as a shield, and not as a sword, for the owner or operator of an automobile. “In view of what has been said, the case of Brown v. Wood, supra, relied on by the trial court, has no application to the facts in this ease and it follows that the judgment of the trial court is reversed.” Considering all that has been set forth above, we hold that the transportation agreement in the instant case was a' reasonable agreement and that Margaret Pokriefka was a passenger for hire and that defendant’s driver’s disaffirmance did not change that status. We are overruling Brown v. Wood and remanding for trial. No costs. Dethmers, C.J., and T. M. Kavanagh, Adams, and Brennan, JJ., concurred with Kelly, J. CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101). Moblard v. Klippenstein (WD Mich, 1965), 239 F Supp 274.	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Kelly, J. Appellant seeks reversal of the Court of Appeals’ decision that the workmen’s compensation appeal board erred in granting plaintiff statutory compensation for loss of a hand. June 2, 1953, defendants filed form 102 with the workmen’s compensation commission alleging that as a result of plaintiff’s May 25, 1951, injury which resulted in the loss of four fingers, they had paid plaintiff 103 weeks of compensation, had arrived at the end of statutory liability and were, therefore, stopping further compensation payments. ■ January 10,' 1961, plaintiff filed an “Application fdr Hearing and Adjustment of Claim” for loss of his right hand as a result of his May 25,1951, injury. Defendants did not contest the fact that the May 25, 1951, injury resulted in the loss of the hand, but claimed plaintiff was barred from recovery because (1) of the general 6-year statute of limitations, and (2) that plaintiff’s claim was an application for further compensation. The workmen’s compensation appeal board, in granting plaintiff compensation for 200 weeks for the loss of a hand with defendants receiving credit for- the 103 weeks they had paid for the loss of the four fingers, said: “In our opinion, the petition for loss of industrial use of his hand is covered by part 3, § 6 (CL 1948, § 413.6 [Stat Ann 1960 Rev § 17.180]), which reads as follows: “ ‘Any controversy concerning compensation shall be submitted to the compensation commission. Neither the payment of compensation nor the accepting of the same by the employee or his dependents, nor the signing of receipts therefor, shall be considered as a determination of the rights of the parties under this act.’ “The finding of industrial loss of use of the hand by the hearing referee is, in our opinion, simply a determination of - the plaintiff’s rights under the above statute as of the time of injury. Since the defendant did not fully comply with the statute by paying compensation due for the loss of a hand, as heretofore found by us, we do not believe that it may now raise, as a barrier to the claim, the general statute of limitations. See Samels v. Goodyear Tire & Rubber Co., 323 Mich 251.” Defendants urged the same two defenses before the Court of Appeals, and a dispute arises in the appeal to this Court as to what reason dominated the- Court of Appeals’ decision in reversing the workmen’s compensation appeal board. •Plaintiff claims the Court of Appeals denied compensation for the loss of a hand because of the general 6-year statute of limitations. Defendants insist that the Court of Appeals failed to answer defendants’ claim that the workmen’s compensation department does not have the power to enter an award of compensation for a period of lime antedating a petition for further compensation by more than six years and, further, that the Court of Appeals denied plaintiff’s claim solely because it decided the claim was an application for further compensation, and contends that even though the Autio Case (Autio v. Proksch Construction Co. [1966], 377 Mich 517) reverses the Hajduk Case (Hajduk v. Revere Copper & Brass, Inc. [1934], 268 Mich 220) and those cases predicated upon Hajduk, it leaves undisturbed the law which provides that the workmen’s compensation department is without power to award compensation for a period antedating a petition for further compensation by more than six years. Buzzn v. Muncey Cartage Co. (1929), 248 Mich 64. We dispose of defendants’ contention by stating that, under'our previous decisions , plaintiff was not barred by tbe general 6-year statute of limitations and, to the extent they may be in conflict, Buzzn and allied eases were overruled by Autio. The Court of Appeals found that “the record in' the instant case shows that the report [defendant-employer’s report to commission] was accurate in’ all details,” even though “the employer did not arrive at a conclusion that as a result of the loss of four fingers, the plaintiff suffered the industrial loss’ of a hand,” and held because of this fact our ruling in Autio v. Proksch Construction Company would not apply. The Court of Appeals concluded its opinion re-, versing the workmen’s compensation appeal board as follows: “The instant case is not one where a further condition developed which was not apparent at the time of the original injury. If the injured employee disputed the propriety of the payments, it was in-cumbént on him to file a claim as required by part 2, § 15, of the workmen’s compensation act, supra. “Reversed. Costs to appellants.” Part 2, § 15, provided: “No proceedings for compensation for an injury’ under this act shall be maintained, unless a notice of the injury shall have been given to the employer within 3 months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within 6 months after the occurrence of the same. * * * In all cases’ in which the employer has been given- notice of the happening of the injury, or has notice or knowl edge of the happening of said accident within '3 months after the happening of the same, and fails,neglects or refuses to report said injury to the compensation commission as required by the provisions of this act, -the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said injury shall have been filed with the compensation commission.” CLS 1961, § 412.15 (Stat Ann 1960 Rev § 17.165). We made known to employers in Weenink v. Allen Electric & Equipment Co. (1936), 276 Mich 561, 564, that if they did not report to the commission “the nature and extent of the injury fully and in detail,” their neglect to do so would be a bar to the employers’ right to raise the defense of six months’ statute of limitations; and,, again, in Paridee v. Great Atlantic & Pacific Tea Co. (1936), 278 Mich 191, we made it plain that the report of an accident must set up the injury, with such particularity of location- and effect, known to the employer, as to indicate its nature and to identify it for the purpose of the compensation law. Defendant-employer’s initial'report to the commission set forth only a “crushing injury to the right hand.” This report failed to set forth “the nature and extent of the injury fully and in detail,” and defendants’ report two years later advising the commission that plaintiff had lost four fingers did not cure this defect. We do not agree with the Court of Appeals’ finding that defendant-employer’s “accurate” report to the commission defeated plaintiff’s claim because plaintiff did not file a claim as required by Part 2, § 15, of the workmen’s compensation act. The award of the workmen’s compensation appeal board is affirmed. Reversed and remanded. Costs to appellant. Dethmers, C. J., and T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred. Black, J., concurred in result. 3 Mich App 405, CLS 1956; § 609.13 (Stat Ann 1959 Cum Supp § 27.605). See currently, CLS 1961, §§ 600.5807, 600.5813 (Stat Ann 1962 Rev §§ 27A.5807, 27A.58-13). — Reporter. Autio v. Proksch Construction Company (1966), 377 Mich 517; Martin v. White Pine Copper Company (1966), 378 Mich 37; Pevarnic v. Northwestern Leather Company (1966), 378 Mich 48; Cook v. Northwestern Leather Company, (1966), 378 Mich 518.	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Per Curiam. The sole question on review by the Court of Appeals, and in turn here, is “whether there is any evidence to support the award'.” Meyers v. Michigan Central R. Co., 199 Mich 134, 137, 138; Thornton v. Luria-Dumes Co-Venture, 347 Mich 160, 162; Coates v. Continental Motors Corporation, 373 Mich 461, 467. “Our obligation is to accept, without question, findings that are certified here if there be any evidence'whatever to sustain those findings, regardless of thought or suggestion addressed to improbability thereof.” (Thornton at 162.) The appeal board found, with ample evidentiary support: “In' the' instant case all four fingers which were opposed to the thumb have been amputated. Since the capacity to grasp comes from the fact that the phalang.es are opposable,' it follows then that the capacity to grasp is destroyed. It is true that plaintiff can hold some objects by using the thumb in conjunction with the palm or surface of the hand. However, this is more-in the nature of-a holding action similar, to that which : might be accomplished by sticking an object between the phalanges of the paw of the performing dog. Plaintiff herein is left with little, if any, more than a pushing instrument. His capaety to use the fofelimb to any degree depends upoii the other parts of the forelimb. While the forelimb is not completely useless, it is of less use than a forelimb fitted with a modern prosthetic hand. Plaintiff is relegated to the ranks of the odd lot who must substitute other bodily functions for that destroyed in order to continue to be gainfully employed. We hold that he has suffered industrial loss of use of his hand. The order of the referee shall stand affirmed.” As against these findings the seated panel of the Court of Appeals reversed the appeal board’s award for plaintiff, stressing an opinion of the defendant employer’s examining physician (“I do not think he’s lost the industrial use of his hand.”). Holding that the presented question “becomes one of law,” and citing Hlady v. Wolverine Bolt Co., 325 Mich 23, as controlling authority, the 3 judges came to this specific conclusion: “While it might seem harsh to find that a man who has lost 4 fingers of his right hand has not, in absence of evidence of any greater injury, lost’ the industrial use of that hand, such is the law. To change the law is the province of the legislature, not of this Court.” (Mitchell v. Metal Assemblies, Inc., 3 Mich App 143, 150). Before turning to the proof upon which the appeal board depended, and from there to the authorities with which we are concerned, it should be noted that the hearing referee and the appeal board ignored the quoted opinion of' defendant’s medical witness. Whether that was done for reasons of credibility, or for some other reason or reasons, is not disclosed. It may be that the administrative triers of fact concluded that the doctor’s knowledge of essential facts was a bit scarce, the doctor having testified: “The referee. Let me put it in converse, Doctor. How much would you say loss of use has there been here? “A. I would have to say that that depends upon the use for which the hand — I mean, industrially speaking, it depends upon the type of use that the hand has been used to. And to actually go on percentages I would say is impossible. Each individual is different. They each can adapt themselves differently. Some people have abilities with their hands and are double jointed and so on, so that it’s hard to measure exactly everyone based on a simple percentage. “I would say that I haven’t seen this man before and not knowing his capabilities, it would be hard for me to give a percentage loss as far as his hand is concerned. I can’t say how well he does his job. I have never seen him do it. I did see him flex his hand and extend it. I saw him move his thumb. I would say as far as those uses are concerned, that he does very well with what he has left. “The referee. Well, let’s put it this way. If you were the examining physician, you were passing upon prospective employees for two-handed jobs, where would he stand? “Mr. Leib: If the court please, I’m going to object to the question by the court. I think it’s highly irrelevant. “The referee. Well, I’d like to have an answer to it. “A. It would depend upon whether the job demanded the dexterity of his fingers. If the job did not — many jobs can be done by just pushing with your palm. If the job demanded dexterity of his fingers, if he had to do emergency work in the hospital like I do, I would say no. I don’t know what his job is.” So far as lifeless print may disclose to a reader thereof, the plaintiff appears to have been remarkably straightforward in giving the testimony upon which the appeal board relied. Unlike the exact situation disclosed in the Hlady Case (see discussion, post), it was shown that plaintiff “suffered complete loss of the little finger, ring finger, middle finger and about four-fifths at least of the index.” He told of going back to “part-time” work on a garbage route; then with a “floor cleaning fellow”; and finally as a “maintenance man.” He said “I sweep up the floor and clean the bathroom and change light bulbs, whatever has to be done”; “fix the machines, put saws in, I mean blades, yes, saw blades, and I do truck driving, high-low.” A fair summary of the extent of the use to which he can employ what is left of his right hand appears from this connected part of his testimony: “Q. Are you able to get along on the job or did you have any special favoritism shown to you, or how do you manage? “A. No, I get along fine as far as I know on the job I’m on now. As far as I know everybody likes me, as far as I know. Nobody says anything to me, I just do my job and that’s it. “Q. I’m talking about your ability to perform your work, are you able to do it all right? “A. Well, as far as sweeping and cleaning up and like that there, yes, sir. “Q. How do you do it? “A. Well, I have a broom and brushes, and Ajax, and stuff like that, I use to clean out the bowls. The only thing I have a hard time with is picking the barrels up and stuff like that, but I do get them up and hold them up there. A lot of times I bang my hand where I wouldn’t otherwise, and I could just jump through the ceiling then, but other than that everything’s fine. “Q. Is there any work you were doing before your injury that you are unable to do at this time? “A. Well, I mean I was doing punch press before and, well, I mean other than doing the punch press, I mean I could do most anything, you know, but there’s a lot of little things I can’t do. Like if I I wanted to fix it on my car or work on my car, or something like that, I can’t get down in there and hold-the wrenches and stuff. “Q. .Well, could you go back and work on the same punch press again? “A. No, sir. “Q. Do you know why? “A. Well, I think it’s because one man couldn’t operate it with one hand, you have to have two hands to operate it. •' “Q. Do you know whether or not you have ever been refused work because of your injured hand? , “A. Well, yes, I’ve applied for kitchen work and stuff like that, and they wouldn’t hire me because of that; they told me right out that I’d probably drop the stuff and break it and I wouldn’t be no good in the kitchen, and I have been refused work because of that. “Q. Have you done that kind of work before? “A. Yes, sir. “Q. Can you tell us where you were refused employment? • “A. I don’t remember the place but it’s in Rochester; it was a high class restaurant and I went in and talked to the lady, and she asked me if I was physically fit and everything and I told her I was physically fit other than my hand, and she looked at my hand and she said I’m sorry, I can’t use you because you’ll drop the dishes, you couldn’t pick this up or carry a bucket, or anything like that. So I do forget the name right offhand, but it was right up in Rochester. I could find out. “Q. Have you had any medical attention on your •hand? “A. Yes, I have. I had to go back one time before when I come out of the hospital, and he cut a little more bone off of here,-but it still does bother me right here.- ' ' • “Q. You’re pointing to the knuckle of your, long-finger? ' ' “A. Well, I guess it’s the bone down here, I guess where he squeezed it down or something, but it’s nerves, the nerve right there, and I can — I mean I can feel it all the time, you know, and it bothers me, and I talked to the doctor about it and I told him that the company did go bankrupt, and he told me wait until I got settled. “Q. Who was the doctor? “A. Doctor Beech, the doctor. “Q. Is he the one who took care of you before? “A. Yes, sir. “Q. Now, are you pointing to that portion of the hand where you’ve lost the middle finger? “A. Yes, sir, the middle part right here. The biggest part, this part down here doesn’t bother me as much as this does here, but he cut part of this bone off and he said I’d probably have to go back quite a few times before he could cut it all off, because he could only cut a- portion off at a time.” This brings us to application of the “any evidence” rule, whether there is any evidence on strength of which the appeal board could rightfully find and conclude as it did. In the first place it is rather firmly settled that, in this particular type of closely disputed “loss of industrial use” case, the issue almost automatically becomes one of fact. See Powers v. Motor Wheel Corporation, 252 Mich 639.; Rench v. Kalamazoo Stove & Furnace Co., 286 Mich 314 ; Lentz v. Mumy Well Service, 340 Mich 1; Rupp v. Hutter Construction Co., 288 Mich 105; Shumate v. American Stamping Company, 357 Mich 689. In the second place we “noted,” in Palazzolo v. Bradley, 355 Mich 284, 290, that “Michigan was once on the right track”, the “right track” being regular application by this Court of its original rule that no amputation in toto is required to entitle the appeal board (formerly board and then commission) to find as a fact that the amputee had lost the industrial use of a substantially amputated member. Our most recent word on this appears in the Palazzolo Case. The rule there approved will bear repeating, along with a new declaration of adherence thereto. It comes from the pen of Mr. Justice Fellows, writing for a unanimous Court in Reno v. Holmes, 238 Mich 572, 574, 575: “Of our own cases, the one nearest in point is Stocin v. C. R. Wilson Body Co., 205 Mich 1. Noting the diagram appearing in that case, it will be seen that the amputation was a short distance below the elbow. We there held that the words used in the act should be given their ordinary and accepted meaning, and, giving them such meaning, we held that there had been the loss of an arm. The supreme court of Massachusetts made a similar holding in Garcelon v. Commercial Travelers’ Eastern Accident Association, 184 Mass 8 (67 NE 868, 100 Am St Rep 540), in construing the words ‘loss of an arm,’ in an insurance policy. The amputation was at a point about four inches below the elbow, and it was said: ‘“We consider the amputation of an arm a little below the elbow to be the loss of an arm in the common acceptation of those words and within their meaning as used in the policy, which specifies merely the “loss of an arm” without mentioning whether the loss is by amputation below or above the elbow joint.’ * * * “The diligence of counsel has brought to our attention but one case dealing with the precise question before us. Payne v. Industrial Commission, 296 111 223 (129 NE 830). In the time at our disposal we have found no others directly in point. In this case the amputation was at a point about 10 inches above the ankle joint. It was held (we quote from the syllabus): “ ‘The loss of any substantial portion of a leg constitutes the loss of the leg within the meaning of the compensation act, and the necessary amputation of the leg’ 10 inches above the ankle joint will entitle the employee to compensation for loss of the leg.’ “It will be noted that the amputation in that case was at practically the same point as it was in the instant case, and while the language of the Illinois act is not identical with ours, the language differing from ours was not stressed in the opinion, but the broad holding was made that the loss of a substantial portion of the leg was the loss of the leg. We are persuaded that we should follow that holding. To hold that one had lost only a foot unless the leg was amputated at the extreme upper part would not comport with the common acceptance of the language used by the legislature or the beneficent purposes of the act.” From here attention is turned to the Hlady Case, supra. It is not to be denied that, if we are duty bound to apply it, Hlady stands in the way of this award. Ordinarily we would follow such an authority, even though the rather abrupt dixit thereof leaves something to be desired. Why? Because it leaves an open inference that the decisions cited to the Court at the time (Lovalo v. Michigan Stamping Co., 202 Mich 85; Powers v. Motor Wheel Corporation, 252 Mich 639; Bench v. Kalamazoo Stove & Furnace Co., 286 Mich 314 and Rupp v. Hutter Construction Co., 288 Mich 105) were slighted purposely in favor of a new and theretofore unknown test-doctrine, that is (Hlady at 26): ' “As a matter of law the commission’s award to plaintiff for the loss of a hand was erroneous, because there was no testimony that plaintiff’s injury was other than the loss of 4 fingers of her right hand which resulted in no more than the normal impairment of industrial use which must always follow '.such amputations, or at least naturally and commonly results.” The trouble with Hlady is that it stands by itself in the midst of earlier and subsequent decisions which adhere to the more flexible, and manifestly more desirable, rule that a claim of industrial loss of use of a hand or other member is not (excepting where specifically applicable statutory language says otherwise) to be judicially determined contrary to supported factual findings of the appeal board. Proof of outright loss of a hand is one thing. Proof of loss of the industrial use of that hand is something else. Proof of either entitles the appeal board to award compensation for loss of industrial use of the hand. In the factual setting of this Mitchell Case, the board found that the loss of all four fingers of the right hand left Mitchell where he had “suffered loss of use of his right hand.” In Hlady the commission found the same way on like proof. Now let us view the commission’s concluding view of Lovalo and the relation of that case to Hlady (p 57 of Hlady’s printed record): “In the case of Lovalo v. Michigan Stamping Co., 202 Mich 85, the Court said, • “ ‘In common terms thé human hand consists of the palm, fingers and thumb, being in combination peculiarly adapted physiologically to the function of prehension, or g-rasping, which is their primary service, locomotion and support being of scant importance -as contradistinguished from the' lower order of animals. In .that sense and for such uses plaintiff has lost-his right hand.’ “Applying the test described in the above case it is self-evident that the plaintiff has lost the primary service of her right hand. The plaintiff has no. useful grasping function in her right hand and it is obvious from a look at the photographs that no one would undertake to employ her at anything but a one-handed job. We, therefore, find that the plaintiff has lost the industrial use of her1 right hand as the result of her .amputations of October 18,1945. We believe she is entitled to compensation for the loss of such hand. The fact that the amputations do not involve any portion of the hand beyond the 4 fingers does not warrant an opposite conclusion.” Due advertence to the earlier cases has been made. As to the subsequent ones, compare Hlady with Lentz v. Mumy Well Service and Shumate v. American Stamping Company, both supra, the latter citing Lents in support of this conclusion (p 692.): “In the present appeal, the record sustains the same finding as in the Lents Case, namely: ‘At most its use (the hand) is limited to that of an unsatisfactory pushing or pulling instrumentality.’ ” If the Court were disposed to distinguish Hlady from this case of Mitchell, rather than overrule Hlady, it would not be difficult to make a factual hair split between the two cases. Mr. Mitchell has left on his right hand but two insignificant stumps of fingers, one of which will require progressively additional amputation (see testimony quoted above); whereas Mrs. Hlady had left 4 stumps of fingers, all longer than those left to Mitchell with one stump extending into the middle phalange. This latter fact appears photographically opposite page 52 of the Hlady printed record. But daintily quartered distinctions and artificial differences are not in order here. Hlady was simply a hurriedly considered nullius films in the annals of the Supreme Court of Michigan. No decision was cited in support of that reversal of a factually supported award of compensation. Nor were any of the decisions of this Court, standing at the time “on the right track,” mentioned or even inferably distinguished. Hlady must in these circumstances be taken as one of those cases the principle of which, contrary as it has always been to Reno v. Holmes, supra, was directly overruled by what was said in Palazzolo v. Bradley, supra, at 291. The Court should say so. Reversed, with instruction that an order enter affirming the award as made to plaintiff. Plaintiff will have costs of both courts. Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred. CL 1948, §413.13 (Stat Ann 1960 Rev § 17.186). — Reporter. “High-low” was subsequently shown as referring to fork-lift floor conveyor trucks. “It is argued that we should not permit recovery for the loss of industrial use of the hands in absence of definite legislative enactment. However, our holding of industrial loss of use is well established. See Lovalo, Powers, and West Cases, infra, and also Suggs v. Ternstedt Manfg. Co., 232 Mich 599; also Lindhout v. Brochu & Hass, 255 Mich 234. “As in the Powers Case, supra, the determination of the loss by plaintiff of the industrial use of his hands is one of fact and, there being testimony to support such a determination, the findings of the department are binding upon us.” (Rench at 320). See West v. Postum Co., Inc. (1932), 260 Mich 545, — Reporter, Of course, if the statute specifically provides otherwise, then the loss-of-use rule does not apply. For debate of this point in the factual setting of Palazzolo, see both opinions of that ease, one by Justice Dethmers for affirmance and the other by Justice T. M. Kavanagh for reversal. Justice Dethmers posed the debated question nicely (Palazzolo at 285) : “Does ‘loss of the first phalange of the thumb,’ as provided in the statute, mean physical loss or does loss of industrial use meet the test?”	[ 19, -31, 0, 29, 9, 23, 38, 24, 7, 42, 37, -28, 19, 1, 12, 22, 59, 21, 23, -24, -17, 3, -3, -19, -16, -38, 12, 54, -2, 7, 0, 26, 28, 24, -72, -8, -1, 24, -11, -29, 9, 20, 29, -10, -15, 6, 40, 0, -14, -49, 14, 24, -17, -21, 7, 0, 39, 29, -16, -2, 35, -8, 10, -1, 12, 26, -3, -34, -40, -36, -62, 12, -36, -30, -5, -45, 9, 72, -5, 14, 28, 48, 3, -3, 8, 101, 31, 39, -26, -66, 21, -19, 2, -59, -47, 25, 31, -22, 36, -32, -27, 9, 5, -9, -49, -40, 10, 8, 24, -42, -1, 12, -23, 22, -6, -25, 20, 3, 43, 45, -36, 23, -11, 4, 47, 13, -7, -34, 1, 41, -6, 48, -10, 33, 12, -22, -21, -22, -15, -39, -30, 54, 9, 29, -21, -12, -57, 1, 22, -12, 27, 33, -21, -14, -54, 11, 12, 11, 24, 26, 40, 38, -21, 50, 14, -2, 31, 10, 55, 47, 21, 19, 56, -32, -9, 29, 47, 13, -25, 19, -23, -7, 46, -5, -33, -47, -71, -6, 44, -57, -26, 20, -5, -4, -7, 23, 25, 2, 15, -66, -7, 14, 6, -4, 11, 18, 35, -60, -5, -9, -13, 30, 0, -82, -41, -44, 53, 17, 6, -21, 38, 13, 9, -40, -28, -22, 5, 18, -15, -40, -31, 83, 64, -38, 24, 27, -8, -64, 47, -25, 0, -8, -9, -44, -35, -65, -29, 6, 46, -16, -30, 72, -7, 30, -75, -25, 13, -2, -41, -28, -27, 31, 19, 22, 25, 24, -3, 61, -33, 7, 7, -5, 5, 4, 25, -58, -58, 6, 29, -27, 10, -2, 6, 5, -12, 6, -38, 20, 23, -6, 59, 1, -26, 22, 45, 48, 31, -11, 12, -2, -31, -5, -26, 39, -4, 78, -60, -53, -16, -37, 14, 22, 22, -3, 39, 14, -52, -45, 8, -17, -32, 10, -7, -70, 8, -49, -32, -72, 19, 27, 21, 3, -46, 58, 28, 5, 22, -15, -14, 14, 6, -5, 13, -12, -4, -3, -6, -23, 46, -30, 1, 17, 15, -11, 45, 7, 7, -22, -14, 42, -25, -22, 25, 16, -29, 26, -19, 0, -25, 9, -3, -35, 56, -22, -7, 18, 2, -47, -3, -19, -27, 3, 21, -16, -20, -14, 14, -19, 0, 0, -26, -27, 19, 7, -61, 32, 7, 13, 45, -25, 3, -17, -39, 63, -23, -38, 8, 21, -37, -6, 8, 56, 21, -15, -28, 22, 35, 13, -10, -23, 21, 7, -47, -51, 30, -60, -58, -38, -56, -26, -10, 10, -3, -33, -23, 1, 15, -64, -25, -9, -33, -50, -14, -29, -17, 69, -6, 63, -11, -25, 31, 33, -7, 3, 46, -7, -7, -3, 64, 17, 2, -13, 51, -12, 87, 6, -16, -2, 43, -24, 28, 12, 5, 8, -9, 19, 1, 27, 5, 10, 14, 35, -9, -2, -26, 2, -27, 15, 43, 3, 3, -7, 57, -17, -38, -37, -42, 35, -38, 28, 10, -12, 30, -26, 25, -21, 8, -6, 3, 23, -30, 6, 19, 31, -40, 0, 37, 38, -57, 10, -36, -26, -34, 50, -33, -36, -56, 2, -6, -59, 36, -15, -17, -12, 32, -17, -31, -53, -32, -6, -67, 25, -19, 5, 16, -55, -5, -10, 87, 49, 15, -31, 4, 24, 33, -40, 66, 26, 23, -18, -22, 22, 26, 18, 34, -10, -49, 28, 36, -29, 8, 7, 45, 14, -21, -18, 66, 12, -11, -37, -12, 12, -42, -5, -16, -50, 48, -9, 10, -47, 14, 14, 35, -28, -51, 8, -10, 0, 7, 24, -40, 43, -43, 28, 17, 16, -16, 12, -3, -32, -2, -30, 10, -99, -52, -39, -1, 34, 50, 65, 16, 57, 9, -16, -60, 5, -41, -17, 6, -32, -12, -16, -20, -11, -53, 24, -14, -8, -20, -41, 0, -9, 14, -28, 43, -53, -2, 22, -37, 23, 16, 64, -28, -20, 2, 59, -8, 24, -30, 19, -24, -1, -16, -29, -2, 52, 3, 29, -4, -14, -8, 78, 22, -2, 44, -34, -20, -19, 20, -3, -17, -63, 60, 15, 3, 54, 8, -26, 3, -16, 4, 95, 43, -13, 20, -60, 62, -8, -3, -2, -16, 38, -29, 29, 0, 32, -23, -2, 31, 29, 19, 43, -70, 39, 31, -5, -5, -30, -4, -3, 4, 15, 4, -24, 43, 51, 32, 56, 4, 22, -48, -31, 27, -21, -45, 6, 12, 5, 22, -8, -12, 27, 52, -9, -26, -23, 37, -44, -10, -32, -2, -23, -4, -14, -32, 0, 11, -3, -20, 0, -16, -14, -71, -39, 17, -25, -33, -7, -59, -19, -34, -9, 22, 34, -9, -45, 26, -68, 34, 4, -43, -30, 39, 51, -2, -9, -50, -9, -65, 46, -15, 2, -20, 7, 58, -7, -13, -14, 13, -25, 20, 6, 8, 27, 1, 33, 23, 23, 44, -16, 4, -4, 22, -5, 21, -9, 50, -31, -52, -31, 51, 1, -69, -39, -26, 43, 1, -17, 0, 12, -23, -22, -22, 34, 22, 48, -26, -3, 59, -2, 9, 3, -12, 13, 24, -5, -12, -18, -34, -4, 11, -16, 4, 59, 23, -48, -2, 30, 33, 28, 53, 51, -25, 43, 9, 31, -32, -17, 31, 17, 11, 1, 32, -65, -41, 5, -35, 28, -43, 27, 20, -19, 4, -49, 15, -15, 3, 5, -23, -14, -2, 35, 21, 14, -2, -41, 11, 24, -10, 8, -10, 33, 26, 27, 62, 18, 2, -55, 14, 19, 26, -6, 22, -5, 30, 40, -49, -23, 26, -71, 16, 10, 48, 0, 24, -65, 11, -5, -41, 14, -15, -29, 36, -53, 46, 26, -19, -47, -41, -6, 33, -20, 5, 71, -49, -44, -89, -12, -53, 39, -13, 21, 5, 10, 30, -4, 6, -15, -6, 36, 12, -8, -46, 15, 30, 1, -58, -39, -16, 8, 34, -22, 17, -30, 9, 0, 0, -21, -26, 6, -48, -25, -54, 14, 33, -23, -7, -21, -56, -27, -53, 1, -7, -14, -24, 1, 25, 7, -8, -33, -2, -6, -2, 73, 22, 38, 18, -49, -50, 5, 16, 10, 23, -32, 4, 15, -17, 0, -22, 4, -2, -18, 22, -42 ]
Black, J. Trellsite Foundry & Stamping Company v. Enterprise Foundry, 365 Mich 209, flatly held that the provision in section 9 of part 7 of the workmen’s compensation act (CL 1948, § 417.9 [Stat Ann 1960 Rev § 17.228]) which relates to the apportion ment of an award was unconstitutional. Pointing to the distinction between substantive due process and procedural due process, we went on to say (pp 214, ,215); ' “Naturally, a statutory provision affecting private substantive rights in the interests of the general welfare might be reasonable and hence valid in its application to certain circumstances and the reverse as applied to others. The test of reasonableness has ,npt, however, been applied to the right of procedural )due process.- It is absolute. Statutory enactments "authorizing proceedings for taking life, liberty, or property without providing for procedural due process therein cannot stand under constitutional exactments. As applied to the instant case, the apportion'ment provision of the statute, in failing to provide •for notice of hearing on compensation to prior employers, is unconstitutional, leaving no legal basis for a right of apportionment or contribution, regardless of whether notice is or is not served on former employers in a given case.” •.....When the legislature considered and enacted ámendatory PA 1962, No 189, that body presumptively held Trellsite’s majority opinion in one hand and, in the other, the decision upon which the seated panel of the Court of Appeals (2 Mich App 204) relied principally for holding that Act 189 was not effective retroactively. That decision is In re Davis’ Estate, 330 Mich 647. Therein the Court quoted and applied, from Detroit Trust Co. v. City of Detroit, 269 Mich 81, 84, this firm rule; “We think it is settled as a general rule in this State, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases ¿s the contrary clearly appears from the context of the statute itself. “ ‘Indeed, the rule to he derived from the comparison of a vast number of judicial utterances ■ upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective. operation is-; always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, un-' equivocal and unavoidable implication from the words of the statute taken by themselves and in' connection with the subject matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.’' Endlich, Interpretation of Statutes, § 271.” Act 189 was conceived and born of Trellsite. The legislature sought to enact a statute providing that which, in the constitutional sense, its membership had never provided before. By legal presumption all of the senators and representatives knew at the time that an unconstitutional statutory provision though in form and name a law is from the beginning no law at all; that the invalidity thereof dates from the time of enactment rather than the time of decision branding the provision as unconstitutional, and that such a provision is at no time. ef7 fective for any purpose. The panel below so held. Now with that knowledge at hand, what did :the senators and representatives do by way of prospective or retroactive hint to the judicial branch? Nothing in the “context of the statute” (referring to Act 189) “clearly” or otherwise suggests an intention to render it retro-effective. Neither does the wording thereof manifest or imply unavoidably' a purpose other than that which is presumptive, that is, prospective operation and effect. I think-we should apply the Davis and Detroit Trust Cases rather than ignore them, thereby upholding a settled rule of statutory construction and thereby' reining up short our past tendencies to manufacture more and more now-for-then law by undue and unjudicious process. To summarize; I agree specifically with the panel below that Trellsite’s prevailing opinion “destroyed CL 1948, § 417.9 ab initio” and that Act 189 provides no hint of legislative intent that it should apply retroactively as claimed. On that ground my vote to affirm is cast. Kelly, T. M. Kavanagh, and Adams, JJ., concurred with Black, J. In Welsh v. Ohanesian, 378 Mich 24, four Justices, the undersigned -being one,'followed and applied the rule of Davis.	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Per Curiam. By order for bypass and summary hearing entered May 23 last, the Court has concerned its appellate function with the reserved referendary power and procedure appearing in the first two paragraphs of section 9 of article 2 of the Constitution of 1963. See margin below. It has approached the primary question thus far determined (order of June 9, 1967; see appendix) with attention concentrated from the beginning on the all important duty of the judiciary when constitutional provisions are brought up for interpretation and application. That duty is to ascertain as best the Court may the general understanding and therefore the uppermost or dominant purpose of the people when they approved the provision or provisions thus brought up. To quote Mr. Justice Story: “Constitutions are not designed for metaphysical or logical subtleties, for niceties of'expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” (1 Story, Constitution [5th ed], § 451, p 345.); and Mr. Justice Cooley (from May v. Topping, 65 W Va 656, 660 [64 SE 848]): “A Constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ‘For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ (Cooley’s Constitutional Limitations [6th ed], 81.)” Plaintiffs contend under the two mentioned paragraphs that the aforesaid reserved power cannot “properly” be invoked as against a legislative measure given immediate effect until end of the legislative session during which that measure was enacted and given such effect. The defendants, supported hy the attorney general, stand for the contrary view. This is the primary question to which we have referred. The attorney general advises, in his brief: “On April 13, 1966, the United States Congréss enacted the uniform time act of 1966, being Public Law 89-387 of the 89th Congress. This act imposes uniform daylight saving time upon all States during the period beginning the last Sunday in April of each year and terminating on the last Sunday in October of each year; but section 3(a) of said congressional act specifically provides that: % # “ ‘Except that any State may by law exempt itself from the provisions of this subsection providing for the advancement of time, but only if such law provides that the entire State (including all political subdivisions thereof) shall observe the standard time otherwise applicable under such act of March 19, 1918 ' [15 USC §§261-264], as so modified, during such period.’ “The Michigan legislature enacted and the governor signed Senate Bill No 1 which is denoted PA 1967, No 6, giving said act an immediately effective date of March 24, 1967. “Following enactment of PA 1967, No 6, certain individuals and groups publicly announced their plans to circulate a referendum petition with the intention of filing such petition as soon as a sufficient number of signatures had been obtained. These individuals and groups did, in fact, circulate such referendum petition and filed same with the State board of canvassers.” A number of warring rules for construction of those pivotal words, “within 90 days following the final adjournment of the legislative session at which the law was enacted,” are urged upon us. It is said on the one hand that “strict” construction is in order and that, if the worded purpose is at all doubtful, it should be resolved “in favor of the legislative process and against the referendum process.” On the other, citing authority that the word “within” as employed in statutes providing time for the taking of legal action means “not beyond,” or “not later than,” or “any time before,” it is alleged that “within” does not fix the first point of time; that it does fix the limit beyond which action may not be taken. The issue is not without difficulty. There is nevertheless an overriding rule of constitutional construction which requires that the commonly understood referral process, forming as it does a specific power the people themselves have expressly reserved, be saved if possible as against conceivable if not likely evasion or parry by the legislature. That rule is, in substance, that no court should so construe a clause or section of a constitution as to impede or defeat its generally understood ends when another construction thereof, equally concordant with the words and sense of that clause or section, will guard and enforce those ends. The rule seems to have originated with the handing down of Prigg v. Commonwealth of Pennsylvania, 41 US (16 Pet) 539, 612 (10 L ed 1060, 1088): “Iiow, then, are we to interpret the language of the clause? The true answer is, in such a manner, as, consistently with the words, shall fully and completely effectuate the whole objects of it. If by one mode of interpretation the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them”, and accords fully with Mr. Justice Cooley’s regularly quoted declaration in People, ex rel. Bay City, v. State Treasurer, 23 Mich 499, 506: “Constitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action; and it cannot be permissible to the courts that in order to aid evasions and circumventions, they shall subject these instruments, which in the main only undertake to lay down broad general principles, to a literal and technical construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient.” The construction claimed here by plaintiffs would permit outright legislative defeat, not just hindrance, of the people’s reserved right to test, by referendary process, the exemption made by Act No 6 or any like immediate-effect exemption the legislature might enact come the showers of April each, year hereafter. To be specific: With such construction announced judicially, the legislature would stand free to avoid effective referral of this and future legislative exemptions under aforesaid 3(a) simply by repealing Act No 6 next November, then by enacting another immediate-effect act of exemption next spring and then by another repealer in the late fall, and so on through the years. For that particular reason plaintiffs’ proposed interpretation of the first two paragraphs of section 9 has been rejected and that proposed by defendants and by the attorney general has been accepted. Our order of June 9 attests that result. "We elaborate: Should we adopt plaintiffs’ procedural view of section 9, what would prevent more or less regular, thwart of the referral process, at will of the legislature? The legislative power of Michigan having been committed generally to the senate and house by section 1 of article 3 of the Constitution,, what then of warranted worth would be left in section 9 beyond, of course, the slower and more involved initiatory process ? Quite unintentionally to be sure,plaintiffs are requesting that the judicial branch emasculate the reserved referral process. They are a bit too literal as they view section 9, at least too much for that necessary “play” in the joints Mr. Justice Holmes once described (Bain Peanut Company v. Pinson, 282 US 499, 501 [51 S Ct 228, 229, 75 L ed 482, 491]): “The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” We are impressed by what seems to be the only pinpointed and. wholly unanimous authority extant, that is, McBride v. Kerby, 32 Ariz 515 (260. P 435). Reasoning from a Constitution which corresponds in pertinent essence with ours, the supreme court of Arizona concluded in McBride (p 523) that: “Nowhere in the Constitution can be found even a suggestion that a referendum petition has any effect except the nullification of the particular measure referred until its approval by the voters, which inferentially would leave the legislature in full possession of all other ordinary constitutional powers.” These words were followed by a detailed analysis of the history of the power of referendum and of the evils sought to be remedied thereby; by due adherence to that rule of constitutional construction which would effectuate rather than frustrate such reserved power, and then by conclusion that, after a measure has been referred and prior to the taking of the referendary vote, the legislature may — nay, must needs be left free to — legislate anew in the same area, subject always to the referral process should a sufficient number of electors petition therefor. This descriptive analysis of McBride given, we commend to our profession for application to said section 9 the conclusory reasoning of the court in that case (emphasis supplied by the Arizona supreme court, p 523): “Taken into consideration with subdivision 5, the only logical and consistent interpretation is that when an act of the legislature is referred, that particular act is suspended in its operation, but that such suspension does not deprive the legislature of the right thereafter to pass, in the legal manner any measure it may deem advisable, notwithstanding such measure may deal with exactly the same subject as the referred act, and in the same manner, but subject, of course, to the s?une right of reference as was the original act,” Three additional questions were considered and merged in the Court’s order of June 9, mentioned above. The first was whether by 3(a) of the act of April 13, 1966, congress limited the extended exemptive authority to action by the legislature of “any State,” or whether such exemptive authority was extended to the State’s reserved power to propose laws, to enact and reject laws, and to approve or reject laws. Upon the specific reasoning of Decher v. Secretary of State, 209 Mich 565, 572-578, it is ruled that the people of Michigan may themselves, by proceedings taken pursuant to said section 9, effect or reject the exemption thus authorized. Here congress has awarded the exemptive right to “any State”, not just to the legislature of the State. This means that the acceptance or rejection of the exemption may he accomplished “by law” effected by the people of the State as well as by the legislature of that State. See discussion in Decher of State of Ohio, ex rel. Davis, v. Hildebrant, 94 Ohio St 154 (114 NE 55), affirmed Davis v. Ohio, 241 US 565 (36 S Ct 708, 60 L ed 1172), and this Court’s conclusion with respect to the referral provision of the Ohio constitution considered there (Decher at 573): “The laws of the State include the Constitution as well as the statutes, and, when congress provided that the redistricting should be made ‘in the manner provided by the laws’ of the States, the provision in the State Constitution for a referendum on the action of the legislature could not hut apply. We do not think this decision places any interpretation upon the word ‘legislature’ as used in this constitutional provision. It simply holds that, as congress was given the power to regulate the action of the States in redistricting, it might confer upon the States the right to provide therefor ‘in the manner provided by the laws’ of each State and that the law of Ohio included the referendum provision of its Constitution.” The second question thus merged is based on contention that the act of April 13, 1966, authorizes but one “changeover date” each year and since the last Sunday of April, 1967, passed after the legislature had effected a changeover, by Federal edict there may be no change of the situation until one is made, if at all, precedently for 1968. The point is made by plaintiffs’ stated question 4: “Does the Federal uniform time act (Public Law 89-387) pre-empt the determination of time, establish but one ‘changeover date’ for daylight savings time, and preclude the board of State canvassers or the State of Michigan from making any determination of time other than that specifically authorized by such Federal legislation?” Question 4 poses an open question of interpretation and application of law made supreme by the sixth article of the Constitution of the United States, with respect to which there is as yet no authoritative Federal precedent. It thus becomes the original duty of this Court to interpret and apply entire section 6 of the act of April 13, 1966, rights thereunder having been duly asserted before it. As regards such duty see United States v. Bank of New York & Trust Co., 296 US 463, 479 (56 S Ct 343, 348, 80 L ed 331, 339). The phrasing of section 6 suggests no thought that the extended power of exemption must be exercised prior to the Sunday in April which precedes the intended period of exemption. Neither does it purport to forestall exemptive action covering all or any portion of the Sunday-to-Sunday period ahead should the legislative assembly of the State fail, for any reason, to act prior to the first of the two Sundays. The only restriction laid by congress upon the power thus extended is that, when and if exercised, the result must apply to the entire State. It is therefore ruled that question 4 must be answered in the negative. To hold otherwise would inhibit any and all legislatively enacted and immediately effective exemj)tions for the current year, whether legislatively enacted legislation of the given State is or is not subject to the referendum, once that April Sunday has passed into history. This would be inexorable even though a near unanimous public demand for exemption should well up spontaneously after that April Sunday has passed, the assembly meanwhile being quiescent. The third and last question is presented by plaintiff’s stated question 3: “Are the petitions in the proper form for submission to the board of state canvassers?” The Court has examined the form of the petition as submitted with the briefs and finds that plaintiffs’ objections thereto are without merit. Leininger v. Secretary of State, 316 Mich 644, has no application here in specific fact. In Leininger an initiatory petition was held fatally defective for want of inclusion of a constitutionally required title of the measure sought to be initiated, whereas the instant petition is one of referral of a measure already passed by the legislature. The instant petition appears as being a pretty fair model of the constitutional means by which a sufficient number of validly signing electors may succeed in referring to the electorate a measure already enacted into law; all of such enacted measure having been printed as a part of the petition for referral and the petition otherwise being correct as to legal form. This opinion per curiam presents the constitutionally required reasons for the decision made June 9 by order. For the order, see the appendix hereto. No costs are awarded. Kelly, Black, T. M. Kavanagh, Souris, O’Hara, and Brennan, JJ., concurred. APPENDIX (Order entered June 9, 1967, denying mandamus and injunction and dissolving stay order) “The Court having found (a) that there is no constitutional or other bar to the circulation and filing of the referendary petition here involved prior to adjournment of the legislative session at which PA 1967, No 6, was passed; and (b) that said petition is not invalid as to form: “It Is Ordered that plaintiffs’ complaint for mandamus and injunctive relief, brought here for determination by the Court’s order of May 23, 1967, is denied. The Court’s order staying the board of State canvassers from making official determination of. the sufficiency of such referendary petition is dissolved. An opinion or opinions will follow.” “Sec. 9. The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for State institutions or to meet deficiencies in State funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote east for all candidates for governor at the last preceding general election at which a governor was elected shall be required. “No law as to which the power of referendum properly has been invoked shall be effective thereafter unless approved by a majority Of the electors voting thereon at the next general election.” 80 Stat 107-109 (15 USCA, §§ 260-267). MCLA 1969 Cum Supp §§435.211-435.213 (Stat Ann 1968 Cum Supp §§ 18.872[1]-18.872[3]). — Reporter. An example of these authorities is Duddy v. Conshohocken Printing Company, 163 Pa Super 150, 154 (60 A2d 394, 395): “The word ‘within’ has a number of meanings which are set forth in the various dictionaries and in the judicial decisions collected in 45 Words and Phrases (Perm ed), beginning at page 378. While one of the meanings is to fix both the beginning and the end of the period of time in which to act, another meaning, well recognized, is synonymous with ‘not later than,’ or ‘any time before,’ or ‘before the expiration of.’ In this sense it fixes the end but not the beginning of the period [citing authorities],” US Const, art 6, § 2. — Reporter.	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Souris, J. In 1963 plaintiff’s minor son was injured by an automobile driven by an uninsured motorist. Plaintiff filed claims in the son’s behalf against the Detroit Automobile Inter-Insurance Exchange, on a policy issued by it to plaintiff, which covered certain members of plaintiff’s family, and against the General Accident Fire & Life Assurance Corporation, Ltd., on a policy issued by it to plaintiff’s son. The insurance companies and plaintiff disagreed upon the limits of liability provided by .the policies and plaintiff thereupon started suit in the Jackson county circuit court against the Ex change for a declaratory judgment. Upon;the Exchange’s motion in circuit court, General Accident was added as a party defendant. The pleadings of the parties disclosed that the only issue in the cage was the proper interpretation of each policy’s uninsured motorist coverage, each policy containing “Other Insurance” clauses. The circuit judge rendered a declaratory judgment in plaintiff’s favor interpreting both of the policies to provide insurance up to their stated limit of liability of $10,000 notwithstanding the existencé of other insurance covering the identical risk and notwithstanding the “Other Insurance” clauses contained in each policy. Appeal was taken by defendants to the Court of Appeals and, pursuant to an order of this Court on January 11, 1967, this appeal and others then pending in the Court of Appeals were transferred here for hearing and decision. Both policies state the limit of the insurer’s liability for all bodily injuries resulting from an accident with an uninsured motorist to be $10,000 for one insured person and $20,000 for two or more insured persons injured in one accident. The “Other Insurance” clause of the Exchange policy reads, in pertinent part, as follows: “With respect to bodily injury to an insured sustained while occupying an automobile or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Exchange shall not be liable under this coverage for a greater proportion of the applicable limit of liability of this coverage than such'limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.?’ . The “Other Insurance” clause of the General Accident policy reads, in pertinent part, as follows: “Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” We find no statutory or decisional law of this State applicable in 1963 to the insurance clauses requiring our interpretation and the parties assert there were none. Consequently, our task is limited to determining the intent of the contracting parties. It is plaintiff’s claim, with which the circuit judge agreed, that each defendant is liable for up to a maximum of $10,000 for his son’s injuries, assuming that his son’s damages will be assessed at or above $20,000. His reasoning is that the identical language of both policies, “the sum of the applicable limits of liability of this insurance and such other insurance”, requires that the $10,000 stated limits of liability of each policy be added to determine that the maximum combined coverage for injuries to one insured person is $20,000 and that each defendant is liable for one-half thereof. The trouble with plaintiff’s reliance upon the quoted language is that its context clearly discloses that it was intended to apply only to the determination of each insurer’s pro rata share of maximum combined coverage, “the damages” referred to in both policy clauses. Before that determination can be made, other language identical in both policies, “the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance”, must be applied to determine the maximum combined coverage of the policies. Giving this language its literal meaning compels the conclusion that the maximum combined coverage of these policies is $10,000, since that sum is the stated limit of liability in both policies. Having determined the maximum combined coverage of the policies to be $10,000, the language mistakenly relied upon by plaintiff and that which immediately precedes it in each policy then is pertinent to determine what is each insurer’s pro rata share of such maximum combined coverage, as- we noted earlier, “the damages” referred to in both policy clauses. The pro rata share of each insurer is that proportion of the maximum combined coverage which is equal to the ratio which each policy’s stated limit of liability, $10,000, bears to the sum of the stated limits of liability of all applicable insurance ($10,000 plus $10,000). In this case, then, the maximum combined coverage available to the insured is $10,000 and each of the insurers would be liable pro rata for one-half thereof, a maximum liability for each of $5,000. Reversed and remanded to the circuit court for entry of a declaratory judgment in accordance with this opinion. Defendants may tax their costs. Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, O’Hara, Adams, and Brennan, JJ., concurred.	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Souris, J. Plaintiff’s deceased husband was insured by defendant company against accidental death in two policies in which plaintiff was named the beneficiary. Each policy contained a “sole cause” clause and an “exclusionary” clause. They are set forth in the margin. In her suit for the proceeds of the policies Mrs. Berger claims her husband died as the result of injuries received in an. automobile accident in September of 1960. The insurer’s 'defense is that Mr. Berger’s death resulted at least in part from an arteriosclerotic heart disease and not solely from his accidental injuries. The circuit judge, sitting without a jury, held for the defendant and the Court of Appeals, affirmed. 2 Mich App 269. "We also affirm, but our view of the applicable law differs from that of the Court of Appeals. In Nickola v. United Commercial Travellers of America (1964), 372 Mich 600, decided by this Court during the interim between trial and entry of judgment in this case, we construed a “sole cause” clause similar to those appearing in the policies of insurance here, in accordance with our earlier decision in Kangas v. New York Life Insurance Co. (1923), 223 Mich 238. In Kangas, and again in Nichola, we said that such clauses do not necessarily preclude recovery when death results from a combination of accidental injury and pre-existing disease but, rather, that recovery may be had when it is proved as a matter of fact that “an accidental external injury was the efficient, dominant, proximate cause of the death of the insured.” Kangas, supra, p 244. In this case of Berger, however, the “sole cause” clauses do not stand alone. There is in each policy, in addition, an “exclusionary” clause which expressly negates the insurer’s liability in the event death is caused directly or indirectly, wholly or partly, by disease. The legal effect of similar language appearing in insurance policies, particularly when used in conjunction with a “sole cause” clause, has divided this Court in the past. See Budzinski v. Metropolitan Life Insurance Co. (1939), 287 Mich 495. However, on rehearing in Budzinski, supra, at pp 504, 505, and in Bristol v. Mutual Benefit Health & Accident Association (1943), 305 Mich 145, and Scharmer v. Occidental Life Insurance Co. (1957), 349 Mich 421, this Court committed itself to the view that such “exclusionary” clauses necessarily do preclude recovery when death results from a pre-existing disease or from a combination of accident and pre-existing disease. As we read the cases above cited, they are not now in conflict. Bristol and Scharmer resolved the conflict which divided the Court at the time of Budzinski by ruling that Kangas governs when only a “sole cause” clause appears in the policy of insurance, such as was the situation in Nickola, and that Bristol and Scharmer govern, on the other hand, when an “exclusionary clause” is used alone or in conjunction with a “sole cause” clause, such as is the situation in this case of Berger. In this case the evidence, summarized in the opinion of the Court of Appeals, supra, was sufficient to support the circuit judge’s finding of fact that Mr. Berger’s death was caused at least in part by a preexisting arteriosclerotic heart disease. The “exclusionary” clauses of the insurance policies, therefore, excluded the insured’s death from their coverage. We affirm. Defendant may tax its costs. Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, O’Hara, Adams, and Brennan, JJ., concurred. .The pertinent clauses in the first policy are: “The Travelers Insurance Company, Hartford, Connecticut, Does hereby insure “LuVerne C. Berger under classification “B” by occupation a salesman — office and traveling duties of petroleum products against loss resulting directly and independently of all other eauses from bodily injuries sustained during the term of this policy and effected solely through accidental-means, subject to the provisions, conditions and limitations herein contained, as follows: * * * “The insurance under this policy shall not eover hernia, nor shall it cover aceident, injury, death, disability or other loss caused directly or indirectly, wholly or partly, (1) by bacterial infections (except pyogenie infections which shall occur through an accidental cut or wound), or (2) by any other kind of disease, or (3) by war or any act of war or suffered by the insured while in military or naval service in time of war; nor (4) shall it eover loss resulting from any injury, fatal or nonfatal, sustained by the insured while in or on any vehicle or mechanical device for aerial navigation, or in falling therefrom or therewith, or while operating or handling any such vehicle or device; nor (5) shall it eover suicide or any attempt thereat (sane or insane).” The pertinent clauses in the second policy are: ' “If bodily injury not hereinafter excepted effected directly and independently of all other causes through accidental means shall be sus tained by a member employee while insured under this part and shall result, within 90 days of the date of accident, in any one of the losses enumerated below, the company will pay the sum set opposite such loss, but only one of the amounts so specified, the largest, will be paid for all injuries resulting from any one accident. * * * “The insurance under this part shall not cover “(1) accident, injury, death or other loss caused directly or indirectly, wholly or partly, by disease or infection (except pyogenic infection whieh shall occur through an accidental cut or wound), or by war or any act of war, “(2) suicide or any attempt thereat (sane or 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O’Hara, J. The fundamental issue presented by this appeal is what measure of direct proof is nec essary to make a submissible case for jury consideration thereby permitting the jury to make inferences from established facts. The action was originally brought against Peterson Distributing Company, Incorporated, and Ralston Purina Company. Peterson, Inc., is engaged in the business of manufacturing, processing, packaging, and selling a mink food product. Ralston Purina is a manufacturer and supplier of one of the components used by Peterson, Inc., in the processing and manufacture of the finished mink food. Plaintiff-appellant is a copartnership which raises mink for the sale of mink fur and of breeding stock. In the trial court, judgment was had against both defendants upon a jury verdict. Thereafter, Peterson, Inc., settled with plaintiff. Ralston Purina alone appeals. Motions non obstante veredicto and for a new trial were denied by the trial court. The Court of Appeals set aside the verdict and judgment and ordered judgment for the defendant non obstante veredicto. We granted leave in part because certain language in the opinion of the Court óf Appeals might be subject to misconstruction. The language could be considered in conflict with settled law. We quote: “There was no analysis of the food fed to plaintiff’s mink and an autopsy of several mink carcasses from plaintiff’s ranch failed to show any salmonellae.” (Emphasis supplied.) 1 Mich App 548, 550. Whatever the weight of the foregoing may be, we feel compelled to point out that positive direct evidence resulting from an analysis of the alleged contaminated food is not a sine qua non to the establishment of a prima facie case of alleged poisoned or contaminated food. So to require is to place an unfair burden upon a plaintiff in this kind of case. There are circumstances attending the sale of allegedly poisoned or contaminated food in which a complaining plaintiff cannot obtain a scientific analysis of the involved product. Such plaintiff should not be totally without a basis of making out a submissible fact question. Neither is an absence of the finding of the- alleged contaminant by autopsy, standing alone, conclusive upon the question of its presence in the product in question. In the instant action, plaintiff rested its case upon a combination of circumstantial and direct evidence which in totality it claims pointed to the presence of a contaminant in defendant’s cereal component in the multi-ingredient food. To support its claim it introduced testimony tending to show that in a relatively wide geographical area of the midwest an outbreak of epidemic proportion- of food poisoning occurred among mink raised for pelting in the year 1961. Among the mink ranches thus affected was an experimental mink-feeding ranch owned and operated by an officer of defendant Peterson, Inc. The cereal additive used in the product mixed and fed to plaintiff’s mink and those on the experimental ranch was furnished by defendant Ralston Purina Company. Many of the other ranchers whose mink were involved in the epidemic used the Ralston cere'al. • All of the affected mink exhibited relatively the same symptoms. An independent research foundation analyzed and found salmonellae in samples of defendant Purina’s cereal. The same research foundation autopsied and found in the carcasses of defendant Peterson’s mink the same type “A” salmonellae. A qualified bacteriologist expressed the opinion that the presence of the same subclass salmonellae in specific organs of the autopsied mink and the cereal indicated to him that the mink exhibiting the common symptoms were victims of salmonellae type “A” food poisoning. Certain additional admitted testimony tended to show that the mink of some ranchers in the area who did not use defendant Ralston’s cereal did not exhibit the common symptoms. The foregoing, we believe, is a fair summary of plaintiff’s theory of the case and the proof in support thereof. In legal essence this is to say that plaintiff rested its case, in part, on proof of a particular fact condition, or event, by evidence of the existence or occurrence of similar facts, conditions, or events under the same or substantially similar circumstances. 32 CJS, Evidence, § 584, p 713, states the general rule as follows: “An issue as to the existence or occurrence of particular fact, condition, or event, may be proved by evidence as to the existence or occurrence of similar facts, conditions, or events, under the same, or substantially similar, circumstances.” This principle is not new to our case law. In a breach of warranty action against the vendor of a metal silo warranted as rust proof, watertight and acid resistant, proof of the condition of other silos was admitted in support of the claim of breach. Wé. said: “Exception is taken to the action of the court in admitting evidence as to the condition of other silos. Plaintiff was permitted to show that other silos of the same material shipped with his, and erected in his neighborhood, had rusted. The proofs showed that the other silos were of like material. Upon the issue whether the silo was rust proof, evidence was received as to the condition of the other silos. We do not think this was error, inasmuch as the other silos were shown to be of the same material, and existing under like conditions. The character of the issue as to whether the silo was rust proof, we think, makes it clearly distinguishable from the case of Second National Bank v. Wheeler, 75 Mich 546, cited by defendant. It is more like the ease of Avery v. Burrall, 118 Mich 672. If the other silos were of the same material, and they rusted, it would certainly be some evidence that the one in question would, and did, rust, as claimed by plaintiff.” In support of its theory plaintiff adduced the following: The animals being raised in early 1961, both at its mink ranch and other mink ranches using any kind of defendant Ralston’s mink food, whether mixed or unmixed with other ingredient mink foods, were gravely affected by an epidemic of food poisoning. The cause was narrowed to defendant Peterson’s complete mink food known as “Redi-Mix.” Defendant Peterson naturally endeavored to search out the difficulty with its ingredient suppliers, and on August 7, 1961, wrote defendant Ralston a letter which fairly sums up the testimony given by David W. Peterson, president both of defendant Peterson Distributing Co. and ultimately discharged defendant Peterson King Co. The letter follows: “Ralston Purina Company Checkerboard Square St. Louis, 2, Mo. Attn — Dr. Paul Kifer, Director of Research Mr. A. H. Leonard, Sales Manager, Mink Feed Division Gentlemen: “I presume you have received the sample of Purina Developer Chow forwarded to you by the Borden Company. We are very pleased that there was a sufficient amount left in the sample for this purpose. “As described to you on the telephone, starting with the report of Roy Bohn on June 12 and during our subsequent telephone conversations, the difficulties encountered might be summarized as follows: After we started feeding Purina Breeder Chow and changing to Developer at the appropriate time over 75% of our Redi-Mix customers seemed to have had serious difficulties. Most of them reported the kits to be unthrifty, rough furred, reduced rate of growth and having rectal prolapses in many kits and swollen vulva in some female kits. Adult nursing females have been lost and now male and female kits are dying from bladder infections and stones. “At the beginning and during the progress of this difficulty we were inclined to blame the weather, bad management, an epidemic or disease of some kind. However the symptoms that finally seemed to be common to most feeders resembled that found in mink which had been fed stilbestrol. Testing of products for stilbestrol by an independent laboratory, Rosner Hixon, resulted in negative findings on poultry being used but positive findings on your cereal which we are using, sample of which has been forwarded to you. “As mentioned on the telephone, we have restricted our discussion of this problem with you and other people to telephone conversations, but are sending you this written description of the difficulty by Dr. Kifer’s request. Yours very truly, Peterson King Co. (signed: D. W. Peterson) D. W. Peterson, president” Mr. Peterson testified fully during the trial. His testimony alone, if believed by the jury, was sufficient to prove the presence of some lethal contaminant in defendant Ralston’s mink food products as manufactured at the time in Ralston’s Davenport plant and to link actionably such products — through defendant Peterson’s admixture thereof in its “RediMix” — with the ailments and deaths of plaintiff’s mink. As to this proof, favorable view suggests a permissible inference that the facts thus brought forth amounted to something more than a series of disconnected and purely coincidental occurrences. The common time, source and effect elements brought them together with evidentiary significance. “We examine the case, of course, upon view of the testimonial record in that light which is most favorable to the plaintiff. Defendant, by its presently tested motion for judgment notwithstanding the jury’s verdict, has for the purposes of such motion stipulated all that the plaintiff may rightfully claim from the adduced proof.” Barnebee v. Spence Brothers, 367 Mich 46, 48. Applying the foregoing test, we are constrained to disagree with the Court of Appeals. Since this opinion stands for reversal of the judgment of the Court of Appeals, it is necessary to consider defendant Ralston’s counterstated questions 2, 3 and 4. Counterstated question 2, eliminating the argumentative part thereof, inquires whether the trial judge erred prejudicially in admitting the testimony of the aforesaid other mink ranchers (some 11 in all), the substance of which was that each experienced the same difficulty at the same approximate time as suffered by plaintiff after having fed their animals defendant Ralston’s cereal mink food; a cereal not directly identified by any of such witnesses with defendant Ralston’s “Mink Breeder Chow SF.” It was “Mink Breeder Chow SF” only, according to defendant Ralston, which was furnished by it to defendant Peterson. In view of the common nature of the trouble these mink ranchers experienced after having fed Ralston mink food in the forepart of 1961, we find no evidentiary error here. It was proper to show these circumstantial facts as some evidence from which the jury might conclude that there was a pattern of causally connected carelessness at Ralston’s Davenport plant in manufacturing, for the market at the particular time, Ralston’s various types of mink food. The proof of sale of such food, for the purpose mutually intended by the defendant manufacturer and the respective rancher-witnesses, coupled with proof of a common, widespread, and almost simultaneously damaging aftermath, rendered it admissible and its probative worth was for the jury. The foundation for its introduction was laid by the substantially corresponding time of feeding of defendant Ralston’s mink food and the substantially corresponding effect of such feeding. Defendant Ralston’s remaining questions 3 and 4 are as follows: “3. “Was it prejudicial error to exclude appellee’s offered testimony relative to lack of complaints by users of its Laboratory Chows produced at the same plant, with the same common ingredients and at the same relevant times as the Mink Breeder Chow SF involved in this case?” “4. “Was it prejudicial error to exclude testimony of mandatory Federal Food and Drug Administration inspections of appellee’s human and animal food plant to show absence of any improper practices during time period relevant to law suit?” Defendant Ralston would have us answer these questions in the affirmative. We agree. When a product liability cause is presented which depends for connecting links on circumstances presented as here, the defendant has a like right to depend in rebuttal upon opposing circumstances of relevance such as questions 3 and 4 suggest. In summary, on due favorable view there is evidence here which, as between plaintiff and defendant Ealston, points to. a specific theory of causation which indicates a logical sequence of cause and effect. As against this the defendant Ealston suggests no opposing theory of cause and effect. Only the old Scottish verdict, “Not proven, M’Lord,” is urged upon us. In the exhaustive evidentiary circumstances disclosed by this record the trial judge ruled properly that such a verdict should not be instructed, and later, that defendant Ealston was not entitled to judgment contrary to the jury’s verdict. We reverse and remand for retrial, leaving the matter of costs to abide the final result. Dethmers, O. J., and Kelly, Black, Souris, and Adams, JJ., concurred. T. M. Kavanagh, J., did not sit. Brennan, J., did not participate in the decision of this case. McNamara, v. E. W. Ross Co., 285 Mich 335, at pp 339, 340. 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Dethmers, C. J. This is a workmen’s compensation case. Two questions are presented. (1) Is plaintiff, pursuant to the provisions of article 6, § 28, Michigan Constitution of 1963, entitled to an appeal as of right to the Court of Appeals from the decision; of the workmen’s compensation appeal hoard? (2) When plaintiff employee sustained a physical injury arising out of and in the course of his em-‘ ployment at common labor and, after a 5-month layoff and treatment because of such injury, returned to work for the same employer, but was physically' unable to perform the common labor he was performing at time of injury and, consequently, was given much lighter work in which he continued for 16 months until forced to retire at age 65 due to the compulsory retirement clause in a union-corn-; pany collective bargaining agreement, was his sub-' sequent wage loss compensable as due to disability because of his injury? The majority of the workmen’s compensation appeal board, in a split decision, answered the s<e<y ond question by bolding that plaintiff’s wage loss after retirement was not due to bis injury but to tbe mandatory retirement at age 65 under the union contract. The Court of Appeals denied application for leave to appeal on the ground that there was sufficient evidence to support the finding of the appeal board that plaintiff had suffered no loss of wage-earning capacity as a result of his injury. From the latter we granted leave to take this appeal. While determination of the first question relating to appeal to the Court of Appeals as of right from the appeal board might not appear necessary in this case because plaintiff is, at all events, having his case reviewed on the merits in this case on leave granted and, although plaintiff did not raise the question in the Court of Appeals but sought appeal there by application for leave, nevertheless the frequency with which the question has been raised, though not decided, in other matters here, suggests that this Court ought now to indicate its view on this question. The Michigan Constitution of 1963, art 6, § 28, provides: “All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.”1 We do not read the above language, “shall be subject to direct review by the courts as provided by law”, to mean that in each such case. review shall be compulsory or as of right upon its being invoked by either party but only that review shall be had when, in the exercise of judicial judgment and discretion, the court shall, on application, so determine, or when so provided by law. No statute provides for such appeal as of right. G-CR 1963, 806.2(2), requires leave to appeal to the Court of Appeals from administrative agencies. When framers of the Constitution sought to provide for appeal as of right in criminal cases they encountered no difficulty in making the requirement clear and left no cloud of doubt on the subject requiring construction of constitutional language. The plain and unmistakable intent of the Constitution’s framers in that regard is expressed in article 1, § 20, as follows»: - “In every criminal prosecution, the accused shall have the right * * * to have an appeal as a matter of right.” In article 6, § 10, it is provided that the jurisdiction of the Court of Appeals shall be provided by law. There is no provision in the Constitution for appeals as of right from the courts in any civil matter. Nothing appears to indicate that article 6, § 28, gives decisions of the appeal board a higher preferred status as to appealability than is given to civil matters in the courts of law. The statute (PA 1961, No 236, §§ 308, 309, as added by PA 1964, No 281 [CL 1948, §§ 600.308, 600.309, Stat Ann 1965 Cum Supp §§ 27A.308, 27A.309]) provides for appeals as of right in civil matters in the courts. It does not do so with respect to decisions of the administrative agencies. The rule of this Court requires application for leave to appeal in the latter and we find nothing in it contrary to constitutional requirements. Plaintiff quotes from Milk Marketing Board v. Johnson, 295 Mich 644, 654, to the effect that this Court has held under the workmen’s compensation law that this' Coui’t will examine the record to determine whether there is any evidence to sustain the findings made by the department of labor and industry, and submits that this requirement cannot be met without an appeal as of right. That was not a workmen’s compensation case. In the same volume appear the reports of several cases which were, and, as observation will disclose, the cases were all here on leave granted. The rules then in effect, Michigan Court Pules (1945), No 60, § 6(a), so required at the time the Court so spoke in Milk Marketing Board v. Johnson, supra, and' such was the requirement with respect thereto before and ever since. The quotation from the case does not support plaintiff’s contention here, but states only what test this Court applies to the department or appeal board’s findings of' facts, and this the Court of Appeals did in the instant case as appears from its: order, reading: “It is ordered that the application for leave to appeal be, and the same is hereby denied for the reason that there is sufficient evidence in the record to support the finding.” "While we do not consider the board’s action to constitute a finding of facts, the Court of Appeals apparently did. Plaintiff urges that the language in Michigan Constitution of 1963, art 6, § 28, that final decisions of an administrative officer of agency shall be subject to direct review by the courts and that this shall include,’as a minimum, a’determination of whether such decisions are authorized by law and supported by the evidence, compels tbe conclusion that appeal shall be as of right, because (1) it calls for a complete hearing on appeal, (2) consideration only of the question whether leave to appeal should- be granted is not a direct appeal, (3) whether the decision of the board is authorized by law is not thus determined, (4) the mentioned required minimum is not thus observed, and (5) whether the fact finding is supported by evidence is not thus decided. "We disagree. The board has authority to grant or deny compensation. Its order denied it. The Court of Appeals, in denying the appeal, found that the evidence supported its finding. Constitutional requirements were duly observed. For years plaintiff had been employed by defendant at heavy common labor. On October 17, 1960, he was accidentally injured on that job. Resulting disability caused about a 5-month layoff from work. He was returned then to his former job, but his disability rendered him unable to perform it. Consequently, he was given much lighter, favored work. The majority of the appeal board said of this job that “basically this was a sit-down job”. By reason of seniority he had the right, under the union contract, to bump the fellow worker who had had that job and take it for himself. This he did. He continued in the latter, at substantially the same pay as received before injury, until July 26, 1962,: when, having reached age 65, he was forced to retire' due to the provisions of a compulsory retirement clause in a union-company collective bargaining agreement. Plaintiff seeks compensation for the period following his retirement as hereinbefore noted. This was denied by the appeal board, application for leave to appeal therefrom was denied by the Court of Appeals, and now it is here on leave granted. We hold that plaintiff is entitled to compensation. The majority opinion of the appeal board states that plaintiff’s original job had been “a man’s job”, that after his injury “he could not take it” and, hence, exercised his seniority right to bump his co-worker for what it found was basically a sit-down job. Then it goes on to say: “If the facts were otherwise, such as the plaintiff having been working only at made or nondescript work up to retirement, his right to further benefits based upon disability would not be open to question.” In effect, the opinion thus states that plaintiff was no longer able to do ordinary common labor, that he has residuals of an injury which prevent him from competing with able-bodied workers in the market for common labor. Two dissenting members of the board also so found. The record supports such finding. It appears to have been the opinion of the majority of the board, however, that plaintiff could not be said to have been working after his injury “only at made or nondescript work” such as to entitle him to compensation after its termination if he then could not do other common labor, because the lighter work he had been doing was a regularly recognized job which existed and had been done regularly by others before and after plaintiff did it. So the opinion was that plaintiff had not actually been engaged in favored employment which establishes no wage-earning capacity in common labor, that he had engaged in regular work after injury and established a wage-earning capacity in a recognized common labor occupation, and that that fact defeats his claim of compensable disability. Defendant contends that the board has found that plaintiff has a wage-earning capacity in common labor, that this is a finding of fact, that it is supported by evidence of facts and, lienee, this Court will not disturb it. Tbe board did find and state in its opinion, however, with respect to plaintiff’s work before injury, “that this was a man’s job is not open to question”, that the work he did after injury was “basically * * * a sit-down job”. The evidence makes it clear that plaintiff could not, after injury, do ordinary common labor. The board did not find that he could. So far from making a finding of such ability, what the board did was not to make a finding of fact of no disability but, rather, to come to the legal conclusion that the favored work performed by plaintiff established a wage-earning capacity in common labor. With that we disagree. The defendant makes the following admissions in its brief filed before the workmen’s compensation appeal board: “There is no argument that plaintiff’s work assignment upon his return to w;ork on March 20, 1961, was favored due to his alleged inability to do his regular job. “We are mindful of the maxim and rule of law that an injured employee’s capacity to earn wages in common labor cannot be measured by his prior ability to earn wages in favored employment,” In our opinion, performance of favored work no more establishes wage-earning capacity in common labor if there be several such jobs in the plant performed as well by able-bodied as by injured men than it would if created only to take care of plaintiff’s specific, injured condition. To hold or find, in effect, as the majority of the board did, that performance of the work which plaintiff did after injury, would not have established a wage-earning capacity for plaintiff had it not theretofore or, perhaps thereafter, been done by others, but did so establish because it was theretofore being dope by another, is not a finding of fact but of law. With it we do not agree. The plain fact is that, as in effect found in the above quoted excerpt from the majority opinion, plaintiff, because of his injury, cannot now compete with able-bodied workers in the market for common labor. Yet that market, of which he long had been a part, was the only one in which, before injury, he could compete. Plaintiff as a matter of law was shown as suffering from a work-connected injury which caused the loss of wages claimed by him. Reversed and remanded for entry of award to plaintiff. Costs to plaintiff. Kelly, Black, T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred.	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Mackenzie, P.J. Respondent appeals as of right from a judgment of the Michigan Tax Tribunal cancelling assessments of single business tax deficiency issued by respondent against petitioners. We affirm. Jones & Laughlin Steel Corporation and Wilson Foods Corporation are incorporated in foreign states and have their principal places of business in foreign states. Their products are sold throughout the United States. Jones & Laughlin operates a marketing and sales office, a manufacturing plant, and a retail sales outlet in Michigan. Wilson Foods operates marketing and sales offices and utilizes certain salesmen in Michigan. The Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq., imposes a specific tax on the adjusted tax base of every person with business activity in this state. Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226, 234-235; 362 NW2d 618 (1984); MCL 208.31(1); MSA 7.558(31X1). "Adjusted tax base” is essentially federal taxable income, subject to certain additions and subtractions enumerated at MCL 208.9; MSA 7.558(9). One of these "section 9 adjustments” to the tax base requires the taxpayer to add compensation paid its employees to taxable income. MCL 208.9(5); MSA 7.558(9X5). Since petitioners have taxable business activities both within and without Michigan, determination of their single business tax liability requires that each apportion its adjusted tax base to reflect Michigan activity. See MCL 208.41; MSA 7.558(41). Apportionment is achieved by applying to the adjusted tax base a three-factor formula: "All of the tax base, other than the tax base derived principally from transportation, financial, or insurance carrier services or specifically allocated, shall be apportioned to this state by multiplying the tax base by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is 3.” MCL 208.45; MSA 7.558(45). The three-factor formula produces an apportionment percentage of the taxpayer’s business activity attributable to Michigan. By multiplying the taxpayer’s adjusted tax base by this apportionment percentage, the taxpayer’s Michigan tax base is computed. Application of the apportionment percentage derived from the statutory formula to petitioners’ actual total compensation paid their employees in Michigan yielded a value far in excess of actual compensation paid. During 1976, for example, the actual compensation paid in Michigan by Wilson Foods was $91,642, whereas its apportioned compensation was $2,975,400. Accordingly, from 1976 to 1978, in lieu of calculating their Michigan tax base as provided by the statutory apportionment formula, both petitioners used a two-step apportionment/allocation calculation. First, each petitioner applied the statutory three-factor apportionment formula to its adjusted tax base exclusive of the §9 compensation adjustment. Second, they allocated the exact amount of compensation paid which was attributable to Michigan. From this sum, they determined their single business tax liability. Pursuant to audits conducted by respondent, petitioners’ single business tax for the years 1976-1978 was recalculated by including compensation as part of each petitioners’ adjusted tax base and applying the statutory apportionment formula. Using this method, respondent assessed deficiencies of $556,697 and $37,694 against Jones & Laughlin and Wilson Foods, respectively. The Tax Tribunal ordered the cancellation of the assessed deficiencies pursuant to § 69 of the Single Business Tax Act, which provides in relevant part: "(1) If the apportionment provisions of this act do not fairly represent the extent of the taxpayer’s business activity in this state, the taxpayer may petition for or the commissioner may require, in respect to all or any part of the taxpayer’s business activity, if reasonable: "(d) The employment of any other method to effectu ate an equitable allocation and apportionment of the taxpayer’s tax base.” MCL 208.69; MSA 7.558(69). The sole issue before this Court is whether on these facts petitioners were entitled to § 69 relief. What constitutes "fairness” for purposes of this section is a question of first impression. Respondent contends that fairness is tested by weighing the reasonableness of the taxpayer’s final tax liability against the level of its business activity within the state, citing Armco Steel Corp v Dep’t of Revenue, 359 Mich 430; 102 NW2d 552 (1960), app dis 364 US 337; 81 S Ct 124; 5 L Ed 2d 99 (1960). The problem with respondent’s proposed test is that it does not focus on the fairness of the apportionment provisions of the act, for which § 69 is designed to provide relief. We believe instead that the proper test for invoking § 69 relief is whether the taxpayer’s Michigan tax base, as derived from the application of the three-factor apportionment formula to its adjusted tax base, accurately reflects the extent of the taxpayer’s business activity within the state. Section 69 is, for pertinent purposes, identical to the relief provision of the Income Tax Act of 1967, alternatively referred to as the Michigan corporate income tax, see MCL 206.195; MSA 7.557(1195), and the provision affording relief from the apportionment formula which was once used in determining franchise fees, see MCL 450.305(5); MSA 21.208(5), repealed by 1975 PA 230, § 1. The single business tax is, and the franchise fee was, a levy on the privilege of doing business in the state. Acco Industries, Inc v Dep’t of Treasury, 134 Mich App 316; 350 NW2d 874 (1984), lv den 421 Mich 856 (1985); International Telephone & Telegraph Corp v Michigan, 50 Mich App 5; 213 NW2d 226 (1973), lv den 391 Mich 774 (1974). Although the corporate business income tax is a tax on income, "the logic employed by the court [in interpreting the relief provision of the Michigan corporate income tax] should be equally applicable to the single business tax since similar provisions exist for combined filing”. Weithorn & Zartarian, Taxation: State and Local, 30 Wayne Law Review 789, 790 (1984). Thus, we look to interpretations of the relief provisions found in those statutes to determine what is meant by the proviso that "the apportionment provisions * * * do not fairly represent the extent of the taxpayer’s business activity in this state”. In Donovan Construction Co v Dep’t of Treasury, 126 Mich App 11; 337 NW2d 297 (1983), lv den 419 Mich 894 (1984), the Treasury Department requested that plaintiffs corporate income tax be computed through a separate accounting method, which method would yield a greater tax liability than the statutory three-factor apportionment formula. The Department argued that the apportionment formula resulted in a "gross disparity” in tax liability. This Court upheld use of the apportionment formula, stating: "Only if formulary apportionment does not fairly represent the extent of the taxpayer’s business activity in the state may a different method, such as separate accounting, be employed. The party seeking to employ an alternate apportionment method has the burden of showing that the formulary apportionment method is inappropriate by clear and convincing evidence. * * * Evidence introduced to overcome the formula method of allocation must address each element of the formula’s equation.” 126 Mich App 21-22. Elucidating on the type of showing which must be made, this Court stated: "[Application of the separate accounting [or some other alternative formula] solely on the basis that there is a gross disparity in the results between the different methods results in the use of the separate accounting because the tax liability is greater and not because separate accounting more accurately reflects the corporate taxpayer’s unitary business in the state. This Court is of the opinion that, in addition to the gross disparity between the results, additional evidence should be considered in demonstrating that the statutory formula inadequately or inaccurately represents the taxpayer’s unitary business activity in the taxing state”. 126 Mich App 21, fn 2. (Emphasis added.) In Payne & Dolan of Wisconsin, Inc v Dep’t of Treasury, 138 Mich App 418; 360 NW2d 208 (1984), the Treasury Department also contended that for corporate income tax purposes the separate accounting method more fairly represented the taxpayer’s business activities in Michigan. The basis of the contention was again the "gross disparity” between petitioner’s taxable income under the apportionment formula and the separate accounting method. This Court rejected the argument, stating: "To permit respondent to meet its burden by merely pointing to a 'gross disparity’ between taxable income under the separate accounting method as compared with taxable income under the apportionment formula would necessarily involve a presumption that the separate accounting method is a more accurate means of determining a taxpayer’s business activity in Michigan than is the apportionment formula. We concur with the Donovan panel that to meet its burden the state must show that the statutorily-preferred apportionment formula is itself inadequate as a means of fairly determining the particular taxpayer’s extent of business activity in Michigan”. 138 Mich App 424. (Emphasis added.) In Donovan and Payne & Dolan, the Treasury Department based its requests for relief primarily on a showing of gross disparity in tax liability results and not on a showing that the apportionment formula distorted business activity within the state. Therefore, this Court denied relief. Similarly, because the burden of showing distorted activity was not met in International Telephone & Telegraph Corp, supra, the corporation was not entitled to relief in computing franchise fees. The básis for denial of relief in these cases was not, as respondent suggests, that the resulting franchise fee or tax liability seemed reasonable or not excessive. The inquiry does not turn on the end result, i.e., tax liability. Rather, it turns on whether the basis for computing tax liability is fair, i.e., is the business activity subject to taxation accurately reflected by application of the three-factor formula? This Court reviews Tax Tribunal decisions to determine whether such decisions are authorized by law and whether they are supported by competent, material, and substantial evidence on the whole record. Terco, Inc v Dep’t of Treasury, 127 Mich App 220, 223; 339 NW2d 17 (1983); Const 1963, art 6, §28. Based on Donovan, Payne & Dolan, and International Telephone & Telegraph Corp, supra, it is clear that the Tax Tribunal’s analysis was based on an accurate statement and understanding of the law. Both the Single Business Tax Act and similar provisions in other acts permit relief if business activity within the state is distorted by the apportionment formula. Therefore, the Tax Tribunal’s decision granting relief will be upheld if the evidence regarding business activity supports its determination. The parties stipulated below that (1) 85 percent to 100 percent of the petitioners’ adjusted tax bases were comprised of compensation; (2) use of the apportionment formula indicated that the com pensation was $12,000,000 to $17,000,000 higher than actual compensation for Jones & Laughlin and $2,000,000 higher than actual compensation for Wilson Foods for each of the three years in question; and (3) the compensation attributable to Michigan could be precisely calculated for both corporations. Petitioners did not merely show a gross disparity in tax liability depending on the accounting method employed. Instead, based on the stipulated facts, petitioners presented evidence which demonstrated that the three-factor formula over-apportioned or excessively attributed compensation to Michigan. The facts revealed that the compensation component of business activity subject to taxation was overstated by approximately 50 percent. As required by Donovan, supra, p 21, fn 2, petitioners presented clear and convincing evidence "that the statutory formula inadequately or inaccurately represented] [their] unitary business activity in the taxing state”. We thus conclude that the decision of the Tax Tribunal was authorized by law and supported by competent, material, and substantial evidence on the whole record. Affirmed.	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Campbell, J. Bayn sued out a writ of replevin from a justice of tbe peace in Jackson county, in which the officer who served it was directed to levy it upon “ one lot of wheat, it being i of £§• parts of wheat raised by John Humphrey on the old Bayn farm, in Spring Arbor, that being the share of the said William Bayn of the crop coming to him as owner of one-half and one-fourth of one-eighth of said farm,” etc. Seizure was made of a specific number of bushels, amounting to something over 92 bushels, and the wheat was delivered to Bayn. Bayn declared for “ about one hundred bushels of wheat,” etc., “ which said wheat was the portion belonging, coming to, and due to said plaintiff, as owner of ■££ parts of land on which said defendant raised the same, the amount being i of -L\|- parts of the wheat raised by the defendant on said land, more or less,” etc. The writ and proceedings were quashed on motion of defendant Humphreys, on the ground that it appeared from the writ and affidavit that the parties were tenants in common, and the interest sued for was an individual interest. Thereupon defendant waived a return, and the court, after taking time to consider, rendered judgment of $106.80 for the value of the wheat, and $8.42 costs. Bayn removed this judgment to the circuit court of Jackson county, by certiorari, setting up want of jurisdiction, absence of written waiver of return, lack of evidence, and unlawful adjournment, as causes of reversal. The judgment was reversed, and the case comes up for review. The waiver was entered by the justice at the request of the defendant, and nothing more seems to be required by law. The return shows that there was evidence of the value of the wheat, and also shows that the adjournment was made for less than four days after hearing and by consent of parties. These objections, therefore, are not sound. It was decided in Henderson v. Desborough 28 Mich. 170 that a justice could render judgment for more than $100, if the writ was sworn out for less. It-is claimed that this case comes within the principle of Parsell v. Genesee Cir. Judge 39 Mich. 542, where it was held the court could not assess the value of the property because the writ contained no description of any, and had been quashed on that account. That decision was based on the statute which allows an assignment only in cases where “ the property specified in the writ ” had been delivered to the plaintiff. Comp. L. §§ 6758-9. The writ there specified nothing at all. There was no such defect in this case. The property was sufficiently described and identified, and it was seized under the writ. If there was any defect it was in attempting to reach an undivided interest, when the defendant could not lawfully be dispossessed of such an interest by replevin. It was not a void writ, or one which gave no jurisdiction, and the seizure under it was of the property in specie. It is certainly open to question whether the descz’iption is not consistent with a lot of wheat separated fz-om the entire crop and amounting to Bayn’s shaz-e. The officer seems4 to have so treated it, and to have seized what was supposed to be that share. If the case had gone to issue and trial, there can be no doubt the property actually taken would have been lawfully involved in the proceedings. We think the case was one where the justice could deal with the question disposed of. Counsel on both sides agz’ee that the judgment quashing the proceedings was equivalent to a judgment of nonsuit or discontinuance. In such a case, when the property has been given to plaintiff under the writ, the party dispossessed has a right to have a return, or to waive a return and have a judgment for the value of the chattels replevied. Comp. L., §§ 6758-9. This case is within the rule laid down in People v. Tripp 15 Mich. 518, and Forbes v. Judge of Washtenaw 23 Mich. 429. The circuit court erred in reversing the judgment. The judgment of the circuit court must be reversed, and that of the justice affirmed, with costs of all the courts The other Justices concurred.	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Cooley, J. The Legislature of 1869 passed an act to authorize the incorporation of Building and Savings Associations, which is published as chapter 93 of the Compiled Laws of 1871. Several associations were formed under and in supposed conformity with its provisions; and among them the “Detroit Building & Savings Association No. 4,” of which the defendant William Schildbach became a member. The articles of association provided for a capital stock of $250,000, divided into 2000 shares, of which no member could hold more than twenty. The shares were to be had on paying an initiation fee of ten cents, and twenty-five cents a week thereafter. The purpose of the association was declared to be to make loans to members and enable them to procure houses and places of business. Each share was to entitle the holder to a loan of $125, for which he was to give real estate security. Loans were obtained as follows: At each regular weekly meeting, whenever there were more than $125 on hand, the money was to be. sold in loans of $125, and the shareholder who bid the highest premium was to receive it. Each shareholder receiving such a loan was to pay a weekly interest of fifteen cents, and also the weekly dues of twenty-five cents until the dissolution of the corporation. This dissolution was to take place as soon as every shareholder should have received on each share the sum of $125, including the premiums bid as aforesaid, and all mortgages given were then to be discharged or returned to their respective makers. These articles, together with the constitution and by-laws of the association, are given in full in 30 Mich. 51é eb seq. William Sehildbach became the owner of twenty shares in the association, and in May, 1873, was awarded a loan thereon of $125 on each share. , The premium bid for this appears to have been $178.50, and a bond and mortgage were given as security, which bear date June 10, 1873. The conditions of the bond are as follows: “ The conditions of this obligation are such that, whereas, the said William Sehildbach is a member of said association and the owner of twenty shares of its stock, on which stock he, the said William Sehildbach, on the 19th day of May, 1873, made a loan of the sum of twenty-five hundred dollars, pursuant to the provisions of the constitution and by-laws of the said association, on which sum of twenty-five hundred dollars he agrees to pay to said association interest, to wit, the sum of three dollars weekly in advance from the date hereof, on or before the Monday of each and every week during the existence of said association, and in like manner, at the same time and for the same period, to pay a weekly assessment of fifty [twenty-five] cents on each and every share of stock owned by him, and on which he has taken a loan as aforesaid, and also to pay all fines that may be legally assessed against him under and by virtue of said constitution and by-laws, or any amendments that may be made thereto; also, to keep the buildings on the premises mortgaged — to secure the conditions of this obligation— insured, during the existence of said association, against loss and damage by fire, to the acceptance of the directors of said association, in the sum of at least one thousand'dollars for the benefit of said association, and pay all taxes and assessments Avhich may be levied upon said mortgaged premises during the existence of said association, including all taxes that may be assessed on the loan or money hereby secured, and to comply with all and singular the conditions of the constitution and by-laws so far as they are binding upon him. “Now therefore, if the said William Sehildbach shall promptly pa}' to said association said weekly dues or assessments, as aforesaid, and the interest upon the sum loaned, as aforesaid, amounting to the sum of eight (8) dollars, on or before the Monday of each and every week during the existence of said association, as aforesaid, and shall pay all fines that may be legally assessed against him, as aforesaid, shall insure and keep insured said mortgaged premises, as aforesaid, shall pay the taxes which may be legally levied upon them, and upon the sum loaned during the life of said association, and shall comply with all and singular the conditions of said constitution and by-laws, so far as they are binding upon him, then this obligation shall be void, otherwise be and remain in full force and virtue. “ PROVIDED' That in case said William Schildbaeh shall be in default in paying said sum of money, or any part thereof, as aforesaid, for a period of sixty days after the same becomes due, then the whole sum of money loaned, as aforesaid, shall become immediately due and collectible, with the interest in this bond specified. This bond is given as collateral security of a certain mortgage, bearing even date herewith, and executed by the undersigned and wife.” The mortgage was conditioned for the performance of the condition of this bond. Schildbaeh made the weekly payments on the bond and mortgage until' December 7, 1874, and after that date made payments as follows: $50 May 6, 1875; $25 July 15, 1875, and $25 September 30, 1875. He made no payments after the date last named. The last three payments were made to Michael Martz, receiver as hereinafter mentioned. Sometime in the year 1874 one Andrew Mok, who was also a member of the association and had given to it a similar bond and mortgage, filed his bill in the Superior Court of Detroit to have the weekly payments which he had made upon the mortgage, except so far as should be necessary to satisfy the accruing interest at the lawful rate, declared to be payments on the principal sum named in the bond and mortgage, and to have those securities decreed to be satisfied and discharged when the principal sum should be thus paid up. The Superior Court made a decree in accordance with the prayer of the bill, and the defendant appealed to this court. In this court the discussions of counsel were directed mainly to the question whether the act under which the association was organized was constitutionally sufficient for the purpose, and this court was of opinion that it was not. The reasons for the opinion are given in the reported case. Mok v. Deitroit Building & Savings Association 30 Mich. 511. The defect in the act was found to be, that it was not complete and sufficient in itself to permit of incorporations under it, and that it undertook to accomplish the purpose by reference to an indirect and blind amendment of a previous statute, whereas the Constitution requires that all amendments of statutes shall present the provisions in full as amended. The result of this decision was that the association of persons who previously supposed they had been organized into a corporation were left unorganized, and those of their number who had previously acted as officers, had securities or intended securities in their hands made to the supposed corporation, but which now as legal securities had become worthless. Probably they had moneys and other property in their hands also, and they may have contracted debts in the name of the supposed corporation which still remained unsatisfied ; but on these points we have no information. It is not probable that all the members had obtained loans, and those who had not, must have had equities which the others ought to recognize whether legally compellable to do so or not. It would be highly inequitable that the money borrowed should be retained, and the securities at the same time repudiated. In this position of affairs, and on the 29th day of March, 1875, one Peter Geller, who was a borrower from the association of the sum of $2500 less the premium bid for the same, filed his bill in the Superior Court of Detroit against the association, its officers and all the original associated members “ and other associates whose names are unknown to complainant, and whom he prays may be brought in when discovered in such manner as the court may direct;” the purpose and prayer of which was that a receiver of the property, effects and credits of the association might be appointed, and an account be taken of all assets and debts, and the assets be applied in the payment of the debts equally, and the surplus, if any, divided among the shareholders. Schildbach was not brought in or in any way made a party to this bill, but the defendants actually named appeared by counsel, and the court on the 3d day of April, 1875, appointed Michael Martz receiver in accordance with the prayer of the bill. To this receiver Sehildbaeh made payments to the amount of $100, as before stated. Afterwards the present complainant became receiver as successor to Martz. The bill in the case now before us was filed to foreclose the mortgage which Sehildbaeh and his wife gave as is above shown. It sets forth the giving of the bond and mortgage ; alleges that at the time of the filing of the bill the sum of $634.38 was due, and prays for the usual decree of foreclosure and sale. The defendants William Sehildbaeh and wife made answer, in which they insist on the invalidity of the organization and supposed incorporation of the association; deny that either Martz or the complainant was ever legally appointed receiver, or could have been appointed receiver so far as the rights and equities of William Sehildbaeh were concerned in a suit to which he was not a party ; deny that the bond and mortgage had legal existence, but aver that Martz as pretended receiver collected a large amount of money, to a ratable portion of which the defendant William Sehildbaeh is equitably entitled, and his share of which would more than satisfy what is claimed to be due from him on the bond and mortgage. Replication was filed to the answer and testimony taken, and on the hearing the bill was dismissed, but without prejudice to any other or further remedy. The complainant has appealed. Neither party on the argument in this court has called in question the decision in Mok v. Building etc., Association, but the complainant insists that relief may be given him notwithstanding that case. It therefore becomes necessary to see what that case actually decides, and important also, to ‘determine whether decisions heretofore made in the State upon cases more or less analogous have any important bearing. In Mok's Case nothing was directly decided except that the enactment under which the association was formed had no validity. Nevertheless, as the defendant in that case was insisting upon Mok’s mortgage as a valid security for the full amount according to its terms, the court must have rendered a different decree if it had sustained this claim. On the other hand the judgment of this court must have been the same that was actually rendered if the court had reached the conclusion that the mortgage was a valid security, but that all the weekly payments made must be applied as payment. This was what Mok claimed, and this was what the Superior Court decreed in his case. And this complainant, as vac understand it, is satisfied with this conclusion, and makes no objection to its being applied in this case. The obvious difficulty in giving any remedy springs from the fact that these promises to pay had no payee. The bond and mortgage purported to be given to a certain corporation, when there was no such corporation in existence. They were, therefore, as securities, merely null and void. If this point required authority, it is to be found in Green, receiver v. Graves 1 Doug. (Mich.) 351, in which a receiver of a bank organized under the General Banking Law of 1837 was held incompetent to enforce at law the notes given to the bank while it was engaged in transacting business under that unconstitutional law. In the subsequent case of Hurlbut v. Britain 2 Doug. (Mich.) 191, the further ruling was made that a mortgage given to such a bank could not be foreclosed in equity. There seems to be no escape from these decisions : they meet the point squarely, and hold that securities given to what purports to be, but is not, a corporation, are of no validity whatever. There is a difference, however, between the cases in Douglas and this case, which may not be wholly unimportant. The business of banking, when carried on by institutions, associations or persons not lawfully authorized, was at that time forbidden and illegal. Everything done under the General Banking Law was therefore illegal, and no equities could have arisen in favor of any of the participants in the unlawful conduct. But there is no illegality in loaning money, or in associating for the purpose, and it is possible, therefore, for equities to arise in favor of the parties to such a transaction, when it proves not to have been conducted in strict conformity to the law. The vice of intentional disregard of the law does not taint it. But what relief can be given if not upon the securities ? In State v. How 1 Mich. 512, Chancellor Manning held that shareholders in a bank organized under the unconstitutional General Banking Law could not be made liable as partners upon the obligations the bank had issued. But importance was there attached — and justly, as we think — to the fact that the issue of any such obligations was forbidden by law and illegal. If it had not been illegal, possibly it might have been held that those who assumed to carry on banking, business in the name of an association not empowered to do so, were personally responsible as joint promissors to those who had trusted them. Medill v. Collier 16 Ohio St. 599. When persons in good faith proceed to organize what they intend shall be a corporation, contemplating a lawful business, and the organization proves ineffectual, but the money jointly contributed by the members associated finds its way into the hands of one of their number, or of some third person, it ought not to be in the power of such person to retain what he has thus received, and to refuse to account to those who were equitably entitled. There is an injustice in such conduct which equity ought to be able to correct. If the money has been obtained in good faith, in the mistaken belief that a corporation existed, it ought not to be retained when the mistake is discovered, and the corporators, who cannot sue at law, ought to be at liberty to- come into equity for an accounting. We know of no principle of equity that would be violated by giving such redress; and on the other hand there is ground for the argument that it would be entirely competent for the Legislature retrospectively to affirm and validate the promise to repay, so that a suit at law in the name of the association might be brought upon it. Lewis v. McElvain 16 Ohio 347; Savings Bank v. Allen 28 Conn. 97; Parmelee v. Lawrence 48 Ill. 331; Danville v. Pace 25 Grat. 1; Thompson v. Morgan 6 Minn. 292. But tnat point is not before us, and is not decided. One difficulty in this case, which is very serious, is that it was not contemplated the loans to this association should ever be repaid. Weekly payments were to be made until every member had had a loan corresponding to the number of his shares, and the corporation was then to be dissolved and the securities cancelled. The nominal purpose of the organization was to enable members, by a small weekly payment, to obtain a considerable sum of money; and the securities were only to be enforced against them in case the weekly payments were not kept up. The weakness of the system lay in the fact that the weekly payments must pay the expenses of management; and Mole's Case is evidence that these were found very burdensome. But if a borrower is disposed to abide by his contract, it cannot be in the power of the court, or even of the Legislature, to make a new contract for him. He does all that can be required of him if he abides by its terms. The difficulty here is that by the association ceasing to do business, it has become altogether impossible that the terms of the contract shall be kept by either party. Schildbach was to continue to keep up his weekly payments until sufficient had been realized to make proportionate loans to all the members, and was then to be released from all obligation. But as soon as it became impossible to make further loans, there was nothing to limit the time that Schildbach should continue to pay, if he were disposed to perform his contract according to its terms. From that time any remedy that should be open, either to him or to the associates against him must be, to some extent at least, independent of the contract. The position, then, of these associates is this: They have all put moneys — some more and some less — into a common fund. Some of them have received from this common fund considerable sums of money, and others probably nothing, though equally entitled. Equity requires that there should be an adjustment between all the parties on a fair accounting, and that those who have received moneys on an understanding with their associates which cannot possibly be carried into effect, should return them for the purposes of a fair division. And the return should be with interest after allow ing all payments heretofore made. But no decree can be made against any one of the associates based, upon the securities, for these are wholly void in law. The decree can take notice of the money loaned only, and can establish no lien on land where the parties have created none. It has been already stated that the bill in this case is a bill of foreclosure. It is not properly framed, therefore, to entitle the complainant to such relief as is available. It shows no debts owing by the association, and it fails to show that as between Schildbach and the other associates he has not returned all that can equitably be required of him.' But the bill may be easily amended in these particulars, and no good reason is apparent why an amendment should not be allowed now, if the complainant elects to make it, instead of beginning de novo. It is objected that the receiver was not legally appointed because Schildbach was not made a party to Geller’s bill. But Schildbach has recognized the receivership by his subsequent payments, and he should not be heard to question the appointment in this collateral way. The decree appealed from must be reversed and an order entered in this court in accordance with the views above expressed. The complainant in entering the order will elect whether he will dismiss his bill or amend, and the matter of costs will be then determined. The other Justices concurred.	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Campbell, J. Fenn sued Kinsey in ejectment to recover certain lands in Kent county, which under the congressional land grant of 1856, and the State law of 1857, had been set apart, by the proper selection, as appropriated to the aid of a railroad from Owosso to Grand Haven. The plaintiff claimed title under conveyance from William E. Bowes, who claimed under grant from the Port Huron & Lake Michigan Eailway Company, to which company the land had been granted by the Board of Control and the Governor acting in pursuance of their grant, in 1873. We held this action of the Board of Control and of the Governor to be unlawful and void, in Bowes v. Haywood 35 Mich. 241; and had the title stood without further action, there could be no doubt of the plaintiff’s failure to prove any right. But it is now claimed that this title, which was void in its creation, was afterwards made good by confirmation. We must, therefore, look at the various steps in this assumed title to see where the law has left it. The lands became subject in 1857 to appropriation by the Board of Control to such proper party as should be competent to build a railroad from Owosso to Grand Haven, by reason of the failure of the Detroit & Milwaukee Railway Company to accept the act of 1857. The Hoard of Control, in August, 1857, transferred the grant and privileges to certain gentlemen as trustees, who never took any steps to carry out the work, and who subsequently released all their claims to the State. Nothing further was done until 1871, when the Board of Control resolved that if it could lawfully be done, it would be proper to transfer the grant to the Port Huron & Lake Michigan Company. In 1873 a further resolution was passed declaring in substance that this company was engaged in building a road which, with its connections, would form a continued line from Grand Haven to Flint and thence to Port Huron, and releasing the grant to this company, subject to the obligation to sell the lands to actual settlers in occupancy, at a dollar and a quarter an acre. On May 30, 1873, the Governor made a patent purporting to be issued under this resolution, and to convey to the company the interest of the State in these lands. At this time this company had neither built nor intended to build any road west of Owosso, and had actually built nothing west of Flint, but had built sixty miles between Flint •and Port Huron, Whether this had been certified by the Governor to the Secretary of the Interior does not appear and is not important, because that certificate would only cover lands belonging to the line east of Flint. It does not appear that Congress had ever been asked or had ever consented to •extend the time for building a road from Flint or Owosso to Grand Haven, and the time had long run out for doing so. Immediately thereafter the company made a deed whereby they conveyed the lands to William R. Bowes, his “ successors and assigns,” as trustees under a contemporaneous declaration of trust which is not put in evidence, to secure the faithful sale and disposition of the lands according to the conditions of the trust. This deed,-which was made by William L. Bancroft and Edgar White, who claimed to have been authorized by the directors, was afterwards confirmed by a vote of directors, but not by tbe stockholders. Bowes conveyed to plaintiff by warranty deed in 1878. In 1877 the Legislature passed an act to ratify and confirm the acts of the Governor and Board of Control, giving the conveyance effect from its date. Laws 1877, p. 121. On the 3d of March, 1879, Congress released to the State of Michigan the reversionary interest of the United States. 17 U. S. St. at L. 490. The court below held, under various rulings at law, that plaintiff had no title established by the facts found. At. the time when the act of 1877 was passed it is beyond question that the State was bound by the terms of the congressional grant, which were formally accepted by the law of 1857, to dispose of none of these lands except for the specific purposes named in the act of Congress. As the United States reserved a right to all lands not legally disposed of under the trust, and under the grant the State itself had no power to divert them, the act of 1877 was in direct violation of that clause of the Constitution of the United States which declares that no State shall pass any law violating,the obligation of contracts. To hold that such a law operated by way of estoppel would be in effect to destroy the weight of the constitutional prohibition. The only proper way to construe void legislation, is to treat it as absolutely void until the legislative power, after obtaining authority to do so, sees fit to re-enact it. Congress did not attempt to bind the State to carry out its illegal action, and could not have done so. Any State Legislature, after 1877, had a right to treat that legislation as if it had never been passed, and a mere release from the obligations of the original contract by Congress could not operate to ratify the illegal action of the State Legislature. It is for the State itself, now that it has plenary power, to act as if there had been nothing done before. As the illegality of all of these transactions was manifest on the face of the proceedings, it does not occur to us that either the Railway Company or Bowes was in a position to deal with the lands in such a way that mutual estoppels would arise so as to vest him with any trust in the lands. Whatever right his grantees may have against his estate, if he undertook to convey in his own name and by personal warranty, no such right can be traced back through Bowes and the Bail-way Company to bind the. State. As we do not know what the trust was, we need not consider it further. The judgment below is correct, and must be affirmed with costs. Marston, O. J. and Graves, J. concurred. Cooley, J. did not sit in this case.	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Graves, J. This is a hearing on an order to show cause why a mandamus should not issue to require an order for an injunction to be vacated. For an understanding of the case a reference is necessary to the main circumstances. In 1873 the relator’s husband, Arthur Van Norman, was a stockholder in the private corporation in Jackson known as the Central Car & Manufacturing Company, and held 917-2- shares of the capital stock, of the face value of $22,937.50. Sometime about the month of August, 1877,-said Arthur,Van Norman and one Iiiram Gay began negotiations with Luther Beecher for the occupation on special terms of his establishment known as the “ Biddle Blouse,’.’ and they at length ripened into a contract which was reduced to writing and executed by the parties February 14, 1878; and on or about March 27, 1878, they received possession of the real estate and also of certain personal property which, the arrangement likewise covered. . Up to February 19, 1878, or until four days after the execution of said agreement and a little more than a month prior to possession under it, the said Arthur Yan Norman continued his ownership of said stock. But at that date he returned the certificate thereof to the company’s secretary, and with assignments indorsed which purported to convey the stock to relator, and the company immediately issued new certificates to her in place of the old ones. There appears to be no question of the sufficiency, in form at least, of this transfer. January 31, 1879, Beecher obtained possession of the “Biddle House” property. But about two weeks earlier and on the 18th of January he began a suit by attachment in the circuit court for the county of Jackson against the said Arthur Yan Norman and Hiram Gay for an indebtedness he alleged had accrued to him against them under the contract, the ground for the writ, as set up, being that the transfer of said stock to relator was made with intent to defraud his creditors. The sheriff executed the writ by levying on this stock as though it belonged to the defendant Arthur Yan Norman. Subsequently and on the 7th of March, 1879, the company declared a dividend of twenty per cent, and directed payment on all shares except those in question, and ordering that payment on those should be withheld until a determination should be reached of the dispute about their ownership. In July, 1880, the relator sued the company at law for the dividend, and in August following Mr. Beecher filed his bill on the equity side of the court having cognizance of the law cases. The bill seems to be one of first impression and the pleader ■would probably concede that some matters pertinent to its theory are omitted and that others not needful to it are inserted. But thatfis perhaps not important now. It contemplates that by the levy of the attachment Mr. Beecher obtained a positive lien on the stock and on the accruing dividend, and it proceeds upon the idea that the aid of equity as here involved is requisite to protect and enforce this lien. It will not escape notice that if the case requires as an equitable basis that a lien was created by the levy, the necessity would hardly be met by taking the existence of the lien for granted. It might well be argued that whether there be a lien or not is a vital question, and to assume its existence as a ground of equity is to assume the essential point in controversy. If the attachment were considered as well laid the lien would be merely provisional. It might cease before the determination of the action. But if not, it might then turn out that there had never been any just foundation for it, and the authority of equity to intermeddle for the supervision of such a lien is not so clear as to be assumed. There are many cases where the service of mesne process will bind personally for the time being without creating a lien properly subject to equitable protection and enforcement. According to the theory of the bill the dividend was bound equally with the stock, and one is supposed to be in the same plight as the other, and if the case called for it, it might be useful to inquire into the necessity for the bill on its own principle. If a lien was established by the levy, or if the levy bound the stock and dividend as is claimed, the occasion for the suit in equity on its own facts is not self-evident. These observations on the character of the bill are merely incidental and are mine only. An injunction was sought against the relator and the company, and in relation to her the prayer was that she “ be enjoined and restrained from prosecuting her said action in relation to said dividend and from commencing or prosecuting any and all other suits or actions in relation to said stock or dividend, or any other dividend thereon, against the said company or any other party or parties pending the determination of this your orator’s suit, or until this court shall make further order herein, and that she be perpetually, or until the determination of said attachment suit, enjoined and restrained from so doing by the final decree of this court herein, and that she be restrained from transferring or assigning said stock until further order of this court.” In regard to the company the prayer was that it “ be enjoined and restrained from paying over to said Cecilia E. Tan Norman, or to any one for her, said dividend or any other moneys due or which may become due upon said stock until this court shall make further order herein.” On or about August 7, 1879, a preliminary injunction was allowed according to this prayer, and April 27, 1880, the relator moved its dissolution. May 11, 1880, the motion was denied and soon thereafter the present application was made to this court. Were the question to be examined under an assumption that the attachment was well laid, it would not follow as of course that the case made by the bill might be deemed sufficient to serve as a basis for the exercise of discretion on the application for an injunction, but no investigation of the controversy in that aspect is deemed necessary. Fox v. Willis 1 Mich. 321; Williams v. Hubbard Walk. Ch. 28 ; Beck v. Burdett 1 Paige 305. If the levy was not of force to bind the stock at all, the bill as one for an injunction against intermeddling with it, is devoid of substance, and there was no foundation to support an order for the writ, and it should be , vacated. Was the levy good? The attention is first drawn to the special character of the various proceedings. The remedy by attachment is highly artificial and in this State is considered as “special and extraordinary.” The statutory provisions relating to it have invariably been subjected to strict construction, and the rule is fairly established that unless the case is plainly within the terms expressed it cannot be considered as embraced. The leading cases are Greenvault v. Farmers' & Mechanics' Bank, 2 Doug. (Mich.) 498, and Buckley v. Lowry 2 Mich. 419. The same doctrine applies with great force to the subjection of shares of stock in incorporated companies to mesne process. They are not leviable at -common law, and positive provisions are requisite to enable a court of common law to apply its power to them. They are intangible entities and incapable of caption by the gross methods of that system. In order that they may be safely proceeded against without going into a court of equity it is indispensable that the legislature provide specifically therefor and prescribe in detail, or at least in substance, all the means necessary for the object. Blair v. Compton 33 Mich. 414; Denton v. Livingston 9 Johns. 96; Howe v. Starkweather 17 Mass. 240; Williamson v. Smoot 7 Mart. O. S. (La.) 31; James v. Pontiac & Groveland Plank-road Co. 8 Mich. 91. It was in contemplation of the inadequacy of the methods ■of the common law that equity came forward to afford redress to the creditor against such property, and our legislature pro-needed on the same principle when it passed Comp. L. § 5060. It was considered that equity ought to have jurisdiction to afford relief when it was well shown that the law had exhausted its power; and it was also considered that such condition would be so shown, and only so shown in respect to such property, by the due return unsatisfied of a legal execution. The Nevised Statutes of 1846 made provision for ¡subjecting to execution any share or interest of a stockholder in any bank, insurance company, or any other joint-stock company incorporated under the authority of, or authorized to be created by any law of this State, “in the following manner.” Comp. L. § 6112. “The officer shall leave a •copy of the execution, certified by him, with the clerk, treasurer, or cashier of the company, if there be any such officer, •and if not, then with any officer or person who has, at the time, the custody of the books and papers of the corporation; and the property shall be considered seized on execution when such copy is left.” § 6113. “ The officer of the company who is appointed to keep a record or account of the shares or interest of the stockholders therein, shall, upon exhibiting to him the execution, be bound to give a certificate of the number of shares or amount of the interest held by &y\Ca. judgment debtor.” § 6114. “ A copy of the execution and the return thereon, certified by the officer executing the same, shall, within fourteen days after the sale, be left with the officer of the company whose duty it may be to keep a record of the transfer of shares; and the purchaser shall thereupon be entitled to a certificate or certificates of the shares bought by him, upon paying the fees therefor, and for recording the transfer.” § 6115. Having enacted these regulations the legislature seem to have assumed that the suit might happen to be commenced by seizure of the defendant’s share or interest on attachment; and proceeding under that impression it was declared in the next section that if the shares or interest “ shall have been attached in the suit in which the execution issued, the purchaser shall be entitled to all the dividends which shall have accrued after the levying of the attachment.” § 6116. It is unquestionable, however, that no provision was attempted to be made for attaching such property until 1877, and that the supposition that a suit could be so commenced at the date of the previous enactment was a plain error. Of course this mistaken view by the legislature worked no change in the law. Talbot v. Seeman 1 Cr. 1-25. In 1877 it was enacted that “in attaching shares of stock, or the interest of a stockholder in any corporation organized under the laws of this State, the levy shall be made in the ma/nner provided by law for the seizure of such property on execution.” Pub. Acts 1877, p. 3. There is no other authority for levying an attachment on shares in domestic corporations than is found in this provision. The circumstance that it does not directly and affirmatively enact that such property shall be subject to attachment is not overlooked. The point is not considered important. The aim of the provision is to give a mode for attaching a debtor’s shares or his interest in shares in a domestic corporation in the same cases in which an execution would be authorized, and the right to make seizure by attachment is thus confined and can be carried no further. Whether in strictness it can have equal latitude need not be discussed. Now in giving the l’ight to levy executions on corporation shares the law confines it to cases where the debtor’s status is that of stockholder and legal possessor of the interest. Newberry v. Detroit & Lake Superior Iron Co. 17 Mich. 141. In case his right is merely equitable, or in case he has regularly passed to another the legal title so that, as against him, the transfer is good and is one the company is bound to recognize, the shares are not leviable on attachment or execution issued against his property. Newberry v. Detroit & Lake Superior Iron Co. supra. In such circumstances the process of a court of common law is powerless. The property is beyond its scope. Its statutory energy is only capable of applying when the interest is found standing as the property of the debtor. The statute has made no provision for seizing under an attachment against one a share belonging prima facie to another, as an expedient to enable the attaching creditor to contest the title of the apparent owner, and, as before suggested, the remedy is one depending on the statute and not to be in anywise enlarged by construction. If the apparent owner holds by a title in which the creditor, in his character of creditor, can overreach, lie must put himself in a situation to assail it in some other way. In the case before us the stock was found regularly standing in the relator’s name and as her property on the stock-book. The company knew she was a regular assignee. She was prima faeie owner. Turnbull v. Payson 95 U. S. 418; Nat. Bank of New London v. L. S. & M. S. R. Co. 21 Ohio St. 221. And all admit that her title is good against every one except creditors of her husband. She is a stockholder in the company, but her husband is not. She has the legal title, and under the terms of the statute the stock was not subject to levy on the attachment issued against him. I think the writ should issue and that the relator should be allowed her costs of the application. The other Justices concurred.	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Cooley, J. In this ease the circuit judge directed a verdict for defendant immediately that plaintiff’s counsel had concluded his opening to the jury, and the case is before us on exception to that direction. It is denied that the circuit judge has any lawful authority for such direction in any case; the plaintiff in this State having always a right to go to the jury on the facts. Cahill v. Ins. Co. 2 Doug. (Mich.) 124. It is also insisted that the facts stated in the opening were sufficient, if proved, to entitle the plaintiff to a recovery; and therefore, if the circuit judge had the authority which he assumed to exercise, he erred in exercising it in this case. The record presents no other questions. I. The authority to direct a verdict for defendant on the mere presentation of the plaintiff’s case by his counsel, is no doubt one that ought to be very sparingly used if used at all, and the circuit judge ought first to be very certain that the presentation is full and complete, and covers all the points the plaintiff intends or expects to cover by his evidence. The circuit judge must not take advantage of mere accidental or inadvertent omissions as the defendant may when submitting the case after the proofs are all in; but if the case stated is sufficient except upon some particular point, should direct attention to'that point that the counsel may have opportunity to make his ease more complete if he has unintentionally omitted anything. In replevin, for example, and trover, it is sometimes necessary to prove a demand; but the demand in any particular case may be only a formal requisite, and counsel in stating to the jury the merits of his case might not unnaturally fail to mention it. It would be inexcusable in a trial judge, under such circumstances, to turn the plaintiff out of court without first giving him the opportunity to perfect his opening after calling his attention to the omission. But if he observes due care, the circuit judge commits no error in taking the course that was adopted here. The plaintiff’s opening is in the nature of an offer of proofs, and the circuit judge directs a verdict for the defendant because, assuming the proofs to have been received, they fail to make a case. The trial is thereby shortened, and no wrong is done to any one. The circuit judge has an undoubted right, in any case, to advise the jury to return a verdict for the defendant, when the plaintiff gives or offers no evidence to establish any necessary part of his case. Kelly v. Hendrie 26 Mich. 255. There is no claim in this case that counsel had failed to make his opening full and complete. We have, therefore, only to see whether a ease was stated which would entitle him to ask from the jury a verdict in his favor. II. The action was for money had and received by defendant to the plaintiff’s use. The case stated was that for some time previous to 1878, one Sweezey had been in business at Eaton Bapids with the defendant Bonker, as his clerk; that in various ways he had become greatly embarrassed; that plaintiff and defendant were indorsers for him to the amount of $12,000 and upwards; that he had given to plaintiff mortgages as securities for this amount, and to defendant a mortgage for some $2500; that the property mortgaged was otherwise largely encumbered, and was soon to be taken to satisfy previous liens; that it was then in the hands of tenants; that plaintiff ascertained that defendant could do nothing towards paying the Sweezey debts, and the whole burden thereof would consequently fall upon the plaintiff himself ; that under these circumstances, in order to save to himself something from the Sweezey wreck, he made an arrangement whereby defendant was to, and did, assign to him the mortgage defendant held from Sweezey, and Sweezey was to, and did, deed over the property covered by both the Sweezey mortgages; that the purpose of the arrangement was to enable plaintiff to collect the rents of the mortgaged property until the premises were taken on foreclosures; that for convenience and to prevent his own mortgage being merged in the fee, he had the conveyance from Sweezey made directly to plaintiff’s wife, but that defendant understood the whole arrangement, and knew that the object plaintiff had in making it was to secure the accruing rents. It was further stated that plaintiff subsequently discovered that defendant held assignment from Sweezey of leases of the mortgaged property, and had proceeded to collect rents thereon; and plaintiff insisted that in equity and good conscience these rents belonged to him, and that defendant was estopped from setting up any right to them by his failure to notify plaintiff of any claim at the time plaintiff was making the arrangement with Sweezey for the sole purpose of reaching these same rents. To show his right to the rents as between himself and his wife, counsel for plaintiff further stated that he should prove the execution and delivery by plaintiff’s wife of the following instrument: “ For a valuable consideration I, Mrs. O. M. Spicer, have this 29th day of May, 1878, assigned over all the use of the brick and wooden buildings, also the brick hardware store, all in the village of Eaton Rapids, Michigan, known as the property bought of John T. Sweezey, on the 14th day of May last, to Frederick Spicer, for^ his use and benefit. SpicerviUe, May 29th, 1878. Mrs. O. M. Spicer. Witness : George M. Pieros.” The property described in the fox-egoing paper is the same property from the renting of which defendant had been receiving rents. The question is, whether, admitting all these facts to be proved, the plaintiff makes a case. The most obvious objection to plaintiff’s recovery springs from the fact that the conveyance by Sweezey was not made to him, but to his wife. It was the wife, therefore, and not the plaintiff, who had a right to suppose that by Sweezey’s conveyance she was obtaining a right to recover rents from his tenants. If, therefore, there was any estoppel in the case which should preclude defendant from collecting rents, it must be an estoppel which arises for the benefit of the wife herself. But plaintiff, conceding that this may have been so at the outset, insists that he, as assignee of his wife, is entitled to claim the benefit of it under the rule laid down by authorities of which Wood v. Seely 32 N. Y. 105 is an instance. There is no doubt that where an estoppel arises for the protection of property rights, an assignee may have the benefit of it. It would fail to give adequate protection to the party in whose favor it arises if this were not the case. Powell v. Smith 30 Mich. 451. But the serious question in this case is, whether the plaintiff is the assignee of his wife, so as to be entitled to claim the rents as against her. It is not pretended that the instrument she gave him was intended as a conveyance of the equity of redemption ; it does not purport to be so in terms; and is an assignment of the “ use ” only ; and though the statute declares that no deed of conveyance shall be deemed invalid for want of a seal or scroll — Comp. L. § 6194 — yet the absence of a seal may be significant when the purpose of an instrument is not clear, and its terms are indefinite. Indeed we do not understand that any one claims this paper was intended for a deed, and counsel for the plaintiff speaks of it as a parol assignment of the rents. But as a parol assignment there could be nothing for it to. operate upon. Mrs. Spicer did not hold the leases; she was owner of the equity of redemption; and if she had any right to demand and receive moneys from the leases, it was because of that ownership and of the estoppel which was created in her favor'when she acquired the title. Assignment of the “ use ” of the buildings separate from the ownership could not be understood as an assignment of a right to rents under existing leases; for the tenants were entitled to the present use, and Mrs. Spicer to the use subject to the leases. It does not appear that the buildings were all under lease, and there may have been something upon which the assignment could presently operate, irrespective of the rents ; but the operative word “ use ” which is employed in this instrument is too uncertain in meaning to be accepted as an assignment of rents, when the assignor herself does not hold the leases, and can only claim the benefit of them by virtue of an ownership which she still retains in her own hands. Our conclusion is, that the plaintiff was not in jured by the instruction which resulted in a verdict against him, and that the judgment must be affirmed with costs. The other Justices concurred.	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Marston, C. J. The relator was judge of probate of St. Clair county, and he claims the board of supervisors reduced his salary, and asks for a mandamus to compel the board to pay him according to the amount as first fixed. The board answered, and an issue of fact was formed and certain questions sent to the circuit court for a determination and answer. The circuit judge certifies as appears in the margin herewith. It is now claimed that an implied assent is not binding on the relator and that the facts show he made protest to the county treasurer against receiving the reduced salary in full payment. ¥e have no doubt but that an implied assent is sufficient, and that from the very nature of the case nothing farther could be expected. Until the decision of this court in Douvielle v. Manistee 40 Mich. 585, there was almost, if not quite, universal acquiescence in the power of the board of supervisors to fix the salary of the judge of probate from time to time, so that no one thought of making any protest, but accepted the salary as fixed, and under such circumstances, the silent acceptance of the salary must be considered as an assent thereto, and binding upon them. We are also of opinion that a protest entered with the county treasurer cannot be deemed of any force or effect. That officer had no power to fix the salary or take -.any action with reference thereto, nor was it even a part of his duty to report such protests to the board. The protest, to have any effect, must have been made to the body having power to act in the premises. Under the finding of the court the relator should receive at the rate of $1500 for the year 1880, and a writ will issue to that effect, but without costs. The other Justices concurred. As to the three several matters or questions submitted, I find— First. That the said relator did assent (not expressly but impliedly) to the fixing of his salary in the fall of 1878, for the year 1879, but did not assent to the fixing it in the fall of 1879 for the year 1880. This implied assent was in ignorance of the law as afterwards declared by the Supreme Court in Douvielle v. Manistee 40 Mich. 585; and up to the announcement of the decision in April, 1879, the relator, as well as the board, understood that the board had full power and authority to fix the salary of the judge of probate from year to year. Second. So far as the relator did assent, as above found, he assented that the salary should be fixed at such sum as “to the hoard should he just and reasonable.” Third. For the first quarter of the year 1879, the relator did accept, impliedly, full payment at the rate fixed by the board in the fall of 1878, but ever since the first quarter he has insisted upon his right to $1500 per year and since that has not accepted the payments made as a full payment, hut only on account of salary. My conclusion is that for the year 1879 the relator is not entitled to pay beyond the amount fixed by the board in the fall of 1878, which amount has been paid, and that for the year 1880 he is entitled to the amount he claims. Port Baron, December 20, 1880. E. W. Harris, Circuit Judge.	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Cooley, J. This is a bill to restrain the collection of a pavement tax. Complainant is owner of a lot on Woodward avenue, in the city of Detroit, which has been paved and repaved several times, sometimes at the expense of abutting owners and sometimes not, according as the law in force at the time provided. Complainant avers that he has paid two assessments for repaving which were levied on the owners of abutting property. In 1879 the common council passed resolutions for repairing and repaving a section of this avenue, including that portion upon which complainant’s lot abutted, at the expense of the lots fronting thereon, and took steps for the purpose which resulted in an assessment upon complainant of $171.02. The whole expense of the repaving was assessed upon the abutting lots in proportion to the street front. The new pavement was to be of cedar blocks, and an old pavement of cobble stone, which complainant avers was not worn out, had to be removed for the purpose. It is insisted by complainant that an assessment according to frontage is not an assessment in proportion to benefits received, and is unjust and unwarranted by legal principles. No question is made of the sufficiency of the legislation under which the common council assumed to act to authorize the action taken, if the legislation is itself constitutional, but it is denied that it is so. The learned counsel for the complainant states the question at issue to be: The right of the Legislature to authorize municipal authorities to require the owners of property on streets in the city to continue, at their own expense, to repave them, whenever ordered by the common council, and to do so in reference to the extent of frontage, or, in other words, of territory upon the street, with no reference at all as to values. The questions, then, are questions of legislative power. Whether this method of apportioning the cost of pavement or of repavement is equitable or just or politic, is in no way involved in this suit, and we should depart from our legitimate province if we were to volunteer an opinion upon it. The Legislature, acting within the sphere of its powers in the making of laws, judges, and judges finally, upon all questions of policy and of equity. If the Legislature declares the cost shall be collected by general levy, or on the other hand shall be levied upon abutting lots or their owners according to values, or to assessed benefits or to frontage, the determination binds us absolutely and conclusively, provided we discover no want of legislative authority. We must then address our attention to that'point, and to that exclusively. N ow it has been several times decided in this State that it was competent under legislation permitting it, to apportion local assessments according to frontage. The leading case of Williams v. Mayor 2 Mich. 560 was not disturbed by Woodbridge v. Detroit 8 Mich. 274, and was expressly approved in Motz v. Detroit 18 Mich. 495, after most thorough argument and careful and deliberate examination. The case of Jones v. Board of Water Commissioners 34 Mich. 273, to which-complainant calls attention, is foreign to this controversy. It was expressly held in that case that water ¡•ates were in no sense taxes, and they were held not apportionable by frontage on that very ground. Thomas v. Gain 35 Mich. 155 has quite as little relevancy. There was an attempt in that case to apportion a sewer tax in manifest disregard of any principle of justice or equity, and the Court rejected it for that reason, and as having no lawful principle to sustain it. In that very case Williams v. Mayor was recognized, and it was said (p. 161) that !e the idea that underlies statutes for this purpose is, that the benefit to the abutting lots is generally in proportion to the length of their respective fronts, and that as a rule this principle of apportionment is more just than any other.” It would be strange indeed if we eould hold an apportionment to be void for its injustice when it had been prescribed -by law for the very reason that justice and equity require it. We might fill pages with the names of cases decided in other states which have sustained assessments for improving streets, though the apportionment .of the cost was made on the same basis as the one before us. If anything can be regarded as settled in municipal law in this country, the power of the legislature to permit such assessments and to direct an apportionment of the cost by frontage, should by this time be considered as no longer open to controversy. Writers on constitutional law, on municipal law, and on the law of taxation have collected the cases, and have recognized the principle as settled, and if the question were new in this State, we might think it important to refer to what they say. But the question is not new; it was settled for us thirty years ago. It is urged, however, that even conceding it to be admissible to charge the owners of abutting lots with the cost of the first pavement of the street, the special exaction should stop there, and all repaving should be by general levy. But the learned counsel for complainant does not undertake to explain to us how it can be that the legislature can have power to order the first improvement at the expense of adjoining owners, and still not have power to order any subsequent pavement on the like basis. The argument to that effect appears to assume that a pavement once laid is an improvement which is to last for ages, like some substantial structure of granite or marble; and that the adjacent proprietors having incurred the expense of making it, the comparatively insignificant cost of keeping it in condition for use from year to year ought properly and justly to be taken upon the shoulders of the community. But no assumption can be more unfounded. A pavement is but a temporary improvement of the street. It may last for five years, or ten, or twenty, but at the end of some short period the street will need a new one, and the question who shall be at the cost of it is the same as before and rests upon the same equities. It can never be said of any street that it is permanently paved. It is paved for the time being only; and the pavement will wear out or become unsuitable, just as a sewer will decay or become inadequate to the needs it was intended to meet. If there is any soundness in the theory on which the bill is filed, it must be found in this: that when the adjacent owners have once made the street a substantial thoroughfare at their own expense, a principle of constitutional justice requires that the city should afterwards maintain it as a substantial thoroughfare. But any such principle rests upon such a basis of uncertainty that it would not only be difficult of application, but lead to the most absurd results. When shall it be said that the duty of the property holder in making the thoroughfare is fully performed ? Is it when the street is planked ? Or when it is laid with cobble stone ? Or when it is experimented upon with concrete or witli green pine blocks? Or only when dry cedar blocks are laid, or perhaps blocks of granite ? Does legislative power depend upon the uncertain opinions of witnesses as to the substantial nature or permanency of some particular street improvement ? And if it can be exercised but once for all time, as to any particular parcel of land, shall the power a generation hence depend upon the uncertain recollection of old inhabitants as to the nature of the first improvements, and how the cost was borne, or perhaps upon the care with which city records are made up and kept ? Examine the case in whatever light we will, the supposed principle rests upon a fallacy. All street improvements are ordered in view of existing needs, and are, therefore, of one kind at one time and another at another time, as the needs are supposed to require. To-day in an incipient city they are cheap, imperfect and temporary; but ten years hence, if the city fulfils its promise, they may be expensive and constructed with greater regard to durability. The equity that the lot owners shall pay for the cheap, temporary improvement is no greater than that they or their successors in ownership shall pay for that which is more expensive, but which answers the local needs more perfectly and makes their lots more valuable. It will be no less fifty or a hundred years hence, though the improvement may have been renewed many times in the interval. It rested in the first place on the undoubted fact that all these local improvements, while they are public benefits in a general sense, have a special and peculiar value to the lots fronting upon them, and tend to increase their value in a degree bearing some proportion to the cost of the work. Let the improvements go to decay and the value of the lots will deteriorate; let them be renewed, and the price immediately comes up again. Leave a business street without a pavement, and business will be driven from it. These are facts of common observation, but they need no experience to prove them; they are what our reason would teach us to expect. There is ample ground, therefore, upon which the legislature may act when they decide that in their opinion considerations of equity require the cost of paving to be imposed upon the owners of abutting lots. We do not hold that they decide right, for that is not our concern; we only decide that they have the power and the discretion to do what they have done. The decree must be affirmed with costs. Marston, C. J. and Graves, J. concurred. Campbell, J. While I am not satisfied that the legal objections to the charter and ordinance regulations have not some force, I am, nevertheless, of opinion that on this record complainant has not made out a case for relief. We cannot assume, under the pleadings, that the improvement was not one which the city could make, and charge to a district for assessment. We cannot in this case have any certainty that complainant has been seriously, if at all, overburdened beyond what his assessment would have been if made in another way. The proceedings are regular, and unless he shows some distinct and tangible grievance of a serious character, he makes out no cause for equitable interference. I concur in affirming the decree.	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Marston, C. J. Some of the questions which the plaintiff seeks to raise in no way concern him, as the matter complained of could not injuriously affect him. So .the objections based upon the fact that a jury was called are of no sort of consequence, as the jury was called because one party over whose land it was supposed the ditch would extend would not release. As however all the others did release, and the ditch was not extended, but abandoned, over the lands of those not releasing, the action of the jury became immaterial. The drain does not extend over the plaintiff’s lands, but as a part of his lands were benefited by the drain, he was assessed a small amount, which gave him a cause of complaint. The return of the commissioner shows that the said “ Mabee was present when I apportioned the construction of said drain and expressed his entire satisfaction at the part apportioned to him, and promised that he would construct his part as soon as any one else, and then and there tried to let out a job for the same.” A party thus consenting should not after the ditch has been constructed in part and his lands benefited thereby, as the return shows to be the fact, come into court and be heard to complain. Roediger v. Drain, Com’rs 40 Mich. 745. The writ must be quashed with costs as improvidently granted. The other Justices concurred.	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Campbell, J. This case in no respects differs from what it was when formerly before us. Underhill v. Muskegon Booming Co. 40 Mich. 660; Muskegon Boomimg Co. v. Underhill 43 Mich. 629. The plaintiff made out no case whatever, and judgment was properly rendered against him. The attempt in this way to protract litigation is a grievance to the defendant, but as no application is made for more than ordinary costs the judgment is affirmed with costs. The other Justices concurred.	[ -13, 18, -12, -47, 6, -10, 26, -1, 12, 57, 79, 27, 3, -22, -2, -5, -19, -29, 4, 1, -60, -38, -25, 4, -28, 23, -17, 6, -41, 14, -32, -4, -50, 65, -48, -49, -11, 19, -6, 10, -21, -41, 22, -13, -36, -32, 56, 12, 25, -35, 30, -53, -39, -11, -23, 18, 3, 54, 0, 28, 13, 22, 48, 4, 53, -66, -1, -2, 29, 13, -56, 24, -3, -41, 60, 5, 1, -29, -51, -10, 0, -6, 5, 19, -79, 48, -18, -1, -17, 22, -44, 25, -26, 31, 2, 21, -16, 19, -53, 6, 3, -37, 26, 17, -31, -22, -34, -15, -30, -13, -44, 11, -1, -5, 17, -27, -11, 8, 7, -1, 59, 11, 30, 15, 12, 17, -61, -36, 4, -21, 31, 19, -41, 42, 24, -3, 56, 7, -49, -32, 16, -16, -14, 38, -29, -51, 53, -23, -37, -58, -20, 15, 21, 15, -14, -15, -48, -37, 42, -46, 62, -18, -11, 26, 3, -17, -2, 30, 20, -38, -33, -13, -9, 6, 57, 62, 2, 6, 21, -18, 27, 52, 16, 3, 0, -2, -45, -2, -12, -46, 10, -12, -12, 61, -27, 17, 38, -4, -8, 2, 66, -5, -48, -11, -2, 3, 17, -62, -38, 25, -5, 27, -10, -10, 16, 43, 12, -48, -13, -46, -24, -25, 30, 43, -23, -40, 5, -13, 10, -3, -54, 12, 52, 4, 46, -6, -16, 4, 58, -46, -23, 22, -85, -46, -7, -9, 44, -5, -13, 22, 52, 18, 27, 20, 14, 4, -12, 0, 0, 25, 55, 46, -50, 8, -53, -34, 5, 35, -34, -18, 14, -19, 56, -2, -13, -28, -20, 4, 27, 15, 42, 23, -13, -67, -9, 20, -32, 2, -33, 0, 40, 31, -14, 17, 23, 39, -48, -9, -37, 31, -1, -17, -2, 1, 35, 2, -21, 2, -58, 10, 16, 3, -51, 0, 39, -6, -23, 0, -13, -15, -15, 6, 31, 1, -32, -23, 29, -46, 4, -19, 5, 24, 13, 0, 23, -51, 66, 23, 32, 0, 25, 38, -59, -11, -8, 22, -54, -26, 19, -14, -30, 11, -38, 25, 19, -7, 29, -23, -54, 28, 1, 9, 36, -26, -20, 5, -30, 7, 10, 60, 19, -8, -40, -16, -59, -16, -23, -3, -56, 86, 20, 17, 1, 13, 42, 12, -38, -6, -18, 13, -62, -21, 16, 2, -12, 4, -22, 60, -6, 47, 4, 60, -37, -44, -18, -38, 0, -37, 21, 5, 0, -15, -23, -24, -20, -17, 30, 23, 17, 38, 28, 24, -12, -30, -23, -78, 32, 25, 14, 16, 16, -14, 26, -60, 8, -2, -4, -7, -17, -51, -38, 25, -15, -25, -20, -24, -29, 47, 14, -41, 51, -36, -21, -1, -42, 16, 18, -63, 24, -31, -21, -14, -48, -34, -26, -32, -4, -43, 45, -8, -54, 44, 8, 27, 24, 0, 45, 20, 12, 45, 1, 95, 11, 4, -49, -56, -17, 9, 25, 24, -18, 25, 0, -4, 8, 1, 13, 38, -15, 26, -23, 56, -17, -72, 18, 44, 16, -36, 3, 65, 11, -35, 64, 28, -87, 41, 3, 8, -40, 49, -17, 24, -92, -1, 11, 37, -13, -33, 2, 4, 11, 20, -15, 23, 18, -1, -21, -33, 11, -60, -35, 35, 26, -2, 3, 29, -30, -10, 34, -25, -33, -18, -3, 15, -18, -5, -80, 1, 31, -37, 29, -3, -27, 50, 34, 18, 7, -13, 1, -18, 5, 20, 9, 5, 5, -32, 17, -13, -14, -3, -23, 9, -40, -21, 2, -30, 11, -40, 30, -4, 2, -16, 17, 10, 12, -22, -14, -11, 32, 44, 8, -40, -20, -27, -33, 6, -47, -37, -5, 31, -1, 22, 17, -46, 46, -25, -19, -23, 30, -52, 37, -2, -35, -26, 23, -59, 48, -48, -34, -25, -33, 15, 3, 27, -35, 11, 12, 42, -64, 27, -46, 16, 17, 15, 0, -4, -43, 28, -26, 51, -12, 48, -2, 29, -24, -21, 11, -45, 31, -71, 12, 14, -19, 45, -81, 20, 13, 26, 1, 26, 22, -14, 36, -26, -17, 0, 30, 39, -27, -13, -22, 6, 63, 7, 2, 65, -25, 59, -29, -48, 24, 1, -59, -56, 31, -11, -3, 3, 34, -15, -25, -20, 25, -28, -7, 18, 20, -1, 40, 5, -35, -38, 40, 19, -11, 58, 0, -2, -29, 11, 2, -46, 36, 14, -34, -20, 42, 35, -17, 31, -11, 14, 35, 28, 22, 0, 6, -35, -60, 18, 30, -6, 24, 17, 10, 45, 33, -35, -3, 30, 0, 19, 29, 29, -22, -54, 20, 52, 3, -7, -3, -27, 33, 45, -1, 1, 19, 0, -30, -12, -7, 21, -31, -71, -21, 0, -2, 20, 36, 13, -30, -70, 24, 3, -13, -31, 63, -20, 4, 39, 8, 0, 57, 16, 0, 8, 47, 3, -13, 14, -6, 35, 61, 5, 49, 33, -18, -7, 41, 43, -3, -43, 21, -36, -14, 61, -76, 26, -36, 27, -31, 64, 1, 39, -11, 13, -17, -63, 2, 5, 47, -57, -32, 60, -10, -12, -2, -26, 17, 8, -10, -61, -25, 24, 17, 16, -20, 14, -65, -5, -39, 8, 54, -6, 26, -42, -17, -30, -17, 24, 63, -25, -68, 29, 42, 23, -47, -2, 17, -44, 65, 35, 9, -38, -43, -51, -12, -9, 27, -4, 58, -4, -6, -12, -17, -6, 33, -36, 0, 25, 7, 13, 52, 50, 0, 6, -46, -9, -1, -26, -5, 12, 49, 33, -7, 21, -40, -13, -17, 13, -6, -27, -14, 30, -19, 57, -32, -18, 57, -23, -1, 53, -19, -1, -4, 17, 6, 6, -24, 5, -46, -3, 36, 41, 21, -6, 13, 0, 30, 5, -36, -34, 14, -43, -8, -15, 10, -12, 14, 71, 5, 30, -6, 11, -73, -49, -3, -6, 6, -1, 17, -10, 0, -24, 14, -40, 19, 23, 16, 0, -26, 19, -44, -34, 17, -30, 25, 23, -4, -27, -39, -68, -40, 28, -35, -18, -29, -10, -13, -10, 22, 20, 39, -8, 15, -51, 36, 24, 45, -67, 18, 43, 2, -36, 60, 21, -17, 7, -4, 7, -12, 61, -6, 72, 18, 10, -32, -4, 25, 35, 58, 63, -12, -23 ]
Cooley, J. This is an application for a mcmdmrms to respondent, requiring him to set aside an order whereby he transferred to the federal court a certain cause to which relators are parties. No application appears to have been made to the circuit judge himself, and for this reason we deny the application without looking into the merits. We must assume, if the application has merits, the circuit judge would voluntarily have recognized them. The other Justices concurred.	[ 0, -63, -35, 35, 22, 33, 13, 32, -43, 51, -8, -19, 49, -24, -7, -24, 39, 9, 39, -68, 3, 1, 18, 1, -25, 25, -1, 2, -31, 46, -33, -39, -11, 23, -27, -24, 32, 10, 43, -5, 38, -13, 21, -7, -43, -19, -10, 28, -15, -32, 28, 31, -51, 37, 8, 55, 0, -35, 37, -39, -38, 76, -14, -19, -10, 22, -66, -51, -9, -25, -9, -7, -17, -7, 39, 26, 23, -42, 20, -15, 81, 73, 30, -23, 39, 40, 27, 13, 17, -26, -41, -12, -34, -25, -47, 29, 18, 14, 37, 16, 14, 11, -15, -33, -8, -20, 36, 3, 42, -11, 45, 32, -36, -17, -2, -16, -43, -6, -40, -8, -38, 4, 7, 20, -20, 9, 21, 15, -17, 2, -6, -7, 24, 15, 28, -14, 14, 19, 20, -15, 13, 30, 61, 16, 4, -93, 46, -39, -30, 14, 40, 39, -23, 9, -17, 45, 69, -28, 44, -31, 12, 50, 33, 8, 18, 2, -29, 55, -3, 5, 31, 25, 5, 50, -10, -57, 13, 41, -5, -6, -1, 40, 56, -16, 1, 51, -14, -2, 35, -42, -32, -51, 47, -5, 43, 3, 14, -27, 6, 7, -46, 7, -19, 29, -38, -17, -35, -48, -65, 14, -45, 4, 29, -77, 20, -8, 15, 8, -36, -7, -18, 21, 35, 1, -36, -10, -28, 63, -21, 16, -17, -19, 23, 81, 39, 24, 5, 3, 17, -19, -5, 40, 26, -24, 5, 42, 10, 2, 40, -11, 20, 9, 57, -2, -15, -43, 12, 21, -55, -39, 36, 3, -16, 31, -40, 15, -3, 17, 52, -20, -27, 18, -9, 0, -11, 4, 23, -30, -4, 30, 50, 49, -21, 0, -32, 14, 6, -49, 24, 67, -30, -24, 1, 16, 12, 26, -22, 8, 4, -14, -7, -32, -1, 7, 15, -54, 4, -56, 12, 13, 36, 25, -6, -8, -9, 0, -1, 0, -14, -38, -30, -3, -26, -58, -13, 31, 53, -17, 39, 8, 39, 30, -6, -19, 0, 25, 26, 19, 0, 29, -25, -8, -51, -3, 20, -22, -9, -29, 38, 11, -15, 46, 29, 11, -5, -8, 0, -89, -17, 28, -23, -22, -13, -30, 24, -20, 0, -11, -14, -43, 8, -22, 20, -20, -31, -4, 12, 54, -23, 6, -53, -3, 21, 3, 23, -6, -36, 0, 39, 6, 25, -11, -7, 20, -23, 8, 5, 6, 20, 17, 20, 0, -62, 9, -19, -6, -41, -36, -20, 12, -9, -6, 21, 35, 20, 11, 24, 8, 11, 6, 23, -36, -42, -30, -31, 2, 2, 34, -23, 14, -25, -14, 23, -27, -56, 73, 37, -35, -60, 18, -3, -24, -18, -10, -26, -17, -18, -11, -50, -13, 6, 36, -32, -34, -59, -9, -35, -10, -18, -72, 21, -24, -8, 2, -17, -1, -41, 14, 59, -12, -55, 83, 39, 28, -20, 28, -25, 19, -23, 3, -29, 67, -2, 4, -11, 11, -112, 14, 21, 24, -28, 15, -5, 9, -38, -15, 11, -26, -45, 19, 24, 11, 37, -11, 42, -60, -16, -28, 17, -4, -4, -14, 24, 13, 9, 25, -36, 39, -73, 16, 20, -66, -2, -34, 8, 40, -61, 3, 16, -1, 30, 24, 69, -18, 7, 34, 3, -3, 30, -4, -26, 14, -52, 5, -26, 22, -54, 2, -17, 1, -11, -4, 14, 0, -13, 21, -20, -31, -40, 11, -30, 17, 25, -4, -2, 8, -25, -23, 64, 25, 41, -7, 7, 3, 8, -23, 11, 21, -24, 26, -30, 18, 0, -67, -36, -34, -31, -19, 38, -47, -53, -31, 37, 0, 7, -8, -5, -10, -2, -13, -1, 52, -40, 7, 0, 16, 20, 66, 7, -47, -42, 16, -14, 10, -57, 23, 0, -1, -5, -9, -6, 13, -14, -30, -11, -40, 12, 9, 37, -7, 8, -23, 25, -27, -1, -17, -96, -9, -49, -3, -2, 14, -8, -16, 29, 16, -7, 0, -17, 6, 55, 62, -31, -20, 17, -5, 8, 14, -34, -24, 30, -38, 16, 10, -15, 9, 23, 65, 4, 0, 0, 0, 18, 34, 10, -6, -18, -13, 12, 31, -55, -48, -54, -50, 1, 13, -15, 77, 7, 9, 9, 11, 27, -60, -10, -42, 24, 22, -3, -47, 25, -49, 15, 3, -17, -12, -4, -5, 68, 51, -63, 55, -36, 10, 32, -20, 2, 0, 1, -35, 17, -2, -3, -4, 19, 46, 12, -33, 38, -26, -34, -2, 32, -39, -18, 44, -13, -43, 22, 63, 6, 63, 4, 8, -6, 30, 33, 12, -44, 35, 37, -34, 5, 49, -6, 3, -7, 16, 4, -23, -2, -58, -16, -8, 26, -11, -21, -24, 0, 24, 50, -45, 20, 7, 17, 44, -33, -9, 6, -50, -25, -33, -30, 37, 38, -23, -25, -12, -77, 2, 40, 0, -18, -19, 45, -13, -47, 0, 19, -24, 16, 0, 5, -11, -14, 41, -23, 5, 34, 0, 28, -2, -12, -7, -23, 4, -13, -22, -56, -20, 22, 50, 17, -21, 27, 9, 55, 40, 26, 32, 10, -26, 43, 32, -9, -2, 0, 1, 39, -9, -1, -46, 9, -17, -19, 0, -82, 44, -13, 19, -10, 25, -3, 62, 14, -77, 8, 1, 17, -5, 30, 74, -34, -27, 19, 12, 0, -20, 46, 10, 23, 39, 16, 12, 2, -1, -19, 20, -15, -13, 18, -29, -7, 33, -3, -2, -34, -12, -27, 37, 40, 3, -34, 41, 15, 22, -21, -20, -18, 10, -24, 11, -2, -38, 15, 11, -2, 61, 14, -5, -12, -4, -21, -42, 6, 11, -8, 4, 1, 45, -26, 34, 1, -19, -3, -26, 11, 5, 31, -33, 29, -28, 20, -5, 46, -27, -49, 17, -81, 17, -25, -63, 46, 14, -39, 0, -41, 15, -34, -28, -7, -26, -35, -18, 16, 27, 8, -16, -9, 12, -18, 52, -11, 18, 11, 36, -9, 10, -34, 11, 20, 28, -21, -17, 11, -16, 7, -39, -37, -2, 0, 7, 12, -15, 0, -2, -19, -2, -37, -31, 31, -21, 24, -41, -7, 44, -38, 36, 10, -6, 54, 17, -37, -21, 1, 5, 3, 32, -8, -25, 7, -44, -18, 32, -15, -5, 25, -11, -27, 4, 19, 9, -17, 1 ]
Cooley, J. This is a bill filed by the owner of the equity of redemption in certain lands, to compel a mortgagee thereof to discharge the mortgage and to pay the statutory penalty •for a previous refusal to do so. The grounds on which the discharge is demanded are first, that the amount due has been tendered to the mortgagee and its acceptance refused; and second, that the lien of the mortgage is discharged by an arrangement between the mortgagor and mortgagee, whereby the latter, after complainant became owner of the land, and without her consent or knowledge, gave an extension to the mortgagor in consideration of money then paid to him. The fact of an extension in consideration of a payment of money is not made out on a preponderance of evidence, and we pass that part of the case without further notice. Regarding the tender, defendant says in his answer “that the amorcnt tendered by said complainant was not sufficient to pay the amount due for principal and interest on said mortgage, but this defendant' to avoid trouble offered to receive the same and to discharge the mortgage, and he now renews his offer to do so.” When the discharge of a mortgage is demanded on the ground of a tender, the evidence in support of the tender ought to be very clear and satisfactory, and ought to place the defendant distinctly in the wrong. Potts v. Plaisted 30 Mich. 149 Especially should this be the case when the statutory penalty is demanded; for although this is paid to the complainant in consideration of his trouble and annoyance, it is meant also for a punishment. In this case we do not find the evidence satisfactory. The case rests in the main upon the testimony of defendant and of complainant’s husband, and the one makes quite as good a showing in his own discharge as the other does in support of complainant’s ease. And much reason is found in the record for believing that personal feeling, rather than any substantial difference between the parties respecting their rights, lies at the root of this litigation. The decree of the court of chancery dismissed the bill, and it must stand affirmed with costs. The other Justices concurred. George S. Engle, for the motion. Afterward, at tbe January term, 1881, complainant moved for a re-taxation of costs, objecting that they were taxed as for a hearing, whereas the case was submitted on briefs in the absence of counsel. Submitted and denied January 1, 1881. The Court said it was the practice to treat the submission of briefs on both sides, as an argument of the case, and not as an exoárete submission of it without argument. Denied, without costs.	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Graves, J. Nelson, being a riparian owner on White River, brought this action on the case for certain damages alleged to have been caused by the Booming Company. He claimed that a distinct but exactly similar injury was committed in each of the years 1873, 1874, 1875, 1876,1877 and 1878, and employed a separate count for each year. The only variation in the counts was in the year in which the injury was alleged to have been done, and a reference, therefore, to the first will suffice for all the others. The actionable fault imputed to the Booming Company is charged in this wise — that “ well knowing the premises but contriving and intending to injure and prejudice the plaintiff in this behalf, heretofore, to wit: On the first day of May, A. D. 1873, at the township of Whitehall, the county of Muskegon aforesaid, and divers other days and times afterwards, and before the commencement of this suit, with certain booms, timber, logs, boards, pins, poles, wood, ropes and chains, and other appliances, dammed wp cmd obsU'ueted the running and flowing of the waters of said White Riveras the same had run and flowed and still ought to run and flow, and thereby caused the waters of said Whité River to flow upon and cover the aforesaid lands of the said plaintiff, and to stand and remain upon the aforesaid lands of the plaintiff for a long space of time, to wit: for, the space of five months, and thereby destroyed the aforesaid products, pasture, meadow and growing crops and improvements of said plaintiff, and greatly injured the said lands and the timber thereon, and prevented the plaintiff from, and deprived him of, the use, tillage and cultivation thereof, and depriving him of the products, produce and income and profits of said lands, whereby the said plaintiff has lost and been deprived of a great number, to wit, five hundred tons of hay,” etc. Complaint is made that these various counts overlap, and that a claim is set up for repeated recoveries on account of the same flowage. But this is a misapprehension. It was the obvious design of the pleader to describe a flowage through a certain specified period of time in each year (Gould’s Plead, ch. 3 § 85), and to effect this object he resorted to the expedient of a separate count for each year. The declaration may show that in this regard it is not framed with perfect accuracy and that there exist some formal imperfections. But there is nothing substantial; nothing which may be taken advantage of by exception. It is further objected that as to the several injuries alleged to have been committed in the years preceding 1877 the action was barred by Comp. L. § 7149, which limits the bringing of actions for trespass on land to two years after the accruing of the cause of action: There is no foundation for the point. The action is case for consequential damages, and not trespass, and the Legislature has seen fit to authorize case.to be brought except in certain instances, of which this is not one, at any time in six years. • Comp. L. § 7148 subd. 7. The plaintiff’s evidence was in substance that in each of the years mentioned, the Booming Company dealt in such manner with the masses of logs running in the river that at the sorting ground below the plaintiff they were arrested and turned into jams, which caused the water to dam up and overflow his land and cut off certain of his crops and preclude him from making and getting others. And on the pari; of the Booming Conrpany the evidence was aimed to show that part of the overflow complained of was caused by heavy rainfalls, and that considering the great quantity of logs which were put afloat by the various persons who engaged .therein, and considering the absence or almost entire absence of river banks, and some other conditions, there was no practicable way for getting the logs to their destination with any less overflow of plaintiff’s land than actually occurred. When the judge came to charge the jury he laid down the duty of the Booming Company in these terms: “ This corporation has a duty to perform, that fs, to drive the logs down with ordinary care so as not to injure any of the parties who may own land along the stream or adjacent thereto. It is their duty to furnish a sufficient amount of men to drive those logs down the river, without injury to those owning land along and adjacent to the stream, and so far as this case is concerned they were to drive the logs along the plaintiff’s land so as not to injure the land or crops; it doesn’t ¿natter whether there is one hundred million or a thousand million'; they must navigate it in such a maimer as not to injure those who own lands along the stream, that is, they must put on a sufficient force to pass those logs down the surface of that stream without injury to the plaintiff in this case.” The jury found for the plaintiff below in the sum of $100. So much in these controversies depends on circumstances which may vary indefinitely that it is not practicable to lay down a specific rule applicable to all occasions, places and conditions, as to the duty which may be fairly due to riparian proprietors from the corporations and such private persons as may be engaged in using streams for these immense lumbering operations. The subject is one of considerable difficulty in any case, and, unless the question be confined to a given state of facts, it would be rash to hazard any other than very general views. According to the present record the facts appear to be neither numerous nor intricate and the inquiry seems to be restricted to narrow limits. Premising therefore that in what is said strict reference is made to the case actually presented, it remains to state with as much brevity as practicable the opinion entertained. The charge given is not correct. It was likely to lead the jury to suppose that the Booming Company was in the condition of an insurer and bound at all hazards to guard the plaintiff against loss arising from the presence of the logs in the river; and of course there is no foundation anywhere for such a doctrine. No notice was taken of the evidence for the Booming Company that some of the overflows were caused by extraordinary rainfalls, and finally the drift of the instruction was not adapted to the case. The view which the facts called for in my judgment may be thus stated: As between the plaintiff and the Booming Coinpauy it was the duty of the company to see that its connection with the logs did not result in causing any more flowage of the plaintiff’s land than would occur by the passage of the logs in a purely natural way. It had no right to deal with them in any mode whereby jams would be formed or enlarged so as to cause the water to overflow the plaintiff’s land when it otherwise would not; or cause it to overflow there more than it would were the logs left to themselves; and if jams were formed or enlarged in that way to such extent that they did cause the water to flow the plaintiff’s land the company is liable for all that flowage beyond what the flowage would have been, if any, had the logs been allowed to float down naturally and without artificial interference. It may be objected that this affords an uncertain criterion; because it cannot be known what the consequences would have been in case the Booming Company had had no connection of any sort with the logs. And it is true that the element of uncertainty exists. But that is no reason for rejecting the rule unless a better one can be found. It is not admissible to wholly deny redress because there is infirmity in the method, and on the other hand, it is equally inadmissible to make this imperfection an excuse for compelling the company t.o pay damage which it never had any agency in causing. The uncertainty referred to is no greater nor more embarrassing than is often met with where estimates of damage are to be made, and where such difficulties are never allowed to stand in the way. Actions for injuries to health, to reputation, and for injuries which reach forward into the future, and the like, will exhibit conspicuous fexamples. • In such cases the jury must apply their common sense and experience to the whole facts and act on the rule of probability. No rule more safe or practical is discerned to exclude all ground of damage not chargeable to the company and at the same time allow the plaintiff whatever damage he ought to have from it. The other points were abandoned. I think the judgment should be reversed with costs and a new trial granted. ■Cooley, J. I agree with Mr. Justice Graves that the instructions given to the jury in this case were erroneous. I also agree that if the Booming Company so dealt with the logs in the stream as to cause jams to be formed or enlarged, and thereby to raise the water in the stream to the injury of the plaintiff, the company must be held responsible for the resulting damages. But if the company only makes use of the right of floatage in a proper and reasonable way and without negligence, it is not responsible even though some injury may be suffered by the riparian owner. The rights of the public to run logs in the stream are not subordinate to those of the owner of the bank, but they are concurrent, and each must be enjoyed reasonably, and without any unnecessary interference with the enjoyment of the other, and without negligence. But this is all that can be required. No man can be punished in damages for an enjoyment of his undoubted rights, when he acts reasonably and with prudence. Marston, C. J. concurred. Campbell, J. I do not feel quite satisfied that the charge of the court in this case was designed to convey so extreme a doctrine as would hold plaintiffs in error responsible for injuries to which they did not contribute. But as the language has impressed my brethren as leading to that inference, I do not feel justified in holding that it will not properly bear that construction, and concur in a reversal. I am not prepared on this record to lay down any specific rule, as the testimony is not completely given.	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Campbell, J. .The bill in this cause, having been filed in the circuit court for the county of Menominee, was dismissed on motion, as being in fact a bill for the purpose of reviving the decree in another suit decided in 1865, and as not having been authorized by leave of the court, or by other prerequisites which must be complied with before such a bill can be filed. Appeal is brought from the order of dismissal. The bill, in addition to the points insisted on before the circuit judge, is neither signed nor verified. The only signatures found upon it are printed and not written. No bill can be regularly filed without being signed in person or by counsel. Under our practice every attorney is ex offieio a counsellor, but unless a bill is actually signed by him in some capacity, by the responsible signature of' himself or some authorized representative, it is irregular, and may be stricken from the files. 1 IToffm. Ch. Pr. 97, and notes. The court below did not act upon this.objection, and for other reasons we merely point it out as a matter of some importance. All of the questions passed on by the circuit judge depend upon whether the bill is purely an original bill to set aside a decree for fraud, and not one involving the elements of one of the various forms of bills of review. Before going further it is proper to refer very briefly to a ground taken by the appellant, whose counsel seems to think that by introducing one of the grounds of motion the rest were practically overruled, and grounds of relief so far admitted as to preclude any dismissal as equivalent to a decree on demurrer. The ground referred to by counsel was this: “ Fourth, The bill of complaint herein is in form and substance a bill of review, or a bill in the nature of a bill of review, and states no case to entitle it to be treated as a bill to set aside or impeach a decree on the grounds of fraud.” "We do not appreciate the force of this suggestion. It has never been supposed, and we are not prepared to hold, that a bad ground in a motion can hurt good grounds, or that an objection to the sufficiency of a pleading is for any but the temporary purpose of the particular hearing an admission that all it avers is true. The nature of the present controversy illustrates this very well. The rules do not allow a certain class of bills to be filed without leave. If so filed the practice has always authorized their summary removal from the files. How this can be done without inquiring into the nature and sufficiency of their allegations, it is difficult to imagine. The complainant claims that this is a bill to set aside a decree for fraud, and no more. The defense claims that its purpose is to obtain a new disposal of a controversy once decided. We need not discuss the technical niceties in regard to the various kinds of bills of review, and bills in the nature of a bill of review. Any bill, the main purpose of which is to obtain a new hearing of a controversy already decided, either on questions of law or on the same or further testimony, belongs to one of these classes, although it may involve matters of supplement or revivor, or other additional elements. Perry v. Phelips 17 Ves. 174; Bainbridge v. Baddeley 2 Ph. 705. And as it is elementary law that a decree once granted is binding until set aside, the latter case, which is merely one out of very many, indicates that if the old decree could have been pleaded in bar to the new bill, if not referred to in it, the bill must of necessity be a bill of review, or in the nature of a bill of review. The bill in the present cause recites at length a former cause where the bill was filed by one Jonathan C. Hall against complainant in this cause, to enforce an agreement whereby Hall was to have an interest in certain property entered in the land office at the Sault de Ste. Marie in the name of complainant and one Quimby, which had been put in complainant’s name. Complainant now claims that this agreement, or as he claims it to have been, a resulting trust, was, if made, void under the statute of frauds. It need not be remarked that if any such defect appeared on the face of the bill it might have been demurred to, and if not appearing, it was nevertheless involved in the case, so that Hall could not have recovered without either proof or some waiver of proof of a statutory right. It is also quite possible to lose such a defense by not insisting on it or bringing it before the court. The bill thus shows that on the issues framed the case went to a hearing and decree, upon an answer putting everything in issue properly, and on all the evidence which diligence was able to obtain, and that the testimony of Hall and Quimby was all that Hall introduced that was material. The decree gave Hall the land he asked for. Complainant how claims that this decree is bad and void for want of power in the court to give such relief, and also that it conveyed to Hall merely a life estate which has run out. It need not be suggested that if it really bore this remarkable construction — which it does not — there would be no occasion for this or any other bill to get the reversion. Complainant avers that before the hearing, he was informed by his counsel that there was no possibility of his being defeated, or of Hall’s getting a decree. This is one of the reasons he gives for not proceeding sooner to provide for emergencies; and that after the decree he took certain steps to consult with Mr. Cotton, a lawyer of another State, as to what had better be done, and that meanwhile he had an interview with Hall in which a certain division of lands was suggested, on which complainant desired to consult Mr. Cotton. That he afterwards, on Cotton’s advice, accepted the proposition in writing, and Hall verbally assented and said he need take ■ no further steps, but subsequently, and when too late to appeal, repudiated the bargain. The remainder of the bill is devoted to excuses for delay, and contains statements of the discovery of various matters indicating that Hall and Quimby had sworn falsely, and also that Hall had by a general assignment negatived any right to sue for the land. There are no other important averments, except as to changes in titles. The bill asks relief on the merits to assure his title to the land, and that the decree may be declared void, or if not, that a rehearing may be had. It appears, then, that the merits of the old controversy are the only matters involved in the present bill. The frauds complained of are false testimony alleged to have been given in that case, and the prevention of the appeal by putting complainant off his guard. Reduced to its real meaning, this is nothing more nor less than an application to rehear a controversy on newly-discovered evidence, giving as an excuse for delay various good or bad reasons why the application was not made sooner. The delay in appealing bad no bearing on tbe question of falsehood in tbe evidence or newly-discovered evidence, and only bore on tbe propriety of a technical bill of review on tbe old record. But a rehearing on old or new testimony, or both, is tbe only thing involved in this bill. And bad any other matter been mixed up with it, that could not have deprived the cause of this character. As nothing appears under oath, it would be impossible to give this bill the quality of a petition, so that it might stand as an application under the rules. It is not of such a character that we should be disposed to give it any favor beyond what its technical shape requires. It was properly dismissed. The order must be affirmed with costs. Marston, O. J. and Graves, J. concurred. Cooley, J., did not sit in this case.	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Graves, J. This record presents the single question of law whether it was competent for the plaintiff to give parol evidence that his written assignment to the defendant, absolute in form, of a particular payment described in a mortgage, together with the accompanying note, was in fact made as security for a sum of money borrowed by the plaintiff of the defendant, and not as an unqualified transfer. The circuit judge allowed the evidence and the defendant excepted. The ruling was correct. The purpose of the evidence was to explain the true consideration between the parties to the contract, and apply the instrument to the subject-matter, and this was entirely proper. Colman v. Post 10 Mich. 422; Kimball v. Myers 21 Mich. 276; Bowker v. Johnson 17 Mich. 42. Tbe question of credibility and tbe effect of tbe evidence was for tbe circuit judge wbo found tbe facts, and bis determination is conclusive. Tbe judgment is affirmed with costs. Tbe other Justices concurred.	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Marston, C. J. That Letson was most grossly defrauded by Abell in their land trade has not been and could not be controverted. It but remains to ascertain whether Reed is a tona fide purchaser from Abell, and we are, of opinion that he has not shown himself to be' such. This court has distinctly held that where a fraud has been committed, third parties in order to build up a right thereunder must establish the fact that they are tona fide purchasers and that this cannot be inferred from showing a purchase alone. Berry v. Whitney 40 Mich. 71. There is evidence tending to' show that Reed was such a purchaser, but it would be far from satisfactory even if standing alone, and when considered in the light of the surrounding circumstances, its effect as such is entirely destroyed. The exchange of conveyances between Letson and Abell was made December 24,1877. On January 2, 1878, Letson, suspecting that he had been defrauded, went to Pokagon, saw Abell and requested him to trade back farms which Abell agreed to do, and the next day at Niles was agreed upon as the time and place for such exchange. After this interview and on the same day., January 2d, Abell conveyed the Letson farm to defendant Reed subject to two mortgages thereon which Reed was to pay as part of the consideration. Abell was indebted to Reed in the sum of $374.84 and to Reed & Post $25 — these sums were to be deducted and the balance was to be paid to Abell. One of the mortgages had been given by Letson and there was about $71 due thereon; The other had been given by Abell to one Newton, but not recorded, as his, Newton’s, share for assisting Abell in making the trade with Letson. Reed before making the purchase did not go to see the land, but claims he had some knowledge of its location and value; he examined an abstract of title furnished him which did not show the Newton mortgage, or the amount due on the mortgage given by Letson; he took Abell’s statement as to the amount due or to become due upon these mortgages, and assumed payment thereof; and upon the same day gave to Abell $240 for him to apply and pay upon the Newton mortgage, and Abell was given the deed of conveyance to Reed, to take on the same day and have recorded, and at the same time $25 was paid by Reed to Abell on the purchase. This is Reed’s version of the transaction, and of what was done on January 2d, and it shows pretty clearly that Reed either had more confidence in the honesty and integrity of Abell than his previous acquaintance would have justified, or that he did not exercise that due care and prudence which men under ordinary circumstances would be expected to. While such a transaction is possible it is not according to the usual course of business and is highly improbable. There is evidence tending to show that on January 3d Reed had notice of the fraudulent character of the transaction between Letson and Abell, but whether on that day or later, we are of opinion that he has not shown that he in good faith paid Abell, or discharged his claim against him, or that he legally assumed the payment of any valid subsisting encumbrance on the land over and above the amount of the Letson mortgage — $71—and that still remains a lien upon the land. It follows that the decree of the court below must be affirmed with costs. The other Justices concurred.	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Kavanagh, J. (for reversal). Jesse James Jones was convicted of first-degree murder by a jury and was sentenced to life imprisonment. MCL 750.316; MSA 28.548. The conviction was based in part on his confessional statement, admitted into evidence over his objection. On appeal, the Court of Appeals affirmed in an unpublished opinion, finding under the "totality of circumstances” that the defendant’s confession was admissible. Defendant asserts that the statement made by him pursuant to a plea agreement that he later refused to carry out was improperly admitted into evidence. We reverse the decision of the Court of Appeals and hold that the statement made by the defendant required by the plea agreement is inadmissible per se. We remand for a new trial. On December 28, 1977, Thomas Chiavares was murdered at the Hockstad Pharmacy in Flint, Michigan, during the course of an armed robbery. On April 27, 1978, defendant Jones was arrested for unlawfully carrying a sawed-off shotgun. Sergeant Darby of the Flint Police Department met with Jones on April 28, 1978, while Jones was in custody for federal and state weapons offenses. Jones was advised of his rights under Miranda, and, upon a waiver of his rights, he discussed the weapons charges. During that interview, Jones was told that he was a suspect in the Hockstad murder case. Sergeant Darby asked Jones if he wanted to discuss that crime and reminded him of his Miranda rights. Jones denied knowing anything about the murder, and the discussion returned to the weapons charges. Jones asked about the possible penalty for the federal and state weapons offenses. Darby told Jones that the federal firearms charge had a ten-year maximum sentence and that the state charge had a possible sentence of five years. Jones was also told that he could possibly be sentenced to prison for violating parole. Jones inquired as to what consideration he would be given if he were to discuss the Hockstad murder. He said he knew a great deal and could clear up the case. Sergeant Darby contacted the prosecutor and a federal agent and advised Jones that if he would give a statement implicating himself in the Hock-stad murder and would testify against the others involved, the federal and state gun charges would be dropped and Jones could plead guilty to manslaughter. Jones was again advised of his Miranda rights, and he voluntarily waived his right to counsel and agreed to tell all he knew about the Hockstad case. He then made the confessional statement now at issue to the police. His statement detailed the planning and carrying out of the robbery attempt and killing, fully implicating himself and two others. Later Jones refused to carry out the plea agreement. He was charged with murder in the perpetration of an armed robbery. A pretrial motion to suppress the confession was filed by defendant’s trial attorney, and an evidentiary hearing was conducted. At the conclusion of the hearing, the trial court determined that the confession was voluntary and thus was admissible as evidence. On the morning of the trial, the prosecutor acknowledged a willingness to fulfill the plea agreement, but Jones again refused. At trial, defendant’s confession was admitted into evidence and presented to the jury over the objection of defendant’s attorney. Jones was convicted of first-degree murder and received a mandatory sentence of life imprisonment. The Court of Appeals affirmed defendant’s conviction and found under the "totality of the circumstances” that the trial court’s decision that defendant’s confession was properly admissible as evidence was not erroneous. The use of involuntary admissions in a criminal prosecution is prohibited by the Fifth Amendment right against self-incrimination: "In criminal trials, in courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person 'shall be compelled in any criminal case to be a witness against himself.’ ” Bram v United States, 168 US 532, 542; 18 S Ct 183; 42 L Ed 568 (1897). The Fifth Amendment’s right against compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the states. Malloy v Hogan, 378 US 1, 6; 84 S Ct 1489; 12 L Ed 2d 653 (1964). The reason that involuntary confessions are not admissible evidence was set forth by the Court in Rogers v Richmond, 365 US 534, 540-541; 81 S Ct 735; 5 L Ed 2d 760 (1961): "Our decisions under [the Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods. used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. See Chambers v Florida, 309 US 227; 60 S Ct 472; 84 L Ed 716 (1940); Lisenba v California, 314 US 219, 236; 62 S Ct 280; 86 L Ed 166 (1941); Rochin v California, 342 US 165, 172-174; 72 S Ct 205; 96 L Ed 183 (1952); Spano v New York, 360 US 315, 320-321; 79 S Ct 1202; 3 L Ed 2d 1265 (1959); Blackburn v Alabama, 361 US 199, 206-207; 80 S Ct 274; 4 L Ed 2d 242 (1960). And see Watts v Indiana, 338 US 49, 54-55; 69 S Ct 1347; 69 S Ct 1357; 93 L Ed 1801 (1949).” In determining whether a confession is voluntary, the test is whether the confession was " 'extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.’ ” Bram, supra, pp 542-543. (Emphasis supplied.) This test has been applied by several recent federal and state courts, which have found that confessions induced by promises of leniency are inadmissible. The decision of the court in Gunsby v Wainwright, 596 F2d 654 (CA 5, 1979), cert den 444 US 946; 100 S Ct 307; 62 L Ed 2d 315 (1979), is particularly noteworthy because of the similarity of its factual situation to the case at bar. In Gunsby, in exchange for a maximum sentence of 7-1/2 years and no objection from the state to probation, the defendant agreed to plead guilty and testify against two codefendants. Additionally, pursuant to the plea bargain, the defendant gave a statement incriminating himself and a codefen-dant. However, the plea bargain was set aside after the defendant testified because his testimony tended to exculpate rather than incriminate his codefendant. The confession was admitted into evidence at trial over objection, and the defendant was convicted and sentenced to 20 years in prison. In granting the defendant’s petition for habeas corpus, the Fifth Circuit held that because the statement was given as a result of promises made by the state in the plea bargain, "[t]he district court’s conclusion that the statement was legally involuntary and inadmissible at Gunsby’s state trial was thus compelled under Hutto v Ross, 429 US 28; 97 S Ct 202; 50 L Ed 2d 194 (1976).” "The [Hutto] Court held that the confession was not the result of any direct or implied promise and was voluntarily given. Conversely, a confession given as the result of a direct or implied promise would be legally involuntary.” Gunsby, supra, p 656. In the instant case, the confession was made as part of an agreement. In return for a statement implicating himself in the Hockstad murder and testimony against the others included, Jones would be permitted to plead guilty to manslaughter for the Hockstad murder, and the unrelated federal and state gun charges would be dropped. There is no question but that Jones’s confession was "obtained by” the prosecutor’s promise. The people contend that where an accused initiates the bargaining session with the police and prosecuting authorities, he should not be heard to complain that his statement was involuntary. Several state courts, along with the Michigan Court of Appeals, have held that a confession is not "induced” when a defendant initiates the bargaining. However, the distinction is irrelevant.® The confession is a product of the plea agreement whether the defendant, the prosecutor, or a police officer initiates the bargaining. The fact that the defendant initiates the bargaining does not mean that the defendant is not influenced by the state’s promises. The confession is no more reliable simply because the defendant begins the negotiating. In People v Wolcott, 51 Mich 612, 615; 17 NW 78 (1883), Justice Cooley agreed with the reasoning of many other courts and found that no reliance can be placed on admis sions of guilt obtained by assurances of leniency "for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them.” (Citations omitted.) However, it is no less in the defendant’s interest to accept a plea bargain when he initiates the bargaining than when bargaining is initiated by the state. Therefore, because the defendant is still influenced by the state’s promises of leniency and there is no reason to conclude that a confession pursuant to a plea bargain initiated by the state is any more reliable than the same confession when bargaining is initiated by the defendant, we find no reason to conclude that a confession is voluntary merely because the defendant initiates the bargaining. Similarly, while Miranda warnings and advice of counsel (defendant Jones voluntarily waived his right to counsel) tend to support a conclusion that a plea was a well-advised, intelligent exercise of choice, they do not negate the pressure or inducements of the plea bargain. The Court of Appeals held that the issue of the applicability of MRE 410 was not properly subject to review because the defendant did not raise the issue at trial. MRE 410 is not the basis of our decision today, but the rule and its rationale support our decision. Under MRE 410, defendant’s confessional statement could not be used against him:_ "Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo conten-dere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement.” (Emphasis supplied.) MRE 410 is similar to Rule 410 of the Federal Rules of Evidence and Rule 11(e)(6) of the Federal Rules of Criminal Procedure. The purpose of these rules is to promote the disposition of criminal cases by compromise and to permit the unrestrained candor which produces effective plea discussions. The plea-bargaining process is an asserted component of the administration of criminal justice. It has become an accepted fact of life. Chief Justice Burger expressed the need and desirability of the plea-bargaining process in Santobello v New York, 404 US 257, 260-261; 92 S Ct 495; 30 L Ed 2d 427 (1971): "The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities. "Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v United States, 397 US 742, 751-752 [90 S Ct 1463; 25 L Ed 2d 747] (1970).” For plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him. In excluding a defendant’s plea-related statements, Judge Coleman of the Fifth Circuit Court of Appeals wrote: "If, as the Supreme Court said in Santobello, plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt. Moreover, it is inherently unfair for the government to engage in such an activity, only to use it as a weapon against the defendant when negotiations fail.” United States v Ross, 493 F2d 771, 775 (CA 5, 1974). See United States v Herman, 544 F2d 791 (CA 5, 1977). This decision is consistent with prior Michigan law holding inadmissible at a subsequent trial a plea of guilty which was later withdrawn. People v Street, 288 Mich 406; 284 NW 926 (1939); People v Trombley, 67 Mich App 88; 240 NW2d 279 (1976). In People v George, 69 Mich App 403; 245 NW2d 65 (1976), the Court held that statements made in connection with withdrawn guilty pleas are likewise inadmissible at the defendant’s subsequent trial. It follows that when the defendant merely offers or agrees to plead guilty, the offer and statements made in connection therewith should also be inadmissible at the defendant’s subsequent trial. To hold otherwise would put the defendant who merely offers or agrees to plead guilty in a worse position than the defendant who actually pleads guilty and later withdraws his plea. The people are not prejudiced by our decision today. In the words of Circuit Judge Goldberg: "the government’s inability to introduce the statements made in a bargaining session does not place it in a worse position than it would occupy if an accused chose not to engage in plea bargaining at all.” Herman, supra, p 797. The government must fulfill its obligation of independently assembling and proving its case against the defendant. Williams and Levin, JJ., concurred with Kav-anagh, J. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). People v Jones, unpublished opinion per curiam of the Court of Appeals decided April 25, 1980 (Docket No. 78-3255). Gunsby v Wainwright, 596 F2d 654 (CA 5, 1979), cert den 444 US 946; 100 S Ct 307; 62 L Ed 2d 315 (1979); McLallen v Wyrick, 498 F Supp 137, 139 (WD Mo, 1980) ("A confession can never be received in evidence where the prisoner has been influenced by any threat or promise.”); United States v Harris, 301 F Supp 996, 999 (ED Wis, 1969) ("Having found that the defendant confessed in return for what he believed to be the promise of the law enforcement officials to secure certain reciprocal treatment, I hold that his confession * * * was not voluntary and hence is inadmissible.”); People v Quinn, 61 Cal 2d 551, 554; 393 P2d 705, 707; 39 Cal Rptr 393, 395 (1964) (Traynor, J.) ("A confession or admission induced by promises of leniency or by threats is involuntary and therefore inadmissible.”); Bradley v State, 356 So 2d 849, 850 (Fla App, 1978) ("[A]n accused may not be improperly urged by direct or implied promises to make a statement, in violation of the basic tenet of law that a confessing defendant should be entirely free from the influence of hope or fear.”); People v Overturf, 67 Ill App 3d 741; 385 NE2d 166 (1979); State v Tardiff 374 A2d 598, 600 (Me, 1977) ("That a confession which has been extracted from a defendant as the result of assurances or promises of leniency is inadmissible, is well established.”); Common wealth v Meehan, 377 Mass 552, —; 387 NE2d 527, 534 (1979), cert dis as improvidently granted 445 US 39; 100 S Ct 1092; 63 L Ed 2d 185 (1980) ("An officer may suggest broadly that it would be 'better’ for a suspect to tell the truth, may indicate that the person’s cooperation would be brought to the attention of the public officials or others involved, or may state in general terms that cooperation has been considered favorably by the courts in the past. What is prohibited, if a confession is to stand, is an assurance, express or implied, that it will aid the defense or result in a lesser sentence.”) (Footnotes omitted.) State v Harwick, 220 Kan 572; 552 P2d 987 (1976), State v Jordan, 114 Ariz 452; 561 P2d 1224 (1976), Taylor v Commonwealth, 461 SW2d 920 (Ky App, 1970), and State v Hutson, 537 SW2d 809 (Mo App, 1976). People v Jones, fn 2 supra, and People v Langford, 76 Mich App 197, 199; 256 NW2d 578 (1977). The fact that the defendant initiated the bargaining was apparently of no significance to the court in United States v Harris, supra, fn 3. In Harris, the defendant indicated that he would be willing to provide information if he would receive certain considerations, and then proceeded to name three conditions. The court found that the defendant’s confession was involuntary without discussion of the fact that the defendant defined the terms of the bargain. See, e.g., People v Overturf, 67 Ill App 3d 741, 744; 385 NE2d 166, 168 (1979) ("It is a well settled rule that even where constitutional rights have been waived, promises of leniency which induce defendant to make a statement or confession may well render such statement or confession involuntary.”) State v Tardiff, 374 A2d 598, 601 (Me, 1977) ("The fact that the defendant was informed of his Miranda rights prior to making his confession does not cure the improper inducement which led to it.”) Rule 11(e)(6) of the Federal Rules of Criminal Procedure which supplanted Rule 410 of the Federal Rules of Evidence was amended April 30,1979, to read: "(6) Inadmissibility of Pleas, Plea Discussions, and Related Statements, Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: "(A) a plea of guilty which was later withdrawn; "(B) a plea of nolo contendere; "(C) any statement made in the course of any proceedings under this rule regarding either of the foregoing pleas; or "(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. "However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.” FRE 410, Advisory Committee’s Notes. F R Crim P 11, Notes of Advisory Committee on Rules.	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Fitzgerald, C.J., Kavanagh, J., and Levin, J. This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own. We are faced with the seizure, detention, and transportation of a person in a police car at a time when the officers were without probable cause to believe that a crime had been committed and without probable cause to believe that the person had committed a crime. We hold that under the facts of this case, a person may not be seized, detained, and questioned, and then transported in a police car from one place to another in the absence of probable cause to arrest. US Const, Am IV; Const 1963, art 1, § 11. Furthermore, after examining and balancing the character of the intrusion on the personal security of the person detained with the law enforcement interest allegedly justifying such an intrusion, we hold that the detention in this case violated the defendant’s constitutional right to be secure against an unreasonable seizure of his person. US Const, Am IV; Const 1963, art 1, § 11. I On August 6, 1978, at approximately 4:50 a.m., an Inkster police officer on routine patrol observed the defendant pull out of the supply yard of the Ernst Fuel and Supply Company. According to the officer, the company was closed at that time. The officer, who was alone, called a second officer on the radio when he first observed the defendant. The officer’s suspicions were aroused, and he stopped defendant’s car to investigate what the driver was doing on the company’s property at that time. There is no indication in the record that the defendant had committed a traffic offense, that the property was posted against trespassing, that the property was enclosed by a fence, or that there had been any reports of criminal activity in the area. When the defendant stopped his car, he jumped out and ran back to the officer’s patrol car. He presented the officer with his wallet when asked for his license. The officer checked his license and asked him to have a seat in defendant’s automobile. The officer requested this action because it had "been my experience when people jump out of the car and run back to meet you, especially late at night, there is something they don’t want you to see in their car”. Defendant was asked what he was doing and where he was coming from. He responded that he was changing a tire on the company’s property. The officer checked the tires and noted that they were all uniformly covered with dust and dirt and that none of them appeared to have been changed. The officer noted that the defendant was extremely nervous and perspiring. At this time the officer looked into defendant’s car and observed a pair of white cotton gloves, a flashlight, and a screwdriver in the front area of the automobile, and a pry bar and three somewhat transparent plastic bags con taining magazines and boxes of "x-rated movies” on the rear seat. A second officer arrived at the scene in response to the radio call. Defendant was advised of his constitutional rights. After defendant indicated that he understood these rights, he was asked where all the movies came from. He declined to give a substantive answer. The defendant was then placed in the back of the first officer’s patrol car. The bags of magazines and books, along with the other items, were also placed in the police car. The defendant’s car was locked and left where it had been stopped. The defendant was taken in the patrol car to a business establishment that sells "x-rated books”, the Book Shack, to see "if that place had been broken into”. On the way to the Book Shack the officer asked the police dispatcher "to call ADT and see how the alarm was” at the Book Shack. The defendant was detained three or four minutes in the patrol car at the Book Shack while the building was checked to see if there were signs of a break-in. There had been no break-in. Defendant was then driven to the Melody The-atre. The testifying officer stated that theater showed exclusively "x-rated films”. It was testified that the theater is located on the same side of the street as Ernst Fuel and Supply and there were no other businesses between these two places. Initially, the officers did not find any evidence of a break-in at the theater. The defendant was questioned "if he could help us out and tell us where he broke in”. The defendant refused. The officers continued to investigate and discovered that two outside doors had been removed from their hinges. The two officers entered the building and found a display case to be almost empty. The dispatcher was asked to call the manager who arrived at the theater and confirmed that property was missing. The defendant was advised that he was under arrest for breaking and entering and driven to the police station. He was charged with breaking and entering. MCL .750.110; MSA 28.305. At the preliminary examination, the defendant argued that the arrest and seizure of property were improper. Defendant was bound over for trial in Wayne Circuit Court. His motion to suppress evidence and to quash the information asserted that he was illegally stopped and that evidence was illegally seized. His challenges were based on the Fourth and Fourteenth Amendments to the United States Constitution as well as the Michigan Constitution, art 1, § ll. The motion was denied._ The Court of Appeals granted defendant’s application for leave to appeal. That Court reversed the denial of his motion. People v Bloyd, 96 Mich App 264; 292 NW2d 546 (1980). The Court of Appeals held that the initial stop of the defendant’s automobile for questioning was proper. However, it held that the evidence was improperly seized, because there was no probable cause to seize the evidence. Nor was the evidence seized incident to a lawful arrest since the defendant had been improperly arrested, i.e., without probable cause at the time of the seizure, and the items seized as a result of the illegal arrest must be excluded. "At the time of defendant’s arrest, there was no probable cause to link either defendant or the seized items to any particular crime.” 96 Mich App 269. This Court granted the prosecutor’s application for leave to appeal which argued that detaining the defendant during the investigation by the officers was proper. 409 Mich 897 (1980). II The principal issue before the Court is the permissible scope of a detention based on less than probable cause. The detention in the police car, argues plaintiff, was within the scope of an investigative stop under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and even if the detention falls outside of the scope of Terry, a standard of reasonableness, less than probable cause, is the proper test. We assume for the purposes of decision of this appeal that the initial stop of defendant’s automobile and the on-the-scene questioning and observations which immediately followed the Terry stop were constitutionally permissible. The subsequent detention, seizure, and transportation of defendant is in issue. We also note that the prosecutor does not contend that the defendant was not seized. Thus, the detention involved must comply with the constitutional protection from unreasonable seizures. It is also significant that the prosecutor does not assert that the officers had probable cause to seize or arrest the defendant or that the officers had probable cause to seize the items in the defendant’s car prior to the discovery of the break-in at the Melody Theatre. The prosecutor argues that the detention of the defendant beyond the initial stop for questioning need not be based on probable cause, but on a standard of reasonableness. Our analysis of the instant case involves an assessment of two recent United States Supreme Court cases and an application to the instant facts of the constitutional principles analyzed in those cases. In Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979), the Court held that a detention for custodial interrogation, a procedure that was indistinguishable from a traditional arrest, must be supported by probable cause. And in Michigan v Summers, 452 US 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981), a search warrant for narcotics was found to implicitly carry with it the authority to detain occupants of a dwelling, including requiring them to return to the premises if found leaving the dwelling, while the search pursuant to the warrant is conducted. Dunaway The Rochester, New York, police seized Mr. Dunaway, drove him to police headquarters in a police car and placed him in an interrogation room. He was questioned by officers and ultimately made statements after waiving his right to counsel. After reviewing Terry v Ohio, supra, and its progeny, the Court concluded that the detention could not be constitutionally permitted on the basis of a standard of "reasonable suspicion”, nor would the Court adopt a multifactor balancing test which weighed the reasonableness of the particular law enforcement conduct for all cases involving seizures which are not technical arrests. Of primary importance to the Dunaway decision was the purpose of the detention — custodial interrogation. Although the questioning, which occurred in custody, happened prior to the development of probable cause, there can be no doubt that the investigation had reached the accusatory stage and focused upon Mr. Dunaway. It is conceded by the prosecutor in the instant case that the defendant was seized. He was not free to leave and was transported to two different places, albeit one was very near. Furthermore, the defendant was subjected to "custodial interrogation” as that term was used in Dunaway. In both Dunaway and the instant case, the defendant was not questioned briefly where he was found. In Dunaway, the defendant was taken in a police car to the police station where he was questioned after receiving Miranda warnings. In the case at bar, the defendant was seized, given Miranda warnings, questioned, placed in the police car, and driven to two locations and questioned again while in the police car. Although questioning in a police car away from the scene of the initial stop may not be as "coercive” as questioning in a stationhouse interrogation room, the concerns about the coercive atmosphere and interrogation techniques which prompted the Miranda decision require the conclusion that the investigation and questioning occurred while defendant was in custody — deprived of freedom of action in a "significant way”. Accord, People v Gilbert, 21 Mich App 442; 175 NW2d 547 (1970). See Anno: Custodial Interrogation — Miranda Rule, 31 ALR3d 565, § 14. As the facts indicate, a purpose of defendant’s seizure and detention was to engage in custodial interrogation. Defendant was asked questions on two occasions after he declined to speak to the officers. Furthermore, although the questioning played a smaller part in the instant investigation than in Dunaway, there was an important fact present in Dunaway but not here. It was clear that a crime had been committed in the Dunaway case. In the instant case, the officers had no knowledge of any crime, only an assumed "reasonable suspicion” during the time of detention at issue. The law enforcement interest in solving a brutal slaying is not present in the instant case. Cf. Dunaway. Under the circumstances of the instant case, the detention was "in important respects indistinguishable from a traditional arrest”. Dunaway, p 212. Cf. United States v Chamberlin, 644 F2d 1262, 1267 (CA 9, 1980), cert den 453 US 914 (1981) (20-minute detention in the back of a patrol car was an unjustifiable detention for custodial interrogation). The defendant was transported from one place to another in search of a crime, detained for custodial interrogation, and subjected to more than a brief stop for on-the-scene questioning and investigation without probable cause for arrest. Summers Even if Dunaway does not clearly foreshadow the inappropriate nature of the instant detention, the detention is not supported by an ultimate standard of reasonableness which is less than probable cause but greater than reasonable suspicion. See Michigan v Summers, supra. Summers noted and restated the general rule applied in Dunaway "that an official seizure of the person must be supported by probable cause, even if no formal arrest is made”. 452 US 696. The Summers Court then reviewed Terry v Ohio and its progeny and concluded that: "[S]ome seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity”. 452 US 699. The Summers Court stated that limited intrusions on personal security are not confined to momentary on-the-street detentions accompanied by a frisk for weapons. Nor need the Terry-type stop be limited to the brief time period of Terry. 452 US 700, fn 12. In that footnote, the Summers Court quoted the views of one commentator, also quoted in plaintiff’s brief in the case at bar: "It is clear that there are several investigative techniques which may be utilized effectively in the course of a Terry-type stop. The most common is interrogation, which may include both a request for identification and inquiry concerning the suspicious conduct of the person detained. Sometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered or to confirm the identification or determine whether a person of that identity is otherwise wanted. Or, the suspect may be detained while it is determined if in fact an offense has occurred in the area, a process which might involve checking certain premises, locating and examining objects abandoned by the suspect, or talking with other people. If it is known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime. There is no reason to conclude that any investigative methods of the type just listed are inherently objectionable; they might cast doubt upon the reasonableness of the detention, however, if their use makes the period of detention unduly long or involves moving the suspect to another locale.” 3 LaFave, Search and Seizure, § 9.2, 36-37. (Footnotes omitted.) In the most recent supplement to his treatise, Professor LaFave also notes that transportation of a suspect a short distance (almost always for viewing by witnesses) does not, standing alone, make a detention an arrest. LaFave, supra, § 9.2, p 10, fn 93.3 (1982 Supp). Yet, as he suggests in this material, transportation for viewing by witnesses should be dependent upon knowledge that a crime has been committed. Our law must be more protective of liberty if there has not been any report of a crime. See People v Lippert, 89 Ill 2d 171, 186-187; 59 Ill Dec 819; 432 NE2d 605 (1982). The facts in the instant case show that there had been no reports of any crime in the area. This was not a transportation for a show-up. The analysis in Summers focused on examining "both the character of the official intrusion [on a person’s liberty] and its justification”. 452 US 701. Of prime importance in assessing the intrusion is that in Summers the police had obtained a warrant to search the respondent’s house for contraband. The warrant is the linchpin to the holding in Summers. However, the Summers decision did not preclude the possibility of justifying similar police conduct without a warrant if the warrant requirement is excused by exigent circumstances. 452 US 702, fn 17. Upon close analysis, whether a warrant is required or not, it seems that the requirement of probable cause to believe that a crime has been committed at the place to be searched must remain. The instant case does not present a level of cause equal to the probable cause requirement concerning the existence of a crime. The official intrusion in Summers was a limited and incremental intrusion on personal liberty, according to the Court’s analysis, because (1) a warrant had been obtained, (2) the detention was less intrusive than the search of the occupant-detainee’s home, (3) the information sought by the officers would normally be obtained through the search and not by exploiting the detention, (4) the detention was in the accused’s own residence, presented only an incremental addition to its public stigma separate from the search, and did not involve the indignity and inconvenience related to a compelled visit to a stationhouse, and (5) the detention was not designed to provide an opportunity for interrogation and did not have coercive aspects similar to those in Dunaway. Reviewing these factors in light of the instant case indicates that the detention in a "roving” police car is significantly more intrusive than the Summers-type detention. No warrant was issued, nor could a warrant be issued since there was no probable cause to believe that a crime had been committed. There was no search based upon probable cause. Thus, the detention cannot be said to be less intrusive than a search. The detention, seizure, and transportation of the defendant in the instant case presents a significant intrusion. We are not faced with a detention that merely continued during a "probable-cause search” of defendant’s automobile or other property interests. There was no intrusion affecting property which required or which would indicate a desire by defendant to be present. Given the questioning of the defendant, it can not be concluded that the information sought would not be obtained through the detention. Furthermore, unlike Summers, the other information sought, whether a crime had been committed, would not be made more discoverable as a result of the defendant’s presence. The public stigma associated with a detention in a police car is greater than the stigma associated with detention in one’s home. Unlike the home, the police-car type of detention is a public detention. It could occur in open view of friends, neighbors, or business associates. Again, unlike Summers, there was no independent intrusion such as the warrant search which resulted in some stigma. It is certainly more inconvenient, in general, to be detained in a police car than in one’s home. This is certainly more likely if the detention in the car also involves transportation elsewhere. The transportation of the defendant, seeking out a potential break-in, as opposed to holding him at the scene, the prosecutor argues, is constitutionally irrelevant. We cannot agree. Even assuming that it might have been proper to detain defendant at the place of the stop, the transportation in this case did not involve a de minimis intrusion. Being told to stand outside a car as opposed to sitting in the car may be a permissible de minimis intrusion, Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977); being driven around is not. Not only is the citizen’s travel interrupted, but he is no longer proceeding along the same route. In fact, the citizen’s mobility has been totally usurped and directed elsewhere. Furthermore, unlike the Mimms case, the instant case does not involve an intrusion justified by concern for an officer’s safety. The facts in this case reflect more than just a brief investigatory detention at the scene. Finally, for two reasons, the instant detention is closer to a compelled visit to a police station with the related opportunity for interrogation. First, as explained above, a detention in a "roving” police car has coercive aspects. The instant case involved a detention which included interrogation as a purpose. Second, a formal arrest involves transportation of the suspect. A seizure accompanied by transportation of the person is thus closer in description and action to a formal arrest requiring full probable cause. Accordingly, we conclude that the intrusion is of a different nature and is more substantial than the intrusion in Summers. We are not unmindful, however, that our balancing analysis must also assess the governmental justification for the intrusion. A stronger justification than was present in Summers could tip the scale to the Summers level, although the intrusion is greater than the Summers type. As the Summers Court noted, it is important to focus upon the law enforcement interest and the nature of "articulable facts” supporting the particular detention when assessing the justification for an intrusion. These law enforcement interests include (1) preventing flight, (2) minimizing the risk of harm to an officer, and (3) facilitating an orderly completion of a search. Although a close analysis might reveal some differences, we may assume that the first two interests are present in many, if not most, criminal investigations and detentions. Here the officers were in full control of the movement of the sus pect. Furthermore, he was clearly identified and his address known. The third interest is obviously not present in the instant situation; nor is any similar interest. The investigation of businesses in the area to determine if a crime had been committed was not aided or hindered by the presence of the defendant. The factors in Summers concerning "the nature of the articulable and individual suspicion” justifying detention are (1) an incremental intrusion in addition to the search authorized by a magistrate who found probable cause, (2) the warrant itself, which indicates a neutral assessment of probable cause by the magistrate, and (3) the connection of the occupant to the place being searched, in Summers his home. It appears that when these suspicion-related factors are present the Supreme Court has concluded that the officer on the street does not have to evaluate the level of cause requirement or the effect of the intrusion that is necessary as a result of the seizure. Summers, p 705, fn 19. Cf. Duna-way, p 213 (disapproving a view that would require police officers to engage in balancing and evaluating the "multifarious circumstances presented by different cases”). These factors are not present in the case at bar. Detention and transportation of the suspect from place to place amounted to the intrusion. There was no warrant or probable cause determination or even reasonable cause determination made by anyone other than the officer on the street. _ Accordingly, we conclude that, even when applying the Summers-type balancing approach, the police conduct present in the instant case resulted in a violation of the defendant’s federal and state constitutional rights. The intrusion in the instant case was greater than a Summers-type intrusion. In addition, the justification for the intrusion was not as strong in this case. The scale is tipped in favor of the citizen’s right to be free from unreasonable seizure. If authorities, acting without probable cause, can seize a person, transport the person from place to place in search of a crime, and keep him available for arrest in case probable cause is later developed, the requirement of probable cause for arrest has been turned upside down. Finally, although we have centered our analysis with respect to the facts of this case on the contours of the federal Dunaway and Summers decisions, we apply this rationale pursuant to Const 1963, art 1, § 11. We hold that defendant was deprived in an unreasonable manner of his state, as well as federal, constitutional rights. See, e.g., People v Beavers, 393 Mich 554; 227 NW2d 511 (1975). III. Seizure of Property As noted, the prosecutor does not assert that the police had an independent basis for seizing the property found in the defendant’s automobile. At oral argument, the prosecutor contended that the propriety of the seizure of the property depended upon the propriety of the seizure-detention of the person. Although noting that the items were seized prior to defendant’s formal arrest, the prosecutor argued that "if the detention is not unconstitutional, the items should be admitted because they were found properly, or would have been taken from his care properly. The timing shouldn’t be the thing that is key”. The obvious corollary of this view is that if the detention was improper so was the seizure. The detention and transportation of the defendant while seeking out evidence of a burglary was improper. Thus the seizure of the property was not justified since no other justification is advanced supporting this warrantless seizure without probable cause. Finally, the prosecutor argues that the exclusionary rule should not apply to the instant case. He argues for a "good-faith exception” to that rule. We agree with the views in Justice Marshall’s majority opinion in Taylor v Alabama, 457 US 687, 693; 102 S Ct 2664; 73 L Ed 2d 314, 321 (1982): "To date we have not recognized such an exception, and we decline to do so here.” For the reasons herein set forth, the detention of the defendant was an unreasonable seizure under federal and state constitutional principles. Accordingly, the judgment of the Court of Appeals is affirmed. Fitzgerald, C.J., and Kavanagh and Levin, JJ., concurred. Defendant was given the warnings required by Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). The record does not indicate if the two police officers were in the same car with the defendant or if each officer drove his own patrol car to the various stops. The second officer did not testify at the preliminary examination. There was no testimony taken from any witnesses at the hearing on the motion to suppress. Cf. People v Talley, 410 Mich 378; 301 NW2d 809 (1981) (need for an evidentiary hearing on a motion to suppress). The Fourth Amendment, applicable to the states through the Fourteenth Amendment, Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Const 1963, art 1, § 11 provides in relevant part: "The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported' by oath or affirmation.” "The parties are directed to include among the issues to be briefed whether under the circumstances of this case the police officer’s conduct of stopping the defendant, seizing evidence, and detaining the defendant while he investigated two nearby businesses for evidence of a burglary was unconstitutional.” Our conclusions are based on our interpretations of both the federal and state constitutional provisions at issue here. In analyzing the state constitutional question we have looked to federal case authority. People v Secrest, 413 Mich 521, 525; 321 NW2d 368 (1982). Compare People v Ridley, 396 Mich 603; 242 NW2d 402 (1976) (general on-the-scene questioning did not focus upon defendant) and Miranda v Arizona, supra, pp 477-478 (general on-the-scene'questioning exception to Miranda’s requirements) with People v Reed, 393 Mich 342; 224 NW2d 867, cert den 422 US 1044 (1975). Miranda v Arizona, supra, p 477. The prosecutor argues that a Dunaway-type analysis would preclude retaining a suspect for a prompt on-the-scene identification. We are not faced with that type of police investigation technique and we express no opinion as to whether such a "show-up” may be conducted on less than probable cause. The Summers decision does not help in clearing up Fourth Amendment doctrine. The Court does not identify the specific level of cause necessary for the Summers-type detention. It does use a reasonableness approach, yet focuses on the intrusiveness of the seizure rather than the level of cause. The opinion does not define the level of "intrusiveness” necessary to trigger a balancing test between the freedom from an intrusive seizure and the asserted law enforcement interests. We recognize that not every citizen who sits in a moving or stationary police car is detained. Nor is every person who is asked to sit in a police car necessarily subject to a significant intrusion. The case at bar goes substantially beyond a momentary intrusion at the scene or a person filling out an auto accident report or a similar situation. Some commentators have suggested a sliding scale or middle-tier approach — one between reasonable suspicion and probable cause. See, e.g., Grano, Criminal Procedure, 1976 Annual Survey of Michigan Law, 23 Wayne L Rev 517, 529-533 (1977). However, we decline to adopt this approach. If our courts and law enforcement officers are to have manageable and workable standards, the Terry balancing of personal and governmental interests "must in large part be done on a categori cal basis — not in an ad hoc, case-by-case fashion by individual police officers”. Dunaway, supra, 442 US 219-220 (White, J., concurring). Furthermore, the sliding scale or middle-tier approach risks confusion by converting "the fourth amendment into one immense Rorschach blot”. The sliding-scale test is likely to "produce more slide than scale.” Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 393, 394 (1974).	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Rehearing denied. Reported at 416 Mich 581.	[ 3, -39, -45, 1, 17, 0, 25, 21, -38, 35, 66, -27, 33, -70, -6, 50, 4, 7, 11, -95, -69, -56, -17, 50, -74, 32, 37, 0, -25, -63, 16, -27, -89, -2, 17, -53, 19, 71, -10, -1, -54, -9, -13, -43, -5, -96, -24, 38, 17, 30, -17, 5, -56, 13, -22, 56, 21, -35, -29, -5, -36, 28, 49, -3, -14, -28, -38, 21, -1, 28, 26, 36, 0, 15, 9, 28, -57, 28, 25, 61, 59, 36, 24, 82, 11, 25, 6, -17, -9, -49, 23, -31, -62, 46, 17, 6, -34, 20, 18, -12, 8, 39, 5, -64, -24, -22, -22, 26, -55, -7, 54, -54, 18, -52, 16, -27, -2, 13, 68, 8, 20, 44, 0, -31, 2, -5, 34, -9, 48, 0, 21, 18, 75, 41, 1, -23, 33, -21, -58, -34, -10, 44, 18, 29, 17, -31, 24, 28, 28, -17, -27, -45, -4, 30, -26, 34, 2, -39, 26, 26, 49, 10, -62, -56, 4, 14, 56, 4, 33, -53, 22, 12, 4, -52, -78, -45, -29, 69, -3, 1, 28, 3, 17, 3, 54, -4, -5, -44, -11, 28, -35, 2, 66, 90, 31, 1, 41, 16, -21, -19, 58, 75, -80, -3, 0, -52, 68, -5, -32, 62, -30, -31, -43, 10, 4, -69, 43, 33, 52, 17, -10, 3, 38, 35, -10, 3, 46, 35, -21, -16, 25, 14, 0, -13, 55, -58, 68, 22, 58, -44, -80, -46, 12, 57, 18, -24, -84, -18, 43, -83, 45, -5, 37, -63, -69, -30, -62, 39, -24, 0, 58, 42, -8, -2, -50, 2, -31, 7, 49, -54, 28, -41, -64, 0, 23, 19, 20, 6, 66, 49, -65, -15, -26, 56, -24, -18, 52, 42, 44, -2, -6, 24, 30, 3, -2, -44, 0, 22, 22, 31, 12, 47, -9, 25, -11, -64, 5, -76, 35, 38, 6, 17, 14, 55, 4, -57, 24, -48, -55, -3, 27, -59, -14, 23, -53, 37, -11, 72, 56, -36, 55, -5, -26, 12, 10, -31, 9, -42, -36, 52, 48, 42, -37, 19, -18, 17, -86, 11, 44, 12, -10, -19, -26, 9, 32, 29, -8, -34, 0, 32, 18, -27, 0, 24, -26, -13, -17, 44, 21, 48, -14, -44, -35, 0, -22, 77, -3, -35, -77, -25, -33, -19, -64, 24, 18, 3, -1, -26, 41, 1, 7, 5, -28, -44, 17, 18, 2, 19, -39, 20, 10, -37, 0, 58, 31, 0, 19, 7, 2, 55, 22, -23, -13, -31, -39, -1, 14, 41, 25, -4, -51, -21, -69, -1, -9, -41, -23, 17, 41, 55, -16, -10, 17, -52, -30, -19, 28, -16, 37, -9, -28, 1, -28, -44, 19, -59, -36, -13, -37, 7, -9, 20, -62, -30, -55, -2, -39, 70, -8, -17, -34, -90, -62, 2, 0, -42, 5, 25, -33, 75, -7, -27, -34, 30, -14, 22, -4, -52, -20, 34, -24, 42, -17, -51, 2, -26, -28, 17, 2, 51, -15, 50, 10, 47, -16, 21, 9, 4, 11, 93, -45, 56, 5, 32, 38, -27, -2, -6, -55, -69, 64, 57, 16, 31, 9, 30, -44, 2, -1, -33, -20, 37, 0, -35, 9, -6, -53, -62, -37, 97, 23, -40, 13, -24, 10, -67, -14, 37, -30, 112, 18, 27, -33, -50, 47, 69, -66, -35, 0, -11, 0, -54, 18, 0, -61, -41, 86, -35, -5, -4, 16, 0, -29, 16, 4, 15, -32, -5, 35, 13, 14, 56, 21, 12, 44, -8, 8, -2, -7, 2, 16, 7, 75, -8, -16, -19, -47, -57, -37, 32, -29, 9, -17, -50, -1, 35, -8, 17, 23, 31, 12, 0, -52, 15, -9, -8, -11, -21, 38, 29, -14, -9, -21, -21, -19, 34, -10, 18, 19, -11, 7, 69, -12, 4, 7, -37, 16, -18, -8, 3, -58, 36, 8, 5, -33, 19, -10, -26, -6, 59, -8, -54, 25, -31, 0, -66, -23, -5, -39, 36, 28, 27, 21, 5, 5, -12, -13, -62, 66, 16, 18, 55, -12, 19, -79, -40, 70, 20, 103, 40, -12, 42, 5, -30, -18, -1, -12, -23, -23, 23, -2, 16, -46, 17, 64, -66, 1, 14, 1, 26, 28, 17, 52, -19, 40, 0, 4, -20, -46, 18, 4, -4, 0, -58, -57, 12, -18, -33, -11, -12, -52, 1, 11, 19, 74, -9, -19, 49, 32, 31, 9, -19, 45, -11, -11, -8, 33, 14, 57, -40, 5, 31, 16, -31, -10, -13, 29, 1, -12, 0, -10, -61, -56, -52, -51, -50, 51, -7, -43, -32, 13, 32, -54, 50, -33, 30, -21, -11, -2, 33, 23, -12, -4, 9, -18, 6, -2, -8, 56, 80, -1, -14, 5, 10, 48, 15, -7, 2, -1, -7, 33, 23, -11, 0, 17, -34, -13, -34, -61, -39, 17, -38, -41, 28, 51, 48, 29, 11, -3, 5, -24, -28, -5, 3, 36, -33, -66, 0, -27, 32, 30, -10, -35, -45, 34, -32, 26, 57, 37, -26, 35, 14, 46, -35, -65, -20, -26, 2, 16, 16, 26, 20, 42, -6, -46, -56, 57, -25, 8, -4, 21, -42, -5, -27, -32, -11, -36, -13, -55, 17, -10, 8, 8, -35, -36, 50, -34, 36, -36, 46, -10, 38, 6, -28, -7, 23, -16, -52, 20, -7, 61, -72, -15, 47, 31, 19, 18, 16, 45, -15, -19, 31, 64, -34, 67, -24, -34, -38, -25, 21, 67, 45, 11, 5, 56, -15, 63, 9, -50, 2, -1, 21, -66, -8, 9, -41, -14, 32, -50, 11, -17, -33, -49, -53, -21, -62, -34, -4, -39, -18, 26, -5, 9, -49, 0, -39, -11, -13, 14, -65, 62, 27, -58, 0, 6, -12, -5, -39, -16, 41, -19, 13, -27, -57, -31, 16, -79, 82, -14, 21, -6, -15, 35, -5, -28, 46, 46, -32, 16, -19, 53, 59, 11, 45, -20, 32, -30, 46, -21, 27, 3, 50, -5, -33, -55, 56, -30, -4, -37, -6, -14, 9, 47, 0, -2, -38, 15, 21, 42, -33, -17, 6, -39, -44, -40, 12, -54, -10, 12, 68, 28, 23, 40, 0, 54, 18, 35, -85, 0, 24, 9, 95, -19, 41, 44, 14, 38, -2, 56, 36, 47, -20, -67, -3 ]
Kavanagh, J. This case concerns the admissibility of evidence of a defendant’s criminal record as a basis for expert opinion on the defendant’s sanity. We hold that such evidence is admissible subject to the trial court’s discretion. James Robinson, Jr., was charged with second-degree criminal sexual conduct. MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). At the jury trial, the defendant entered a defense of not guilty by reason of insanity. Dr. William Canty, a psychologist, testified on behalf of the defendant that in his opinion the defendant had been mentally ill for many years and could not have formed the requisite intent to commit the crime charged. In rebuttal, the prosecutor called Dr. Harley Stock, also a psychologist. Dr. Stock testified that in his opinion the defendant was neither mentally ill nor legally insane on the day of the alleged crime. Dr. Stock said that he based his opinion in part on the defendant’s prior criminal record. Over defendant’s objection, the court allowed Dr. Stock to read the defendant’s criminal record into evidence for the limited purpose of apprising the jury of the background material on which the doctor based his expert opinion. The jury returned a verdict of guilty, but mentally ill, of second-degree criminal sexual conduct. The Court of Appeals affirmed in an unpublished per curiam opinion, decided on September 19, 1980. The issue before us is whether the trial court erred in permitting the prosecutor to elicit evidence of defendant’s prior criminal conduct from the expert witness. The people argue that the evidence in question should be admitted solely to inform the jury of the facts on which the expert relied in forming his opinion. In White v Bailey, 10 Mich 155 (1862), a civil case concerning testamentary capacity, Justice Campbell explained in his concurring opinion the importance of showing the circumstances and facts upon which a witness’s opinion is based: ’’First, it is necessary, in order to enable other experts to determine whether the opinions expressed by the witness are correct, and to enable the parties to contradict them, if wrong: Second, it is necessary in order that, if an opinion is given on a mistaken or perverted statement of facts, the truth may be elicited from others to destroy the foundation of the conclusions. And a third reason might be mentioned, which is that the court and jury may know, from his opportunities, what means the witness had of forming any opinion at all.” 10 Mich 162. In the instant case, Dr. Stock, the people’s expert, testified that he based his opinion of the defendant’s sanity in part on the defendant’s record of prior criminal conduct. This evidence, the people conclude, was therefore relevant for the limited purpose of evaluating the credibility of Dr. Stock’s conclusion. The Michigan Rules of Evidence provide for admission of such evidence under appropriate circumstances: "Rule 703. Bases of Opinion Testimony by Experts. "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence.” (Emphasis supplied.) "Rule 705. Disclosure of Facts or Data Underlying Expert Opinion. "The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” (Emphasis supplied.) Determination of relevancy, however, does not alone determine admissibility. MRE 403 provides: "Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis supplied.) In Michigan, evidence of other crimes is generally inadmissible because "whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence”. People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). "This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.” People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969). There has developed a limited number of statutory and judicial exceptions to this rule of exclusion of evidence of other bad acts, but these exceptions are narrowly construed and the trial court must always determine whether the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence sought to be introduced before admitting such evidence. In the case before us, the trial court allowed the prosecution’s expert witness to read the defendant’s criminal record to the jury. The record began in 1940 and continued up to September 1977 and included 32 offenses, many taking the form of criminal sexual conduct with minor children. We are convinced that this evidence had a devastating effect on the defendant’s right to a fair trial. We agree with the defendant that it "is simply incredible that anyone would hear all of those prior acts of criminal conduct and then remove them from their mind based upon an instruction by the court when they are then to consider the guilt or innocence of the accused. The prejudicial impact of all those past anti-social acts cannot be effectively removed from the jury’s mind by a curative instruction.” We are satisfied that the trial court committed error which requires reversal in admitting defendant’s criminal record into evidence. The rule of People v Woody, 380 Mich 332; 157 NW2d 201 (1968), and MRE 703 and 705 must be read together with the trial court’s historic responsibility to evaluate the prejudicial impact of evidence against its probative value. See MRE 403. We reverse the decision of the Court of Appeals, and remand for a new trial. Williams, C.J., and Levin, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred with Kav-ANAGH, J. People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982); People v Hughes, 411 Mich 517; 309 NW2d 525 (1981); People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978), rev’d on other grounds 408 Mich 69; 288 NW2d 583 (1980). The trial court instructed the jury twice concerning the evidence of defendant’s prior criminal record, "Now, there’s evidence that the defendant had a prior criminal conviction. This evidence must not be considered by you as evidence of his guilt of this crime, nor should it be considered by you as increasing the probability of having committed this crime. It was only admitted — only admitted under one theory, for one reason, and that is to give some — to indicate to you the background material upon which the psychiatrist based his — psychologist, rather, based his expert opinion. The principle is that if someone is going to give you the benefit of his expert opinion, then you’re entitled to know the premise upon which he based that opinion, and that’s the only basis upon which that testimony was admitted.” "Now, you have heard testimony from .Dr. Stock of a prior criminal record. You are instructed that this testimony is not proof that the defendant actually committed the offense or offenses. In a criminal trial where sanity is asserted as a defense, the expert witness for the prosecution is allowed to base his opinion on allegations, prior arrests, convictions assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of the accused of the offense charged.”	[ 14, -8, 59, -33, 3, -13, -10, -18, -58, 56, -16, -43, 35, -28, 57, -29, -6, -40, 48, -47, 27, 21, -19, 25, -17, -44, 10, 51, -8, -10, 55, -8, 23, -33, -30, 27, 0, -12, 11, 22, 34, 26, -35, -6, -55, -5, -20, 1, -3, 1, 35, -2, 30, -26, -24, -30, 67, 64, 0, -30, 21, 5, 1, -2, 3, -8, 6, -33, -55, -36, -21, 20, -15, -6, 28, -13, -11, -16, 44, -21, 7, 25, 29, 64, 4, -5, 42, -65, 22, 13, 13, -11, -29, 23, -27, -8, 71, -22, 72, 0, -12, 16, -29, -10, -1, 53, -72, -24, 3, -51, 17, -8, 56, -9, -29, -3, 29, 11, -53, -15, 4, 31, -14, 4, 23, -13, -2, -12, 24, -45, -29, -4, -54, -1, 23, -9, 20, -9, 2, 11, -13, 34, 8, -13, -1, -18, -57, -32, -14, 59, -10, 0, -4, -21, 12, -52, -56, -25, 33, 4, -22, 13, -6, -13, -16, -6, 65, -59, -14, -29, -63, 21, 18, 16, 13, 19, -21, -61, 12, -8, -12, -17, 34, 31, -42, -13, -53, -21, 5, 14, 3, 30, 6, -20, 49, -4, 21, 20, 33, -1, 33, 16, -13, 9, -10, 19, 0, -27, -18, 42, -21, 3, 45, -59, 31, -27, -29, -40, -20, -9, 8, -46, 38, 13, -13, -4, -14, 0, -1, 0, -2, 62, -40, -43, -34, 56, -17, 3, 40, -34, -34, 9, 22, -22, -24, 9, 1, -11, 32, 21, -22, -9, -26, 15, -33, -49, 34, -12, -31, -9, -37, 6, -45, 45, -29, -13, 15, 60, 9, 35, 1, -16, 18, 55, -24, -40, -15, -11, -43, 5, 34, 31, 4, -14, -15, -2, -37, 28, -19, 30, 71, -10, -47, -27, 63, -14, -4, 60, -47, -18, 37, -20, -13, 20, 3, -27, 15, 19, 7, -33, 15, 51, 40, 27, -11, -21, -43, -23, 1, -28, -47, -7, -30, -45, -10, -23, 52, -60, -25, -23, 22, 22, 28, 33, 8, 16, -45, -19, 41, 4, -39, -24, -13, -9, -19, -9, -43, 0, -38, -45, 3, -18, 46, 21, -10, -12, -38, -16, 14, -68, 3, 0, 11, 23, -14, -28, -4, -57, -8, 5, 18, -79, -26, 58, 28, -25, 56, 15, 58, 5, -40, 27, 42, -21, -29, 27, -23, -19, -37, -3, -51, 30, 0, 36, -51, 13, -70, 1, 37, -56, -11, -1, -17, 2, -9, -6, 1, 23, 31, 13, 4, 58, -39, 16, -10, -29, -8, -40, -8, -17, 7, -8, 8, 0, -3, 13, -24, 23, 36, -71, -3, -34, 21, -36, 28, -10, -22, 18, 42, 5, -46, -41, -38, 13, 12, 28, 19, 11, 6, 35, -19, 6, 16, -46, -12, 89, 19, -43, 1, 34, 0, -32, -2, 0, 57, -10, -9, -16, 19, -39, 60, -42, 8, 24, -45, 19, -20, 17, -39, -33, 69, 87, -8, -14, -4, 12, -28, -65, 7, -40, -35, -43, -12, -16, -34, 17, 25, -27, -77, -19, -16, 14, 6, -49, 8, -29, -1, -25, 47, 71, 28, 19, -26, 47, -37, -96, 32, 8, -9, 5, 3, -7, -14, 8, -52, 1, -2, -92, 25, -15, 67, 70, -18, 8, 93, 20, -26, -30, 49, -5, 0, 45, 16, -61, -14, -27, 61, 6, 0, 19, 31, 33, 27, -1, -44, -39, 27, 8, -7, 24, -24, -3, 60, 41, 13, 2, 11, 17, 38, -26, 60, -13, -19, 27, -14, 13, 20, 87, 5, 24, 15, 13, 47, -4, -9, -17, 53, -54, 5, -37, 31, -33, -18, -27, -30, -52, -14, 30, -2, 17, 12, -12, -2, -18, 23, 12, 44, -12, -34, -22, 0, 29, -45, -30, -33, -4, -25, -12, -35, 12, -53, -1, -23, -19, -6, 31, -10, 84, 37, -21, -35, -51, -4, 33, -3, 38, -18, -42, -42, 2, -16, 63, 30, 26, 53, 24, 15, 5, -22, -32, 13, 27, -21, 10, -17, -29, 50, 8, 11, 10, 25, 9, -38, -4, -25, 49, 11, 27, -17, -20, 7, 23, 18, 7, -20, 28, 5, -35, 64, -14, -35, -82, 18, 5, 35, -21, -40, 63, 27, -5, -39, -7, 68, 1, 36, 9, -14, 1, 6, -45, 4, -1, -10, -12, 72, 15, 41, -32, 1, -16, 4, 24, 0, -8, 1, -27, -34, -7, -14, 31, 28, -33, 55, 7, -14, 54, 55, 15, 3, -3, 40, -53, -26, 11, 0, 76, -35, -13, -12, -14, -14, -28, 12, 25, -38, -3, 9, -12, 2, 37, 8, 28, -6, -38, -2, 46, 37, -33, -33, -57, -28, 57, -91, -35, -25, 10, 41, 1, -12, 32, -55, -40, -8, -5, -77, 47, -14, 39, 33, -24, 11, -17, -41, 0, 23, -43, -49, 29, 5, 19, -7, 38, -30, 67, 15, 1, -5, -49, 11, 24, 2, 28, 8, -31, -24, 29, 11, 36, 13, 5, 65, 76, -48, -14, -42, -5, 16, -36, 7, -29, 32, 7, -34, -20, 28, 19, 28, -42, 3, -18, 3, -21, 1, 60, 0, 15, -7, -29, -24, 44, 28, 44, 33, 68, 55, 18, 8, -4, -3, 5, 36, 0, -69, -10, -26, -73, 18, -16, 18, -1, 22, 21, -13, -32, 45, 24, -4, -24, 44, -38, -18, 9, 27, 22, -56, 40, -34, -5, -76, 66, 0, -56, 8, 3, 16, -18, 6, -36, -13, -21, -15, 10, 53, 1, -7, 18, 32, 29, 19, 14, -27, -27, 8, 69, 20, -30, 38, 31, -23, 21, -1, 8, 11, 3, -21, 42, 4, -20, -2, -21, 20, 32, 63, 35, 8, -40, 1, -12, -51, 18, -23, -45, 22, -72, 44, 21, 38, -30, -7, -1, 54, 0, -6, 56, -14, -18, -59, -3, 14, -22, 5, -10, -15, -36, -19, 3, 25, -20, -31, 29, -1, 17, -39, 14, 1, 52, 5, 26, 1, 33, 14, -29, -25, -63, -8, -12, 28, -21, 34, -29, -46, -25, -27, -16, 14, -56, -9, 44, 10, 7, 8, -30, -35, 52, -16, 57, -7, -12, -16, 7, -11, 21, 17, 18, 30, -23, -12, 13, -61, -48, 8, 25, 61, -6, -21, -8, 24, -32, -4, 22, -40, 78, -11, -11 ]
Rehearing granted. Reported at 415 Mich 1.	[ -18, -4, 9, 10, -27, 7, 1, -19, -32, 10, 52, -38, -5, -40, -2, 39, -27, -26, 11, -44, -82, -30, -28, 40, -53, 86, 22, -12, 12, -79, -39, -27, -13, -9, 0, -93, 25, 47, 1, -6, -6, 19, -13, -49, -44, -51, -10, 17, 53, -21, 13, 36, -38, -23, -30, 44, -63, 2, -41, 42, 18, 29, 2, -3, 34, 31, -10, -13, 11, 40, 45, -5, -11, 45, -13, 37, -36, 27, -25, 43, 35, 22, -20, 11, -25, -24, 43, -59, 0, -43, 43, -56, -17, 13, 34, -26, 9, 17, -3, 49, -51, -29, 3, -32, -8, -40, -16, 11, -9, -8, 66, -15, 35, -24, -6, 40, -4, 12, 87, 61, -18, 27, -58, -22, -36, 0, 9, -18, 9, 1, 1, 8, 29, 35, 51, -10, 31, -1, -26, -59, 10, 37, 29, 14, 35, 18, -30, 20, 24, 23, -3, -44, 27, 41, 7, -37, -39, -53, 37, 33, 25, -7, -54, -55, -16, -21, 41, -55, 17, -14, 15, -31, 67, -41, -39, -24, 0, 69, -31, -11, -19, 2, -12, -32, 0, 19, 13, 0, -3, 3, -20, 11, -4, 62, -12, 4, 38, 51, -41, 5, -7, 52, -35, 14, -62, -66, 50, -20, -3, 30, 4, -4, -64, -29, 12, -68, 60, 33, 31, 22, 4, -57, 79, 21, -16, 15, 7, 57, 26, -35, 24, 0, 7, 8, 70, -23, 16, 47, 54, -92, -28, -70, 30, 17, 32, 32, -44, -28, 49, -58, 28, 39, 60, -53, -19, 15, -20, 55, -9, 2, 83, 26, -4, -10, -79, 4, -28, 13, 39, -47, 67, -22, 0, -13, 11, 26, -12, -29, 49, 51, -42, -61, -19, 124, 2, -23, 4, 23, 0, -4, 0, 24, 44, -12, 17, -43, -25, 46, 24, 61, 40, 52, -40, 8, -39, 20, 1, -22, -13, 48, 32, 29, 33, 35, -8, -67, -2, -17, -13, 8, 15, -25, -18, -27, -70, -7, 49, 44, 35, -28, 20, 0, 1, 32, -29, 12, -29, -14, -24, 13, 92, -35, -7, 9, -27, -13, -47, -18, 19, -19, -41, -11, -15, 42, 0, -42, -18, -36, 45, -3, 47, 1, 28, 41, -25, -3, -23, -20, -44, 2, -25, -53, -14, 2, -17, 71, -1, -85, -32, 1, -33, -3, -88, 21, 27, -35, -20, -25, -26, 15, 13, 52, -10, -24, -20, 32, 39, -14, -81, -11, -2, -3, 26, 50, 28, 4, 27, 16, 22, 37, -4, -48, -31, -60, 21, -53, 6, 80, -9, -41, -63, -7, -36, 23, -22, 5, 49, 20, 17, 41, -28, -30, 20, 7, -26, -14, -4, -32, 0, 14, -20, -13, -108, -2, 16, -23, -33, 24, 51, -25, 57, 11, -16, -44, -44, 22, -38, 23, -31, -15, -10, -86, -22, 15, -11, -40, 49, 20, 3, 116, -4, -79, -7, 83, -34, -7, 28, -39, -3, 19, 0, -74, -50, -23, -40, -21, -39, 25, -11, 52, -7, 0, -4, 32, -18, -3, -17, 0, -6, 45, -15, 37, -3, 16, 21, -40, -18, -14, -66, -97, 51, 32, 5, 50, 45, 25, -11, 5, 7, 10, -19, 19, 25, -44, -3, 9, -23, -1, -24, 27, -24, -11, 6, -41, 16, -21, -76, 37, -17, 11, 14, 22, 8, -50, 51, 36, -26, -31, 18, 33, -2, -40, -16, 23, -17, -19, 87, -1, 26, -40, 40, -14, -1, 39, -25, 18, -59, -43, 37, -19, 22, 5, 79, 20, 11, -12, -13, 22, -17, -14, 36, 16, 28, 68, 21, -17, -7, -44, 10, 26, -42, 32, -13, -10, -58, 31, 13, 46, -10, 5, 28, 0, -15, 7, 28, 17, 6, -13, 44, 28, -20, -27, -15, 3, -27, 35, 8, 7, 24, 22, -20, -2, -5, -41, -3, -23, 21, -29, -50, 3, -54, 15, -15, 36, -27, 8, 12, -48, 26, 39, -25, -17, 49, -9, 16, -67, -4, 9, -50, 36, 64, 23, 18, -27, 19, 6, 40, -74, 62, -4, 22, 75, -14, -5, -54, -61, 33, -24, 79, 23, 13, 22, 23, -38, 45, 13, -36, -5, -15, -13, -48, 7, -34, 52, 22, 15, 0, 5, -9, 54, -13, 71, -3, -12, 17, 2, 37, -26, -35, 28, -3, -10, 4, -42, -46, 16, 2, -6, 36, -6, -3, -76, -29, 43, 34, 10, -51, 22, 27, 26, 15, 53, 27, 8, -24, 16, -14, 26, 5, 0, 12, 2, 7, -18, 3, -32, 1, 10, -14, 11, -3, -25, -36, -57, -63, -12, 5, 41, -44, -16, 34, 0, 31, -7, -20, 44, 9, -30, -6, 46, 31, -12, -23, 36, -6, 16, -6, 20, 16, 47, -23, 6, 8, 50, 9, -10, 0, 11, 7, -53, 12, 11, -16, -29, 11, -50, 13, -78, -21, -1, -35, -48, 14, 2, 53, 16, 47, -52, 23, 11, -8, -35, -22, 9, 36, 15, -45, -7, 19, -11, 31, 15, -20, -60, -8, -45, 51, -10, 29, -19, 28, 30, 48, -57, -50, -22, -53, -12, 33, 17, 18, 26, 8, 8, -34, -9, 73, -14, 14, 59, -19, -41, -3, -25, -64, 1, -40, 40, -39, 6, 7, 60, 31, -31, -26, 43, 9, -2, -5, -15, -13, 61, -13, -19, 31, 42, 12, -44, 38, -24, 37, -48, -5, 27, -58, 0, -2, -29, 17, -51, -3, -12, 57, -61, 54, 42, -2, 3, 2, -11, 16, 37, 0, 7, 29, -16, 33, 0, -70, 1, -24, 49, -27, 17, 50, -19, -84, 4, -49, 16, 23, 8, -22, -7, -52, -30, -14, -18, 33, -5, 63, -5, -6, -2, 5, 3, 34, -57, -11, -13, -4, -17, -51, -41, -12, 4, -7, -32, -43, 15, 14, 6, -50, -10, 2, -6, -41, 49, -23, 25, -18, -22, -4, -1, -16, -14, 49, 13, 18, -34, 16, 7, 30, -7, -28, -3, -84, 0, 43, 29, 45, 75, -14, 11, -2, 1, -23, 12, -28, -36, -13, 28, 50, -1, -20, -31, 8, -13, 62, -51, 8, -42, -6, -48, -61, -26, -26, 23, 15, 34, 24, 58, 29, -32, -3, -44, 11, -18, -48, 30, -4, 90, -26, -10, 17, 10, 15, -34, 54, 5, 60, -26, -32, 33 ]
Per Curiam. This case concerns the residuary clause of a will and requires us to determine whether an ambiguity exists as to the identity of one of the charities named as beneficiaries. The Court of Appeals held that the designation "Michigan Cancer Society” is not ambiguous. In light of the particular facts of this case, we disagree. I John W. Kremlick died November 12, 1976, leaving a three-page will dated some 18 months earlier. Among other things, the document made various bequests and named Para Lee Sutton executrix of the estate of approximately $125,000. The focus of this case is on the residuary clause of the will, in which the testator provided that after specified and necessary distributions, whatever remained of his estate was to be divided equally between the Michigan Cancer Society and the Salvation Army: "I give, devise and bequeath all the rest, residue and remainder of my estate to the Michigan Cancer Society and the Salvation Army, share and share alike.” The will was admitted to probate, with the executrix filing a final account in February, 1980. An order entered June 9, 1980, allowing the final accounting and assigning the residue. The present controversy apparently surfaced when the executrix contacted the American Cancer Society, Michigan Division, about the proceedings. Subsequently, on June 16, 1980, that organization petitioned the probate court for a rehearing, contending that the order issued a week earlier should be set aside because the wrong cancer society had benefited. The provision of the residuary clause was ambiguous, appellants asserted, because two organizations commonly were referred to as the "Michigan Cancer Society” and there was substantial evidence that Mr. Kremlick had meant to benefit the American Cancer Society, Michigan Division. The probate court denied appellants’ petition in late July, 1980. The court held that there was no ambiguity in the designation "Michigan Cancer Society”. The Court of Appeals affirmed in an unpublished per curiam opinion dated August 12, 1981, and denied a motion for rehearing. Appellants applied to this Court for leave to appeal. II A fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible. As with other legal documents, the "intent” is to be gleaned from the will itself unless an ambiguity is present. The law is loath to supplement the language of such documents with extrinsic information. This is especially so in the case of testamentary documents because the maker is not available to provide additional facts or insight. However, presence of an ambiguity requires a court to look outside the four corners of a will in order to carry out the testator’s intent. Accordingly, if a will evinces a patent or latent ambiguity, a court may establish intent by considering two outside sources: (1) surrounding circumstances, and (2) rules of construction. In re Butterfield Estate, 405 Mich 702, 711; 275 NW2d 262 (1979). A patent ambiguity exists if the uncertainty as to meaning "appears on the face of the instrument, and arises from the defective, obscure, or insensible language used”. A latent ambiguity, on the other hand, arises "where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates” the possibility of more than one meaning. Id. We agree with the Court of Appeals that the designation "Michigan Cancer Society” is not a patent ambiguity. Determining the presence of a latent ambiguity, however, is more difficult. This Court has held that in interpreting contracts where an ambiguity may exist, extrinsic evidence is admissible: (1) to prove the existence of ambiguity; (2) to indicate the actual intent of the parties; and (3) to indicate the actual intent of the parties as an aid in construction. Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 209-210; 220 NW2d 664 (1974). These rules are equally applicable to interpreting wills. Thus, not only may extrinsic evidence be used to clarify the meaning of a latent ambiguity, but it may be used to demonstrate that an ambiguity exists in the first place and to establish intent. In this case, appellants produced an affidavit from the executrix of Mr. Kremlick’s estate in which she asserted that the intended beneficiary was the American Cancer Society, Michigan Division, instead of the Michigan Cancer Society, an affiliate of the Michigan Cancer Foundation. The executrix stated that she had discussed the provisions of Mr. Kremlick’s will with him on many occasions, and that he frequently had mentioned that the American Cancer Society was to be a beneficiary. Appellants also sought to establish that Mr. Kremlick previously had made substantial direct contributions to the American Cancer Society, that the society had helped his wife when she was dying of cancer, and that at the time of her death he requested memorials to the American Cancer Society. This is the very kind of information that may be used both to establish an ambiguity and to help resolve it. Appellants should have been given the opportunity to do that. Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the decision of the Court of Appeals and remand the matter to the Oakland County Probate Court for proceedings not inconsistent with this opinion. Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Cavanagh, JJ., concurred.	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Cavanagh, J. In this case, we are asked to revisit the definitions of work-related incurable insanity and imbecility set forth in Redfern v Sparks-Withington Co, 403 Mich. 63; 268 NW2d 28 (1978). I Plaintiff began working for defendant General Motors Corporation in 1955. On December 29, 1961, she suffered a work-related injury when an automobile door fell on her right hand. After the injury, she returned to work, but her condition worsened. She worked intermittently, and weekly general disability benefits were paid when she did not. Finally, on September 12, 1966, GMC placed plaintiff on total disability and paid her general disability benefits through February 27, 1972, the date on which 500 weeks of benefits had been paid for the 1961 injury. On March 22, 1972, plaintiff petitioned for total and permanent disability benefits, alleging both incurable insanity and the loss of industrial use of her right arm and right leg. After a hearing, the hearing referee found, inter alia, "that plaintiff became totally and permanently disabled as defined pursuant to the test as set forth in Sprute v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971) in MCL 418.361(2)(f); MSA 17.237(361)(2)(f) on 9-12-66 as a result of the injury of 12-29-61 aggravated by the further work that she did until 3-6-66 and 9-12-66”. GMC was ordered to "pay compensation * * * until further order of the bureau, 'but not in excess of 800 weeks from 9-12-66’ ”, while defendant Second Injury Fund was ordered to pay differential benefits from September 12, 1966. A five-member Workers’ Compensation Appeal Board panel affirmed the hearing referee’s decision, finding that "[t]he proofs in this cause show plaintiff to be totally and permanently disabled by mental illness and as a result unemployable”. By order issued December 5, 1975, the Court of Appeals denied defendants’ applications for leave to appeal. Thereafter, on March 24, 1976, this Court ordered that defendants’ applications for leave to appeal be held in abeyance, pending disposition of Redfern and other cases requiring an examination of incurable insanity or imbecility under the Worker’s Disability Compensation Act. Redfern was decided on July 17, 1978, and, by order of this Court issued January 8, 1979, the present case was remanded to the WCAB for reconsideration in light of Redfern. On remand, the WCAB, by a 3 to 2 decision, set aside the previous award for total and permanent disability, finding, inter alia, that: "This record establishes neurological or orthopedic disability on a functional basis. The organic basis that the disability might well have is not demonstrated. That disability on a functional basis is not incurable insanity has been established once and for all, at last, by the following comprehensive test set forth at 403 Mich 63, 85: " 'We conclude that a worker’s mental illness is "insanity” if he suffers severe social dysfunction and that a worker’s intellectual impairment is "imbecility” if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is "severe” if it affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored.’ "To circumvent these words by a finding that a two-member functionally-based loss (falling short of industrial loss of use as measured by the standards of Burke [v Ontonagon Road Comm, 391 Mich 103; 214 NW2d 797 (1974)], and DeGeer [v DeGeer Farm Equipment Co, 391 Mich 96; 214 NW2d 794 (1974)]), is indeed equal to the loss of the two members referred to in Redfern, supra, is a contradiction on its face. It would, moreover, welcome the reappearance of Sprufe-attendant inequities listed hereinbefore. "The facts of the instant case are not unlike those of Redfern, supra, as set forth in 403 Mich 63, 71, fn 2. See 1978 WCABO 3149. The Redfern Court refers, not to somatic disability with functional basis, but to 'the employee’s mental capacity’ 403 Mich 63, 78; 'mental illness’, id. at 81; and 'loss of mental function’ ibid. "Plaintiffs 'mental capacity’ remains much the same that it was before work-related injury. Indeed, it was that mental predisposition with which defendant accepted plaintiff, which turned a hand, injury into a constellation of neurological and orthopedic complaints. While there is some reciprocal effect of worsening symptoms on mental condition, it is minimal. Plaintiff has no mental illness resulting in severe social dysfunction affecting the quality of her personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes. "Plaintiff would still be working had not the machinations attendant upon her various maladies become too much for defendant to cope with. There is nothing to indicate that, with the exception of her relationship with one young foreman, plaintiffs ability to get along with both fellow workers and superiors was not the best. "While plaintiff has physical difficulties, she is no recluse. * * * "Plaintiff’s relations with her neighbors are good. "What is most important is plaintiffs excellent relationship with her sons and with their wives. * * * "Plaintiff is conversant with her financial situation[.] "It thus appears that plaintiff has efficiently organized her life, to accommodate her physical problems. Even with these, she enjoys a certain amount of independence and can count on a great deal of family support as needed for a physical, not a mental, condition. * * * * * "That the resulting condition is work-related is estab lished. That it is incurable insanity (as opposed to general disability on a functional basis) is not. * * * "[P]laintiff is not incurably insane as a matter of fact according to the legal standards set forth in Redfern, supra.” 1979 WCABO 3051, 3056-3061. The Court of Appeals granted plaintiff leave to appeal, and affirmed the WCAB. In pertinent part, the Court of Appeals stated: "If the Redfern definition of incurable insanity is interpreted as focusing only on the mental aspects of a disability — a claimant’s grasp on reality and ability to interact with his or her environment in a healthy manner — plaintiff is not incurably insane. On the other hand, if the Redfern definition of incurable insanity is interpreted as being applicable to a claimant whose 'insanity’ is substantially manifested in a panoply of physically disabling symptoms, there is support for the dissenting board members’ claim that plaintiff is incurably insane. "We believe that the majority was correct in adopting the first of these interpretations and, thereby, finding that plaintiff was not incurably insane for purposes of receiving total and permanent disability benefits under MCL 418.361(3X0; MSA 17.237(361X3X0. "The record in the instant case does not establish severe social dysfunction such as to satisfy the Redfern standard. Plaintiff appears to be very capable of meeting her daily needs, arranging for her future, dealing with her physical maladies, and communicating with her neighbors, friends, and relatives.” Modreski v General Motors Corp, 119 Mich App 198, 205; 326 NW2d 386 (1981). We granted leave to appeal on August 6, 1982. II Prior to appellate judicial comment on the subject, the WCAB determined that a worker is "insane” when his injury "affects or destroys his mental capacity to the degree that he is deranged and unfit to be employed because of the unreliability of his behavior with concomitant danger to himself and others”. Borg v Fisher Body Division of General Motors Corp, 1969 WCABO 1246, 1258. However, in Redfern, supra, p 84, we stated that the foregoing test was "too restrictive for the purposes of the act to require evidence that the mental illness poses a risk of physical harm.” Subsequent to the decision in Borg, the Court of Appeals, in Sprute v Herlihy Mid-Continent Co, 32 Mich App 574, 579; 189 NW2d 89 (1971), lv den 385 Mich 784 (1971), held that: "An employee is incurably insane under MCL 412.10(b)(6); MSA 17.160(b)(6) if the occupationally related mental or emotional illness which impairs the employee’s mental processes is of totally disabling proportions and is likely to be of long and indefinite duration, thus making gainful employment impossible.” (Footnotes omitted.) As noted by this Court, "Sprute says, in effect, that a worker can recover total and permanent disability benefits for incurable insanity if "(1) he has a mental or emotional illness, "(2) the illness is work related, "(3) the impairment of his mental processes is of totally disabling proportions, "(4) it is likely to be of long and indefinite duration, and "(5) gainful employment is impossible. "We accept criteria 1, 2 and 4; the incapacity must be attributable to work-related mental illness expected to be of long duration. We do not accept criteria 3 and 5, requiring that the impairment of mental processes be totally disabling precluding gainful employment.” (Footnote omitted.) Redfern, supra, p 79. Accordingly, we shifted the focus of the test from the ability to work to the ability to function outside the work setting. "We conclude that a worker’s mental illness is 'insanity’ if he suffers severe social dysfunction and that a worker’s intellectual impairment is 'imbecility’ if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is 'severe’ if it affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored. The question whether the mental illness or intellectual impairment is work-related is to be decided in accordance with Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978).” Redfern, supra, p 85. Ill Plaintiff would have us declare that functional disability which results from mental illness can serve as a basis for finding a person incurably insane. Specifically, plaintiff claims: (1) that she has lost the functional use of both her legs and of her right arm as a result of her mental illness, and (2) that such loss has affected the quality of her nonvocational life so as to amount to a severe social dysfunction. Although we stated in Redfern "that it is better that further definition evolve in the administrative and judicial decision of individual cases” and implied "that an organic disorder affecting the brain or nervous system and resulting in physical manifestations * * * [might] constitute 'mental illness’ or give rise to 'social dysfunction’ ”, we believe that the WCAB and the Court of Appeals properly applied the Redfern test in this case. The Redfern test analogy to physical manifestations "comparabl[e] to the loss of two members or sight of both eyes” was just that — an analogy. It was not meant to imply that physical manifestations which cause functional disabilities and which result from mental illness or from intellectual impairment necessarily constitute a basis for a finding of incurable insanity or imbecility. Indeed, unless the physical manifestations themselves cause functional disabilities which qualify as total and permanent disability, the requirements of the WDCA are circumvented, i.e., something less than totally and permanently disabling physical consequences of a work-related injury serve as the basis for a finding of totally and permanently disabling incurable insanity or imbecility. Obviously, that is an anomaly not intended by the workers’ disability compensation scheme. Thus, we must reaffirm the requirement that severe social or cognitive dysfunction is that which "affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes”. Redfern, supra, p 85. IV Although plaintiff failed to demonstrate that she is incurably insane within the meaning of the WDCA, we must order remand to the WCAB so that her claim for total and permanent disability benefits based on the alleged loss of industrial use of her right arm and right leg can be adjudicated. Contrary to the opinions of the WCAB and the Court of Appeals and to defendants’ contention, plaintiff did not abandon that claim. Indeed, the hearing referee, resting solely on a finding of incurable insanity, never addressed that claim. Thus, plaintiff had no obligation to cross-appeal to preserve the issue because it was not adjudicated adversely to her. Likewise, in its first opinion in this matter, the WCAB did not address the issue, instead affirming the hearing referee in toto. Further, this Court’s remand order for reconsideration in light of Red-fern did not limit the claims which could be addressed, i.e., if plaintiff was found not to be incurably insane, consideration of her claim of loss of industrial use was not precluded. In other words, her claim of loss of industrial use was not outside the scope of the remand order. See, generally, The Vogue v Shopping Centers, Inc (After Remand), 402 Mich 546, 552-553; 266 NW2d 148 (1978); Howard v Detroit, 377 Mich 102, 110-111; 139 NW2d 677 (1966); Bernstein v Shifman, 355 Mich 398, 402-403; 94 NW2d 821 (1959); Kleynenberg v Highlands Realty Corp, 340 Mich 339, 342-343; 65 NW2d 769 (1954); Vogue Cleaners & Dyers, Inc v Berkowitz, 296 Mich 565; 296 NW 680 (1941); Schneyder v Cadillac Motor Car Co, 280 Mich 127; 273 NW 418 (1937). Indeed, since the WCAB reversed its first decision, thereby denying plaintiff benefits, fairness dictates that it then should have addressed her other claim which had not previously been considered. Affirmed in part, reversed in part, and remanded to the WCAB for consideration on the merits of plaintiffs claim for total and permanent disability benefits based on the alleged loss of industrial use of her right arm and right leg. Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Boyle, JJ., concurred with Cav-ANAGH, J. Costs awarded sub nom Legut v Detroit Window Cleaning Co, 406 Mich 1124 (1979). MCL 418.361(2); MSA 17.237(361X2), then in effect, read as follows: "Total and permanent disability, compensation for which is provided in section 351 means: "(a) Total and permanent loss of sight of both eyes. "(b) Loss of both legs or both feet at or above the ankle. "(c) Loss of both arms or both hands at or above the wrist. "(d) Loss of any 2 of the members or faculties enumerated in (a), (b) or (c). “(e) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm. "(f) Incurable insanity or imbecility. "(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.” See MCL 418.361(3); MSA 17.237(361X3) for the current version of this subsection. MCL 418.101 et seq.; MSA 17.237(101) et seq. 404 Mich 823 (1979). We note, as did the WCAB and the Court of Appeals, that, as a result of her 1961 injury, plaintiff was entitled to general disability benefits for the period between September 12, 1966, and February 27, 1972. However, contrary to any implications of the WCAB and the Court of Appeals, plaintiff was not awarded general disability benefits by the hearing referee as a result of her 1966 injury, although the rates of payment between September 12, 1966, and February 27, 1972, were adjusted. Indeed, plaintiff did not seek such benefits as a result of her 1966 injury. Instead, she sought scheduled benefits for specific medical losses based on two allegedly total and permanent disabilities, i.e., incurable insanity and the loss of industrial use of her right arm and right leg. See Redfern, supra, pp 79-83, and the authorities cited therein, for further explanation of the distinction between scheduled benefits and general disability benefits. 414 Mich 866 (1982). Redfern, supra, p 83. Redfern, supra, p 85, fn 20. Perhaps also implicit was that a psychotic disorder resulting in physical manifestations might constitute mental illness or give rise to social dysfunction. Of course, if the physical manifestations cause functional disabilities which qualify as total and permanent disability, or even as partial disability, the worker is entitled to recover benefits under the WDCA. Likewise, physical manifestations causing functional disabilities which do not amount to total and permanent disability might still qualify a person for general disability benefits. See, generally, Red-fern, supra, pp 80-83.	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Rehearing denied. Reported at 414 Mich 624. Cavanagh, J., not participating.	[ -17, -50, -33, 8, 36, 5, 28, 20, -66, 1, 63, -17, 14, -102, 6, 15, -3, -13, 18, -64, -85, -46, 1, 50, -50, 28, 15, 18, -34, -64, 42, -44, -89, 17, 13, -58, 36, 60, -1, 8, -32, 0, -23, -51, -1, -98, -21, 45, 18, 28, -32, -16, -33, 13, -6, 50, 42, -16, -28, -4, -10, 42, 29, 12, 6, -16, -22, 0, -25, 30, 14, 5, -16, -7, 2, 15, -54, 16, 28, 54, 57, 57, 10, 104, 8, -11, 9, -27, -1, -31, 11, 13, -75, 33, 16, -6, -5, 28, 22, 8, 50, 10, -27, -82, 2, -14, -24, 29, -59, -4, 38, -40, 24, -65, 20, -26, -22, -1, 13, 16, 3, 72, -41, -65, -2, -8, 23, 1, 49, 21, 41, 11, 50, 14, 10, -17, 35, -15, -29, 2, -14, 39, 33, 6, 13, -8, -19, 13, 7, -18, -7, -67, -9, 26, -2, 33, -11, -31, 38, 18, 41, 18, -66, -45, 0, -1, 55, -3, 40, -55, -5, -4, -7, -22, -80, -69, -4, 51, 25, 22, 50, 23, 56, 18, 57, 16, -16, -41, -1, 19, -27, 7, 56, 71, 43, -18, 56, 8, -7, -4, 47, 72, -52, -7, -19, -49, 78, 0, -31, 33, -23, -35, -45, 6, 0, -15, 23, 30, 49, -3, -44, 39, 12, -1, -41, -9, 35, 39, -22, -21, 36, 3, -10, 9, 66, -46, 26, 28, 80, -55, -94, -31, 26, 20, 40, -31, -63, 1, 33, -48, 69, 5, 56, -50, -32, -2, -36, 23, -25, 12, 33, 46, -16, 3, -59, -41, 20, 18, 80, -26, 20, -92, -60, 11, 35, 10, 37, 2, 59, 70, -37, 12, -20, 30, -19, -16, 25, 35, 38, -2, -30, 45, 64, 7, 12, -59, -33, 1, 25, 22, 10, 43, 18, 49, 4, -47, -2, -64, 40, -1, -9, 12, 41, 30, 20, -53, -2, -17, -31, 5, 18, -72, 7, 17, -29, 16, 0, 53, 53, -33, 94, 0, -18, -7, -8, -34, 9, -9, -44, 62, 31, 35, -53, 2, -31, 0, -93, 16, 40, 41, -20, -14, 3, -3, 46, 30, 14, -31, 2, 14, 4, -37, 16, 4, -14, -1, -35, 43, 9, 44, 16, -28, -23, -14, -40, 93, 24, -24, -68, -9, -47, -11, -50, 22, 32, 8, -7, 8, 43, 2, 4, 9, -22, -46, -9, 33, -9, 20, -21, 54, -24, -49, -15, 38, -9, 0, -35, 6, -9, 44, 10, -19, -40, -43, 11, -5, -32, 4, 29, -14, -45, -23, -20, -8, -31, -25, -24, 16, 43, 26, -34, -48, 25, -79, -9, 7, 33, 22, 42, -3, -7, -1, -29, -41, 48, -61, -48, -36, -27, 6, 26, 44, -76, -3, -64, -13, -62, 53, -11, 6, -53, -92, -71, -7, 10, -15, -11, 20, -31, 32, 22, -22, -24, 68, -36, 22, 11, -36, -17, 39, -17, 57, -32, -60, 1, -34, -36, -15, -13, 17, -23, 29, 25, 34, -40, 40, 16, -36, -13, 76, -54, 73, -38, -2, 33, -44, -29, -9, -36, -66, 78, 59, 4, 33, -23, 5, -42, 42, 12, -16, 8, 31, -14, -35, 1, -11, -51, -62, -7, 80, 17, -3, 30, -14, 17, -54, 5, 37, -25, 113, 23, 41, -30, -49, 35, 53, -74, -34, 1, 15, 13, -98, 14, 14, -75, -14, 67, -43, 2, -30, -13, -9, -18, 13, 31, 9, -38, 23, 72, 11, 23, 59, 25, 8, 57, -22, 31, 7, -14, 5, 29, -2, 44, -9, -20, -23, -29, -62, -40, 13, -29, 7, -35, -27, 26, 17, 4, 22, 11, 40, 4, 29, -28, 16, -51, 4, 8, -25, 38, 24, -2, -18, -7, -29, -19, 29, 3, 56, 23, -45, -13, 82, -38, -18, 0, -37, 33, 21, 32, 15, -26, 6, -17, 20, -43, 41, -55, -36, 0, 78, -16, -91, 8, -9, 6, -33, 5, -36, -75, 28, 25, 29, 0, 20, -7, -23, -4, -37, 60, -1, 42, 56, 7, 58, -94, -13, 59, 21, 83, 51, 3, 42, 21, -69, -2, 10, 13, -43, -29, 20, 3, -24, -22, 17, 83, -48, -28, 33, -3, 48, 29, 20, 29, -6, 17, -9, 39, -28, -24, 25, -26, -30, 29, -45, -31, 13, 18, -35, -6, -14, -37, -22, 21, 36, 76, 2, -35, 56, 17, 35, 5, -10, 73, 26, -12, -57, 29, 12, 53, -64, 20, 40, 16, -17, 4, -12, 15, -22, -39, 29, -23, -52, -53, -52, -23, -56, 38, -24, -48, -22, -12, 14, -75, 27, -38, 37, -27, -22, -9, 34, -10, 7, -1, 27, -43, 9, 37, 4, 83, 97, 1, -22, -22, 10, 27, 43, 13, 8, -25, 9, 35, -10, 6, 9, 22, -36, -39, -41, -80, 4, 27, -8, -39, 29, 58, 25, 18, 6, -3, 20, -20, -20, -6, -13, 53, -20, -30, -11, -12, 44, 21, -5, -18, -45, 35, -44, -12, 56, 26, -13, 29, 49, 37, -23, -10, -17, -11, 12, 10, 1, 2, 31, 26, 9, -24, -65, 33, -18, -1, -3, 24, -24, 9, -36, 0, -12, -45, -1, -66, 41, 4, 20, -19, -46, -38, -9, -46, -16, -38, 35, -29, 38, 6, -64, -11, 52, 2, -55, 30, -40, 52, -75, 2, 43, 21, -12, 6, 5, 28, -4, -13, 19, 41, -31, 85, -17, -14, -54, -41, 8, 33, 51, 52, -3, 28, -19, 58, 17, -35, 9, 0, 7, -36, -27, -4, -29, -2, 55, -17, 16, -27, 5, -32, -65, -14, -53, -34, 1, -30, -6, 28, -25, 10, -49, 24, -32, 0, -44, 5, -70, 42, 27, -33, 12, -3, -9, 6, -2, -35, 46, 4, 24, -8, -47, -15, 6, -65, 72, -3, 17, -16, -66, 46, -5, -72, 31, 52, -31, 22, -2, 57, 41, -52, 47, -16, 23, -30, 25, -38, 37, 13, 78, -3, -24, -52, 52, -16, 13, -29, -33, -12, -15, 46, -25, -46, -14, -20, 9, 29, -47, -24, 13, -24, -23, -38, -6, -48, -20, -2, 40, 28, 15, 35, -11, 71, 26, 22, -52, -6, 19, 3, 69, -16, 32, 5, -6, 50, -14, 16, 29, 42, -16, -57, -20 ]
Rehearing denied. Reported at 415 Mich 483. Cavanagh, J., not participating.	[ -25, -34, -29, 0, 28, -9, 25, 44, -69, 2, 66, -28, 7, -115, 10, 8, -5, 7, 17, -60, -75, -44, 0, 64, -35, 33, 27, 11, -31, -66, 31, -45, -86, 16, 21, -41, 22, 41, -9, 4, -35, -3, -26, -45, 1, -91, -20, 37, 6, 20, -35, -17, -25, 18, 5, 43, 20, -15, -22, 0, -8, 41, 25, 16, 16, -21, -28, 1, -25, 30, 2, -5, -18, -5, 3, 18, -69, 8, 22, 56, 55, 66, 5, 111, 6, -10, 16, -40, 17, -26, 10, 0, -76, 56, 10, -14, -11, 30, 19, 8, 60, 12, -38, -85, -13, -23, -22, 17, -58, 0, 28, -47, 28, -57, 30, -22, -34, 2, 37, 17, 3, 57, -45, -46, 2, 4, 27, 8, 44, 26, 35, -1, 72, 7, 3, -8, 34, -5, -28, -15, -1, 49, 43, -7, 8, -19, -8, 7, 5, -12, -3, -61, -6, 31, -13, 30, -11, -39, 57, 21, 63, 27, -63, -45, -10, -1, 55, -16, 31, -41, -14, -1, 2, -33, -78, -56, 3, 56, 20, 7, 41, 19, 63, 13, 64, 10, -3, -44, -5, 18, -38, 2, 43, 57, 35, -3, 58, 10, -7, 12, 40, 63, -66, -22, -7, -54, 80, -8, -24, 38, -15, -40, -51, 5, 7, -26, 26, 34, 54, -20, -29, 33, 8, 3, -40, -6, 30, 49, -4, -23, 34, 3, -12, 19, 64, -56, 37, 30, 89, -69, -79, -19, 30, 33, 40, -36, -66, -13, 44, -54, 60, 4, 49, -62, -39, -7, -58, 26, -11, 5, 47, 32, -31, 7, -46, -31, 18, 38, 67, -22, 25, -79, -39, 19, 25, 10, 27, 7, 73, 65, -41, 0, -13, 40, -19, -21, 27, 40, 39, -3, -41, 46, 62, 25, 24, -57, -10, 4, 35, 31, 1, 55, 10, 55, 8, -37, -24, -68, 42, 13, 1, 5, 44, 35, 5, -55, 2, -43, -27, 2, 15, -88, -8, 12, -20, 19, -2, 63, 39, -37, 100, 0, -9, 1, -12, -29, 21, -11, -48, 51, 27, 24, -62, 13, -29, -6, -98, 0, 50, 24, -19, -13, -19, -18, 36, 41, 0, -28, 4, 6, 6, -27, 22, 14, -29, -7, -33, 41, -1, 41, 25, -36, -9, -22, -33, 84, 19, -14, -60, -10, -30, -9, -51, 29, 37, 4, -20, 19, 44, 11, -12, 8, -10, -47, -31, 30, -5, 32, -30, 57, -25, -41, -21, 44, -6, -6, -24, 1, -7, 41, 23, -32, -55, -40, 12, -21, -30, -7, 22, -15, -58, -17, -20, -7, -39, -26, -1, 20, 39, 42, -25, -58, 17, -65, 0, 8, 19, 25, 39, -4, -21, 6, -36, -38, 42, -44, -65, -27, -35, 2, 30, 52, -78, -5, -66, -20, -67, 56, -15, -4, -44, -100, -65, 2, 17, 0, -15, 24, -40, 31, 14, -35, -18, 70, -39, 21, 6, -48, -17, 59, -20, 49, -25, -57, -2, -29, -35, -12, -19, 30, -29, 32, 27, 18, -34, 34, 8, -35, -4, 63, -31, 50, -36, -3, 27, -49, -24, -1, -55, -65, 65, 52, 31, 33, 2, 23, -48, 33, 17, -23, 30, 50, -13, -44, -5, -15, -53, -55, 3, 83, 28, 5, 25, -21, 21, -48, 1, 31, -29, 115, 17, 44, -13, -43, 33, 50, -64, -42, 3, 12, 16, -84, 10, 4, -69, -7, 69, -45, 6, -24, -15, -13, -16, 15, 25, 26, -40, 15, 67, 9, 25, 56, 27, 6, 45, -26, 31, 6, -15, -7, 15, -15, 53, -17, -15, -13, -22, -64, -45, 11, -34, -3, -37, -27, 13, 27, -9, 14, 3, 53, 15, 24, -24, 10, -59, 11, 15, -26, 54, 15, -4, -19, -14, -26, -16, 41, 5, 49, 30, -40, -6, 92, -27, -20, -11, -25, 35, 22, 37, 19, -33, 8, -29, 16, -41, 34, -36, -31, 0, 67, -17, -81, 8, -5, 12, -30, 14, -35, -76, 14, 15, 33, 10, 5, -12, -15, -2, -58, 75, 0, 34, 39, -8, 53, -87, -18, 62, 18, 72, 48, 12, 45, 27, -80, -1, 15, -5, -41, -29, 6, 0, -30, -31, 5, 86, -35, -28, 28, -1, 61, 28, 22, 32, -9, 27, -9, 57, -32, -28, 38, -23, -25, 9, -33, -36, 11, 39, -30, -10, -19, -25, -32, 15, 22, 85, 0, -38, 49, 25, 41, -9, -9, 56, 7, -5, -42, 23, 14, 48, -59, 17, 30, 10, -19, 4, -33, 12, -46, -42, 26, -24, -48, -41, -45, -18, -48, 34, -24, -35, -36, -13, 10, -62, 38, -34, 30, -20, -22, -8, 41, -1, 7, 3, 18, -58, 7, 37, 3, 103, 99, 6, -25, -14, 15, 28, 43, 10, 21, -23, 8, 14, -12, -11, 7, 31, -37, -37, -41, -60, -9, 21, -29, -41, 31, 55, 24, 32, 0, -5, 28, -8, 0, -1, -8, 45, -30, -39, 0, -10, 39, 22, -17, -18, -48, 31, -41, -9, 52, 24, -7, 23, 30, 43, -20, -4, -10, -3, 11, 15, 15, 5, 32, 46, -4, -31, -54, 33, -25, -23, -1, 28, -27, 11, -27, 0, -21, -34, -2, -67, 43, 4, 18, -10, -43, -31, -22, -61, -8, -34, 38, -22, 55, 4, -56, 0, 31, 7, -57, 27, -49, 58, -83, 2, 40, 25, -8, 27, 4, 35, -1, -18, 38, 51, -29, 91, -8, -29, -38, -10, 13, 28, 27, 42, -10, 12, -20, 60, 5, -35, 1, -5, 7, -39, -29, 12, -25, -9, 50, -26, 13, -12, -3, -39, -68, -10, -60, -37, 5, -16, 9, 28, -30, -4, -45, 7, -26, -4, -42, 21, -77, 43, 31, -30, 12, 3, -23, 17, -11, -52, 34, 8, 44, -4, -51, -6, 0, -56, 69, 3, 23, -22, -67, 38, -6, -69, 37, 51, -32, 6, -4, 67, 32, -53, 49, -8, 18, -38, 43, -34, 30, 6, 80, 19, -17, -65, 33, -13, 10, -32, -57, -3, -8, 49, -16, -48, -16, -12, 1, 21, -47, -14, 15, -21, -26, -32, -2, -44, -17, 0, 32, 39, 22, 40, -15, 56, 28, 27, -45, 0, 41, -3, 69, -6, 50, -1, -11, 45, -13, 14, 45, 51, -16, -68, -22 ]
Per Curiam. This defendant has been convicted of second-degree murder following the death of a woman whom he shot in the arm. At trial, he interposed the defense that her death was caused by grossly erroneous medical treatment. The issue before us is whether the trial court properly excluded certain expert testimony offered by the defendant. We hold that the trial court erred in excluding the proffered evidence, and we reverse. I The defendant shot the victim on November 5, 1978. The victim’s attending physicians tried first to save her arm, but the limb was amputated on November 11, 1978. The victim died on December 14, 1978. At the time of her death, she had an advanced case of pneumonia, and infection had spread throughout her body. The defendant’s position was that the failure of the victim’s treating physicians to amputate the arm earlier constituted grossly erroneous treatment. To support this view, the defendant called to the stand the Oakland County medical examiner. The witness testified that the arm should have been amputated immediately and that, had the arm been removed promptly, the victim would not have died. He said that the death had been caused by infection and pneumonia and that proper medical treatment would have consisted of a prompt amputation. Defense counsel sought to ask the witness whether the victim had received grossly erroneous medical treatment, but the trial court repeatedly refused to allow such a statement, saying that such testimony would be "a legal conclusion” and thus improper. The Court of Appeals affirmed. People v Robinson, 107 Mich App 417; 309 NW2d 624 (1981). On May 24, 1982, we ordered the prosecutor to show cause "why the defendant’s conviction should not be reversed because defendant’s medical expert, although qualified to do so, was not permitted to testify that failure to immediately amputate the arm of the victim was grossly negligent medical treatment”. The prosecutor has answered this order and the defendant has responded. II The trial court erred in excluding this testimony. MRE 704 provides that "[testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact”. The Court of Appeals acknowledged that rule, but drew from People v Drossart, 99 Mich App 66; 297 NW2d 863 (1980), an analysis that led to the conclusion that the trial court properly excluded the medical examiner’s expert opinion: "This Court recently addressed the issue in terms of whether an expert could render his opinion that a defendant was or was not 'mentally ill’ or 'insane’ at the time of the alleged offense. In People v Drossart, 99 Mich App 66, 82; 297 NW2d 863 (1980), the Court stated that süch testimony did not invade 'the provinces of the judge and jury’. As stated by McCormick [Evidence (2d ed), § 12], supra, 'invasion of the province of the jury’ (or judge) is little more than rhetoric, and the real fears are that the jury will subordinate its own analysis to the opinion of the expert, or, as stated by Judge Allen in Drossart, the legal standard of the expert may be incorrect, incorrectly understood by the jury, or conflict with the trial court’s instruction. Drossart, pp 76-77. The Drossart opinion goes on to state that the latter dangers would not be present 'if, in expressing his ideas and opinion on the matter, the witness refers to legal standards properly explained by the trial court or examining attorney’. Drossart, p 77. "The following statements in Drossart are pertinent to the issue presented in the present case: " 'Accordingly, a witness is not permitted to tell the jury how to decide the case. Thus, a witness is prohibited from opining on the issue of a party’s negligence or nonnegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or his guilt or innocence.* * * " '* * * However, where the expert’s particular training and experience in a special field of activity — such as the study of mental diseases — is largely unfamiliar to the jury, his opinion can be submitted for the jury’s consideration.’ Drossart, pp 79-80. (Citations omitted.) "Thus, according to this Court’s decision in Drossart, it would appear that while a psychiatrist may testify that in his opinion a defendant was 'insane’ at the time of an alleged offense, an expert may not opine on the degree of negligence in a medical malpractice case where a jury is as capable as anyone else of reaching such a conclusion on certain facts.” Robinson, 107 Mich App 421-422. Even if one fully accepts the principles stated in Drossart, the testimony proffered by this defendant was admissible. The Oakland County medical examiner did not propose to opine as to guilt or innocence. Rather he proposed to opine as to the nature of medical care received by the victim. A characterization of medical treatment as "grossly erroneous” is entirely proper if received from a qualified expert. The admissibility of such expert opinion is not subject to challenge on the ground that the ultimate determination of guilt or innocence may well turn on whether that expert opinion is believed or disbelieved. Ill The Court of Appeals employed a second ground for concluding that the trial court had properly rejected the medical examiner’s expert opinion that the treatment was grossly erroneous. The Court of Appeals concluded that the defendant had failed to qualify the witness: "[W]e are of the opinion that because of defendant’s failure to demonstrate that [the medical examiner] had knowledge of the standard of practice for surgeons the trial court could have properly excluded his opinion of the degree of alleged malpractice on this basis.” Robinson, 107 Mich App 423. This conclusion was error. The medical examiner did have knowledge of the standard of practice for surgeons: "Q. Are you, — well, would you say you would be qualified to testify as to the standard of practice of a surgeon in this community? "A. Yes, sir. "Q. And why would that be, doctor? "A. Because I see all of the results of their surgery and I have been involved in determinations as a member of committees of staffs as to whether surgeons are qualified to perform surgery and what surgery they are qualified to perform since I have served on credentials committees of many staffs. "Q. That is always after the fact? "A. No, sir. That is before the fact. That is when they apply for privileges.” IV The Oakland County medical examiner was qualified to render an opinion on the question of whether the treatment received by the victim had been grossly erroneous. Such an opinion is properly received in a case of this sort. Accordingly, in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the Recorder’s Court for the City of Detroit, and we remand this case to the Recorder’s Court for the City of Detroit for a new trial. GCR 1963, 853.2(4). Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Cavanagh, JJ., concurred. This defense was drawn from People v Flenon, 42 Mich App 457; 202 NW2d 471 (1972).	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Ryan, J. This is an action against a bank for wrongfully honoring checks drawn upon the appellant’s account by a drawer not authorized to do so. Riverview Cooperative, Inc., is a nonprofit corporation established to provide low- and moderate-income housing in the Kalamazoo area. In 1973, its board of directors retained the services of Consumers System, Inc., hereinafter Consumers, a real-estate management firm, to oversee the day-to-day operations of Riverview. Consumers established bank accounts on Riverview’s behalf with the appellee bank in October, 1973. In 1974, Consumers was succeeded in appellant’s service by ELM Associates, Inc., hereinafter ELM, which was owned and operated by Elaine DiBiasio. Although DiBiasio was a former employee of Consumers, she had never been authorized by corporate resolution or otherwise to sign checks for the withdrawal of funds from the Riverview account. Despite that fact, DiBiasio wrote and negotiated checks for the withdrawal of more than $20,000 from the River-view account upon her sole signature and allegedly with the bank’s knowledge that she was not authorized to do so. On August 16, 1977, Riverview filed suit against ELM and DiBiasio, alleging conversion, fraud, and breach of fiduciary duty, claiming damages in the amount of $18,000. Approximately a week later, Riverview filed suit against the bank, alleging breach of contract and possibly alleging conversion in wrongfully honoring checks drawn upon the Riverview account by DiBiasio. On September 29, 1977, a default was taken against ELM and DiBiasio, and judgment was entered against them for $18,000 plus costs. The bank then moved for accelerated judgment under GCR 1963, 116, alleging the defense of election of remedies. The trial court ruled on December 28, 1979, that Riverview’s claim against appellee was barred by the doctrine of election of remedies. The Court of Appeals affirmed in an unpublished per curiam opinion, Riverview Cooperative, Inc v First National Bank & Trust Co of Michigan, decided April 27, 1981 (Docket No. 49402), declaring itself bound by this Court’s decision in Ielmini v Bessemer National Bank, 298 Mich 59; 298 NW 404 (1941). We granted leave to appeal in order to determine whether the doctrine of election of remedies precludes Riverview from proceeding against appellee in this case, since Riverview has already obtained judgment, although unsatisfied, against the third-party converters, ELM and DiBiasio. I The doctrine of election of remedies has been much criticized as harsh and inequitable. Much scholarly writing has addressed the alleged inequities of the doctrine, and the case has been repeatedly advanced in the literature for restricting the application of the doctrine and even suggesting its abolition. We are not required to evaluate the validity of the doctrine in this case, however, because we conclude that the doctrine is inapplicable in the sense that it does not preclude Riverview from proceeding against the bank. In order to appreciate why the doctrine of election of remedies is not a bar to Riverview’s action against the bank, it is necessary to appreciate the nature of the doctrine and the requirements for its application. While scholarly definitions of the doctrine of election of remedies abound, it suffices to say that, in the context of this case, the doctrine is merely a procedural rule which precludes one to whom there are available two inconsistent remedies from pursuing both. United States v Oregon Lumber Co, 260 US 290, 304; 43 S Ct 100; 67 L Ed 261 (1922) (Brandéis and Holmes, JJ., and Taft, C.J., dissenting), citing Hine, Election of Remedies, A Criticism, 26 Harv L Rev 707, Griffith, Election Be tween Alternative Remedies, 16 L Q Rev 160, and Galbraith, Election Between Alternative Remedies, 16 L Q Rev 269; Bernstein v United States, 256 F2d 697 (CA 10, 1958), cert dis 358 US 924 (1959); Ray v Beneficial Finance Co, 92 NJ Super 519; 224 A2d 143 (1966); Montgomery v Cook, 76 NM 199; 413 P2d 477 (1966). Its purpose is not to prevent recourse to alternate remedies, but to prevent double redress for a single injury. Dobbs, Remedies, § 1.5, p 15; St Paul Fire & Marine Ins Co v Michigan National Bank of Detroit, 660 F2d 196 (CA 6, 1981); Bank of Commerce v Paine, Webber, Jackson & Curtis, 39 Wis 2d 30; 158 NW2d 350 (1968); Cashen v Owens, 225 Minn 25; 29 NW2d 440 (1947). See Roberts v Sears, Roebuck & Co, 617 F2d 460 (CA 7, 1980), cert den 449 US 975 (1980). In order that the election of remedies doctrine apply in any context, three prerequisites must be met. They were identified by this Court in Ielmini, supra, quoting 18 Am Jur, Election of Remedies, § 9, pp 132-133: " 'It is apparent from the definition and character of the doctrine of election of remedies already given that certain well recognized conditions must exist before the election becomes operative. These may be termed the "elements of election,” and their presence is essential in every instance in which the doctrine is to be successfully invoked. Since election presupposes a choice, it is obvious that a first inquiry in all cases where it is sought to charge a litigant with the consequences of having elected a remedy must be directed to the question whether at the time of the election there were two or more remedies available to him. If it is found that alternate remedies existed, their character must then be looked into in order to ascertain whether they are consistent and cumulative or inconsistent, for, as will be seen, the doctrine of election of remedies has application only where the remedies are of the latter charac ter. Available and inconsistent remedies being disclosed, it must further appear that the party has actually chosen and pursued the one to the exclusion of the other or others. Stated briefly, the essential conditions or elements of election of remedies are: (1) The existence of two or more remedies; (2) the inconsistency between such remedies; and (3) a choice of one of them. If any one of these elements is absent, the result of preclusion does not follow.’ ” Ielmini, 298 Mich 66-67 (emphasis supplied). Whether the doctrine bars prosecution of River-view’s claim in this case depends therefore upon a determination whether, at the time the cause of action against the bank accrued, the three conditions for application of the doctrine obtained. Clearly the first condition was met: two remedies existed, one against the converters of the funds, ELM and DiBiasio, and one against the bank for wrongful payment of the funds. The third requirement, a choice between available remedies, was likewise met because Riverview elected to proceed initially against ELM and DiBiasio and, in fact, obtained a judgment, although it remains unsatisfied. There remains the question whether the second of the necessary requirements for application of the doctrine obtained: inconsistency of the remedies. The Court of Appeals found the requisite inconsistency, relying upon the analysis employed by this Court in the factually comparable Ielmini case. Certainly, it is indisputable that Ielmini is a statement of the majority rule in this country concerning the doctrine of election of remedies in the context of separate lawsuits by a depositor against a third-party converter and a bank for unauthorized payment to the converter of sums on deposit in the bank, and, if the reasoning of Iel mini is sound, it controls the issue before us and precludes Riverview’s action against the bank. In Ielmini, Mr. Negri, who was treasurer of a local lodge of a voluntary fraternal association, was ordered by the supreme lodge to liquidate the affairs of the local organization. In doing so, Negri withdrew $1,137 on deposit in a savings account at the defendant bank. The bank received a written indemnity from Negri holding it harmless for this withdrawal. A lawsuit was later initiated by the local lodge against Negri and the supreme lodge for restitution of the funds withdrawn, and the plaintiffs ultimately prevailed. Unable to satisfy the judgment, the plaintiffs then sued the defendant bank for conversion. Although the bank raised the affirmative defense of election of remedies, the plaintiffs again prevailed. This Court reversed, concluding that the two remedies pursued by the plaintiffs were inconsistent. In reaching its decision, this Court first discussed the doctrine of election of remedies and then concluded: "In the chancery suit [against the converters] the trial court determined that the Supreme Grove [lodge] and Frank Negri wrongfully appropriated the moneys belonging to plaintiffs. Such a determination was the basis for the decree entered. See Koontz v Bay Circuit Judge, 224 Mich 463; 194 NW 1018 (1923). It was also determined that defendants wrongfully possessed money belonging to plaintiffs rather than money belonging to the bank. Otherwise, plaintiffs could not have been defrauded or had a decree entered in their favor. The chancery action was a ratification by plaintiffs of the action of the bank in paying the money to Negri as treasurer of the local lodge. The present action against defendant bank is based upon the theory that the bank has in its possession or should have in its possession certain moneys belonging to plaintiffs. The positions taken by plaintiffs in the chancery and law cases are inconsistent. "It is our opinion that when plaintiffs elected to pursue and charge Negri and the Supreme Grove for money had and received from the bank, plaintiffs elected to affirm the payment made by the bank to Negri.” 298 Mich 68. On the foregoing reasoning, the doctrine of election of remedies was held to bar the second suit. Acknowledging that Ielmini is an expression of the majority view on election of remedies in the context of wrongful bank withdrawals, Riverview argues that it is a poorly reasoned decision and should be overruled and stand as no objection to Riverview’s action against appellee in this case because the two remedies pursued by Riverview are not, upon a correct analysis, inconsistent. Appellee asserts, on the other hand, that the Ielmini rule is sound and controls this litigation. We turn then to examine the rationale of Ielmini. The keystone of this Court’s reasoning in Ielmini is the theory that when a depositor’s funds in an ordinary checking account are wrongfully paid by the bank to a person not authorized to withdraw them, the depositor, by electing to sue the third-party converter, impliedly asserts that the money paid to the converter by the bank was the depositor’s money and that the depositor is therefore entitled to its return from the converter. The essence of the analysis is the legal fiction that the funds paid by a bank from a depositor’s checking account to an unauthorized third party are either the funds of the depositor or the bank’s funds depending not upon any objective criteria such as a contract of bailment of the funds, but Upon the fortuitous choice of the injured depositor to proceed against the third party first or against the bank first, for recovery of the funds. The fiction is that if the depositor chooses to proceed first against the third-party converter for recovery of the funds, he has, by that choice, taken the position that the third party possesses his money and has asserted, by necessary implication, that it was the depositor’s money and not the bank’s money which the bank paid to the third-party converter. Consequently, the theory goes, the depositor cannot later sue the bank to recover his funds because in first suing the converter he has "ratified” or "affirmed” the fact that the bank no longer has his funds, having paid them to the converter. It is argued that an injured depositor cannot have it both ways and, thus, having chosen to proceed either against the converter or against the bank, has elected one remedy to the preclusion of the other. This analysis, first adopted by this Court in Ielmini, now seems to be well ensconced in the jurisprudence of this state. See Weaver v Detroit Bank, 330 Mich 366; 47 NW2d 650 (1951). In keeping with this theory, the appellee asserts, and the Court of Appeals held, that when River-view sought recovery initially against ELM and DiBiasio, it implicitly "affirmed” or "ratified” the fact that the converters were in possession of Riverview’s funds, albeit wrongfully, and that the bank no longer had the funds and cannot therefore be later held obligated to pay them to River-view when the judgment against the converters could not be satisfied. We think that analysis, which indeed underlies the doctrine of election of remedies in the context of this kind of case, is seriously flawed because it rests upon an erroneous premise: the fiction that monies on deposit in a bank in an ordinary checking account and later paid out upon the demand of an unauthorized withdrawer are not the bank’s funds because, in proceeding against the converter, the depositor has impliedly asserted that they are not. The theory that they are the funds of the depositor or the funds of the bank depending upon the injured depositor’s decision to proceed first against the converter or first against the bank is a fiction unsupportable in logic or fairness. We think the sounder approach is to recognize that the relationship between a depositor and a bank in a case such as this is one of debtor and creditor. Owosso Masonic Temple Ass’n v State Savings Bank, 273 Mich 682, 689-691; 263 NW 771 (1935); Wettlaufer Mfg Corp v Detroit Bank, 324 Mich 684, 692; 37 NW2d 674 (1949); Benge v Michigan National Bank, 341 Mich 441, 445; 67 NW2d 721 (1954); Hindman v Community National Bank of Pontiac, 14 Mich App 746, 748; 165 NW2d 894 (1968); In re Peoples State Bank of Auburn, 51 Mich App 421, 444; 215 NW2d 722 (1974); Hennesy Equipment Sales Co v Valley National Bank, 25 Ariz App 285, 287; 543 P2d 123 (1979). When funds are deposited in an ordinary checking account, they become the bank’s funds for such use as the bank deems appropriate, sub ject only to the bank’s duty to repay to the creditor-depositor an amount equal to the sums deposited upon the call of the depositor or his authorized representative. The money, once deposited, becomes the bank’s money, the depositor having only an entitlement to recoupment of an equivalent sum upon demand, having loaned the bank the amount deposited. Such funds become a fungible part of the bank’s general assets and retain no separate identity. Similarly unpersuasive is the related theory of Ielmini that the depositor, by suing the converter first, "ratifies” or "affirms” "the payment made by the bank to [the converter].” 298 Mich 68. Although this "ratification” or "affirmance” concept was essential to the Ielmini Court’s decision, it is difficult for us to conceive how Riverview, by suing ELM or DiBiasio, ratified or affirmed the action of First National Bank in wrongfully paying out the money. Riverview sought redress from ELM and DiBiasio without regard to or comment upon the bank’s liability or nonliability. River-view’s decision to proceed against ELM and DiBiasio cannot be considered an election by River-view to treat the act of First National Bank as authorized, nor was Riverview’s cause of action valid only if it had affirmed First National Bank’s action. See 1 Restatement Agency, 2d, §§ 82, 83, pp 210-213; David v Serges, 373 Mich 442, 444; 129 NW2d 882 (1964). Riverview’s action against ELM and DiBiasio was not a ratification or an affirmance of First National Bank’s action in wrongfully honoring checks drawn upon Riverview’s account by a drawer not authorized to do so. In Hennesy Equipment Sales Co v Valley National Bank, 25 Ariz App 285, 287-288; 543 P2d 123 (1979), the Arizona Court of Appeals, on facts comparable to those before us today, analyzed and rejected the Ielmini analysis and the majority view, recognizing in the process, as we do, that the prevailing view misconceives the relationship between a depositor and a bank in an ordinary commercial transaction: "The relationship between the bank and its checking account depositor is that of debtor and creditor, the deposit being a loan to the bank without interest, and the money so deposited belongs to the bank. Valley National Bank v Witter, 58 Ariz 491; 121 P2d 414 (1942); Davies & Vincent v Bank of Commerce, 27 Ariz 276; 232 P 880 (1925). It is therefore somewhat fallacious to speak in terms of the bank paying its money or the depositor’s money, all the money as such belongs to the bank and the bank is merely discharging its debt to the depositor, pro tanto, by payment of the depositor’s checks. V H Juerling & Sons, Inc v First National Bank, 143 Ind App 671; 242 NE2d 111 (1968). Implied in this debtor-creditor relationship is the contractual undertaking on the part of the bank that it will only discharge its obligation to the depositor upon the authorized signature of the depositor. Neal v First National Bank, 26 Ind App 503; 60 NE 164 (1901). "Upon analysis then, the depositor’s cause of action against the bank for payment of a forged check is based upon a breach of the bank’s contractual obligation to satisfy its debt only upon the authorized signature of the depositor — in essence, to re-establish the credit balance enjoyed by the depositor prior to the debit to that balance of the forged instrument. "Looking to the liability of the forger, the basis of the bank’s cause of action against the forger is clear — either conversion of the bank’s money; money had and received, or fraud. On the other hand, the basis of the depositor’s cause of action against the forger is not that clear. The traditional view is that it is based upon conversion of the depositor’s money or money had and received. In order, however, to make the money received by the forger the depositor’s money, a legal fiction has to be created; that is, saying the forger now has the depositor’s money by the depositor ratifying the bank’s wrongful act of honoring the check. That it is a legal fiction is obvious from our previous discussion— the actual money received from the bank is always the bank’s money, merely the bank’s debt is satisfied by the payment. Moreover, acts giving rise to an implied ratification usually denote a benefit being bestowed on the ratifier. What benefit, other than the right to maintain the action, is bestowed on the depositor by the forger’s wrongful act? There simply is none. Also, the very act of bringing suit against the forger by the depositor is not a ratification of the payment of money, but a disavowal of the forger’s act and the statement by the depositor that the forger is a wrongdoer. "What then is the harm suffered by the depositor at the hands of the forger that really is the basis of the cause of action? It appears to us that the forger’s wrongful act causes two harms — one to the bank for fraudulently inducing it to relinquish its money and one to the depositor by wrongfully causing his bank account to be debited. "Aside from dictates of public policy which should subject a forger to as many legal actions as the law could devise, it would appear that the only harm caused the depositor is the wrongful interference with its contractual debtor-creditor relationship with the bank —a tort. When viewed in this light, we see no inconsistency in substantive rights by pursuing one party (the bank) who breaches its contractual obligation and also pursuing another party (the forger) who wrongfully interferes with that contractual relationship.” We think, as the Hennesy Court did, that the rationale of the Ielmini rule is unsound and that its application leads inexorably to unwarranted and often unfair results. We conclude, therefore, that Ielmini should be overruled. II How, then, should the facts of this case be tested for application of the doctrine of election of remedies? Our answer is that in determining whether the lawsuits filed against ELM and DiBiasio on the one hand, and the bank on the other, are inconsistent for purposes of the election of remedies doctrine, the focus should be upon the nature of the wrongs done to the innocent depositor by the converters and the bank, and not upon the legal fiction concerning the ownership of the deposited funds as determined by the fortuitous decision of the depositor to proceed against one wrongdoer before the other. Assuming the truth of Riverview’s factual allegations for purposes of reviewing the correctness of the accelerated judgment in this case, it is clear that Riverview is the victim of separate and distinct wrongs at the hands of the converters and the bank. Riverview’s cause of action against ELM and DiBiasio is for fraud, conversion, and breach of fiduciary duty. Regardless of the semantics, the essence of the cause of action against the converters is grounded in tort — be it fraud, conversion, or breach of fiduciary duty. The converters intentionally interfered with the appellants’ contractual relationship with the bank. Riverview’s cause of action against the bank is for breach of its contractual obligation to Riverview by paying a third party sums drawn upon Riverview’s account without its authority, and wrongfully debiting the account. They are separate and distinct wrongs committed by different parties, calling for different remedies. The remedies, while concurrent, are consistent. There is nothing in the appellant’s effort to seek redress against the converters for the wrong done by them which is inconsistent with a subsequent effort to seek redress from the bank for its failure to honor its contractual obligations. While the converters and the bank are each, on the facts alleged, guilty of separate and distinct wrongdoing, Riverview suifered but a single injury. Consequently, Riverview may have but one satisfaction for that injury and may not have double redress. The remedies sought do not proceed from opposite and irreconcilable claims of right and are not inconsistent in the sense that a party may not logically pursue one remedy without renouncing the other. Since the wrongs for which Riverview seeks redress are separate and consistent, as opposed to inconsistent, the doctrine of election of remedies does not bar the appellant’s cause of action in this case. To the extent that Ielmini is inconsistent with what is said here, it is overruled. The judgment of the Court of Appeals is reversed. Williams, C.J., and Kavanagh, Levin, Brickley, and Boyle, JJ., concurred with Ryan, J. Cavanagh, J., took no part in the decision of this case. 414 Mich 864 (1982). See, e.g., Hine, Election of Remedies, A Criticism, 26 Harv L Rev 707; Note, Election of Remedies: A Delusion?, 38 Colum L Rev 292; Fraser, Election of Remedies: An Anachronism, 29 Okla L Rev 1. See Walraven v Martin, 123 Mich App 342; 333 NW2d 569 (1983). Cf. Gruskin v Fisher, 405 Mich 51; 273 NW2d 893 (1979) (election of remedies in the context of land contract defaults). This rationale, which we have said is the majority view on the issue in this country, is succinctly articulated in 9 CJS, Banks and Banking, § 356, p 752: "Election of remedies. A plaintiff who sues a drawee bank on a check paid by it on a forged indorsement takes the position that the bank still has his money, that the money paid out by the bank was the bank’s money, and that such payment was not binding on plaintiff; and, where he sues another who has indorsed such check over to the drawee bank, he necessarily takes the position that the money paid by the drawee bank was wrongfully paid and, therefore, wrongfully detained. Such positions are mutually contradictory, and in choosing his remedies plaintiff cannot adopt both positions.” While the cited authority describes the rule in the context of a forged instrument, and the withdrawals in this case were upon authentic but unauthorized signatures, the rule applies in both situations.	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Levin, J. Robert Reid Crawford was charged with forgery, uttering and publishing, and with being a fourth-felony offender. Pursuant to a plea bargain, the uttering and publishing charge was dismissed, the supplemental information was amended to charge only one prior felony, and Crawford pled nolo contendere to the charge of forgery and guilty of being a second offender. Crawford appealed, claiming that the plea bargain was illusory because the particular conviction charged in the amended supplemental information was subject to attack on the ground that it was obtained pursuant to a plea of guilty which was defective in that he was not advised of two of the constitutional rights identified in People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). The Court of Appeals affirmed, stating "that only those prior guilty-plea convictions where the defendant was not represented by counsel should be excised from one’s prior conviction record for purposes of the habitual offender statute”. The Court of Appeals continued that "assuming arguendo that defendant’s contention is correct, we cannot say that prejudicial error has occurred in the sentence of the trial court.” We affirm, but do so on a different analysis. A By pleading guilty to the supplemental information charging forgery as a second offense, Crawford enlarged the judge’s sentencing authority. The maximum punishment for forgery is 14 years, which could have been increased to 21 years as a result of Crawford’s plea of guilty to the amended supplemental information. Crawford was actually sentenced to serve a term of 6 to 14 years, a sentence which could have been imposed upon conviction of forgery as a first offense had he not pled guilty to the amended supplemental information charging it as a second offense. Accordingly, Crawford did not suffer any prejudice in respect to the sentence imposed as a result of the inclusion in the amended supplemental information of the prior conviction which he now asserts is defective under Jaworski. B Crawford asserts that he was nevertheless prejudiced because if he had not been originally charged in a supplemental information as an habitual offender, fourth offense, which, upon conviction, subjects the offender to a sentence of life or a lesser term, he might not or would not have pled guilty or might have been able to work out a more advantageous plea bargain than the one which he was able to negotiate. Crawford did not, before pleading nolo contendere and guilty, move to quash the supplemental information on the ground that the June 13, 1969, conviction was defective. Crawford’s claim that a prior conviction is defective is based on facts which would not appear in a printout of his prior convic tion record. Under the decisions of this Court, a prosecutor has a limited time in which to file a supplemental information. He cannot be expected to order the trial court record in every prior case in which a defendant was convicted and scrutinize it for error before filing a supplemental information. No claim is made that the prosecutor included in the supplemental information a conviction which, under established principles, he could not properly include. Nor is it claimed that the prosecutor was on notice that a prior conviction was deficient or subject to challenge. Crawford not having moved to set aside the prior conviction of which he now complains or to quash the supplemental information, and it not appearing that the prosecutor was on notice that the prior conviction may have been deficient or subject to challenge, Crawford cannot properly complain that he might not or would not have pled guilty or might have worked out a better plea bargain if the facts had been developed and his legal position had been sustained. C A conviction defective under Jaworski can be challenged by a timely motion by the defendant to quash the supplemental information or to strike from the supplemental information .the defective conviction. To be timely, such a motion must be made before a defendant’s plea of guilty or nolo contendere is accepted. Affirmed. Williams, C.J., and Kavanagh and Cavanagh, JJ., concurred with Levin, J. MCL 750.248; MSA 28.445. MCL 750.249; MSA 28.446. MCL 769.12; MSA 28.1084. Crawford asserted at the plea-taking proceeding that by reason of intoxication he had no independent recollection of having committed the offense. Crawford argues that charging him as a fourth offender "was a coercive misrepresentation of the prosecutor’s charging authority” and that his plea was made "pursuant to an illusory bargain”. The three prior felony convictions alleged in the supplemental information occurred on August 14, 1964, in Berrien County, of uttering and publishing, on March 7, 1969, in Ingham County, of uttering and publishing, and on June 13, 1969, in Ingham County, of attempted uttering and publishing. The instant charge was for forgery and uttering and publishing in Jackson County. The first two prior felony convictions alleged in the supplemental information were eliminated as a result of the plea bargain. The prosecutor relied on the June 13, 1969, attempted uttering and publishing conviction as Crawford’s one prior felony conviction in the amended supplemental information. At the June 13, 1969, plea proceeding, Crawford was advised of his right to a jury trial, but was not advised of his rights to confront his accusers and not to be compelled to incriminate himself, two of the Boykin-Jaworski rights. Boykin was decided on June 2, 1969, 11 days before Crawford pled guilty on June 13, 1969. In People v McMillan, 389 Mich 114; 204 NW2d 682 (1973), this Court stated that, with a limited exception there noted, the Boykin-Jaworski requirements do not apply to pleas of guilty taken before June 2, 1969. The two prior convictions which were dropped as part of the plea bargain, the convictions on August 14, 1964, and March 7, 1969, were obtained prior to the decision in Boykin. The March 7, 1969, conviction followed a jury trial. Crawford asserts, alternatively, that his second and third prior convictions, on March 7, 1969, and June 13, 1969, were of crimes which occurred only one day apart — on March 29 and March 30, 1968. He contends that for two convictions to count as two distinct, successive convictions for purposes of the habitual offender statute, the conviction of the first offense must occur before the commission of the second offense. This claim, like his principal claim based on Jaworski, depends on facts not of record at the plea taking, and, again, this claim was not advanced before the plea was offered and accepted. We see no need to consider it further or to decide the question Crawford has raised alternatively. Jaworski was based on Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969). People v Crawford, 98 Mich App 309, 312; 296 NW2d 244 (1980). The Court of Appeals went on to say: "The defendant was charged with two distinct felonies. Beyond that, he was guilty of violating the habitual offender statute as at least a third-felony offender. "Considering that defendant’s total sentence was only 6 to 14 years, it can hardly be said that defendant did not receive all that justice allows. Common sense and logic compels us to the inescapable conclusion that the defendant was neither prejudiced nor harmed by the inclusion of the contentious fourth-felony conviction, which was as a result of a plea taken only 11 days after the Boykin [v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969)] opinion was released from Washington”. See fn 1. The habitual offender statute provides that the maximum term of imprisonment which may be imposed upon conviction as a second offender is not more than 1-1/2 times the longest term prescribed for a first conviction, MCL 769.10; MSA 28.1082, and, upon conviction as a third offender, twice the longest term prescribed, MCL 769.11; MSA 28.1083, and, upon conviction as a fourth offender, life imprisonment (see fn 3). See fn 3. Crawford makes no claim that two of his prior convictions were defective, and hence he may have been convicted as a third offender. He may, therefore, not have been prejudiced by the inclusion in the supplemental information of a conviction which was defective under Jaworski. We do not, however, posit affirmance of his conviction on that basis. A prosecutor may not have all the facts regarding prior convictions when they are included in a supplemental information. Under this Court’s decisions, People v Shelton, 412 Mich 565; 315 NW2d 537 (1982), and People v Fountain, 407 Mich 96, 97; 282 NW2d 168 (1979), a prosecutor may not delay his decision whether to charge a defendant as an habitual offender until he receives a transcript of underlying proceedings and has the opportunity to search for error. The United States Supreme Court has held that a conviction obtained without the advice of counsel in violation of Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), may not be used to charge the accused as an habitual offender, Burgett v Texas, 389 US 109; 88 S Ct 258; 19 L Ed 2d 319 (1967), or in imposing sentence for a subsequent offense, United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), or for impeachment in subsequent trial, Loper v Beto, 405 US 473; 92 S Ct 1014; 31 L Ed 2d 374 (1972). This Court applied the principle set forth in Tucker in People v Moore, 391 Mich 426; 216 NW2d 770 (1974). While the denial of the right to counsel has been given special importance in evaluating the effect of previous convictions on subsequent proceedings, this Court has assigned pre-eminent importance to the Boykin-Jaworski rights in guilty-plea procedures. See Guilty Plea Cases, 395 Mich 96, 120-122; 235 NW2d 132 (1975), holding that the failure to advise of those rights mandates reversal. The Supreme Court of Washington has extended the concept that a defective conviction cannot be used in subsequent proceedings to include a plea-based conviction obtained on an inadequate recital of defendant’s rights. See State v Chervenell, 99 Wash 2d 309; 662 P2d 836 (1983). United States v Timmreck, 441 US 780; 99 S Ct 2085; 60 L Ed 2d 634 (1979), relied on in the concurring opinion, is distinguishable. In Timmreck, the trial judge failed to advise the defendant of a mandatory special parole term required by the court rule. The United States Supreme Court held that since the failure to provide the advice was not of constitutional magnitude, the conviction was not subject to collateral attack. This Court has held, however, that the Boykin-Jaworski rights are of such importance that the failure to advise of such rights requires that a guilty plea be set aside. See People v Jaworski, supra; Guilty Plea Cases, supra. Further, the question here is not whether the conviction is subject to collateral attack as an alternative to direct appeal, the issue dealt with in Timmreck, but whether the defective conviction may be used in supplemental proceedings when the repercussions to the defendant of his failure to appeal may yet be felt. A defendant placed on probation might not appeal a defective conviction. We are persuaded that a plea-based conviction, violative of Boykin-Jaworski, cannot be used to supplement a charge in habitual offender proceedings.	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Leave to appeal denied.	[ 30, -59, -61, -10, 27, 37, -3, 42, -34, 29, -43, 20, 57, -54, 0, 36, 61, 43, -22, 13, -6, 28, 0, 38, 3, -103, 26, 43, -33, -36, 51, -49, -25, -68, -38, -40, -26, 4, -1, 0, -11, -23, -11, 40, -29, -55, 36, 20, -41, 59, -5, 56, -49, 1, 3, 73, 61, -9, -31, 29, -41, 70, 12, 71, 21, -4, -49, -11, 16, -51, -13, 0, -8, -2, 1, 2, 16, 69, 52, 59, 65, 1, 0, -45, 32, 61, 52, 60, 31, 41, -1, -48, -42, -1, -56, 76, -13, -47, 37, -40, -14, 70, 34, -34, -21, -29, 13, 74, -12, -13, 3, 18, -5, -36, 22, -34, 3, 22, 19, -10, -29, 66, 27, 35, 56, 3, 47, -13, -10, -58, 0, 41, 45, 10, -8, -17, 51, -68, -37, -71, -40, 116, 45, -47, 3, -71, 29, -20, 0, -9, 39, -24, -26, 42, 5, 28, 33, 11, 47, 32, 25, 65, -52, 28, 70, -39, 19, 24, 48, 13, 15, 81, 20, -26, -12, 4, -4, 1, -18, 36, -32, 18, -3, 49, -4, -37, 1, -10, 22, -74, -69, -19, 57, 45, 52, -12, 21, 4, 30, 10, -32, 68, -38, 20, 64, -68, 12, -2, 16, -13, -50, 25, -5, -46, 16, -38, -37, 35, 20, 11, 28, 51, -23, -52, -63, 44, -13, 65, 9, -13, -5, 56, 21, 30, 27, 0, 0, 7, 44, -21, -72, 4, -24, 45, -25, -57, -44, 36, 28, -57, 51, 31, 65, -41, -71, -28, -25, -5, -7, -23, -7, 28, 30, 5, 7, 28, -41, 36, 44, -28, 9, 12, -12, -77, 34, 2, 13, 12, 55, -4, -20, 35, -27, -7, -69, 25, 18, -38, -11, 38, -6, -10, 19, 68, 15, -58, -39, 75, -44, -13, 43, 30, -28, 34, 51, -10, -38, -50, 107, 0, 16, -18, 0, 7, 17, -39, -4, -78, -60, -32, -27, -40, 7, 58, -30, 39, -9, 10, 40, 46, -18, 8, -63, 50, 34, 52, -3, -29, -21, 55, -63, 88, 1, -30, -13, -19, -44, -23, 107, 66, 39, 20, 3, -49, -6, 57, -50, -80, -63, 30, 23, -63, -6, 50, 32, -25, 35, 45, -2, 1, -47, -31, 44, -51, -27, 58, -12, -19, -19, -70, -53, -49, -8, 23, -3, 42, 24, 34, 54, 50, -5, -45, -19, -53, 14, 40, 37, 43, 65, 32, -51, -49, -73, 57, -11, -16, -3, -4, -36, 42, -43, 74, 11, 44, -31, -7, 40, -12, 27, -13, -35, -63, -12, 15, -25, 0, -44, 0, 34, 36, -16, -33, -18, -83, -29, -15, 31, 0, -3, 11, -67, -34, 33, -28, -50, -48, -32, -38, -100, -1, -28, 6, 4, -34, -43, -81, -42, 79, 34, 2, -41, -7, -17, 35, 44, 12, -71, 11, 8, -35, -5, 4, -9, -29, -9, -36, -35, -6, -19, -50, 27, -31, -9, 0, 42, 16, 0, -8, 4, -10, -28, 34, 46, 12, -37, 40, 61, -52, -6, 22, -62, 2, 6, 7, 46, -27, 7, -33, 43, -9, -2, -13, -14, 10, -6, 39, -27, 5, -45, -21, -20, 1, 43, -17, 20, -2, -100, -19, 0, 59, -30, 6, -7, 22, -20, -61, 51, 6, -84, 20, -4, -43, -56, 20, -1, 34, -41, 5, 10, 27, 44, -2, -59, 22, -33, -44, -5, -19, 30, -28, -1, -12, -10, 20, -69, -20, -30, 46, 16, 59, 63, 20, -45, 38, 50, 6, 84, -2, -18, 1, -11, 23, 14, -21, -4, -82, -42, -44, -43, -57, -36, -32, 1, -70, 8, 4, 12, -17, -11, 84, -65, 33, -12, 13, 2, 11, 17, -15, 5, -9, -25, 7, 3, -6, -60, -14, -2, 41, 25, -14, 37, 38, -20, -58, -69, -11, 17, 16, 42, 56, 0, 60, 7, -52, 7, 43, -16, 21, -13, 44, 50, -20, -15, -5, -21, 14, 39, -61, 6, -6, 18, 56, 7, -36, 25, 48, -42, -16, 11, -2, -36, 25, -9, 31, -65, -20, -34, 42, 42, 37, -26, 94, 31, 25, -39, -22, 53, -20, -20, 40, -14, -83, 20, -36, 6, 8, 31, -2, -17, 18, 57, 13, 73, 13, -18, -49, -4, 37, 10, 8, 21, -13, 31, 3, 1, -3, -44, -61, -18, -6, -45, -5, 20, 3, 95, -49, -56, -37, 54, -8, 3, 0, -33, 6, -3, 54, 12, 23, 68, 0, -13, -22, 32, -2, -48, -14, -7, 21, 74, 14, -39, 0, 29, -12, 9, 6, 14, -34, 10, -88, 8, -23, -52, 41, -39, -41, -13, -20, 4, -10, 2, -45, -1, 9, -1, 7, 10, -2, 72, 44, 33, -49, 44, -28, -11, 8, 20, 25, 57, 11, 0, -62, -35, 18, 33, -9, -86, -29, -34, -56, 0, -51, -64, 18, 55, 17, -1, -43, 12, -3, -15, -18, 4, 4, 24, -42, -20, 20, -7, -38, 25, -20, -42, 2, 10, 1, 57, 51, 7, -9, 51, 29, -26, 33, 20, -49, 20, 29, 17, 11, -29, 46, 48, 16, -20, -65, -8, -32, 60, -17, -14, -11, 28, -15, -15, -18, -52, 0, -11, 8, 3, -86, -45, 53, 1, -5, -15, -26, 23, 3, -2, 37, 33, 40, -28, 3, 33, -29, 37, 22, 3, -76, 31, 2, -26, 46, -19, -30, -21, 68, -32, -51, 6, -34, 66, -1, -19, 19, -22, 16, 62, -48, -47, 30, 55, 36, 12, 55, -20, -12, -16, -80, 9, -26, 26, -43, 36, -25, 18, -5, -45, 14, 0, -67, 66, -50, -75, 19, -12, -14, 39, 16, -26, -27, 19, -20, -36, -30, 29, -69, 74, -20, 30, -42, -26, -38, -4, -56, -4, -42, 36, 23, -32, -17, -38, 18, -29, 25, -4, 27, 4, -44, 19, -32, -4, -10, -44, 28, -45, 6, -40, 24, -6, 75, 0, 17, -11, 33, -49, 4, 36, 14, 14, -32, -38, 34, -39, -19, 39, 27, 6, -48, 3, -65, -47, -26, -25, 29, -21, -39, -3, 17, 1, -22, 25, -16, -57, 27, 21, 73, 52, 50, 35, -10, 9, 62, 16, -18, 18, 19, 26, 29, 45, 56, -11, -43, 13, 2, -61, 106, -3, -43, -24, -30 ]
Rehearing granted. Reported at 415 Mich 328.	[ -33, -6, 2, 1, -30, 9, -15, -2, -50, 14, 65, -42, -9, -51, -7, 41, -15, -10, 17, -54, -72, -31, -18, 41, -33, 93, 31, -12, 12, -82, -36, -21, -28, -17, -13, -79, 14, 41, 2, 1, -3, 20, -12, -69, -50, -53, -4, 15, 58, -19, 7, 27, -25, -31, -23, 42, -50, 7, -46, 35, 25, 40, 6, 9, 31, 17, -14, 2, -2, 36, 35, -2, -1, 37, -5, 39, -30, 19, -10, 36, 22, 19, -12, 28, -10, -13, 59, -67, -9, -46, 43, -60, -14, 0, 9, -30, 7, 11, 2, 50, -48, -28, 5, -32, -7, -19, -16, 19, -16, -13, 69, -24, 32, -38, 5, 40, 1, 17, 94, 61, -4, 30, -53, -5, -26, 6, -7, -7, 4, -6, -18, 16, 31, 12, 69, -16, 26, 3, -35, -42, 20, 23, 38, 4, 39, 16, -28, 17, 26, 7, -20, -24, 35, 37, 8, -26, -37, -47, 46, 19, 49, -17, -56, -49, -16, -32, 41, -54, 10, -16, 23, -32, 59, -44, -26, -31, 4, 57, -36, -11, -8, 0, -15, -34, 8, -3, 2, -1, -36, -18, -38, 10, 13, 44, -16, 33, 36, 40, -49, 19, 6, 42, -19, 0, -50, -77, 45, -33, 5, 59, 3, -6, -61, -21, 16, -53, 56, 13, 33, 31, 7, -37, 68, 19, -19, 5, 15, 63, 36, -20, 9, 2, 0, 8, 51, -14, 35, 60, 50, -81, -24, -68, 24, 5, 14, 38, -36, -32, 33, -60, 25, 14, 29, -60, -19, 35, -12, 36, 23, 9, 80, 34, -2, -11, -78, 18, -31, 3, 27, -30, 73, -29, -3, -2, 3, 14, -12, -22, 41, 53, -38, -64, -11, 106, 17, -9, -3, 30, 14, -18, -12, 30, 40, -12, 29, -38, -37, 20, 15, 45, 33, 58, -41, 2, -42, 12, 6, 2, -6, 45, 39, 5, 55, 34, -16, -66, 1, -13, -21, 11, 9, -2, -15, -28, -74, 0, 51, 40, 40, -20, 40, 2, 0, 26, -22, 16, -29, -16, -13, 25, 87, -11, -22, 13, -28, -6, -45, -31, 13, -15, -39, -9, -23, 26, -11, -31, -25, -34, 41, 0, 42, 4, 42, 34, -30, -26, -12, -14, -51, 11, -14, -42, -16, 12, -8, 52, 8, -65, -18, 0, -44, -8, -97, 0, 15, -25, -27, -17, -37, 16, 2, 54, -27, -20, -48, 28, 44, -22, -74, -4, 8, 2, 25, 65, 18, 6, 31, 2, 25, 52, 6, -41, -31, -43, 0, -49, 2, 74, -9, -28, -61, 0, -27, 23, -27, 6, 40, 6, 8, 41, -7, -28, 18, -3, -23, -11, -18, -20, 8, 17, -11, -16, -102, 1, 16, -5, -26, 22, 35, -22, 52, 28, -7, -18, -35, 17, -41, 27, -30, -35, -5, -79, -25, 9, -6, -64, 50, 25, 6, 108, 4, -68, -12, 74, -28, -19, 33, -40, -28, 34, 6, -47, -40, -30, -40, -20, -38, 30, -20, 42, 1, -12, -10, 26, -6, 14, -12, 1, 4, 40, -9, 34, -17, 7, 17, -47, -45, 13, -60, -70, 64, 11, -5, 44, 48, 27, -13, -9, 20, 10, -8, 21, 15, -23, -25, -6, -21, 3, -52, 18, -22, -9, -3, -46, 18, -22, -71, 20, -47, 5, 8, 21, 22, -64, 32, 32, -16, -52, 31, 22, -12, -40, -18, 26, -10, -46, 73, -10, 40, -28, 18, -28, -8, 39, -14, 17, -55, -57, 50, -26, 13, 25, 73, 18, 9, -14, -8, 21, -9, -25, 26, 7, 47, 67, 24, -7, 4, -28, 11, 35, -50, 44, -16, -21, -59, 13, -3, 35, -39, 26, 30, -6, -2, -6, 35, 12, 11, -8, 34, 16, -14, -5, -26, 22, -25, 30, 0, 10, 30, 8, -23, 12, 2, -46, 0, 0, 28, -29, -31, 19, -55, 27, -17, 35, -16, 18, 19, -50, 17, 32, -25, -8, 39, -25, 21, -70, 3, 11, -40, 17, 49, 13, 36, -15, 29, -5, 26, -87, 84, 5, 23, 41, -20, -12, -56, -66, 45, -8, 81, 17, 1, 8, 34, -30, 45, 10, -46, 20, -16, -26, -32, 2, -25, 34, 22, -33, -10, 19, -11, 44, -6, 72, 0, -11, 14, 22, 51, -12, -32, 45, -1, -30, 7, -52, -42, 21, 1, -11, 13, -25, -6, -65, -38, 45, 18, -10, -43, 13, 31, 23, 35, 46, 6, -8, -30, 28, -2, 19, -21, 5, 17, 1, 4, -32, -19, -43, -4, -11, -33, 5, -12, -9, -38, -53, -50, -6, 28, 55, -46, -20, 36, 27, 55, -3, -32, 50, 14, -28, -11, 50, 25, 2, -50, 42, 18, 21, -19, 0, 25, 35, -22, 9, 18, 30, 18, -23, -21, 11, 25, -65, 7, 30, -28, -25, 3, -58, 9, -66, -9, -7, -26, -44, 12, 1, 57, 11, 54, -56, 40, 20, -5, -37, -13, 18, 39, 18, -37, 9, 23, 4, 25, 30, -32, -62, -10, -55, 35, -12, 23, -25, 20, 26, 57, -67, -47, -32, -42, 1, 41, 21, 11, 24, 19, 9, -48, -16, 75, -4, -1, 53, -4, -37, -6, -20, -43, 7, -21, 16, -34, 18, 23, 48, 39, -32, -36, 27, -6, 4, -9, -18, -7, 72, -7, -23, 33, 33, 19, -32, 38, -28, 27, -53, -10, 38, -39, 25, 8, -1, 17, -51, -2, 2, 64, -69, 43, 49, 0, 2, -7, -7, -14, 44, 5, -6, 37, -20, 24, 20, -57, 0, -9, 45, -38, 26, 60, -5, -77, -7, -48, 0, 5, 7, -31, -11, -51, -39, -27, -11, 33, -7, 65, -16, -26, -11, 12, -3, 42, -65, -11, -22, 4, -12, -59, -34, 3, -8, -5, -15, -23, -6, 27, 20, -37, 5, -13, 1, -39, 58, -41, 36, -25, -29, -3, -3, -33, -7, 37, 23, 7, -21, 24, 13, 26, -20, -23, 0, -77, 11, 52, 30, 43, 65, -25, 18, -2, -22, -19, 6, -31, -21, -11, 21, 47, 0, -4, -30, 3, -11, 48, -39, 13, -35, 0, -46, -44, -42, -13, 23, 1, 35, 19, 52, 36, -34, -3, -38, 6, -13, -48, 30, 1, 80, -38, -9, 19, 7, 26, -34, 62, -6, 59, -24, -50, 31 ]
Leave to appeal denied.	[ 30, -59, -61, -10, 27, 37, -3, 42, -34, 29, -43, 20, 57, -54, 0, 36, 61, 43, -22, 13, -6, 28, 0, 38, 3, -103, 26, 43, -33, -36, 51, -49, -25, -68, -38, -40, -26, 4, -1, 0, -11, -23, -11, 40, -29, -55, 36, 20, -41, 59, -5, 56, -49, 1, 3, 73, 61, -9, -31, 29, -41, 70, 12, 71, 21, -4, -49, -11, 16, -51, -13, 0, -8, -2, 1, 2, 16, 69, 52, 59, 65, 1, 0, -45, 32, 61, 52, 60, 31, 41, -1, -48, -42, -1, -56, 76, -13, -47, 37, -40, -14, 70, 34, -34, -21, -29, 13, 74, -12, -13, 3, 18, -5, -36, 22, -34, 3, 22, 19, -10, -29, 66, 27, 35, 56, 3, 47, -13, -10, -58, 0, 41, 45, 10, -8, -17, 51, -68, -37, -71, -40, 116, 45, -47, 3, -71, 29, -20, 0, -9, 39, -24, -26, 42, 5, 28, 33, 11, 47, 32, 25, 65, -52, 28, 70, -39, 19, 24, 48, 13, 15, 81, 20, -26, -12, 4, -4, 1, -18, 36, -32, 18, -3, 49, -4, -37, 1, -10, 22, -74, -69, -19, 57, 45, 52, -12, 21, 4, 30, 10, -32, 68, -38, 20, 64, -68, 12, -2, 16, -13, -50, 25, -5, -46, 16, -38, -37, 35, 20, 11, 28, 51, -23, -52, -63, 44, -13, 65, 9, -13, -5, 56, 21, 30, 27, 0, 0, 7, 44, -21, -72, 4, -24, 45, -25, -57, -44, 36, 28, -57, 51, 31, 65, -41, -71, -28, -25, -5, -7, -23, -7, 28, 30, 5, 7, 28, -41, 36, 44, -28, 9, 12, -12, -77, 34, 2, 13, 12, 55, -4, -20, 35, -27, -7, -69, 25, 18, -38, -11, 38, -6, -10, 19, 68, 15, -58, -39, 75, -44, -13, 43, 30, -28, 34, 51, -10, -38, -50, 107, 0, 16, -18, 0, 7, 17, -39, -4, -78, -60, -32, -27, -40, 7, 58, -30, 39, -9, 10, 40, 46, -18, 8, -63, 50, 34, 52, -3, -29, -21, 55, -63, 88, 1, -30, -13, -19, -44, -23, 107, 66, 39, 20, 3, -49, -6, 57, -50, -80, -63, 30, 23, -63, -6, 50, 32, -25, 35, 45, -2, 1, -47, -31, 44, -51, -27, 58, -12, -19, -19, -70, -53, -49, -8, 23, -3, 42, 24, 34, 54, 50, -5, -45, -19, -53, 14, 40, 37, 43, 65, 32, -51, -49, -73, 57, -11, -16, -3, -4, -36, 42, -43, 74, 11, 44, -31, -7, 40, -12, 27, -13, -35, -63, -12, 15, -25, 0, -44, 0, 34, 36, -16, -33, -18, -83, -29, -15, 31, 0, -3, 11, -67, -34, 33, -28, -50, -48, -32, -38, -100, -1, -28, 6, 4, -34, -43, -81, -42, 79, 34, 2, -41, -7, -17, 35, 44, 12, -71, 11, 8, -35, -5, 4, -9, -29, -9, -36, -35, -6, -19, -50, 27, -31, -9, 0, 42, 16, 0, -8, 4, -10, -28, 34, 46, 12, -37, 40, 61, -52, -6, 22, -62, 2, 6, 7, 46, -27, 7, -33, 43, -9, -2, -13, -14, 10, -6, 39, -27, 5, -45, -21, -20, 1, 43, -17, 20, -2, -100, -19, 0, 59, -30, 6, -7, 22, -20, -61, 51, 6, -84, 20, -4, -43, -56, 20, -1, 34, -41, 5, 10, 27, 44, -2, -59, 22, -33, -44, -5, -19, 30, -28, -1, -12, -10, 20, -69, -20, -30, 46, 16, 59, 63, 20, -45, 38, 50, 6, 84, -2, -18, 1, -11, 23, 14, -21, -4, -82, -42, -44, -43, -57, -36, -32, 1, -70, 8, 4, 12, -17, -11, 84, -65, 33, -12, 13, 2, 11, 17, -15, 5, -9, -25, 7, 3, -6, -60, -14, -2, 41, 25, -14, 37, 38, -20, -58, -69, -11, 17, 16, 42, 56, 0, 60, 7, -52, 7, 43, -16, 21, -13, 44, 50, -20, -15, -5, -21, 14, 39, -61, 6, -6, 18, 56, 7, -36, 25, 48, -42, -16, 11, -2, -36, 25, -9, 31, -65, -20, -34, 42, 42, 37, -26, 94, 31, 25, -39, -22, 53, -20, -20, 40, -14, -83, 20, -36, 6, 8, 31, -2, -17, 18, 57, 13, 73, 13, -18, -49, -4, 37, 10, 8, 21, -13, 31, 3, 1, -3, -44, -61, -18, -6, -45, -5, 20, 3, 95, -49, -56, -37, 54, -8, 3, 0, -33, 6, -3, 54, 12, 23, 68, 0, -13, -22, 32, -2, -48, -14, -7, 21, 74, 14, -39, 0, 29, -12, 9, 6, 14, -34, 10, -88, 8, -23, -52, 41, -39, -41, -13, -20, 4, -10, 2, -45, -1, 9, -1, 7, 10, -2, 72, 44, 33, -49, 44, -28, -11, 8, 20, 25, 57, 11, 0, -62, -35, 18, 33, -9, -86, -29, -34, -56, 0, -51, -64, 18, 55, 17, -1, -43, 12, -3, -15, -18, 4, 4, 24, -42, -20, 20, -7, -38, 25, -20, -42, 2, 10, 1, 57, 51, 7, -9, 51, 29, -26, 33, 20, -49, 20, 29, 17, 11, -29, 46, 48, 16, -20, -65, -8, -32, 60, -17, -14, -11, 28, -15, -15, -18, -52, 0, -11, 8, 3, -86, -45, 53, 1, -5, -15, -26, 23, 3, -2, 37, 33, 40, -28, 3, 33, -29, 37, 22, 3, -76, 31, 2, -26, 46, -19, -30, -21, 68, -32, -51, 6, -34, 66, -1, -19, 19, -22, 16, 62, -48, -47, 30, 55, 36, 12, 55, -20, -12, -16, -80, 9, -26, 26, -43, 36, -25, 18, -5, -45, 14, 0, -67, 66, -50, -75, 19, -12, -14, 39, 16, -26, -27, 19, -20, -36, -30, 29, -69, 74, -20, 30, -42, -26, -38, -4, -56, -4, -42, 36, 23, -32, -17, -38, 18, -29, 25, -4, 27, 4, -44, 19, -32, -4, -10, -44, 28, -45, 6, -40, 24, -6, 75, 0, 17, -11, 33, -49, 4, 36, 14, 14, -32, -38, 34, -39, -19, 39, 27, 6, -48, 3, -65, -47, -26, -25, 29, -21, -39, -3, 17, 1, -22, 25, -16, -57, 27, 21, 73, 52, 50, 35, -10, 9, 62, 16, -18, 18, 19, 26, 29, 45, 56, -11, -43, 13, 2, -61, 106, -3, -43, -24, -30 ]
Per Curiam;. Defendant appeals as on leave granted by order of the Supreme Court, 419 Mich 941; 355 NW2d 113 (1984), from the Workers’ Compensation Appeal Board’s decision requiring defendant to pay 12% interest on plaintiffs workers’ compensation award and ordering defendant to reimburse plaintiff for the cost of plaintiffs copies of the transcript of proceedings before the hearing officer. We affirm. Plaintiff suffered a progressive work-related back injury while employed by defendant, Chrysler Corporation. Except for a day or two, he did not work after April 14, 1978, because of back pain. Plaintiff petitioned for workers’ compensation benefits, and also applied for and received sickness and accident (S&A) benefits from April 14, 1978, to August 1, 1978, at $170 per week from Aetna Life and Casualty Insurance Company, defendant’s group insurer. Defendant was self-insured for workers’ compensation. The S&A policy covered only non-work-related injuries and plaintiffs application for benefits under the policy contained a clause wherein plaintiff agreed to assign to Aetna any workers’ compensation benefits awarded to him. From August, 1978, to the date of the workers’ compensation hearing, plaintiff received extended disability benefits from Aetna at a rate of $680 per month. Plaintiffs application for extended disability benefits also contained an assignment provision to take effect in the event of a workers’ compensation recovery. After a hearing on plaintiff’s petition for workers’ compensation benefits, the hearing officer issued a decision on March 18, 1980, awarding benefits to plaintiff for a closed period, April 14, 1978, to November 27, 1979. Compensation was set at $142 per week with interest at 5% per annum from the date each payment was due, until paid. The hearing officer also found that the assignment agreement with Aetna satisfied the requirements of MCL 418.821; MSA 17.237(821) and ordered reimbursement to Aetna. Both parties filed a claim for review with the board, plaintiff filing first, from the decision of the hearing officer. The board affirmed the decision of the hearing officer, but increased interest on the award to 12% per annum. In addition, the board ordered defendant to reimburse plaintiff for the cost of plaintiffs copies of the transcript from the hearing before the hearing officer. Defendant contends on appeal that plaintiff is not entitled to interest on the award for the period of time that he was furnished with alternative disability benefits from Aetna and that any interest due assignee Aetna should be paid by plaintiff. MCL 418.801(5); MSA 17.237(801)(5) provides that weekly compensation paid pursuant to a workers’ compensation award carries interest at the rate of 12% per annum from the date each payment was due, until paid. Interest is imposed upon past due workers’ compensation benefits not as a penalty, but because the employee had to do without the use of the funds to which he was entitled and the employer benefited from the use of the money while the employee’s claim was pending. McCaslin v General Motors Corp, 133 Mich App 782, 787-788; 349 NW2d 544 (1984), lv den 419 Mich 945 (1984). Relying on McCaslin, supra, defendant contends that it should not pay interest on the workers’ compensation award since plaintiff was provided with alternative benefits during the period in question. In McCaslin, the board affirmed an injured employee’s award of interest on her workers’ compensation award, even though her employer had paid her a disability allowance equal to the subsequent award while she pursued her workers’ compensation claim. On appeal to this Court, the employer’s position was that the employee’s benefits had been paid and, therefore, no interest was due on the subsequent award. 133 Mich App 789. This Court found that, since plaintiff was not deprived of the use of the money and defendant did not have the use of the money while the employee’s compensation claim was pending, the board’s award of interest should be vacated. In the instant case, plaintiff was paid S&A benefits in excess of his eventual workers’ compensation recovery and, as in McCaslin, supra, was not denied the use of the money while pursuing his compensation claim. However, McCaslin can be distinguished from the case at bar because Mc-Caslin involved alternative funds advanced directly by the employer from a special fund for employees pursuing workers’ compensation benefits, rather than funds provided by a separate group insurer assignee. Although plaintiff in the instant case was not denied the use of funds, defendant enjoyed the use of the unpaid compensation benefits and Aetna was deprived of the use of the funds it advanced to plaintiff in lieu of the compensation benefits. Under circumstances such as in McCaslin, supra, wherein an employer advances funds to the employee while the employee’s compensation claim is pending, interest on a workers’ compensation award is not warranted since the employer has, in essence, paid the employee compensation benefits, the employee has not been disadvantaged by the delayed payment of the claim, and the employer has not gained any advantage by delaying the claim. However, allowing an employer to avoid paying interest on a workers’ compensation award whenever any type of alternative benefits are paid to an employee while the employee pursues a workers’ compensation claim would provide little incentive for the employer to promptly pay compensation claims and would allow the employer to reap benefits by delaying and keeping the funds for its own use. Such a problem is readily apparent in a situation where an employee receives benefits from a source totally unconnected with his employer, such as an employee’s independent insurance policy. In such a case, if the em ployer need not pay interest on the assigned funds recovered on the workers’ compensation claim, the employer has no incentive to promptly pay the workers’ compensation claim since it can enjoy the use of the money while the claim is pending. However, a situation involving a S&A group insurer assignee, where the S&A policy premiums are paid in whole or in part by the employer, may contain hidden incentives for the employer to avoid delaying paying a workers’ compensation claim even if the employer is not required to pay interest on the assigned funds. The S&A group insurer assignee may increase the employer’s premiums based on the number of workers’ compensation claims the employer delays in paying while the group insurer provides alternative benefits. Thus the employer would be indirectly encouraged to promptly pay workers’ compensation claims since the S&A insurer would pass on the costs of providing alternative benefits which should have been paid as workers’ compensation benefits. On the other hand, requiring interest to be paid by the employer on a workers’ compensation claim assigned to a group S&A insurer would directly encourage the employer to promptly pay compensation claims as well as reimburse the insurer for the use of its funds. In any event, defendant in the case at bar argues that if any interest is due on the award, only Aetna, the group insurer, has standing to assert a claim for interest and that Aetna did not assert this claim in the workers’ compensation proceeding. See Remo v Ford Motor Co, 1978 WCABO, No. 221, p 1065. Defendant, however, neglects to point out that Aetna did not involve itself in the workers’ compensation proceedings for one very good reason: defendant did not raise the instant interest issue in the proceedings below. The only issue involving interest raised by defendant was whether the award should bear 5% or 12% interest, an issue which has since been decided by the Supreme Court holding that the award should bear interest at the rate of 12%. Selk v Detroit Plastic Products, 419 Mich 1; 345 NW2d 184, on resubmission 419 Mich 32; 348 NW2d 652 (1984). Although the issue of whether a workers’ compensation award assigned to a group insurer who has paid alternative benefits should bear interest is one of continuing importance, we cannot allow defendant to raise it at this late date to the possible detriment of the insurer who has not had an opportunity to respond to defendant’s arguments either before the board or this Court. Thus we find that defendant failed to preserve this issue for appeal and decline to decide it on its merits. Defendant next argues that the board erred in holding that defendant was required to pay the cost of plaintiiFs copies of the transcript of the proceedings before the hearing officer. The board held that once an employer files a claim for review, be it filed first or second, it must provide or bear the expense of providing copies of the transcript to the employee and ordered defendant to reimburse plaintiif for the cost of his copies of the transcripts. MCL 418.859; MSA 12.237(859) provides in pertinent part: "* * * If the employer or carrier files a claim for review to the board, or appeals to the court of appeals, or the supreme court, a copy of the testimony, depositions and other documents necessary for the appeal shall be furnished by the employer or carrier to the employee or the employee’s attorney.” Administrative Code 1979, R 408.49 provides in part: "Rule 19. (1) If a claim for review from an award of the administrative law judge is filed, the party making such claim for review shall, at his expense, file with the appeal board a complete transcript of all the testimony taken and the proceedings had before the administrative law judge within 30 days from the date the claim for review is filed. In all cases where the employer files a claim for review, a copy of the testimony, depositions, and other documents necessary for such appeal shall be furnished by the employer to the employee or his attorney.” These provisions make clear that in all cases where an employer fíles a claim for review, the employer must provide a copy of the transcript to the employee. Thus the board was correct in finding that the defendant was required to furnish or pay the cost of a copy of the transcript to plaintiff. However, what is really at issue on appeal is who bears the cost of obtaining the transcript, i.e., transcription, and filing it with the board. A party filing a claim for review must file with the board, at his expense, a transcript of the proceedings before the hearing officer. Administrative Code 1979, R 408.49; see Wing v Refiners Transportation & Terminal Corp, 316 Mich 365, 371; 25 NW2d 561 (1947). Thus if only one party files a claim for review, that party must bear the cost of obtaining the transcript and filing a copy with the board. If the employer is the sole party filing a claim for review, the employer must also furnish the employee with a copy of the transcript. When both parties file a claim for review, and the employer files first, the employer will initially bear the cost of obtaining the transcript and furnishing the board and the employee with a copy. When the employee subsequently files a claim for review, the employee already has or will receive a copy of the transcript and obviously will not need to bear the cost of ordering the transcript. Furthermore, apparently the employee need not file another copy with the board because, despite the administrative provision requiring that any party making a claim for review file a transcript with the board, the board does not require the filing of a second copy when the employer has already filed the transcript. The problem, as in this case, is a situation where the employee files first, bears the cost of obtaining the transcript and filing a copy with the board, after which the employer files a claim for review to preserve additional issues for review. A technical reading of the statute and rule would appear to require that the employer, who does not receive a copy from the employee, must again bear the burden of obtaining a transcript and submitting copies to the board and the employee. However, requiring both parties to obtain and file transcripts with the board at their expense, and, in addition, having the employer bear the expense of submitting a second copy to the employee who presumably has retained a copy of the transcript is a waste of resources. A less technical, more common sense reading of the transcript requirements which complies with the obvious intent of the statute and rule to ease the employee’s burden in appealing a workers’ compensation determination is that in all cases where the employer files a claim for review the employer must bear the cost of obtaining the transcript and furnishing the employee with a copy. Since the board does not require a redundant filing of copies of the transcript from both parties, requiring the employer, rather than the employee, to also file a copy of the transcript with the board once it files a claim for review would also be in keeping with the spirit of the statute and rule. We recognize that our decision places the employer in the unenviable position of always bearing the burden of transcript costs when both parties file a claim for review, even when the employer files only in response to the employee’s filing in order to preserve additional issues for review. See, Nelson v General Motors Corp, 122 Mich App 499, 504; 332 NW2d 514 (1983), lv den 417 Mich 1098 (1983). However, the legislative intent in requiring the employer to furnish copies of the transcript to the employee in all cases where the employer files a claim for review is clearly to put the burden on the employer who is presumably in a better financial position than the employee. Dissatisfaction with this scheme should be brought to the attention of the Legislature which can revise the statutory requirement, whereas this Court cannot. Affirmed. MCL 418.821(2); MSA 17.237(821X2), permits the assignment of workers’ compensation benefits to an insurance company making advance payments to an employee under a group disability or hospitalization policy. The purpose of this section is to allow and encourage insurance companies carrying sickness and accident policies to pay immediate benefits to injured employees pursuing workers’ compensation claims while the employee waits for a determination by the compensation bureau. Aetna Life Ins Co v Roose, 413 Mich 85, 93-94; 318 NW2d 468 (1982). The board’s current practice of requiring the employer to bear these costs whenever the employer files a claim for review conforms with our interpretation of the statute and rule.	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R. B. Burns, J. Judge Moore of the Oakland County Probate Court ruled that he had jurisdiction to remove two trustees of the Americana Foundation. The reason for the removal was that the two trustees had a conflict between their personal pecuniary interests and the interests of the Americana Foundation. The only issue on appeal is whether or not the probate court had jurisdiction. The trustees assert that the Americana Foundation is a corporation and, therefore, jurisdiction is in circuit court. MCL 600.3605; MSA 27A.3605 grants the circuit courts power over corporations. The probate court asserted jurisdiction under § 21 of the Revised Probate Code which states: "The [probate] court has exclusive jurisdiction of all the following: "(a) Matters relating to the settlement of the estate of a deceased person, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled without the state leaving an estate within the county to be administered. "(b) Trusts and trustees in the execution of will and administration of estates of deceased persons. "(c) Proceedings concerning the internal affairs of trusts including proceedings concerning the administration and distribution of trusts and the declaration of rights or the determination of other matters involving trustees and beneficiaries of trusts, including proceedings to: "(i) Appoint or remove a trustee. "(ii) Review the fees of a trustee. "(iii) Review and settle interim or final accounts. "(iv) Ascertain beneficiaries._ "(v) Determine any questions arising in the administration or distribution of any trust, including questions of construction of wills and trusts; instruct trustees, and determine relative thereto the existence or nonexistence of an immunity, power, privilege, duty, or right. "(vi) Release registration of a trust. "(d) Appointment of a guardian, limited guardian, or conservator in cases prescribed by law, resolution of any contested matter in respect to the estate or ward, and settlement of the estate.” MCL 700.21; MSA 27.5021. In order to have jurisdiction over the Americana Foundation as a trust, it would have to have been established that the Americana Foundation was a trust. Section 11 of the Revised Probate Code defines the word "trust” for the purposes of the probate code: " 'Trust’ means an express trust, private or charitable, with additions thereto, where created and whether created by will or other than by will. It includes a trust created by judgment or decree under which the trust is to be administered in the manner of an express trust. Trust excludes other constructive trusts, and it excludes resulting trusts, business trusts providing for certificates to be issued to beneficiaries, investment trusts, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts created for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.” MCL 700.11(2); MSA 27.5011(2). The Revised Probate Code does not define "express trust, private or charitable”. "Express trust” has been defined by our Supreme Court in Scarney v Clarke, 282 Mich 56, 63; 275 NW 765 (1937): "In 65 C.J. p. 231, it is said: " 'To constitute an express trust there must be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.’ ” The Court, in Equitable Trust Co v Milton Realty Co, 261 Mich 571, 577; 246 NW 500 (1933), defined "trusts” as follows: "To create a trust, there must be an assignment of designated property to a trustee with the intention of passing title thereto, to hold for the benefit of others. There must be a separation of the legal estate from the beneficial enjoyments * * .” Scarney v Clarke also defines charitable trusts: "In 2 Restatement of the Law of Trusts, p. 1096, § 349, it is said: " 'Á charitable trust may be created by (a) a declaration by the owner of property that he holds it upon a charitable trust; or (b) a transfer inter vivos by the owner of property to another person to hold it upon a charitable trust.’ "In charitable trusts the public is the beneficiary. A distinguishing characteristic of such a trust is that the prospective beneficiary is undetermined and unknown, and while such a trust need not be for the benefit of the entire public, yet it must be public in nature and for unascertained beneficiaries.” 282 Mich 63-64. Section 2(b) of the Supervision of Trustees for Charitable Purposes Act also defines "charitable trust”: " 'Charitable trust’ means the relationship where a trustee holds property for a charitable purpose.” MCL 14.252(b); MSA 26.1200(2)(b). The only document of record which could estab lish that an express trust was created is the articles of incorporation of the Americana Foundation. The articles of incorporation contain no explicit declaration of a trust. However, the articles of incorporation do show beyond reasonable doubt that a trust was intended to be created. First, under Article 111(b), there was an assignment of designated property: "Cash and securities having a value of $473,544”. Second, the assignment was to a "trustee”. Under MCL 14.252(a); MSA 26.1200(2)(a) of the Supervision of Trustees for Charitable Purposes Act: " 'Trustee’ means any individual, group of individuals, association, foundation, trustee corporation, corporation, or other legal entity holding property for any charitable purpose.” (Emphasis added.) The trustee in the case at bar is the Americana Foundation, which the parties admit is a nonprofit corporation. The trustees of the Americana Foundation cannot be regarded as the trustees of the trust because the property was not assigned to them. Rather, it was assigned to the corporation for which they were the "directors (or trustees)”. In order to find the "directors (or trustees)” of the corporation to be the trustees of the trust, there would have to be grounds for "piercing the corporate veil”. Third, there is an intention to pass title to the corporation expressed by the declaration that the "cash and securities having a value of $473,544” were assets of the corporation, and that they were received as "contributions from individuals, trusts, and corporations”. Fourth, clearly the intent, as expressed in the articles of incorporation, was for the benefit of others in that the property was to be devoted and applied "exclusively for charitable, religious, scientific, literary or educational purposes * Fifth, the legal estate was separated from the beneficial enjoyment. The Americana Foundation held the legal estate whereas the public received the benefit and enjoyment. Finally, the articles of incorporation clearly establish a charitable purpose. Therefore, the incorporation of the Americana Foundation created an "express trust, charitable or private” to be administered by the Americana Foundation through its trustees. The Americana Foundation is a nonprofit corporation created to administer a trust. The respondents-appellants argue that as a corporation the circuit court should have jurisdiction over the Americana Foundation. The appellee’s argument, properly stated, would be that since the Americana Foundation is the trustee of a trust, the probate courts have jurisdiction over the Americana Foundation. A conflict of jurisdiction would appear from MCL 600.3605; MSA 27A.3605 and MCL 700.21; MSA 27.5021. MCL 700.21 has been quoted previously. MCL 600.3605(1) states: "Circuit courts have the power, and actions may be brought in the circuit courts: "(a) to compel persons to account for their conduct in the management and dispostion of the corporate funds and corporate property committed to their charge; "(b) to compel persons to pay to the corporation which they represent, and to its creditors, all sums of money and the value of all property which they have acquired to themselves or transferred to others or have lost or wasted by any violation of their duties as directors, managers, trustees, or other officers; "(c) to suspend any corporate trustee or other officer from exercising his office whenever it appears that he has abused his trust; "(d) to remove any corporate trustee or officer from his office upon proof or conviction of gross misconduct; "(e) to direct new elections to be held by the corporation or board duly authorized to hold elections to supply any vacancy created by any removal; "(f) in case there is no board, or all the members of the board are removed, then to report this to the governor, who is authorized to fill theses vacancies with the consent of the senate; "(g) to set aside all alienations of property made by the trustees or other officers of any corporation contrary to the provisions of law or for purposes foreign to the lawful business and objects of the corporation, in cases where the persons receiving the alienated property knew the purposes for which the alienation was made; and "(h) to restrain and prevent any alienation of corporate property in cases where it is threatened or there is good reason to apprehend that it is intended to be made.” It is a general rule of statutory construction that a statute adopted later in time is given preference over an earlier statute. Capps v Dep’t of Social Services, 115 Mich App 10, 14-15; 320 NW2d 272 (1982). Under this principle, the Revised Probate Code of 1979 would take precedence over the Revised Judicature Act of 1961. The probate court has exclusive jurisdiction over the internal affairs of corporations created to administer trusts. Affirmed.	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Per Curiam. On August 7, 1984, pursuant to a plea bargain, defendant pled nolo contendere to two counts of assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279. Sentenced to a term of from six to ten years incarceration, he appealed as of right. We affirm. The charges against defendant arose out of an incident which occurred on November 18, 1983. At that time defendant, a 56-year-old business man, was apparently experiencing financial difficulties. In addition to owning a business, defendant was also involved in the fur business. On November 18, defendant visited a fur dealer. Later that evening, he returned to the dealer’s barn and took several furs. Shortly thereafter, two sheriff’s deputies out on routine patrol attempted to make a traffic stop. When defendant’s vehicle stopped, an officer started to approach the vehicle and observed defendant exit from his car with a shotgun in his hands. According to appellate counsel, defendant’s actions were an "attempt at self-destruction”. He fired three shots from the gun, striking the police car. The two officers returned fire but did not strike the defendant. His vehicle then sped off pursued by these officers and members of other police departments as well. Defendant was finally apprehended in a field after he abandoned his vehicle. Charged with breaking and entering as a result of the theft of the furs, defendant pled nolo contendere to the misdemeanor offense of larceny under $100. As a result of the second incident, defendant was charged with two counts of assault with intent to commit murder and two counts of felony-firearm. Defendant was examined by various psychologists and their reports were made available to the sentencing judge. One report, compiled by the psychiatrist from the Center for Forensic Psychiatry, indicated that the examiner felt that defendant would not present further dangerous behavior and, if placed on a strictly supervised program of probation, would be unlikely to engage in illegal or antisocial conduct. In addition to those reports, the sentencing judge also received letters from various members of the community, including a bank president, a former probate judge, and a county sheriff, concerning defendant’s case and the sentence which the judge would ultimately impose. Defendant first claims that the sentencing court abused its discretion by imposing a sentence double that of the recommended minimum sentence under the Michigan Sentencing Manual. The abuse of discretion is further illustrated, claims defendant, by the fact that the court stated that the potential for defendant’s reformation was great. Also, reports of the psychological examiners concluded that defendant was not likely to pose a threat of danger to others, thus evidencing the propriety of a lesser sentence. Application of the guideline factors to the circumstances of this case results in a recommended minimum sentence range of from 12 to 36 months. The actual minimum sentence imposed, 72 months, does exceed the recommended range. However, such departures are expected and, as long as the trial court articulates permissible reasons in support of that decision, unless our appellate conscience is shocked, we do not afford relief. See, e.g., People v Purzycki, 143 Mich App 108; 371 NW2d 490 (1985); People v Ridley, 142 Mich App 129; 369 NW2d 274 (1985). After reviewing the record, we find no abuse of discretion. The sentencing judge specifically stated that he considered the four factors enumerated in People v Snow, 386 Mich 586; 194 NW2d 314 (1972), and did specifically state that there appeared to be some potential for defendant’s reformation. However, in consideration of the fact that defendant had fired three shots from a 12-gauge shotgun at a police car during an attempted traffic stop, the judge determined that the need to punish the defendant and to protect society warranted the imposition of the stated term. Sentencing is a discretionary matter and great confidence is placed in the ability of the sentencing judge to determine an individualized sentence appropriate for both the offender and the offense committed. People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973); People v Coles, 417 Mich 523; 339 NW2d 440 (1983). The sentencing judge was aware of defendant’s financial difficulties and the stress and pressure of those problems. He also had access to the letters from members of the community written on defendant’s behalf and the reports of the various psychologists. He also was familiar with the facts surrounding this offense and placed emphasis upon the gravity of the conduct involved. Although neither police officer was injured, the three shots fired by the defendant did strike the police vehicle. Defendant then returned to his car and fled with the officers in pursuit. Such conduct not only constituted a danger to the officers but also posed a threat to the public in general. Here, after consideration of the positive aspects of defendant’s background, the court concluded that defendant’s intolerable conduct required imposition of the six-to ten-year prison term. The judge stated his reason for departing from the guidelines and such justification represents a reasoned exercise of his judicial sentencing discretion. We cannot say that the reasons given for the departure are improper, insufficient or unsupportable. Therefore, we affirm the sentence. Defendant argues that the trial court abused its discretion by allowing a 30-year-old conviction to be included in the presentence report and by considering that conviction in imposing sentence. We disagree. While evidence of convictions of a certain age are inadmissible for impeachment purposes at trial, MRE 609(b), or excluded from computation of the Prior Record Variable of the Michigan Sentencing Guidelines Manual, Tab 3 H, there is no bar to the consideration of such convictions at sentencing. MCL 771.14; MSA 28.1144 provides that, in all felony cases, a presentence report shall be prepared and the probation agent "shall inquire into the antecedents, character, and circumstances of the person”. The purpose of the statute is to provide the court with information about the offender so that the court may make an informed and just determination of the appropriate disposition. People v Potrafka, 140 Mich App 749; 366 NW2d 35 (1985). The scope of the information presented is broad and rules of evidence do not apply. People v Books, 95 Mich App 500; 291 NW2d 94 (1980). In this case, although defendant does not dispute that he had two convictions in 1947 (one for larceny and one for escape), he claims that information concerning any conviction over 10 years old is not accurate and relevant information. We disagree. We see no valid reason why convictions over 10 years old, or 30 years in this case, may not be considered by the trial court in determining the proper sentence. It is axiomatic that, in order to individualize a sentence to meet the circumstances of the offender, more information, as opposed to less information, is desirable. In this case, defendant does not contest the fact of the convictions or argue that the information supplied to the court is inaccurate or incorrect. Were defendant to argue that for some reason those convictions were constitutionally defective or that the information included in the report was inaccurate, the court would have had the obligation to respond to those claims. See, United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v Edenburn, 133 Mich App 255; 349 NW2d 151 (1983). Instead, when defendant objected to the inclusion and consideration of those prior convictions because of their age, the court responded: "But for the record, I find nothing that would preclude the convictions that are included here from being included as part of the Defendant’s background. Certainly the weight that would be placed on these convictions would have to be given its proper perspective taking into consideration the lapse of time from the conviction to the present date. But that does not alter the fact of the conviction as part of the antecedent’s background and character of the individual before the court.” We agree with the assessment of the trial court. Nothing precludes the convictions from being included in the report and the weight to be afforded those convictions, as with other evidence pertaining to the offender and the offense, is a matter of balancing for the court. Affirmed.	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Per Curiam. Defendant was charged with open murder. He claimed that the killing was accidental and that he was acting in self-defense. A jury convicted him of involuntary manslaughter, MCL 750.321; MSA 28.553, and he then pled guilty to being a third-time habitual offender, MCL 769.11; MSA 28.1083. Sentenced to a prison term of from 29 to 30 years, defendant appeals as of right. We affirm the conviction but modify defendant’s sentence to from 20 to 30 years. I Defendant contends that the court erred in allowing the prosecutor to recall him to the stand and impeach him with evidence of a prior conviction for armed robbery. MRE 609 permits impeachment by evidence of a prior conviction under certain circumstances. Defendant asserts that MRE 609 is inconsistent with MRE 102 and urges adoption of a rule prohibiting impeachment by evidence of a prior conviction unless defendant has introduced evidence of good character. Cf. MRE 404. Defendant’s claim is one of judicial policy that should be addressed to our Supreme Court. However, defendant also claims that the present rule was erroneously applied in this case. First, defendant contends that the similarity of a prior conviction to the offense being tried weighs against admissibility. We agree, but the balancing is committed to the trial court’s discretion and, here, we find no abuse. People v Ward, 133 Mich App 344, 355-356; 351 NW2d 208 (1984), lv pending. Second, defendant contends that allowing the prosecutor to recall him to the stand to impeach him ensured that the prejudical impact of the admission of evidence of the conviction outweighed its probative value. While we disapprove of the prosecutor’s tactic, we note that defense counsel advised the jury of the conviction during voir dire and opening statement. On these facts, the court’s ruling was not an abuse of discretion. People v Barnard, 93 Mich App 590; 286 NW2d 870 (1979). II Defendant next challenges the admission of a note addressed to "Fred, K-blk”, which stated: "Fred, You were warned now you are dead, sucker. In the County Jail or the Joint, the word is out on you snitch! I told you not to go to court! You are dead!” Fred Conner testified that the note was dropped in his cell in K-block at the Bay County Jail, that he was the only Fred in K-block, that he had testified against defendant at the preliminary examination in this matter, that defendant had previously warned him orally not to testify, and that no one else had given warnings to him. On this testimony, the circuit court admitted the note over defendant’s objection that it was not properly authenticated. We find no error on that basis. MRE 901. Defendant also argues that the note was irrelevant. This objection was not raised in the court below and, therefore, not properly preserved for appeal. In any event, we believe the note tends to show consciousness of guilt and was relevant. III Defendant challenges two jury instructions given by the court. Instead of giving CJI 4:2:02, on mixed direct and circumstantial evidence, the court gave the following instruction over defendant’s objection: "It is not necessary that every fact be proven directly by a witness or an exhibit. A fact may be proven indirectly by other facts or circumstances from which it usually and reasonably follows according to the common experience and observations of mankind. This indirect evidence is sometimes called circumstantial evidence which you are to consider with other evidence in the case. There is no inherent difference in the quality of direct and indirect evidence. Indirect evidence can be and often is more compelling than direct evidence. "When evidence is offered of a fact or a group of facts for the purpose of proving an element of the offense, you’re being asked to apply your reasoning abilities and to draw reasonable inferences from those facts. Since the elements of a criminal offense must be proven beyond a reasonable doubt, that standard must be kept in mind when examining the evidence whether the evidence is direct or indirect.” Defendant contends that this instruction was insufficient to convey to the jury the prosecutor’s burden to disprove any reasonable theory of innocence under People v Foley, 64 Mich 148; 31 NW 94 (1887), and People v Dellabonda, 265 Mich 486; 251 NW 594 (1933), and as set forth in paragraph (7) of the standard criminal jury instruction. The commentary to the standard instruction indicates that paragraph (7) is "a restatement of fundamental burden of proof and presumption of innocence principles”. We believe that the court adequately instructed the jury on those principles and that a failure to restate them per paragraph (7) was not error requiring reversal. Instead of giving then CJI 3:1:12, the court gave the following instruction: "If there is a conflict in the testimony of witnesses it is your responsibility, as jurors, to determine, if you can, what testimony you believe to be true. Consider the extent to which conflicting testimony is supported by other evidence and whether the conflict involves a matter of importance or merely some detail.” Defendant urges that elimination of paragraph (3) of the standard instruction was error, citing People v Crofoot, 254 Mich 167; 235 NW 883 (1931). However, we find no such error in light of other instructions on the burden of proof and presumption of innocence. People v Larco, 331 Mich 420; 49 NW2d 358 (1951); People v Stewart, 126 Mich App 374; 337 NW2d 68 (1983). IV Defendant argues that the court’s comments and examination of witnesses deprived him of a fair trial. Defendant points particularly to the court’s examination of Fred Conner and the giving of defendant’s theory of the case before the prosecutor’s theory. We are not persuaded that defendant did not receive a fair trial. We are impressed with defense counsel’s able representation and zealous protection of defendant’s rights. When the court tended to become too actively involved in the trial process, defense counsel was quick and persistent in opposing the court’s real or preceived interference. Indeed, counsel’s quickness at times drew legitimate reprimands from the court for interrupting. Nevertheless, we are left with the impression that the court risked invading the role of counsel and we would urge further self-restraint. We note that defense counsel relied on People v Smith, 363 Mich 157; 108 NW2d 751 (1961), as supporting her position that the court should limit its questioning of witnesses. The court distinguished Smith as preceding MRE 614, which authorizes the court to interrogate witnesses. We conclude that Smith is still viable and applicable precedent; its principles are the same as those underlying the 1978 Rules of Evidence. As stated in People v Roby, 38 Mich App 387, 389; 196 NW2d 346 (1972), a case involving this same defendant in an earlier matter, the court has great power and wide discretion in matters of trial conduct and has the power to participate properly in the questioning of witnesses. That power is not unlimited, though, and should not be used to pierce "the veil of judicial impartiality”. When the court engages in extensive interrogation of witnesses, the probability of asking questions improper in form or scope increases; yet, the attorneys are almost certainly more reluctant to object to the court’s improper questions than to an adversary’s. The court’s interrogation of Fred Conner in this case is a good example of going beyond the needed clarification of testimony and entering potentially prejudicial ground. A factor relevant to the authenticity of the death threat discussed in Issue II, supra, was whether Fred had received the note after he had ignored an oral warning by defendant and testified at defendant’s preliminary examination. After counsel had finished their examinations of Fred, the following dialogue occurred between the court and the witness: "BY THE COURT: "Q I’m not sure whether you testified in the presence of the jury about the time when this — when you received this note. Would you repeat that for me? "A Which — this one? "Q Yeah. "A It was in the morning time. "Q I mean, the — the dates. "A After I testified in District Court. "Q And did — were you able to pin it down to a particular week? "A The — I think it was the second week of July if I’m not mistaken. "Q And was— "MS. KLIMASZEWSKI: Your Honor, I’m sorry. I can’t hear the witness. "THE COURT: Second week of July if I’m not mistaken is what he said. "BY THE COURT: "Q And were you about to be testifying in — in a — I don’t— "A No. "Q I don’t want to know what, but were you scheduled to testify in court in a matter involving Mr. Roby— "A Oh, yeah, In Saginaw. ""Q All right. And it was during that week that you were scheduled to testify that you received the note? "A Yes, Sir.” ' Clearly, eliciting the fact that the note was received after giving testimony in district court (the preliminary examination in this case) was proper. The court then proceeded to the apparently harmless question of which week the note was received. Fred’s answer was unnecessary to an understanding of the evidence as it had been presented by the parties, so we are left to wonder what was the court’s purpose. Furthermore, the court opened the door for impeachment or bolstering of Fred’s testimony through introduction from the court file of the actual date of the preliminary examination. The court then continued on to ask if the note was received the same week as Fred was scheduled to testify in a matter concerning defendant. In fact, the matter was another criminal proceeding involving possession of a sawed-off shotgun. The court thus came very close to introducing evidence quite prejudicial to defendant and, as it was, left the jury to speculate what the proceeding in Saginaw might have been. However, since Fred had already testifed without objection that defendant was in possession of a sawed-off shotgun at the time of his arrest for the instant offense, we do not perceive undue prejudice resulting from the court’s question. Turning now to the matter of the theories of the parties, we find no undue prejudice in the court’s reading defendant’s theory first. The court stated that the order was not intentional, but occurred as it did merely because defendant’s theory was on top of the prosecutor’s in the pile of instructions. We accept the court’s explanation. However, we believe comment on the form of the prosecutor’s theory is in order. The theory was given as submitted, over defense objection that the theory was argumentative. The court did, however, instruct the jury not to regard the theories as telling what the evidence is. We find that the prosecution’s theory was not set forth in a short, factual statement as recommended by the criminal jury instructions, p 3-33. By giving the original theory, the court did not give "equal stress to the positions of each party”. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 562. While a cautionary instruction is of some value, we think the better practice in dealing with a prosecution theory which is lengthy and argumentative is to alter the theory pursuant to MCR 2.516(A)(5). V Defendant contends that the court erred in refusing to allow his collateral attack on the supplemental information. We find that, while stating that the attack was brought in the incorrect forum, the court did consider and rejected the attack on the merits. We find no error. People v Crawford, 417 Mich 607; 339 NW2d 630 (1983); People v Bradley, 117 Mich App 776; 324 NW2d 499 (1982). VI Defendant lastly challenges his sentence as being violative of the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). We agree and modify the minimum sentence to 20 years. The Tanner rule applies to habitual offenders. People v Stevens, 138 Mich App 438, 442-443; 360 NW2d 216 (1984). We find no additional ground for relief pursuant to People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Convictions affirmed; sentence modified to from 20 to 30 years. "(7) If the direct and circumstantial evidence, taken together, is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence.” "(3) However, if you have a reasonable doubt as to which testimony you believe, it is your duty to accept the testimony favorable to the defendant.” CJI 3:1:12 was deleted by committee on July 13, 1984, and its provisions moved into more general instructions. Paragraph (3) appears in proposed CJI 3:1:03(3).	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Allen, J. Petitioner Shirley Gersbacher appeals as of right from a judgment entered by Ingham County Circuit Court Judge Carolyn Stell on May 30, 1984, affirming a May 6, 1982, decision of the State Employees’ Retirement Board denying petitioner duty disability retirement. Petitioner began working for the State of Michigan in November of 1970. She worked for the Mental Health Department at the Coldwater State Home. On or about June 27, 1980, petitioner filed an application for retirement with the State Employees’ Retirement System because of duty disability. On December 11, 1980, a hearing was held before Hearing Officer Neil A. McLean. Petitioner testified that she was first injured in 1971 when she either fell or was pushed to the floor while attempting to move an unruly resident to a quiet area at the State Home. As a result of the fall, petitioner felt pain in her neck and did not work for about three and one-half months. In 1972, she fell on ice in the employees’ parking lot while going into the building. She landed in a sitting position, just as she had done during the prior fall. She tried to work that day, but when she bent over she could not straighten back up. Her back problems gradually worsened. Petitioner was hospitalized for one month and did not work for about 13 months. In December, 1976, petitioner fell for a third time on a "slick” floor in the building in which she worked. Petitioner was being treated by Dr. Meier, who retired and whose practice was taken over by Dr. A. M. Manohar. Petitioner did not work for approximately six weeks after the third accident. She returned to work as a general clerk and was shortly thereafter transferred to the medical records building. Petitioner’s condition gradually worsened. In March, 1979, her back was so bad that Dr. Manohar had another physician, Dr. Chen, give her epidural injections in her spine. The last time that petitioner worked was in September, 1979. Dr. Manohar’s statement of duty disability was admitted into evidence along with the medical report of Dr. Chen. In his statement Manohar indicated that the patient would not be permanently disabled but when asked whether the patient’s condition was such that she would be able to resume any part of her former work or secure other part-time employment, the response was "No”. Also admitted was a memorandum from the State Employees’ Retirement System to Dr. J. K. Altland, the State Medical Advisor. Dr. Altland had returned the memorandum with his handwritten statements on the face of it, indicating that he rejected the duty disability claim and that he did so after considering the report of Dr. Sherman Andrews, to whom petitioner had been referred by the Bureau of Worker’s Disability Compensation. Dr. Andrews’s medical report, also admitted into evidence, indicated that petitioner was five feet, three inches tall, and weighted 226-1/2 pounds. At the end of this report, Andrews concluded: "DIAGNOSIS "1. Obesity. "2. Pes planis, second degree, bilateral. "3. Cystocele, small, asymptomatic. "DISCUSSION "From my physical examination and x-ray studies failed to demonstrate any pathology to account for her complaint of low back pain. There was no evidence of arthritis or of injury. "I can see no reason why this patient should be wearing a backbrace, however I would urge her to lose weight. "I do not consider her to be disabled from her occupation of a general ward clerk at the Coldwater Regional Center.” On January 26, 1981, Hearing Officer Neil A. McLean submitted his proposed decision and recommendation that duty disability retirement status be denied petitioner. The matter was eventually appealed to circuit court. On November 19, 1981, Ingham County Circuit Court Judge Ray C. Hotchkiss ordered the case remanded to the State Employees’ Retirement Board for the purpose of re-opening hearings and taking adequate medical evidence. On remand a second hearing was held before Hearing Officer McLean. Petitioner testified that she could do no housework and that a chore provider was required to do everything for her except prepare her meals and do her "personal needs”. A seven-page report prepared by Dr. W. O. Badgley was admitted into evidence. The report concluded with a diagnosis of "cervical dorsal lumbar sprain, gross obesity”. In addition, Dr. Badgley’s depostition was admitted. In his deposition, Dr. Badgley stated that, if he were to be asked the appropriate questions, his answers would correspond, in essence, to those which were contained in his seven-page report. Dr. Badgley also gave his opinion of petitioner’s ability to return to effective employment. Badgley stated: "In view of fact it’s been six years, and. complicated by her excess weight, I don’t think she’s going to be able to get back to that work. I have had other patients from the same facilitys [sic] and I guess it gets kind of rough at times with the patient [sic] and there’s no way that she could handle anything but the most sedentary work, and that would depend on how far she had to ride to get there and over what kinds of roads, how far she’d have to walk from the parking lot and all those things. The prognosis, in my opinion, is very grim. She is making an effort now at reducing her weight and according to her history she has taken off 32 pounds, but she still is at 200 or over and five feet three.” Badgley considered her condition to be essentially a permanent one. In a letter of March 8, 1982, Dr. Manohar stated: "Shirley Gersbacher has been under my care for low mechanical back strain with some patchy hypoesthesia in both legs, right worse than the left. Recently she has been treated by me for coccydynia with a coccygectomy. "She is disabled at this stage. However her disability basically from her back point of view is not being able to do a job involving recurrent bending, stooping and lifting, and these restrictions which I have placed on her will probably be permanent. These are prophylactic restrictions and are meant to protect the patient.” The attorney general agreed to submit Dr. Manohar’s letter to Dr. Altland, the State Medical Advisor, along with the deposition of Dr. Badgley. The cover letter submitting the information to the medical advisor was apparently returned to the hearing officer. Dr. Altland wrote his conclusion on the face of that letter. His handwritten conclusion reads: "Review of the submitted additional material including the W. O. Badgley M.D. deposition has not provided any new information. The evaluation indicates sedentary work is a possibility soon though with some restrictions. There is not total disability. Recommendation remains unchanged — rejected.” On April 27, 1982, Hearing Officer McLean issued his second proposed decision and recommendation, which recommended that duty disability retirement status continue to be denied petitioner. As a conclusion of law, McLean stated: "Dr. Manohar in his letter of March 8, 1982 indicates Petitioner is not able to do a job involving recurrent bending, stooping and lifting. The deposition of Dr. Badgley indicates that she can handle only the most sedentary work. Michigan Compiled Laws Annotated Section 38.21 provides that for an individual to be eligible for duty disability retirement the Medical Advisor must certify in writing that the member is mentally or physically totally incapacitated for the further performance of duty in the service of the State and that such incapacity will probably be permanent, and that said member should be retired. Then the Retirement Board must concur in this recommendation of the Medical Advisor. Neither the letter of Dr. Manohar or the deposition of Dr. Badgley indicate that the Petitioner is totally incapacitated for the further performance of duty in the service of the State and that such incapacity will probably be permanent. While the Petitioner certainly has physical problems that limit her activities the statute is clear and unless the appropriate medical information is submitted upon which the Medical Advisor can make a determination that the Petitioner is totally incapacitated and her incapacity is likely to be permanent the statutory requirement is not met.” On May 6, 1982, the State Employees’ Retirement Board adopted McLean’s recommendation and order, denying petitioner’s request for retirement. On July 6, 1982, petitioner filed a petition for review of administrative action in the Ingham County Circuit Court. At oral argument before Judge Carolyn Stell on April 26, 1984, petitioner contended that the hearing officer construed the statute to give him no discretion if the medical advisor did not approve a retirement claim. Petitioner also argued that a review of the facts indicated a lack of substantial, credible evidence to support the determination that petitioner should not be retired. Respondents agreed that the hearing officer was not bound by the decision of the medical advisor. Repsondents argued, however, that the record indicated that the hearing officer actually made his own independent conclusion and that he agreed with the medical advisor that petitioner was not totally disabled. Judge Stell found that while the hearing officer made reference to the requirement that the medical advisor make a determination of total incapacity to perform duties in the service of the state he went on to make an independent finding of fact and conclusion of law that the testimony presented by letter and by deposition did not support a finding that petitioner met the statutory requirement of being totally incapacitated for duty. Judge Stell found that the decision of the hearing officer, as adopted by the State Employees’ Retirement Board, was supported by competent, material and substantial evidence on the record and on May 30, 1984, entered an order affirming the decision of the retirement board. On appeal petitioner raises three issues. (1) Does a medical advisor’s decision that a claimant is not physically, totally, and permanently incapacitated for further performance of duty in the service of the state preclude the State Employees’ Retirement Board from retiring the individual? (2) If the answer to the first question is "No”, did the retirement board made an independent determination? (3) Did the circuit court err in finding that such determination was supported by competent, material, and substantial evidence on the whole record? The first question raised presents a question of first impression. MCL 38.21; MSA 3.981(21) states: "Sec 21. Subject to the provisions of sections 33 and 34, upon the application of a member, or his department head, or the state personnel director, a member who becomes totally incapacitated for duty in the service of the state of Michigan without willful negligence on his part, by reason of a personal injury or disease, which the retirement board finds to have occurred as the natural and proximate result of the said member’s actual performance of duty in the service of the state, shall be retired: Provided, the medical advisor after a medical examination of said member shall certify in writing that said member is mentally or physically totally incapacitated for the further performance of duty in the service of the state, and that such incapacity will probably be permanent, and that said member should be retired: And provided further, That the retirement board concurs in the recommendation of the medical advisor.” (Emphasis supplied.) Petitioner construes the statute too narrowly. While the term "provided” suggests that certification of total, permanent, physical incapacitation is a prerequisite, other language indicates that this is not true. The term "medical advisor” suggests action only in an advisory capacity. Further, the statute provides that the retirement board is to concur in the "recommendation” of the medical advisor. Read as a whole, we are of the opinion that the Legislature intended that the retirement board have the ability to override the decision of the medical advisor and to retire an individual even without the medical advisor’s certificate. In issue two petitioner argues that the hearing officer (and the retirement board through its carte blanche adoption of the hearing officer’s recommendation) did not make an independent determination that petitioner was not totally and permanently incapacitated. We disagree. The hearing officer’s conclusions of law were as follows: "Dr. Manohar in his letter of March 8, 1982 indicates Petitioner is not able to do a job involving recurrent bending, stooping and lifting. The deposition of Dr. Badgley indicates that she can handle only the most sedentary work. Michign Compiled Laws Annotated Section 38.21 provides that for an individual to be eligible for duty disability retirement the Medical Advisor must certify in writing that the member is mentally or physically totally incapacitated for the further performance of duty in the service of the State and that such incapacity will probably be permanent, and that said member should be retired. Then the Retirement Board must concur in this recommendation of the Medical Advisor. Neither the letter of Dr. Manohar or the deposition of Dr. Badgley indicate that the Petitioner is totally incapacitated for the further performance of duty in the service of the State and that such incapacity will probably be permanent. While the Petitioner certainly has physical problems that limit her activities the statute is clear and unless the appropriate medical information is submitted upon which the Medical Advisor can make a determination that the Petitioner is totally incapacitated and her incapacity is likely to be permanent the statutory requirement is not met.” (Emphasis supplied.) Had the hearing officer concluded that "unless the medical advisor certifies” or "in the absence of the requisite certificate of incapacitation” he could not find a member to be totally incapacitated,-we would agree with petitioner. But that is not what the hearing officer concluded. Instead, he found a total absence of medical information upon which he could conclude that petitioner was totally incapacitated from further state service. While the hearing officer could have made a more detailed explanation of why he arrived at his conclusion, it is clear to us that he reached his own conclusions and did so on the basis that petitioner’s own doctors waffled on the question of petitioner’s total and permanent disability. Having decided that the hearing officer reached an independent conclusion, we next consider whether that decision is supported by competent, material and substantial evidence on the entire record. Const 1963, art 6, § 28; MCL 24.306; MSA 3.560(206); Russo v Dep’t of Licensing & Regulation, 119 Mich App 624, 630-631; 326 NW2d 583 (1982); Stoneburg v State Employees Retirement System, 139 Mich App 794; 362 NW2d 878 (1984). "Substantial evidence” has been defined as evidence which a reasoning mind would accept as sufficient to support a conclusion. While it consists of more than a mere scintilla of evidence, it may be substantially less than a preponderance of the evidence. Russo, supra, p 631; Stoneburg, supra. We have carefully reviewed the testimony and medical records. Having done so, we fully agree with Judge Stell that the retirement board’s denial of retirement is supported by competent, material and substantial evidence on the entire record. While petitioner’s own testimony seems to indicate that she could do nothing but perform very minor activities, the medical reports admitted into evidence at both hearings indicate only that her activities should be limited. Affirmed. No costs. M. J. Talbot, J., concurred.	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Per Curiam. Following a hearing on June 14, 1984, the Secretary of State suspended Dorian Griffin’s driver’s license for the one-year period from June 20, 1984, to June 20, 1985, pursuant to MCL 257.625f; MSA 9.2325(6). Griffin then petitioned in circuit court for reinstatement of limited driving privileges. The court noted that this was Griffin’s second license suspension for refusing to take a Breathalyzer test (the first suspension being from May 3, 1983, to August 3, 1983), and denied the petition. Griffin moved for reconsideration on the ground that this was his first petition for a restricted license. The circuit court granted reconsideration and entered an order reinstating limited driving privileges upon learning that Griffin had submitted to a "road” Breathalyzer test but refused to take a second test at the police station, believing he did not have to comply. The Secretary of State appeals as of right. The Secretary argues that the circuit court exceeded its authority, because MCL 257.323c(2); MSA 9.2023(3)(2) prohibits issuing a restricted license where "the person’s license has been suspended pursuant to section 625f within the immediately preceding 7-year period”. Griffin responds that this Court should not apply the statute because the Secretary did not raise the issue in the court below and because Griffin did not have a hearing when his license was suspended in 1983. We think this is a case where the issue is appropriate for our review, notwithstanding the Secretary’s failure to raise it below. Szidik v Podsiadlo, 109 Mich App 446, 451-452; 311 NW2d 386 (1981). We find no merit in Griffin’s claim that lack of a hearing under MCL 257.625e; MSA 9.2325(5) is significant. The statute provides that a hearing will be granted upon request. Griffin does not argue either that he requested the hearing or that he did not receive the requisite notice. He thus raises no basis for not considering the 1983 suspension. Accordingly, we accept the Secretary’s argument and grant the requested relief. We reverse and vacate the court’s order reinstating limited driving privileges. Reversed.	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Per Curiam. Plaintiff, a state employee, sued defendants for damages for wrongfully denying him employment with the state police, pursuant to 42 USC 1983 and the Michigan Constitution. The Court of Claims granted plaintiff summary judgment against the Department of State Police and the Director of State Police on the basis of his 42 USC 1983 claim. The Department of State Police and its director (hereinafter defendants) appeal as of right, raising issues of jurisdiction, liability, and damages. Defendants’ motion to affirm in plaintiff’s cross-appeal was granted. FACTS Plaintiff has been a state employee since 1969. He began at level 7 in the Department of State, and was reclassified to level 9. He was then transferred to a level 10 position at the Department of Social Services, and then to a level 11 position as an administrative analyst, an entry supervisory position. In the latter half of 1973, plaintiff sought opportunities to advance to data systems analyst 11, and one of these opportunities arose with the state police. Although plaintiff was ranked number two on the promotional register and the number one candidate withdrew, plaintiff was not hired by the state police that summer. He subsequently obtained a data systems analyst 11 position with the Highway Department in November, 1973. Unbeknownst to plaintiff, when the defendant department ran a security check on plaintiff, information about plaintiff’s student activist brother, Charles, was released. Charles’ file contained the notation, "Subject’s brother Ray Eugene DOB 2-27-44 made application for employment with MSP. Personnel advised 8-9-73.” Plaintiff did not learn of this until 1977, when legislation providing for maintenance of the so-called "red squad” files, 1950 (Ex Sess) PA 38, 39, and 40, was declared unconstitutional and Charles obtained his file and showed it to his brother, plaintiff. Plaintiff sought a hearing with the Civil Service Commission, but his grievance was dismissed as untimely. Plaintiff appealed to circuit court, which ordered that plaintiff be granted a hearing. The hearing officer ruled that "partisan considerations” were a substantial factor in plaintiff’s being denied employment with the state police, in violation of Const 1963, art 11, §5 and Civil Services Rules 1.1 and 1.2. Plaintiff was therefore awarded $201.60, the pay difference between administrative analyst 11 and data systems analyst 11 for the period from the date on which the state police hired another candidate for the data systems analyst position, September 23, 1973, to the date on which plaintiff obtained the comparable position with the Highway Department, November 4, 1973. Plaintiff then began this action in the Court of Claims, seeking damages under 42 USC 1983 and the Michigan Constitution. Accelerated judgment was granted to all defendants on the count pertaining to the Michigan Constitution, as plaintiff had not exhausted his administrative remedies. Based on the grievance decision, summary judgment as to liability was granted in favor of plaintiff and against the Department of State Police and the Director of State Police; and the Department of Civil Service and State Personnel Director were dismissed from the action. After a hearing on damages, the court awarded plaintiff $584.64 for lost wages, $40,544 for career loss, $56,052 for emotional distress, and $56,052 in exemplary damages. ISSUE AND DECISION May the State of Michigan, its agencies, or their directors be sued for damages in the Court of Claims under the Fourteenth Amendment and 42 USC 1983? This panel holds that the Court of Claims has jurisdiction over 42 USC 1983 actions against the state, its agencies, and their directors, but such actions cannot be maintained against the state or its agencies because Congress has not abrogated states’ sovereign immunity from § 1983 suits, and the state has not waived its immunity. In addition, liability of a director of a state agency is available only in certain cases and has not been established in this case. A. Court of Claims Jurisdiction over a 42 USC 1983 Action Defendants argue that the Court of Claims has no jurisdiction over an action brought against the state based on the Fourteenth Amendment. We hold that, while the Court of Claims has jurisdiction over federally created causes of action such as those enacted to enforce the Fourteenth Amendment, the state and its agencies cannot be sued under 42 USC 1983. The Court of Claims was created, and its jurisdiction defined, in 1939 by the following provision, which has remained intact to the present: "The court has power and jurisdiction: "(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies.” MCL 600.6419(1); MSA 27A.6419(1). This jurisdiction is exclusive, "except as provided in section 6440”. MCL 600.6440; MSA 27A.6440 provides: "No claimant may be permitted to file claim in said court against the state nor any department, commission, board, institution, arm or agency thereof who has an adequate remedy upon his claim in the federal courts * * .” The Eleventh Amendment to the U. S. Constitution bars suits by private citizens against the State of Michigan in federal court. Brown Brothers Equipment Co v Michigan, 266 F Supp 506 (WD Mich, 1967). The Court of Claims Act does not provide consent for such suits. Id. Thus, suits against the State of Michigan by citizens of this state may be brought only in the Court of Claims. By virtue of the supremacy clause of US Const, art VI, §2, state courts must give cognizance to federal statutes. Testa v Katt, 330 US 386; 67 S Ct 810; 91 L Ed 967 (1947); Dudley v Genesee County Sheriff, 50 Mich App 678, 680; 213 NW2d 805 (1973). Although the U. S. Supreme Court has expressly reserved the question whether state courts are obligated to entertain § 1983 actions, Maine v Thiboutot, 448 US 1, 3, fn 1; 100 S Ct 2502; 65 L Ed 2d 535 (1980); Martinez v California, 444 US 277, 283, fn 7; 100 S Ct 553; 62 L Ed 2d 481 (1980), Michigan courts have permitted such actions without questioning their right to refuse them, cf. Chamberlain v Brown, 442 SW2d 248 (Tenn, 1969). Since the Court of Claims has exclusive jurisdiction over all actions against the state, it must have subject-matter jurisdiction over actions against the state brought pursuant to a federal statute such as 42 USC 1983. It was proper for the Court of Claims to assume jurisdiction over this case. As to the questions of the jurisdiction of the Court of Claims over the state officials, it must be noted that plaintiff did not sue the state officials in their individual capacities, so a suit against them in federal court for damages would be barred by the Eleventh Amendment because the state would be the party in fact. Scheuer v Rhodes, 416 US 232, 238; 94 S Ct 1683; 40 L Ed 2d 90 (1974); Edelman v Jordan, 415 US 651; 94 S Ct 1347; 39 L Ed 2d 662 (1974). Although the Court of Claims statute does not specifically mention state officials, this Court has interpreted the statute to grant jurisdiction over claims against state officials. Hamilton v Reynolds, 129 Mich App 375, 378; 341 NW2d 152 (1984), and cases cited therein. B. 42 USC 1983 Action Against a State Agency The Federal Civil Rights Act provides in 42 USC 1983: "Every person who, under color of any statute * * of any state * * * subjects * * * any citizen * * * to the deprivation of any rights * * * secured by the Constitution and laws, shall be liable to the party injured * * Whether a state or any of its agencies is a "person” under this statute has been the subject of ongoing debate in both federal and state courts. As previously mentioned, it is well established that states cannot be sued in federal court because of the Eleventh Amendment. Stefaniak v Michigan, 564 F Supp 1194, 1198 (WD Mich, 1983). However, federal courts have dismissed state agencies as defendants, not on Eleventh Amendment grounds, but because they are not "persons” under § 1983. Laje v RE Thomason General Hospital, 665 F2d 724, 727 (CA 5, 1982); Ruiz v Estelle, 679 F2d 1115 (CA 5, 1982); Reynolds v Richmond Sheriff, 574 F Supp 90, 91 (ED Va, 1983); Mattas v Supreme Court of Pennsylvania, 576 F Supp 1178, 1182 (WD Pa, 1983); Richards v New York State Dep’t of Correctional Services, 572 F Supp 1168, 1172 (SD NY, 1983); Wrenn v Kansas, 561 F Supp 1216, 1220 (D Kan, 1983); Stanislaus Food Products Co v Public Utilities Comm, 560 F Supp 114 (ND Cal, 1982); Clark v Michigan, 498 F Supp 159, 161 (ED Mich, 1980). The lower federal courts often rely on other lower federal courts because the United States Supreme Court has taken varying stands on this issue. In Monroe v Pape, 365 US 167; 81 S Ct 473; 5 L Ed 2d 492 (1961), the Supreme Court ruled that municipalities were not "persons” under 42 USC 1983. The Michigan Supreme Court expanded that ruling to hold that neither the state nor the State Fair Commission could be sued under § 1983. Hirych v State Fair Comm, 376 Mich 384, 392; 136 NW2d 910 (1965). But in Monell v New York City Dep’t of Social Services, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978), the Supreme Court specifically overruled in part Monroe, casting the Hirych holding into doubt. In Quern v Jordan, 440 US 332; 99 S Ct 1139; 59 L Ed 2d 358 (1979), Justice Rehnquist, writing for the seven-member majority, and Justice Brennan, concurring separately, engaged in vigorous debate over whether the Congress which passed the Civil Rights Act of 1871 intended to include states when it used the word "person”. Justice Brennan quoted from a variety of sources indicating states were to be included, but Justice Rehnquist considered this all to be "slender 'evidence’ that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States”. 440 US 341. The United States Supreme Court has not directly addressed this issue since Quern. This Court in Smith v Michigan, 122 Mich App 340; 333 NW2d 50 (1983), lv pending, while acknowledging that other courts have ruled that states are not "persons” based on the majority holding in Quern, held that Quern had not decided whether a state is a person, and ruled that the State of Michigan may be sued in its courts for § 1983 actions. Since application for leave to appeal this decision to the Supreme Court was timely filed, Smith is of no precedential value. People v Phillips, 416 Mich 63, 74; 330 NW2d 366 (1982). This Court recently agreed with Smith that Quern did not decide whether a state was a § 1983 "person”, Karchefske v Dep’t of Mental Health, 143 Mich App 1; 371 NW2d 876 (1985). State courts which have considered this question have not taken this position. In addition to cases cited in Smith, supra, pp 348-349, see also Rains v Washington, 100 Wash 2d 660; 674 P2d 165 (1983); Mezey v California, 208 Cal Rptr 40; 161 Cal App 3d 1060 (1984); Shaw v St Louis, 664 SW2d 572, 576 (Mo App, 1983). Our research disclosed only two state courts which permitted § 1983 actions against state agencies based on Monell; neither discussed Quern. Stanton v Godfrey, 415 NE2d 103 (Ind App, 1981) (state Department of Public Welfare is a "person” under § 1983, citing Monell), but see Indiana v Hall, 411 NE2d 366, 369 (Ind App, 1980) ("Sec 1983 does not apply to states”); Brown v Wood, 592 P2d 1250 (Alas, 1979) (state university can be sued under § 1983 in light of Monell, reversing earlier decision denying action based on Monroe). To the extent that Smith and Karchefske hold that a state is a person, we cannot agree. The Karchefske panel nevertheless held that a § 1983 action against the state was precluded on what it considered to be the separate ground of sovereign immunity; but Quern and other cases have deter mined that a state must not be a "person” precisely because Congress has never exhibited any intent in § 1983 to abolish the doctrine of sovereign immunity. We agree with Quern that, if a federal statute is to abrogate states’ sovereign immunity, so that states too are "persons” under § 1983, there should be "explicit and clear language indicating on its face an intent to sweep away the immunity of the States”. Quern, 440 US 345. There being no such language in the statute, the traditional notion of sovereign immunity precludes a conclusion that states are included in the § 1983 rubric "person”. Further, the State of Michigan, through its own statutes, has not voluntarily relinquished its sovereign immunity, except in certain areas not applicable here. Karchefske, supra. Therefore, since § 1983 actions may not be brought against states or their agencies, the judgment against the Department of State Police is vacated. C. 42 USC 1983 Actions Against State Officials Individuals are, of course, persons within the meaning of 42 USC 1983. Ruiz v Estelle, supra. State officers who abuse their positions while acting under color of state authority are proper defendants in a 42 USC 1983 civil rights suit. Drollinger v Milligan, 552 F2d 1220, 1226 (CA 7, 1977); Monroe v Pape, 364 US 172. To establish a § 1983 claim against a state official, plaintiff must show more than mere authority by the defendant over others who have violated plaintiffs rights; plaintiff must prove at least one specific act or omission which was a causative factor in depriving plaintiff of his federal civil rights. Clark v Michigan, supra, p 161. Moreover, in a § 1983 action for money damages, public officials have qualified immunity if they acted in good faith. Baker v Detroit, 458 F Supp 379, 383 (ED Mich, 1978). In attempting to refine the scope of government officials’ immunity, our Supreme Court recently observed that an individual should not be held liable merely because it is later determined that he acted under an unconstitutional statute. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633, fn 41; 363 NW2d 641 (1984). Since in this case defendants’ liability was based solely on the hearing examiner’s determination that "partisan considerations” were a substantial factor in denial of plaintiffs promotion, no inquiry was made by the Court of Claims as to the possibility that defendant Director of State Police might be immune from this § 1983 action for damages, nor have either of the parties raised the issue in their briefs. However, in light of the aforementioned law on this issue, we think it critical in this case that the extent of the director’s possible liability be explored. While we would not normally reverse a trial court’s decision that a person’s due process rights were violated based on arguments not raised by either party, in this case the finding of liability could potentially affect all taxpayers in this state, if the state has agreed to indemnify officials such as this. We therefore remand for further proceedings consistent with the points we have made in this regard. D. Damages Even if defendant director is still determined to be liable to plaintiff for damages in this case, we find some of the damages awards excessive or insupportable. The Court of Claims awarded plaintiff $56,052 in exemplary damages. "[T]he basic purpose of a section 1983 damages award should be to compen sate persons for injuries caused by the deprivation of constitutional rights * * *.” Carey v Piphus, 435 US 247, 254; 98 S Ct 1042; 55 L Ed 2d 252 (1978). However, where the common law has historically permitted punitive or exemplary damages, such damages may be allowed in a § 1983 action. Newport v Facts Concerts, Inc, 453 US 247, 258-259; 101 S Ct 2748; 69 L Ed 2d 616 (1981). Plaintiff relies on the general rule that bad faith, malicious action or outrageous conduct in gross disregard of plaintiffs constitutional rights can support an award for punitive damages. There is no evidence, however, that the state police or its director acted in bad faith, maliciously, or outrageously. There is no evidence of an intent to cover up use of the "red-squad” file, cf. Webster v Houston, 689 F2d 1220 (CA 5, 1982), where, despite a showing that police attempted to mask the killing of a teenager, the court refused to award punitive damages. Here, it was defendants who moved for a hearing for plaintiff. The trial judge found no bad faith or malice, but merely that the police were carrying out orders, though without standards. He concluded that "no one can blame the state police”. Exemplary damages were clearly erroneous in this case. The back pay award of $584.64 also appears suspect. How this figure was arrived at does not appear in the record. Plaintiff was interviewed on August 6, 1973. At the time the information from his file was released, August 9, 1973, no promotional register existed, so the earliest that plaintiff could have been hired was August 29, 1973, when the register took effect. Plaintiffs employment with the Highway Department commenced on November 4, 1973. His back pay award should cover only the period from August 29 through November 4. The court instead measured the time period beginning from August 6, the date on which plaintiff was interviewed. This was erroneous. Damages for emotional and mental distress are proper in § 1983 cases where plaintiff offers competent evidence to support their award. Carey v Piphus, supra; Nekolny v Painter, 653 F2d 1164 (CA 7, 1981), cert den 455 US 1021; 102 S Ct 1719; 72 L Ed 2d 139 (1982). In this case, both plaintiff and his wife offered testimony that plaintiff began losing sleep, became paranoid about the police, and was alienated from his fellow workers. Although few cases have yielded such high awards for injuries such as these, the award in this case was supported by competent evidence and was not improper. Damages of $40,544 for career loss were also calculated from an improper starting date. The only clear evidence of long-term injury by not being hired in August, 1973, by the state police was that in 1981 plaintiff was "bumped” from a level 13 to a level 12 position by another employee with just a few more weeks’ seniority than plaintiff. Damages for career loss should be computed from 1981, not from 1973. Plaintiff estimated that cost him about $2,000 per year. CONCLUSION The judgment against the Department of State Police is vacated. As to the liability of the Director of the State Police, and appropriate damages if liability is found, we remand for further proceedings in light of this opinion.	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Per Curiam. Frank C. Crossman died intestate with no known heirs on December 31, 1982. A petition to commence proceedings for administration of the estate was filed in Livingston County Probate Court and named Crossman’s stepdaughters, petitioners/appellants herein, as interested parties. Petitioners sought a determination that they and their deceased brother, John E. Erickson, who was survived by two children, were Cross-man’s heirs under the doctrine of ’’equitable adop tion”. At the close of the petitioners’ proofs, the Attorney General moved for a directed verdict, which was granted. Petitioners appeal as of right. On September 10, 1984, this Court sua sponte ordered the parties to brief the matter of this Court’s jurisdiction. Petitioners argue that this Court has jurisdiction pursuant to MCL 600.861; MSA 27A.861 and PCR 801.2(c)(ll), because they are interested parties, the lower court order was final as to them, and the order determined their rights as heirs. Petitioners acknowledge that an equitable adoption would only give them property rights and not make them heirs, but they contend that the technical difference should not be construed to lead to an unjust result. The Attorney General notes that equitable adoption sounds in contract and that this Court could take jurisdiction because the order was one denying specific performance. PCR 801.2(c)(14). See now MCR 5.801(B)(3)(1). We accept jurisdiction under the latter court rule and believe it would be improper to decline jurisdiction merely because petitioners may have argued the wrong basis in their brief. We therefore turn to the merits. Citing 2 Am Jur 2d, Adoption, § 16, Ballentine’s Law Dictionary (3d ed), p 409, defines "equitable adoption” as follows: "The principle that a contract or agreement to adopt a child, clear and complete in its terms, and entered into by persons capable of contracting, which has been fully and faithfully performed on the part of the child so that relief for him is required as a matter of justice and equity, will be enforced in equity to the extent of decreeing that the child occupy in equity the status of an adopted child, and be entitled to the same rights of inheritance in intestate property of the promisor to which he would have otherwise been entitled had the intended adoption proceedings been legally consummated.” In Michigan, this doctrine has been "used to create a right of intestate succession in children where there was an effort to adopt which was ineffective due to a failure to meet statutory requirements or where there was an agreement to adopt which the parent failed to perform”. The Travelers Ins Co v Young; 580 F Supp 421, 423 (ED Mich, 1984). Whether there was an agreement to adopt must be decided on all the facts and circumstances of the case and an agreement may be inferred even in the absence of direct proof. Perry v Boyce, 323 Mich 95,100-101; 34 NW2d 570 (1948). In the instant case the court below ruled that there was no equitable adoption because "[tjhere was no testimony to indicate that adoption was ever discussed, and nothing was done by the parties to show an equitable adoption by the decedent”. Lois Boyes testifed that, while she had performed services for decedent, she did not expect to be rewarded, paid or adopted. She never discussed with decedent the disposition of his property upon his death. Virginia Erickson also testified that she had not discussed adoption or making a will with decedent. The court noted that decedent had made Lois and Virginia beneficiaries on his insurance policies, so it appeared that decedent knew how to make them recipients of his property and had failed to do so. Our own review of the record reveals the following additional facts. The decedent married the petitioners’ mother in 1950. At that time, Gwendolyn was 20 years of age, Virginia was 18 and Lois was 16. Gwendolyn was not living at home but often visited on weekends. Virginia and Lois remained at home approximately two years after the marriage. During that time, they provided some services to decedent, helping with the housecleaning, ironing shirts, fixing meals and washing the car. Decedent referred to petitioners as his children and treated them as such. However, petitioners did not take on the name Crossman. In 1953, Gwendolyn’s wedding invitation listed her as the daughter of decedent. The two always exchanged presents and cards on holidays, birthdays and Father’s Day. Decedent guaranteed a loan that Gwendolyn used to finance a trip to Alaska to seek employment there. The relationship between decedent and Virginia was also like that of father and daughter. They frequently went fishing together and once went bow hunting. Decedent often assisted Virginia financially and helped her move on several occasions. They also exchanged cards and gifts, and Virginia planned and gave a surprise 25th wedding anniversary party for decedent and her mother. Virginia took care of the funeral arrangements when her stepfather died. Lois had a similar relationship with decedent. Shortly after her marriage, he built her a new garage for her and her husband. He and her mother would babysit her children for extended periods of time. In 1980, he gave her daughter, Sandra, a 1966 automobile. The evidence is sufficient, assuming an agreement to adopt, to prove a valid consideration flowing from the stepdaughters through their faithful love and affection for the decedent. Blair v Califano, 650 F2d 840 (CA 6, 1981). However, we agree with the court below that the evidence fails to prove an agreement or attempt to adopt. We sympathize with petitioners and agree that the decedent intended to leave his property to them. The court below recognized as much, nothing that decedent had stated on one occasion that he wanted to get things straightened out so that his stepdaughters would get everything. Unfortunately, the decedent did not act upon his expressed intent. Petitioners assign error to the court’s exclusion of testimony by Virginia regarding the decedent’s further expression of intended disposition of his property. However, no offer of proof or separate record was made, so that, even assuming error, we cannot conclude that prejudice resulted requiring reversal. MRE 103(a). Furthermore, even if there had been more specific proof of the decedent’s intention to give his property to the petitioners, that would not be sufficient to show an intent or an attempt to adopt. At most it would show an intent to make a will, an intent that was never acted upon. Cf. Perry, supra, p 99. Affirmed. In Albring v Ward, 137 Mich 352, 355; 100 NW 609 (1904), the Court required proof of a contract giving a specific interest in property. Void articles of adoption were considered no evidence themselves of such a contract. The Court appears to have shifted grounds, however, in Roberts v Sutton, 317 Mich 458; 27 NW2d 54 (1947), where it required only proof of an agreement to adopt; the Court seems to have assumed that an interest in property would naturally follow. It stated on page 468: "We do not hold that plaintiff was adopted, but, rather, that, under the agreement, she ought to have been adopted and that, therefore, with full performance of the agreement on her part, consisting of years of faithful service and filial devotion, she has acquired an equitable interest in the estate of Doctor Carr.” For a discussion of the theories underlying the equitable interests in the decedent’s estate, see Comment, 47 Mich L Rev 962 (1949).	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Per Curiam:. Defendant was convicted of two counts of armed robbery, MCL 750.529; MSA 28.797, after a jury trial in Novembver, 1983. He was sentenced to two concurrent prison terms of from 20 to 40 years. Defendant appeals his convictions to this Court as of right. A robbery was committed at the Orchard Park Food Market in Leroy Township in Calhoun County, Michigan, on December 12, 1982. At about 8:30 p.m., three or four masked persons entered the market. At least one person was armed, carrying a shotgun. One robber ordered the cashier to open the cash register. The cashier and several customers were then ordered to lie down on the floor. The office manager, Marilyn Ylioff, testified that two of the robbers forced their way into the market’s office. They took $15,000 from the safe, YliofFs purse, and two rings she was wearing. Ylioff and several other witnesses testified that one shot was fired, followed by an expletive uttered emphatically by one of the robbers. A great deal of blood was found near the front door. Harry Zimmerman, an evidence technician, took blood samples from the pool of blood for analysis. He also recovered YliofFs purse from the scene. A police report, admitted into evidence by stipulation, indicated that defendant sought treatment for a gunshot wound to the right hand on December 13, 1982, at 11:46 a.m. at Henry Ford Hospital in Detroit, Michigan. Defendant left the hospital, against medical advice, after being treated. Timothy Lindquist, M.D., testified that he treated defendant at Leila Hospital in Battle Creek on December 14, 1982, for a gunshot wound to the right hand. He testified that the wound appeared to be two or three days old at that time. The wound showed signs of prior treatment. Frank Schehr, a supervisor at the Michigan State Police crime laboratory, testified that he compared blood samples found at the scene to blood samples taken from defendant under the authority of a court order. Schehr testified that defendant’s blood type was shared by .02 percent of the black population in Michigan. Defendant testified on his own behalf. He claimed that he was robbed and shot while visiting a nightclub in Detroit. His testimony was supported, without much detail, by Shannon Brown, defendant’s purported date that evening. The jury found defendant guilty as charged. Defendant’s first claim is that Dr. Lindquist’s testimony was privileged and not admissible at trial. The issue was preserved by a specific timely objection. The physician-patient privilege is created by statute. MCL 600.2157; MSA 27A.2157. Defendant claims that Dr. Lindquist’s observations of defendant’s gunshot wound during his treatment of defendant was information subject to the privilege. The issue presented is whether the privilege must give way to MCL 750.411; MSA 28.643, which requires that any wound inflicted by a deadly weapon must be reported to the local police authorities. A reading of the two statutes indicates that the privilege in MCL 600.2157; MSA 27A.2157 is qualified by MCL 750.411; MSA 28.643. This qualification is limited to the matters which a physician is required to report under MCL 750.411; MSA 28.643. When a general statute, such as the one creating . the privilege, conflicts with a specific statute, such as the reporting statute, the specific statute is considered to be an exception to the general statute. First Bank of Cadillac v Miller, 131 Mich App 764; 347 NW2d 715 (1984). Furthermore, it will not be presumed that the Legislature intended a conflict when it reenacted the privilege statute as 1961 PA 236, §2157, effective January 1, 1963, while the reporting statute was still in existence. Reed v Secretary of State, 327 Mich 108; 41 NW2d 491 (1950). We cannot presume the privilege statute repealed the reporting statute by implication; implied repeal is generally not presumed. People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984). Our conclusion is that the privilege is qualified by the reporting statute. Dr. Lindquist could testify about the matters he was required to report by the reporting statute. Defendant’s next claim is that the blood-type evidence was inadmissible. We disagree. The blood-type evidence was relevant under MRE 401 because it tended to prove (or disprove) a connection between the defendant and the robbery. The question of whether the blood on the market floor was defendant’s was a fact of consequence to the determination of the case. The evidence was not admitted in a void; there was other evidence linking defendant to the crime. The manager’s general description matched that of the defendant in height, weight, race and age. Defendant was driving an automobile matching a description of an automobile which was observed by a witness at the scene. Furthermore, the report from Henry Ford Hospital showed that defendant was treated for a gunshot wound on the morning following the robbery which occurred near Battle Creek. Finally, there was no unfair prejudice. There is no indication that the probative value was artificially inflated by the prestige of the witnesses. People v Goree, 132 Mich App 693, 703; 349 NW2d 220 (1983). The trial court did not abuse its discretion. The evidence was properly admitted. Goree, supra; People v Thorin, 126 Mich App 293; 336 NW2d 913 (1983). Defendant’s final claim is that the trial court erred by not giving CJI 4:2:01 on pure circumstantial evidence. The issue was preserved by a timely objection. There was no error. The trial court instructed the jury on direct and circumstantial evidence, including the cautionary instruction on the use of circumstantial evidence contained in CJI 4:2:02. When the instructions are read in their entirety, it is clear that the jury was properly instructed on the proper uses of the evidence produced at trial. People v Fordham, 132 Mich 70, 76; 346 NW2d 899 (1984), rev’d on other grounds 419 Mich 874 (1984). Affirmed.	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Per Curiam. Defendant was convicted of first-degree criminal sexual conduct, MCL 750.250b(l)(b)(i); MSA 28.788(2)(l)(b)(i). He was sentenced to from 30 to 100 years in prison. His appeal as of right raises a myriad of issues, none of which require reversal._ The complainant in this case was defendant’s 13-year-old stepdaughter. At trial, she testified that on December 25, 1981, she and the defendant had sexual intercourse. Approximately a month later, she told her mother about the incident and prosecution resulted. Defendant admitted having sexual intercourse with his stepdaughter. While he knew it was against the laws of the State of Michigan and the laws of man, he believed that, according to the laws of God, incest is the key to the kingdom of heaven. Dr. George F. Evseeff, a psychiatrist, testified on defendant’s behalf and it was his opinion that defendant was legally insane on the date of the offense. Dr. Charles Clark, a psychologist with the forensic center, was called as a rebuttal witness by the prosecution. He felt that defendant was not legally insane on the date of the offense. The first issue on appeal is whether reversible error occurred when evidence of the defendant’s prior sexual acts with the complainant and other members of his household was admitted. The question of whether evidence of prior sexual acts between the complainant and the defendant, when they are members of the same household, is admissible was answered in People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). Recognizing that the credibility of the alleged victim is generally a principal issue in a criminal sexual conduct case, the Court held that "the probative value outweighs the disadvantage where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense”. 390 Mich 413. The Court also pointed out that prior sexual intimacy between the parties is not always admissible; the trial judge has the discretion to exclude relevant evidence if its probative value is outweighed by the risk of unfair prejudice, confusion of the issues, or misleading the jury. While in this case the credibility of the complainant was not at issue because defendant admitted he had sexual intercourse with her, defendant failed to object or ask the trial court to exercise its discretion to disallow the testimony. Absent manifest injustice, failure to object to evidence at trial will preclude appellate review. People v Woods, 416 Mich 581, 610; 331 NW2d 707 (1982). We. find that no manifest injustice occurred. In the same vein, defendant also complains of testimony by the prosecutor’s expert witness, Dr. Clark, about four other charges of criminal sexual conduct against defendant relating to sexual activity with other children. The DerMartzex exception has not been extended to prior sexual acts between the defendant and persons in the same household other than the alleged victim. People v Jones, 417 Mich 285, 286; 335 NW2d 465 (1983). The Court reasoned. that "[pjrior sexual acts between the defendant and persons other than the complainant are not part of the principal transaction”. 417 Mich 289-290. In this case, the prosecutor and defense counsel entered into a stipulation that there would be no reference to other sexual acts by the defendant with the brother and sisters of the victim. As a matter of policy, this Court should carefully review and enforce agreements entered into by the prosecutor in order to protect the integrity of the judicial system. However, we note that the court fashioned an exception to the stipulation: "And there is an exception to that stipulation and that is with the exception of possibly the defendant’s expert. The prosecution’s questioning only relating to these other facts as a basis for an opinion. "That exception is to be reconsidered by the Court if defense counsel requests before the expert takes the stand.” Defendant did not object to Dr. Clark’s testimony. Absent objection, appellate review is precluded unless there is manifest injustice. Woods, supra. A review of the trial transcript indicates that the prosecutor’s expert, Dr. Clark, referred to certain statements made by defendant during Dr. Clark’s examination of him. The statements by defendant referred to the effects of his sexual abuse upon "the children”. There was no other testimony regarding any specific sexual acts between defendant and the other children. Because the only contested issue at trial was the defendant’s mental state at the time of the offense and Dr. Clark’s brief references about defendant’s sexual acts with other children were made in order to help him explain how he formulated his opinion as to defendant’s sanity, we find no manifest injustice. Dr. Clark was only given the same opportunity to explain the basis for his opinion that the court gave to defendant’s expert. The second issue on appeal is whether the prosecutor improperly impeached defendant’s expert witness regarding the witness’s propensity to testify on behalf of criminal defendants on the issue of insanity. MRE 611(b) provides that a "witness may be cross-examined on any matter relevant to any issue in the case, including credibility”. The scope of cross-examination rests in the sound discretion of the trial court and an appellate court will not reverse absent a clear showing of abuse. People v Johnston, 76 Mich App 332, 336; 256 NW2d 782 (1977); People v Richmond, 35 Mich App 115, 121; 192 NW2d 372 (1971). MRE 611(b) confers "broad discretion on the trial judge to decide the proper scope of cross-examination. Where no request to exercise its discretion is made, no error can be committed.” People v Goodard, 135 Mich App 128, 140; 352 NW2d 367 (1984). Absent manifest injustice, defendant’s failure to object at trial to testimony elicited by the prosecutor precludes appellate review. People v Cleveland Wells, 103 Mich App 455, 463; 303 NW2d 226 (1981). We find no manifest injustice. The testimony was admissible as it pertained to the credibility and bias of the witness. We note that it was only after defense counsel, on redirect, elicited testimony from Dr. Evseeff that he sometimes found defendants to be legally sane and had, on previous occasions, testified on behalf of the prosecution, that the prosecutor questioned Dr. Evseeff about the percentage of times he had testified that a criminal defendant was insane. Thus, defendant opened the door to the line of questioning and no error resulted when the prosecutor followed up with additional questions on the same issue. Defendant next argues that he was denied his right to a speedy trial because he was incarcerated for approximately 16 months prior to trial. Our Supreme Court has adopted a balancing test of four factors, originally expounded in Barker v Wingo, 407 US 514, 531; 92 S Ct 2182; 33 L Ed 2d 101 (1972), as a test for determining whether there has been a violation of the right to a speedy trial. People v Grimmett, 388 Mich 590, 601-606; 202 NW2d 278 (1972). The factors to be balanced are: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. Id. A delay of six months is necessary to trigger investigation into a claim that a defendant has been denied his right to a speedy trial. People v Lowenstein, 118 Mich App 475, 487; 325 NW2d 462 (1982). Where the delay is 18 months or greater, the burden shifts to the prosecutor to prove that defendant has not been prejudiced. 118 Mich App 487. In this case, the delay between arrest and trial was 15 months and 12 days, long enough to trigger investigation into defendant’s claim, but not long enough to shift the burden of proving lack of prejudice to the prosecution. The reasons for delay are examined by this Court and each period of delay is assigned to either the prosecutor or the defendant. See People v Chism, 390 Mich 104, 112-113; 211 NW2d 193 (1973). Where a delay is unexplained, it is charged to the prosecution. People v Carner, 117 Mich App 560, 577; 324 NW2d 78 (1982). Although the lower court record does not make entirely clear the reasons behind the numerous delays and adjournments, we can infer from the record that approximately 9-1/2 months of the delay was attributable to the prosecution and the remaining 6 months was due to the defendant and was usually caused by preparation for his insanity defense. Defendant first asserted his right to a speedy trial on May 19, 1983, when he moved for a firm trial date, asking that he be guaranteed his right to a speedy trial. On June 6, 1983, defendant moved to dismiss the charge alleging that he had been denied his right to a speedy trial. Thus, defendant did not assert his right to a speedy trial until 14 months after his arrest and less than 1 month prior to his trial. Failure to promptly assert the right does not preclude a speedy trial claim, but it is one of the factors to be balanced. People v Farmer, 127 Mich App 472, 479; 339 NW2d 218 (1983). We next examine whether defendant was prejudiced by the delay. There are two types of prejudice that may result: prejudice to a defendant’s person and prejudice to his defense. People v Collins, 388 Mich 680, 694; 202 NW2d 769 (1972). Defendant did suffer personal prejudice in that he was incarcerated for 15-1/2 months prior to trial. However, a review of the record does not indicate that defendant suffered any prejudice in preparing or presenting his defense. The only witnesses called by the defendant were Dr. Evseeff and defendant himself, and the only issue was insanity. We find that defendant was not denied his constitutional right to a speedy trial. Much of the delay was attributable to defendant and he suffered no prejudice in preparing or presenting his defense. In addition, defendant did not assert his right to a speedy trial until 14 months after his arrest. We next turn to defendant’s allegation that the evidence was insufficient to show that he was sane beyond a reasonable doubt. In determining whether there is sufficient evidence to support a conviction, we view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). Statutorily defined, "[a] person is legally insane if, as a result of mental illness * * * or as a result of mental retardation * * * that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law”. MCL 768.21a; MSA 28.1044(1). This statute incorporates by reference the Mentál Health Code’s definition of mental illness as a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life”. MCL 330.1400a; MSA 14.800(400a). A defendant is presumed sane. Once any evidence of insanity is introduced, the prosecution then bears the burden of proving defendant’s sanity beyond a reasonable doubt. People v Murphy, 416 Mich 453, 463-464; 331 NW2d 152 (1982). In this case, defendant and Dr. Evseeff testified in support of defendant’s claim of insanity. Dr. Evseeff felt that defendant was legally insane in that he was unable to appreciate the wrongfulness of his acts or to conform his behavior to the requirements of the law. On the other hand, Dr. Clark felt that defendant was able to appreciate the wrongfulness of his conduct and could conform his conduct to the law. Defendant himself testified that he knew his act of sexual intercourse with his stepdaughter violated the laws of the State of Michigan and was contrary to the laws of man. Defendant also testified that his act was not uncontrollable. With experts offering conflicting opinions as to defendant’s sanity, the decision as to which expert was more credible was left up to the jury. Dr. Clark’s testimony coupled with defendant’s own testimony enabled the jury to conclude that the prosecutor established defendant’s sanity beyond a reasonable doubt. The defendant also claims that the verdict was against the great weight of the evidence. A claim that the verdict is against the great weight of the evidence can only be raised by a motion for new trial. People v Powers, 272 Mich 303, 310; 261 NW 543 (1935); People v Jackson, 125 Mich App 251, 258; 335 NW2d 673 (1983). An appellate court will reverse on this issue only where there has been an abuse of discretion in denying the motion for a new trial. People v McCumby, 130 Mich App 710, 717; 344 NW2d 338 (1983). An abuse of discretion will be found only where the trial court’s denial of the motion was manifestly against the clear weight of the evidence. 130 Mich 717; People v Matthews, 53 Mich App 232, 235; 218 NW2d 838 (1974). Defendant did move for a new trial on several grounds, including that the verdict was against the great weight of the evidence. The motion was denied. We find that the evidence adduced at trial supports the trial court’s decision that the verdict was not against the great weight of the evidence. Accordingly, we find no abuse of discretion. Defendant’s next two issues merit little discussion. He alleges that the prosecutor engaged in misconduct such that defendant was denied a fair and impartial trial. We disagree. Defendant’s allegations about prosecutorial misconduct concerning the victim’s testimony and the impeachment of Dr. Evseeff have already been discussed and we find that no misconduct occurred. The prosecutor’s closing arguments about the two experts who testified as to defendant’s sanity or lack thereof constituted fair comment on the testimony and the credibility of the two witnesses. People v Flanagan, 129 Mich App 786, 796; 342 NW2d 609 (1983). In a supplemental brief, defendant has raised the issue of ineffective assistance of counsel. Briefly, defendant alleges that his trial counsel, in closing argument, made certain remarks which constituted an admission of defendant’s guilt. Because defendant admitted having sexual intercourse with his stepdaughter and stated that it was required by his religious beliefs, defense counsel argued that defendant should be found not guilty by reason of insanity. Attempting to get the jury to accept defendant’s defense is a matter of trial strategy about which this Court is reluctant to substitute its judgment. People v Peery, 119 Mich App 207, 216; 326 NW2d 451 (1982). Using the two-part test of People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), we do not find that defendant’s trial counsel was ineffective. The last issue we consider on appeal is whether the sentence meted out by the trial court shocks our conscience. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). In reviewing a sentence for abuse of discretion, this Court has looked to the lower court record, the presentence report, the sentence limits imposed by statute, and the evidence supplied by the trial court in sentencing the defendant. See People v Gistover, 131 Mich App 313; 345 NW2d 703 (1984). An "excessively severe sentence is one which far exceeds what all reasonable persons would perceive to be an appropriate social response to the crime committed and the criminal who committed it”. Coles, supra, pp 542-543. Sentencing requires consideration of a number of factors: (1) severity of the crime; (2) the nature of the crime; (3) circumstances surrounding the criminal behavior; (4) defendant’s attitude toward his criminal behavior; (5) defendant’s criminal history; (6) defendant’s social and personal history; and (7) statutory sentencing limits. See Coles, supra, p 548, fn 29. These factors should then be balanced with the objectives of imposing sentence: discipline of the wrongdoer, protection of society, reformation of the offender, and deterrence of others. See Coles, supra, p 550; People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). The result should be a sentence "tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential”. People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973). In the instant case, defendant was sentenced to serve a prison term of from 30 to 100 years after being found guilty of first-degree criminal sexual conduct. A panel of this Court remanded the case to the trial court for an explanation of the lower court’s reasons for imposing this sentence. On January 14, 1985, a remand hearing was held wherein the trial court stated its reasons for imposing sentence. A review of the court’s explanation for the sentence indicates that the trial court took the proper factors into consideration, along with the objectives of sentencing announced in Coles, supra, and Snow, supra. Specifically, the court found that defendant readily admitted to sexual intercourse with his stepdaughter and was not remorseful. The trial court believed there was little hope of rehabilitation due to defendant’s peculiar religious beliefs. The trial court found it necessary for the protection of society to keep defendant in prison for as long as possible. We are of the opinion that the trial court did not abuse its discretion such that it can be said that the sentence shocks the conscience of this Court. Affirmed.	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Per Curiam:. Defendant was convicted by a jury in the 47th District Court of driving under the influence of alcohol in violation of the City of Farmington Hills Code. He was given a suspended sentence of 90 days in jail, placed on probation for one year, and ordered to attend Alcoholics Anonymous meetings and to pay $480 in fines, costs, and fees. The circuit court affirmed defendant’s conviction. This Court denied defendant’s application for leave to appeal. The validity of defendant’s conviction is now before us on remand from the Supreme Court for consideration "as on leave granted”. On January 6, 1977, after the Farmington Hills City Council passed Ordinance No. C-80, which adopted a revision and codification of the city’s ordinances, the text of Ordinance No. C-80 was published in the Farmington Forum, a local newspaper. The adopting ordinance provided that the city was adopting and ordering the printing of the "Farmington Hills City Code”, pursuant to 1909 PA 279. Section 2 of Ordinance No. C-80 provided that all ordinances adopted prior to January 15, 1977, and not contained in the new code of ordinances, were "hereby repealed”. Section 3 of the ordinance indicated that ordinances of the city of a "general and permanent nature” were "amended, repealed, and rearranged” in various parts of the new municipal ordinance code. Reference was made to the title of different subjects and to the parts of the new ordinance code in which those subjects could be found, including the "Traffic Code”, which was located in Part VII of the new ordinance code. Pursuant to MCL 257.951; MSA 9.2651, the Uniform Traffic Code may be adopted by reference. As required in MCL 257.952; MSA 9.2652, § 1 of Ordinance No. C-80 provided that a copy of the ordinance code was on file with the city clerk and available for public use and inspection. Reference to Part VII, article 1 of the new code revealed that the "Uniform Traffic Code” as promulgated by the Commissioner of State Police "is hereby adopted by reference”. Part VII, article 1 also set forth the text of the various sections of the Uniform Traffic Code as adopted by the city. Moreover, the city published a notice of adopting the Uniform Traffic Code in the Farmington Forum. The notice provided that on March 1, 1977, the Uniform Traffic Code was "adopted by reference” by the city council in Chapter 70 (Part VII) of the City Ordinance Code, and noted the purpose of the Uniform Traffic Code. See MCL 257.952; MSA 9.2652. Finally, the notice further provided that complete copies of the Uniform Traffic Code were available at the city clerk’s office for inspection and for distribution to the public. Defendant contends that there must be strict compliance with MCL 257.952; MSA 9.2652, but that such was lacking here inasmuch as that provision requires that any code adopted by reference be "clearly identified”, relying upon People v Poyma, 91 Mich App 238; 283 NW2d 707 (1979). Defendant maintains that the reference in § 3 to the "Traffic Code” (rather than "Uniform Traffic Code”) was fatal to the ordinance’s proper publica tion. In Poyma, however, there was no publication at all. In the instant case, we believe that the Uniform Traffic Code was "clearly identified”. Section 3 specifically references Part VII of the city code which, in turn, makes specific reference to the Uniform Traffic Code. This is a far cry from Poyma where the ordinance was not published, but, rather, only supplemental notice of the purpose of the code and the existence of copies thereof was given. Here, the nature of the ordinance, in conjunction with the reference to the appropriate sections of the city code, "clearly” apprised interested persons that the "Traffic Code” in § 3 of Ordinance No. C-80 meant the "Uniform Traffic Code”. Affirmed.	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T. M. Burns, J. Plaintiff, Kay C. Rutter, appeals as of right from the circuit court’s order granting summary judgment to defendants Troy Mortgage Servicing Co. (Troy) and Dollar Watchers, Inc. (Dollar Watchers), pursuant to GCR 1963, 117.2. A final judgment was entered as to those defendants in accordance with GCR 1963, 518.2. In the Fall of 1980, plaintiff, Kay Rutter, responded to a television advertisement for defendant Salem Mortgage Company (Salem). Mrs. Rut ter was unemployed, had missed two or three mortgage payments, owed on various bills, and needed a car, so she indicated that she wanted to borrow some money. After several telephone conversations with individuals who apparently represented Salem, Mrs. Rutter was told that a loan could be arranged. Salem sent a representative to plaintiffs home with application materials. On January 14, 1981, plaintiff went to Salem’s office in Southfield to complete the loan. Plaintiff was actually dealing with Mutual Mortgage Company (Mutual). An assistant secretary employed by Salem Mortgage is the president of Mutual Mortgage. To receive the loan, Mutual Mortgage insisted that plaintiff incorporate since the interest on the loan was beyond the legal limit that a person could be charge. Mutual provided the services of Goldwyn Robinson, an attorney employed by Salem who was also an officer of Mutual Mortgage, to form the corporation. Mr. Robinson received $90 for forming the corporation and $5,000 for arranging the loan. According to Mr. Robinson, this money went to Salem and he only received his regular salary. Although plaintiff believed that she was dealing with Salem, the mortgage note and mortgage papers signed by plaintiff indicated that she was dealing with Mutual. The mortgage which plaintiff signed is commonly known as a "wraparound mortgage”. The mortgage and mortgage note pro vided that "Kay C. Rutter Company” agreed to repay Mutual $21,000 at 17% interest. The following amounts were withheld from the loan: $9,623.94 for payments on plaintiffs original mortgage with Bronx Citizens Bank; $5,000 for payment of the brokerage fee; $421.85 for taxes and insurance; $260 for closing costs; and $118.92 for prepaid interest. Plaintiff was left with $5,997.14 in cash. She was given a disclosure statement indicating the amount of miscellaneous closing costs, the interest rate, finance charges and the total amount of payments. Originally Mrs. Rutter was instructed to pay Mutual, but soon after the loan deal was closed she was told to make payments to defendant Troy Mortgage, an assignee of Mutual. Sometime later, the mortgage was assigned to Dollar Watchers and that company was added as a defendant in this action on October 28, 1983. As of February 25, 1983, the mortgage has been completely satisfied. Plaintiff brought this action on behalf of a class of similarly situated persons. Her claims were based upon the federal Consumer Credit Protec tion Act and Truth in Lending Act, 15 USC 1601 et seq., and Truth in Lending Regulations (Regulation Z), 15 USC 1700 et seq.; 12 CFR 226.1 et seq.; the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., and usury prohibitions of state law, MCL 438.31; MSA 19.15(1). She demanded that the action be allowed to proceed as a class action, that she be awarded twice the finance charge or $1,000 plus reasonable attorney fees, pursuant to 15 USC 1640(a), that defendants be directed to return the attorney fee and interest for each plaintiff plus reasonable attorney fees, pursuant to MCL 445.911; MSA 19.418(11), that defendants be directed to refund interest, exessive fees and attorney fees charged, pursuant to MCL 438.31; MSA 19.15(1), that defendants be directed to bear the cost of notice to the class members, pursuant to MCL 445.911; MSA 19.418(11), that the court declare defendants’ practices to be unlawful and enjoin those practices, and that exemplary damages be awarded, pursuant to GCR 1963, 111.1(3). We find that plaintiff sufficiently pled a cause of action based on the federal Truth in Lending Act against Troy Mortgage. Since the alleged violation of the Truth in Lending Act occurred before October 1, 1982, the applicable statute is 15 USC 1640(d). Marcano v Northwestern Chrysler-Plymouth Sales, Inc, 550 F Supp 595, 599, fn 3 (ND ILL, 1982). That statute reads: "Any action which may be brought under this section against the original creditor in any credit transaction involving a security interest in real property may be maintained against any subsequent assignee of the original creditor where the assignee, its subsidiaries, or affiliates were in a continuing business relationship with the original creditor either at the time the credit was extended or at the time of the assignment, unless the assignment was involuntary, or the asignee shows by a preponderance of evidence that it did not have reasonable grounds to believe that the original creditor was engaged in violations of this part, and that it maintained procedures reasonably adapted to apprise it of the existence of any such violations.” Since defendants did not file affidavits with their motion for summary judgment, we decline to consider the motion under then GCR 1963, 117.2(3) and consider it as brought under GCR 1963, 117.2(1). Peck v Auto-Owners Ins Co. 112 Mich App 329, 335-336; 315 NW2d 586 (1982). Pursuant to GCR 1963, 117.2(1) the trial court should have limited its discretion to determinging whether plaintiff had sufficiently pled a cause of action. Plaintiff sufficiently alleged a continuing business relationship and defendants never denied being assignees. Plaintiff averred in the original complaint against defendants Mutual Mortgage and Troy that "defendant Mutual Mortgage also acted as an agent for Troy Mortgage Company* * *” and that it assigned the mortgage to Troy. With respect to Dollar Watchers, plaintiff averred that the mortgage was assigned to them and that they had knowledge of the defenses raised by plaintiff. There was further an averment that other similar contracts had been entered into under similar circumstances. We find, pursuant to 15 USC 1640(d), that this suffices to allege a continuing business relationship. Defendants, therefore, have the burden of showing by a preponderance of the evidence that they did not have reasonable grounds to believe that Salem and Mutual engaged in violations of the federal Truth in Lending Act and that they maintained procedures reasonably adapted to apprise them of the existence of any such violations. Although defendants claimed as an affirmative defense that they had no knowledge of any violations, this is not enough to make plaintiff’s pleadings subject to summary judgment. The questions of knowledge presents a genuine dispute as to a material fact. The trial court therefore clearly erred in granting summary judgment in favor of Troy Mortgage on plaintiff’s claim based on the Truth in Lending Act. While Dollar Watchers, Inc., may also be in a continuing business relationship with Mutual Mortgage, for the reasons already stated and the fact that the president of Dollar Watchers is also an officer of Troy Mortgage, we find that the period of limitation has run against Dollar Watchers. 15 USC 1640(e). Plaintiff’s relation-back argument is without merit. Browder v International Fidelity Ins Co, 98 Mich App 358, 361; 296 NW2d 60 (1980). Summary judgment was, therefore, properly granted in favor of Dollar Watchers, Inc., on plaintiff’s truth in lending claim. We also find that the trial court properly granted summary judgment against plaintiff on her claim that she was entitled to recover the interest paid on the loan because it was set at an usurious rate. Usury is in the nature of a defense and, therefore, plaintiff cannot maintain an independent action based on the claim of usury to recover the interest she paid on the loan. Michigan Mobile Homeowners Ass’n v Bank of the Commonwealth, 56 Mich App 206, 216; 223 NW2d 725 (1974), lv den 393 Mich 809 (1975). Finally, we find that plaintiff has sufficiently pled a cause of action based on the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., against both Troy Mortgage and Dollar Watchers. The Michigan Consumer Protection Act defines unfair, unconscionable, or deceptive methods, acts, or practices in the con duct of trade or commerce which are deemed to be unlawful. MCL 445.903; MSA 19.418(3); Allan v M&S Mortgage Co, 138 Mich App 28, 43; 359 NW2d 238 (1984). Plaintiffs pleadings sufficiently allege conduct on the part of Salem and Mutual which, if proven, would be in violation of the Michigan Consumer Protection Act. Allan, supra, pp 43-44. We believe that plaintiff’s pleadings also allege a sufficient connection between appellees, Troy Mortgage and Dollar Watchers, and Salem and Mutual Mortgage. Allan, supra, p 43. The trial court, therefore, erred in granting summary judgment in favor of appellees on plaintiff’s claims brought under the Michigan Consumer Protection Act. Reversed in part and affirmed in part and remanded for proceedings consistent with this opinion. No costs are awarded as no party has prevailed in full. MCL 450.1275; MSA 21.200(275) provides: "A domestic or foreign corporation, whether or not formed at the request of a lender, may by agreement in writing, and not otherwise, agree to pay a rate of interest in excess of the legal rate and in such case the defense of usury is prohibited.” A wraparound mortgage is a junior mortgage which secures a promissory note with a face amount equal to the sum of the principal balance of an existing mortgage note plus any additional funds advanced by the wraparound lender. Wraparound mortgages may be used in several forms, depending upon the status of the lender and the borrower in relationship to the property encumbered. Typically, however, wraparounds are either purchase-money mortgages, where the wraparound lender is either the real estate seller or a third party, or refinancing or non-purchase-money mortgages, where the lender is either the same lender that holds the first mortgage or a third party. See, Comment, The Wrap-Around Deed of Trust: An Answer to the Allegation of Usury. 10 Pac LJ 923 (1979), for a discussion of various types of wraparound mortgages. Mitchell v Trustees of United States Mutual Real Estate Investment Trust, 144 Mich App 802; 375 NW2d 424 (1985). As in Mitchell, this case involves a third party, non-purchase-money type of wraparound transaction. "In such transactions, the borrower’s payment under the second, wraparound note covers the debt service on both the first indebtedness and the additional loan advance. While not assuming the original mortgage note obligation, the wraparound lender undertakes to make the payments on the original, 'wrapped’ mortgage note as it receives wraparound payments from the borrower.” Mitchell, supra, p 309. We note that appellees argue that they are holders in due course. MCL 440.3302; MSA 19.3302. If defendants had knowledge of a defense or claim on the instrument, holder-in-due-course status is defeated and they are subject to all defenses and claims, even those of which they had no knowledge. Bird Finance Corp v Lamerson, 303 Mich 422, 443; 6 NW2d 732 (1942). Since there is a material factual issue as to whether appellees accepted the assignments with knowledge of the alleged violations of the Truth in Lending Act and the Michigan Consumer Protection Act, the order granting summary judgment cannot be affirmed on this basis.	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V. J. Brennan, P. J. Defendant, City of Highland Park, (defendant City) appeals as of right from the judgment entered on the jury’s verdict awarding plaintiffs $60,000 in damages for defendant City’s violation of plaintiff’s civil rights under 42 USC 1983. The case arose out of events which occurred on October 14, 1976, when plaintiff Michael Napier was shot by a fellow Highland Park police officer, Jeffrey Jacobs, who was off duty at the time. Plaintiffs brought suit alleging state law causes of action against Jacobs and two other police officers (Red Maruszewski, who was also off duty, and William Chidester, who was Jacobs’s partner), both of whom witnessed the shooting. Defendant City and the three individual officers were also sued under 42 USC 1983. A verdict was returned against Jacobs in the amount of $50,000 for the state claims and $25,000 for the 42 USC 1983 deprivation of civil rights claim. Verdicts of no cause of action were returned in favor of Chidester and Maruszewski. Jacobs is not a party to this appeal. Testimony established that on October 14, 1976, Napier, a black rookie police officer, was partnered with defendant Chidester, who was white. They were working the midnight shift, which had begun at 11:00 p.m. on October 13. Chidester, as the senior officer, drove their patrol car. While on patrol, Chidester stopped the car to talk with two other officers who informed Napier and Chidester that they had put some Communist Workers’ Party bumper stickers on the cars of two white off-duty police officers, Jacobs and Maruszewski, who were in a local bar at the time. Chidester parked the patrol car across the street from the bar to observe Jacobs’s and Maruszewski’s reaction to the bumper stickers. Later that evening, while Chides ter and Napier patrolled, Chidester observed Maruszewski’s car parked illegally in front of a taxicab dispatch office on Pasadena. Napier and Chidester went up to the office and found Jacobs and Maruszewski inside. Jacobs, who drove a taxicab part-time, testified that he went to the dispatch office to inquire about getting a bond plate to carry passengers in the City of Detroit. Chidester made a comment to Jacobs to the effect that "I didn’t know you were a liberal”, apparently referring to the bumper stickers. Jacobs suggestively grabbed his groin and then called Chidester a "cocksucker”. Chidester pulled his service revolver, suggesting that Jacobs "suck on this”. Jacobs retorted with "here’s yours” and then drew his pistol. Maruszewski also drew his gun. The focus then turned to Napier, the only officer who had not drawn his gun. Jacobs pointed his gun at Napier, saying "I think I’ll shoot an ahbed”. Ahbed is Syrian slang terminology for blacks. Napier testified that Jacobs approached him and said he was going to "blow his guts out”, to which Napier replied "go ahead, I’m wearing a flak vest. I need it tested anyway.” Jacobs then said he would blow Napier’s brains out and he pointed the gun in the direction of Napier’s head. Napier replied, "If I had any brains I would not be here”. According to Napier, Maruszewski commented that a bullet would just bounce off Napier’s head since what was in there were rocks. Napier testified that Jacobs then turned away, saying something like "stupid nigger”. Napier then retorted "mighty funny you didn’t tell anybody I was your long lost brother”. Jacobs then turned around toward Napier and the gun discharged into Napier’s abdomen. The first issue for our consideration is whether there was insufficient evidence as a matter of law to support a jury verdict on defendant City’s liability under 42 USC 1983. First, we point out that, contrary to plaintiffs’ assertions, a sufficiency of the evidence claim is reviewable on appeal although a motion for a new trial has not been made. Arnsteen v U S Equipment Co, 390 Mich 776, 777 (1973). A motion for new trial must be made in order to preserve the issue of a verdict’s being against the great weight of the evidence. Watson v Dax, 334 Mich 320; 54 NW2d 674 (1952), Burnett v Mackworth G Rees, Inc, 109 Mich App 547; 311 NW2d 417 (1981), lv den 417 Mich 929 (1983). A motion for a directed verdict under former GCR 1963, 515.2 was a prerequisite to a motion for a judgment notwithstanding the verdict. See Watson, supra. Under MCR 2.610, a motion for a directed verdict is not necessary in order for a party to move for a judgment notwithstanding the verdict. In the instant case, defendant City neither moved for a new trial nor for a judgment notwithstanding the verdict. A motion for a directed verdict was made, however, but the motion did not concern the question of whether there was sufficient evidence to go to the jury on the issue of the City’s liability. Nonetheless, although procedure via the court rules was not properly followed here, to prevent a miscarriage of justice we will review the evidentiary issue presented by defendant as one that was raised in the directed verdict motion, and we will apply the standards for a review of a motion for judgment notwithstanding the verdict. We believe that review of a sufficiency of the evidence claim in a civil case as presented here would be almost, if not entirely, comparable to the standard of review for the grant or denial of a judgment notwithstanding the verdict. "A judgment notwithstanding the verdict on defendants’ motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for plaintiff. Basic Food Industries, Inc v Grant, 107 Mich App 685, 695; 310 NW2d 26 (1981). In reaching a decision, the trial court must view the evidence in the light most favorable to the plaintiff and give the plaintiff the benefit of every reasonable inference that could be drawn from the evidence. Isom v Farrugia, 63 Mich App 351, 354-355; 234 NW2d 520 (1975). If after viewing the evidence in this manner reasonable men could differ, the question is one for the jury and judgment notwithstanding the verdict is improper. Id.” Drummey v Henry, 115 Mich App 107, 110-111; 320 NW2d 309 (1982), lv den 417 Mich 895 (1983). As explained in Killen v Benton, 1 Mich App 294, 298; 136 NW2d 29 (1965), a " 'judgment notwithstanding the verdict may be allowed only if there is insufficient evidence, as a matter of law, to make an issue for the jury’ ”. 42 USC 1983 provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress * * .” The plaintiffs alleged and sought to prove at trial that defendant Jacobs acted under color of law as an off-duty police officer and, while so acting, deprived Napier of his right to due process of law under the 14th Amendment. US Const, Am XIV. According to plaintiffs, Napier had the constitutional right to be free from physical harm, violence, and injury. The § 1983 claim against defendant City included allegations that the City, by and through the acts and/or omissions of the police department supervisory personnel, violated Napier’s due process rights by adopting a policy of tolerating firearm abuse and the use of racially derogatory language and that the policy proximately caused Jacobs’s reckless use of his firearm in the assault on Napier. The plaintiffs also attempted to prove as an alternative theory of liability that the defendant City had a policy of failing to properly supervise, train, and retrain its officers in the use of firearms. To establish a right to relief under 42 USC 1983, a plaintiff must plead and prove that: (1) the defendant deprived the plaintiff of a right secured by the constitution and laws of the United States; and (2) the defendant deprived the plaintiff of this right while acting under color of state law. Moore v Detroit, 128 Mich App 491, 499; 340 NW2d 640 (1983); Rushing v Wayne County, 138 Mich App 121; 358 NW2d 904 (1984), citing Parratt v Taylor, 451 US 527; 101 S Ct 1908; 63 L Ed 2d 420 (1981), and Paul v Davis, 424 US 693; 96 S Ct 1155; 47 L Ed 2d 405 (1976). Municipalities (local governments) such as defendant City can be sued under 42 USC 1983. Monell v Dep’t of Social Services of City of New York, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978); Owen v City of Independence, 445 US 622; 100 S Ct 1398; 63 L Ed 2d 673 (1980); Polk County v Dodson, 454 US 312; 102 S Ct 445; 70 L Ed 2d 509 (1981). See also City of Oklahoma City v Tuttle, 471 US —; 105 S Ct 2427; 85 L Ed 2d 791 (1985). Under Monell, supra, a municipality is a person. However, a "municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory”. Monell, 436 US 691. As stated by the Monell Court: "We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 US 694. Under Polk, supra, 454 US 326, the United States Supreme Court indicated that a local government’s liability under 42 USC 1983 must be based on an unconstitutional official policy or custom. (Was the deprivation caused by any constitutionally forbidden rule or procedure?) Furthermore, "official policy must be 'the moving force of the constitutional violation’ in order to establish the liability of a government”. Polk, 454 US 326, citing Monell, supra. See also City of Oklahoma City v Tuttle, supra, part III, plurality opinion written by Justice Reinquist, joined by Chief Justice Burger and Justices White and O’Conner: "[T]he Monell Court held that only deprivations visited pursuant to municipal 'custom’ or 'policy’ could lead to municipal liability. This language tracks the language of the statute; it also provides a fault-based analysis for imposing municipal liability.” 105 S Ct 2433-2434; 85 L Ed 2d 801. (Footnote omitted.) In City of Oklahoma City v Tuttle, supra, an officer on Oklahoma City’s police force shot and killed Rose Marie Tuttle’s husband outside a bar in which a robbery had been reported in progress. Mrs. Tuttle brought suit against the officer and the city under 42 USC 1983 alleging that their actions had deprived her husband of his federal constitutional rights under the Fourteenth and "presumably” under the Fourth Amendments (due process of law and the "right to be free from the use of excessive force in his apprehension”). 105 S Ct 2433; 85 L Ed 2d 800. The theory of municipal liability advanced at trial was that the officer’s act arose from inadequate police training. A jury verdict was returned in favor of the police officer but against the defendant City in the amount of $1,500,000. The verdict was affirmed on appeal to the Tenth Circuit. 728 F2d 456 (1984). The United States Supreme Court granted certiorari because the Tenth Circuit’s holding that proof of a single incident of unconstitutional activity by a police officer could suffice to establish municipal liability conflicted with other Circuit Court of Appeals decisions. At trial, Mrs. Tuttle did not claim that the defendant city had a "custom” or "policy” of authorizing its officers "to use excessive force in the apprehension of suspected criminals, and the jury was not instructed on that theory of municipal liability”. 105 S Ct 2434; 85 L Ed 2d 802. The theory of liability advanced at trial "was that the 'policy’ in question was the city’s policy of training and supervising police officers, and that this 'policy’ resulted in inadequate training, and the constitutional violations alleged”. The trial court’s instruction allowed the jury to "’infer,’ from 'a single, unusually excessive use of force * * that it was attributable to inadequate training or supervision amounting to "deliberate indifference” or "gross negligence” on the part of the officials in charge’”. 105 S Ct 2434, 2435; 85 L Ed 2d 802. (Citation omitted.) Justice Reinquist wrote: "We think this inference unwarranted; first, in its assumption that the act at issue arose from inadequate training, and second, in its further assumption concerning the state of mind of the municipal policymakers. But more importantly, the inference allows a § 1983 plaintiff to establish municipal liability without submitting proof of a single action taken by a municipal policymaker. The foregoing discussion of the origins of Monell’s 'policy or custom’ requirement should make clear that, at the least, that requiremtn was intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers. Presumably, here the jury could draw the stated inference even in the face of uncontradicted evidence that the municipality scrutinized each police applicant and met the highest training standards imaginable. To impose liability under those circumstances would be to impose it simply because the municipality hired one 'bad apple.’ "The fact that in this case respondent introduced independent evidence of inadequate training makes no difference, because the instruction allowed the jury to impose liability even if it did not believe respondent’s expert at all. Nor can we read this charge 'as a whole’ to avoid the difficulty. There is nothing elsewhere in this charge that would detract from the jury’s perception that it could impose liability based solely on this single incident.” 105 S Ct 2435; 85 L Ed 2d 802-803. When explaining the difference between the policy in Monell, and that in the Tuttle case, Justice Reinquist wrote: "The 'policy’ of the New York Department of Social Services that was challenged in Monell was a policy that by its terms compelled pregnant employees to take mandatory leaves of absence before such leaves were required for medical reasons; this policy in and of itself violated the constitutional rights of pregnant employees by reason of our decision in Cleveland Board of Education v LaFleur, 414 US 632, 94 S Ct 791, 39 L Ed 2d 52 (1974). Obviously, it requires only one application of a policy such as this to satisfy fully Monell’s requirement that a municipal corporation be held liable only for constitutional violations resulting from the municipality’s official policy. "Here, however, the 'policy’ that respondent seeks to rely upon is far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell. To establish the constitutional violation in Monell no evidence was needed other than a statemnt of the policy by the municipal corporation, and its exercise; but the type of 'policy’ upon which respondent relies, and its causal relation to the alleged constitutional violation, are not susceptible to such easy proof. In the first place, the word 'policy’ generally implies a course of action consciously chosen from among various alternatives; it is therefore difficult in one sense even to accept the submission that someone pursues a 'policy’ of 'inadequate training’, unless evidence be adduced which proves that the inadequacies resulted from conscious choice — that is, proof that the policymakers deliberately chose a training program which would prove inadequate. And in the second place, some limitation must be placed on establishing municipal liability through policies that are not themselves unconstitutional, or the test set out in Monell will become a dead letter. Obviously, if one retreats far enough from a constitutional violation some municipal 'policy’ can be identified behind almost any such harm inflicted by a municipal official; for example, Rotramel would never have killed Tuttle if Oklahoma City did not have a 'policy’ of establishing a police force. But Monell must be taken to require proof of a city policy different in kind from this latter example before a claim can be sent to a jury on the theory that a particular violation was 'caused’ by the municipal 'policy.’ At the very least there must be an affirmative link between the policy and particular constitutional violation alleged. "Here the instructions allowed the jury to infer a thoroughly nebulous 'policy’ of 'inadequate training’ on the part of the municipal corporation from the single incident described earlier in this opinion, and at the same time sanctioned the inference that the 'policy’ was the cause of the incident. Such an approach provides a means for circumventing Monell’s limitations altogether. Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality and the causal connection between the 'policy’ and the constitutional deprivation.” (Emphasis added, footnotes omitted.) 105 S Ct 2435-2436; 85 L Ed 2d 803-804. Concurring in part and concurring in the judgment reversing the Tenth Circuit, Justice Brennan, joined by Justices Marshall and Blackmun, wrote that the plurality opinion complicated the task of defining the full contours of municipal liability and he suggested a simpler explanation. Justice Brennan concluded that allowing the jury to infer the existence of a city policy from a single incident of police misconduct of one low level officer not authorized to make city policy and to hold the City liable on the basis of that policy would amount to permitting liability based upon the theory of respondeat superior which was rejected by the Monell Court: "A single police officer may grossly, outrageously, and recklessly misbehave in the course of a single incident. Such misbehavior may in a given case be fairly attributable to various municipal policies or customs, either those that authorized the police officer so to act or those that did not authorize but nonetheless were the 'moving force,’ Polk County v Dodson, 454 US 312, 326; 102 S Ct 445, 454; 70 L Ed 2d 509 (1981), or cause of the violation. In such a case, the city would be at fault for the constitutional violation. Yet it is equally likely that the misbehavior was attributable to numerous other factors for which the city may not be responsible; the police officer’s own unbalanced mental state is the most obvious example. Cf. Brandon v Holt, 469 US —, —; 105 S Ct 873; 85 L Ed 2d 878 (1985). In such a case, the city itself may well not bear any part of the fault for the incident; there may have been nothing that the city could have done to avoid it. Thus, without some evidence of municipal policy or custom independent of the police officer’s misconduct, there is no way of knowing whether the city is at fault.” 105 S Ct 2440; 85 L Ed 2d 809. The plaintiffs herein first attempted to show that the City adopted a policy, custom or practice of tolerating firearm abuse or misuse and verbal horseplay of a racial nature which proximately caused the shooting. "[T]he plaintiff must show an affirmative link between the misconduct and the adoption of any plan or policy, showing defendant’s authorization or approval of such conduct.” Moore, supra, p 499; Rushing, supra. The alleged misconduct here was the reckless shooting of Napier (due process violation) by an off-duty police officer. We first point out that the alleged custom, plan, or policy of toleration of firearm misuse or abuse and racially derogatory language which plaintiffs claimed to have proximately caused the shooting, if the policy existed, is not an unconstitutional policy in and of itself. By comparison, a policy of tolerating illegal searches and seizures would be unconstitutional under the Fourteenth and Fourth Amendments. The United States Constitution does not prohibit the use of racial epithets, although such use is objectionable. Nor does the Constitution prohibit the misuse of firearms, such as quick draw practicing by police officers in front of mir rors. Under Polk, supra, we believe that the evidence presented at trial did not establish a policy, custom, or plan that was unconstitutional, nor a moving force of the constitutional violation alleged by plaintiffs (deprivation of Napier’s right to due process). In fact, our review of the evidence at trial reveals that, at most, the evidence established a custom of tolerating racially derogatory language or verbal horseplay between police officers. We do point out that the plurality opinion in City of Oklahoma City v Tuttle does not limit liability under § 1983 to "unconstitutional policies”. A municipality may still be held liable for a "constitutional” policy, but more than proof of a single incident is necessary. See 105 S Ct 2436; 85 L Ed 2d 804. The evidence presented came first from Napier, who testified that officers and supervisors alike called each other racially or ethnically derogatory names. Other officers testified that they had heard such language used in the presence of supervisors and that Chief Kertuu was aware of it. None of the officers, however, testified that they felt any personal offense at the use of the language. Under Monell and its progeny, it is our opinion that such evidence did not at all establish an affirmative link between the shooting of Napier and the policy or custom of encouraging verbal horseplay of a racial nature. There was no causal relationship or connection between the incident which occurred and the defendant City’s policy or custom. See 105 S Ct 2436; 85 L Ed 2d 804. Although the policy or custom relied upon by plaintiffs was not in itself unconstitutional, under the circumstances presented in this case the proofs failed to establsih the requisite fault on the part of defendant City. Evidence of an affirmative link between Jacobs’s unconstitutional conduct and the defendant City’s policy was insufficient as a matter of law. We also find that there was insufficient evidence as a matter of law on an alleged policy or custom established by supervisory indifference, toleration or acquiescense in the misuse of firearms. "Official policy may be established by the omissions of supervisory officials as well as from their affirmative acts.” Avery v Burke County, 660 F2d 111, 114 (CA 4, 1981). Absent evidence of supervisory indifference such as acquiescing in a prior pattern of conduct, isolated incidents or a single incident are normally insufficient to establish inaction by supervisors for purposes of § 1983 liability. Inaction can take the form of failure to promulage rules and regulations. Turpin v Mailet, 619 F2d 196 (CA 2, 1980), cert den, 449 US 1016; 101 S Ct 577; 66 L Ed 2d 475 (1980); Woodhous v Virginia, 487 F2d 889 (CA 4, 1973); Avery, supra. The police chief testified that the official policy regarding the use of firearms is that an officer is not to use fatal force except when the officer’s or another person’s life is in jeopardy. Further, departmental rules prohibit officers from unholstering their guns inside the station except for inspections or cleaning. All of the defendant officers admitted that they violated departmental rules and regulations by unholstering their weapons on the night of the shooting. Napier testified, however, that the rules were routinely violated. He testified to incidents where officers allegedly practiced drawing their guns in front of mirrors in the station. Jacobs testified at his civil service hearing that gunplay was common and that supervisors, as well as officers, engaged in it. Other officers also testified to having either seen or engaged in gunplay in violation of the rules. Napier did not report the incidents he had ob served to any supervisors because of the unwritten rule against reporting fellow officers’ misconduct. He further testified to having observed a supervisor stop another officer from engaging in gunplay. Chief Kertuu testified to being unaware of any firearm abuse. The only other evidence presented on supervisory knowledge of gunplay was Napier’s testimony that a specific lieutenant quick-drew his gun once and this occurred after Napier’s shooting. For the most part, the testimony at trial did establish that when guns were used improperly, the incident was investigated, officers were disciplined and one officer was forced to retire. Most of the incidents involving discharges of guns were totally unrelated to horseplay or rule violations. We believe that the evidence presented at trial was insufficient as a matter of law to establish an official policy of toleration of firearm abuse via supervisory inaction, knowledge, or a failure to make rules. It is also our opinion that the evidence presented at trial was insufficient as a matter of law to establish a policy or custom of inadequate police training and supervision in the use of firearms, or retraining in the use of firearms. Proof of a single incident of misconduct, as was shown here, is not enough. See City of Oklahoma City v Tuttle, supra, plurality and concurring opinions. Furthermore, under the "deliberate indifference” standard used by our courts to evaluate claims of municipal liability based upon allegations of inadequate training in the use of weapons and supervision of police officers, see Zmija v Baron, 119 Mich App 524; 326 NW2d 908 (1982); Cook v Detroit, 125 Mich App 724; 337 NW2d 277 (1983); and Moore, supra, plaintiffs’ proofs were equally as deficient. The evidence did not establish that the training and supervision of the Highland Park police offi cers was so inadequate that the resulting misconduct was probable. No amount of training or retraining would have made a significant difference at all in the predictability of Jacobs’s behavior. Furthermore, there was no evidence of any persistent failure to discipline officers for misconduct prior to the incident. See Taylor v Canton, Ohio Police Dep't 544 F Supp 783, 792 (ND Ohio, 1982). We note that, because of the result reached, it is unnecessary for us to address the evidentiary claim raised by defendant City with respect to Jacobs’s liability. Jacobs is not a party to this appeal, and as defendant correctly asserts, municipal liability cannot be based upon a respondeat superior theory. We have also reviewed defendant’s remaining claims and find them to be without merit. The exclusive remedy provision of the Worker’s Disability Compenstation Act, MCL 418.131; MSA 17.237(131), did not bar plaintiffs’ claim. Civil rights claims under our state’s statutes are not barred by that provision. See Beauregard v Clarke-Gravely Corp, 131 Mich App 559; 346 NW2d 48 (1982). Michigan Handicappers Civil Rights Act, MCL 37 1101 et seq., MSA 3.550(101) et seq.; Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.; See also Boscaglia v Michigan Bell Telephone Co, 420 Mich 308; 362 NW2d 642 (1984). Similarly, state courts may not discriminate against federal causes of action and the defense of the exclusivity provision would nullify the right to proceed with a federal remedy for alleged constitutional rights violations. Reversed an remanded for entry of judgment for defendant City. We retain no further jurisdiction.	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W. J. Giovan, J. Defendant appeals from a judgment of divorce entered September 24, 1982, and from the trial court’s subsequent denial of her motion for a new trial, which the circuit judge treated as a motion for modification of the divorce decree._ Plaintiff and defendant were married September 27, 1958, and had five children. Plaintiff joined the army in October, 1958, received an officer’s commission in 1965, and retired as a major on July 1, 1979. Defendant claims on appeal that the property settlement of the divorce judgment was erroneously fashioned because the trial court did not consider plaintiff’s nondisability military retirement pay as a marital asset. The defendant also claims error in the refusal of the trial court to continue her as a beneficiary under plaintiff’s survivor benefit plan, in the court’s valuation of the property awarded to her, in the amount of attorney fees awarded to her, and in the failure of the trial court to modify the judment of divorce in order to render the defendant eligible for certain medical, commissary and exchange privileges available to former spouses of service personnel under federal law. We first address the question whether the Uniformed Services Former Spouses; Protection Act, Pub L No. 97-252, § 1002(a), 96 Stat 730 (1982) (codified at 10 USC 1401 et seq.), (hereafter USFSPA), should be given retroactive effect so as to include nondisability retirement pay as a marital asset in the instant case. The law applicable to the disposition of military pensions has undergone many changes in recent years. In Chisnell v Chisnell, 82 Mich App 699, 706; 267 NW2d 155 (1978), lv den 403 Mich 844 (1978), cert den 442 US 940; 99 S Ct 2881; 61 L Ed 2d 310 (1979), this Court held that a military pension, viewed as deferred compensation for services rendered prior to retirement, was properly considered a marital asset by virtue of the spouse’s contributions to the marriage. In McCarty v McCarty, 453 US 210; 101 S Ct 2728; 69 L Ed 2d 589 (1981), decided June 26, 1981, the United States Supreme Court held that federal law precludes a state court from awarding a nonmilitary spouse a portion of the military spouse’s government pension. The Court pointed out that "the plight of an ex-spouse of a retired service member is often a serious one”, 453 US 235, but stated that it was up to Congress to devise a remedy. Subsequently, in Grotelueschen v Grotelueschen, 113 Mich App 395 (1982); 318 NW2d 227 (1982), lv den 417 Mich 940 (1983), this Court held that as a result of McCarty, supra, military pension benefits could no longer be treated as a marital asset. Congress then passed the USFSPA, which was signed into law on September 8, 1982, and which became effective February 1, 1983. The act provides, in part: "Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 USC 1408(c)(1). The legislative history reveals: "The provisions of [the USFSPA] reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modiñed in light of this legislation.” (Emphasis supplied). S Rep No. 97-502, July 22, 1982, reprinted in 1982 US Code Cong & Ad News 1596, 1599-1600. Courts in other jurisdictions have held that § 1408(c) (1) of USFSPA is retroactively effective to June 26, 1981. See, e.g., Koppenhaver v Koppenhaver, 101 NM 105; 678 P2d 1180 (NM App, 1984), cert den 101 NM 11; 677 P2d 624 (1984), Castiglioni v Castiglioni, 192 NJ Super 594; 471 A2d 809 (1984); Menard v Menard, 460 So 2d 751 (La App, 1984); Harrell v Harrell, 684 SW2d 118 (Tex App, 1984); Faught v Faught, 67 NC App 37; 312 SE2d 504 (1984), rev den 311 NC 304; 317 SE2d 680 (1984); Coates v Coates, 650 SW2d 307, 311 (Mo App, 1983), and Smith v Smith, 458 A2d 711 (Del Family Ct, 1983). The trial court’s findings of fact and determinations as to property division, alimony and attorney fees were contained in a written opinion dated August 18, 1982, and a judgment of divorce in conformity with the opinion was entered on September 24, 1982. On April 21, 1983, the trial court, in its opinion on defendant’s motion for modification of the divorce judgment, held that § 1408(c)(1) of the act was not retroactively effective to June 26, 1981. We disagree. The object of the USFSPA was to retroactively subject the disposition of military pensions in divorce actions to state law as it existed prior to that date. Because the law in this jurisdiction prior to June 26, 1981, was that military retirement pay should be considered a marital asset and may be divided as part of a property settlement in a divorce, Chisnell, supra, plaintiff’s pension in the instant case should have been considered a marital asset pursuant to the defendant’s post-judgment motion. Accordingly, the trial court on remand should reassess its distribution to the parties in the light of the eligibility of the pension to be divided as a marital asset. In so providing we do not intimate, however, that the trial judge must necessarily modify the overall distribution contained in the judgment. First, of course, the fact that a military pension is susceptible of being divided does not mean that it must be divided in any given case. The trial judge’s opinion suggests, moreover, that he awarded alimony to the defendant in recognition of the value of the plaintiffs pension benefits: "This Court realizes that it cannot skirt the mandates of McCarty and Grotelueschen, supra, in order to achieve justice in this case. However, the Court finds that the financial position of the parties would justify an alimony award. The amount of the alimony cannot be based on a flat percentage of the military pension, but there is some authority for the proposition that military pension benefits along with other income may be considered as one factor in awarding alimony, namely ability to pay.” Nevertheless, to insure that the discretion of the circuit court in awarding marital assets has been or will be exercised to its fullest legitimate extent, we remand this action to the trial court to determine whether any adjustment of the overall distribution to the parties is appropriate in the light of the status of plaintiff’s pension as a marital asset. The defendant claims that the trial court erred in declining to order that she be continued as the beneficiary under the plaintiffs survivor benefit plan. The plan, provided for under 10 USC 1447-1455, would award an annuity to a named beneficiary on plaintiff’s death. During the marriage the plaintiff designated the defendant as beneficiary, and a sum was deducted yearly from his military retirement pay as premiums for the plan. At trial the plaintiff testified that he intended to name his daughter as beneficiary of the plan. 10 USC 1450(f)(4) provides: "Nothing in this chapter authorizes any court to order any person to elect under section 1448(b) of this title to provide an annuity to a former spouse unless such person has voluntarily agreed in writing to make such elction.” We find no merit in defendant’s claim that the plaintiff’s original election to name her as beneficiary is irrevocable. The plain language of the statute withholds the authority of a court to order the plaintiff to provide an annuity to his former spouse unless he agrees in writing to do so, and he has not so elected. Courts in other jurisdictions which have addressed the issue, moreover, have unanimously held that a person who was the beneficiary as spouse of a retired service person at the time the plan vested is not entitled to a divorce decree requiring that person to be continued as a beneficiary of the plan following divorce, absent voluntary election by the service person. In re Marriage of Williams, 39 Wash App 224; 692 P2d 885 (1984); Barros v Barros, 34 Wash App 266; 660 P2d 770 (1983), rev den 100 Wash 2d 1022 (1983); Brown v Brown, 279 SC 116; 302 SE2d 860 (1983). The trial court did not err in refusing to designate defendant as a beneficiary under plaintiff’s survivor benefit plan. Defendant claims the trial court erred in valuing certain assets of the marital estate and in including or failing to include certain amounts of money in the marital estate. A trial court’s decision concerning the assets of a marital estate will not be disturbed unless such finding constitutes an abuse of discretion. Levison v Levison, 13 Mich App 243, 244; 163 NW2d 834 (1968). A trial judge’s valuation of the marital property will not be upset on appeal unless that valuation is clearly erroneous. Cantor v Cantor, 87 Mich App 485; 274 NW2d 825 (1978); Levison v Levison, supra. We find the trial court’s findings were adequately supported in the record. Defendant contends that the trial court awarded insufficient attorney fees to the defendant. Attorney fees may be awarded as necessary to enable a party to carry on or defend a divorce action. MCR 3.206(A); Gove v Gove, 71 Mich App 431; 248 NW2d 573 (1976). The award of attorney fees is within the sound discretion of the trial court. Chisnell v Chisnell, supra, p 707. The defendant made no showing that she was unable to pay her attorney fees in excess of the trial court’s award and, in any event, has failed to demonstrate an abuse of discretion in the award of fees. Finally, the defendant complains of the trial court’s failure to amend the judgment of divorce to render her eligible for certain benefits available under federal law. Under various provisions of the USFSPA, medical benefits and commissary and exchange privileges are avilable to former spouses of service personnel under certain conditions. Under that legislation, however, the benefits are available only if provided for in a final decree of divorce entered after February 1, 1983. Pub L No. 97-252, § 1006(d), 96 Stat 730, 737-738 (1982). Since the judgment in this action has not yet become final, and since the plaintiff has no objection to the inclusion of provisions in the judgment that would render the defendant eligible for the benefits, we see no reason why such provisions should not be included in the judgment on remand. Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. "The purpose of this provision is to place the courts in the same position that they were on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. * * * Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution.” 1982 US Code Cong & Ad News 1611. Alimony is an appropriate vehicle in proper cases to put a just division of pension benefits in the hands of the nonpension-holding spouse. Perry v Perry, 133 Mich App 453, 460; 350 NW2d 275 (1984).	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M. J. Kelly, J. Plaintiff appeals as of right from an order of summary judgment under GCR 1963, 117.2(1), dismissing her action against the defendants on grounds of governmental immunity. We affirm. According to the complaint, plaintiff and her minor children are recipients of Aid to Dependent Children (ADC) benefits, 42 USC 601 et seq., administered in this state by the Department of Social Services. MCL 400.56; MSA 16.456. In 1977, plaintiff purchased a home in Detroit subject to a monthly mortgage payment of $188. Plaintiff notified the department of the purchase and applied for excess shelter allowance since, at that time, she was receiving the county maximum of $120 per month. Under the rules and regulations promulgated by the department, certain ADC recipients could qualify for up to $220 a month in excess shelter payments. The department improperly denied plaintiff’s application for excess shelter benefits and also improperly denied her application for other benefits. As a result, plaintiff defaulted on her mortgage and foreclosure proceedings were commenced. Plaintiff timely petitioned for an administrative hearing, which was held in March of 1978. The hearing officer made findings of fact and rendered the following order: "1. That the claimant had 10% equity in her home as of the purchase of said home. "2. That the department had proof of the purchase and of the 10% equity as of September of 1977. "3. That the claimant did not receive an excess shelter allowance. "4. That claimant’s home has presently been sold in foreclosure proceedings. "5. Claimant has $600 saved from monthly shelter allowance, the rest having been spent on food due to the nonreceipt of food stamps. "The department in this case is therefore ordered to grant the claimant a supplementation for the nonreceipt of an excess shelter allowance. The amount of the supplementation is to be computed as the difference between what the cost was to claimant and the amount she did receive. The $280 shall be added on and not considered by the department as not payable, in that the claimant does not have this money due to a food stamp error. It is further ordered that the department’s finding of excess property prior to possession by the claimant of her home is invalid and therefore shall not be a bar to the performance of this order. It is further ordered that there should be a service referral made in this case so that the department can — by whatever appropriate methods they find — help to reinstate the claimant’s mortgage.” The department, however, violated its own administrative order by failing to pay the back excess shelter payments and by failing to cooperate with plaintiff and the mortgagee on redemption. When the redemption period expired on Septem ber 23, 1978, plaintiff lost the home and all equity in it. Plaintiff filed this action in the Court of Claims on September 24, 1979, against the State of Michigan and the department, seeking (1) monetary damages to repurchase the home, (2) lost past equity and expected present equity and appreciation, and (3) consequential damages. Defendants moved for accelerated judgment on October 15, 1979, alleging that the Court of Claims lacked jurisdiction because plaintiff sought review of an administrative order and that plaintiff’s claim was barred by an accord and satisfaction. In support of the accord and satisfaction defense, the department claimed that it had issued plaintiff a check for the back benefits prior to the expiration of the redemption period and that the department had been instructed by plaintiff’s attorney not to take any action on the reinstatement of plaintiff’s mortgage. Plaintiff denied these allegations. On March 28, 1980, the Court of Claims granted accelerated judgment on the ground that it lacked subject-matter jurisdiction. The viability of the accord and satisfaction defense was not reached. In an unpublished opinion by this Court released May 27, 1981, we held that plaintiff was not seeking review of an administrative order but was instead suing for monetary and consequential damages resulting from tortious conduct. We found that the Court of Claims had subject-matter jurisdiction, and we reversed and remanded for further proceedings. On November 15, 1982, defendants renewed their motion for accelerated judgment on the ground of accord and satisfaction. Simultaneously, defendants filed a motion for summary judgment under both OCR 1963, 117.2(1) and (3), claiming that plaintiff had failed to state a claim for relief since defendants were entitled to governmental immunity. On March 26, 1984, the Court of Claims issued an opinion and order granting summary judgment pursuant to GCR 1963, 117.2(1), and holding that Elliott v Dep’t of Social Services, 124 Mich App 124; 333 NW2d 603 (1983), was dispositive as to defendants’ immunity from suit. Inasmuch as the summary judgment order was dispositive, no ruling was made on defendants’ motion for accelerated judgment. During the pendency of this appeal, the Supreme Court decided and released Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), construing the legislatively created doctrine of governmental immunity. MCL 691.1407; MSA 3.996(107). We conclude that under Ross, plaintiffs claims in this case aginst the State of Michigan and the Department of Social Services must be dismissed. MCL 691.1407; MSA 3.996(107) provides in relevant part: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” The majority in Ross opted for a broad interpretation of "governmental function” and held: TAJ governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. .When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in § 13) [MCL 691.1413; MSA 3.996(113)] or falls within one of the other statutory exceptions to the governmental act. Whenever a governmental agency engages in an activity which is not expressly or impliedly mandated or authorized by consitutution, statute, or other law (i.e., an ultra vires activity), it is not engaging in the exercise or discharge of a governmental function. The agency is therefore liable for any injuries or damages incurred as a result of its tortious conduct.” Ross, supra, p 620 (emphasis added). Inasmuch as the department is authorized to evaluate requests for ADC benefits and determine elegibility under the Social Welfare Act, MCL 400.1 et seq.; MSA 16.401 et seq., there can be no doubt that the department was engaged in a governmental function when it processed and decided plaintiffs initial application for benefits. The department is thus immune from tort liability relating to its denial of plaintiffs application for excess shelter allowance and other benefits. Elliott, supra. More troublesome is the department’s failure to comply with its own administrative order requiring payment of back benefits and assistance in plaintiff’s redemption efforts. The Legislature did not intend, under the guise of governmental immunity, to protect state employees who blatantly refuse to comply with the administrative orders. Following careful consideration of the applicable principles of law, however, we conclude that plaintiff’s cause of action is against the individual employees involved rather than against the state or the department. Since plaintiff has failed to name the proper defendants in her complaint, the trial court’s order of dismissal must be affirmed. MCL 400.9; MSA 16.409 requires the department to conduct a fair administrative hearing in response to a proper complaint from an aggrieved claimant. That section of the Social Welfare Act further provides that: "The hearing authority shall be vested with the powers and duties of the director to hold and decide hearings. The decisions in these cases shall be binding upon each county or district department of social services involved and shall be complied with by that department.” (emphasis added.) Accordingly, once the hearing officer issued his order in this case, Wayne County employees had no choice but to enforce that order as issued. For reasons not developed below because of the procedural posture of this case, the officials or employees of the Wayne County office simply failed to comply with the order. It appears that any claim is against the individual employees of the Wayne County office for negligent failure to perform the ministerial task of complying with the administrative order. Alternatively, plaintiff’s claim is against the employees for acting outside the scope of their authority in refusing to comply with the order. Had plaintiff named these individual employees in the complaint, her action against the state and the department would have been dismissed but her action against the employees would have survived even under Ross. 420 Mich 592. See Bandfield v Wood, 421 Mich 774; 364 NW2d 280 (1985). We have considered the equities both for and against an order of remand to allow plaintiff the opportunity to name the individual employees involved. MCR 7.216(A)(2). Admittedly, the law of governmental immunity has been in a state of some confusion during the years plaintiff’s suit has been pending in both the trial and appellate courts. However, the appellate courts have been fairly consistent in upholding claims against indi vidual governmental employees for negligent performance of ministerial duties and for the performance of acts outside the scope of employment. See Layton v Quinn, 120 Mich App 708, 714-721; 328 NW2d 95 (1982), remanded 422 Mich 898 (1985), for a history of this area of the law. Because plaintiff had ample notice of the viability of a claim against the individual employees, we conclude that it would be inappropriate to allow her to introduce there parties into the lawsuit at this late date, especially as there is no assurance that these individuals are still with the Department of Social Services. Finally, plaintiff’s claim for damages against the agency is not saved under either the intentional tort or ultra vires exceptions to the doctrine of governmental immunity. Plaintiff has simply failed to plead facts which would support an action against the agency under either of these two theories. Essentially, plaintiff alleges that the department failed to make full shelter payments as required under departmental policy and subsequently failed to comply with its administrative order. There is nothing in this record to suggest that the department’s omissions reflected a policy, directive or procedure of the agency rather than a mistake on the part of some unidentified employee. We subscribe to the view that "negligence is not transformed into an intentional tort by merely alleging that defendant’s [negligent] activity was intentional, wilful and in conscious disregard of the consequences”. Elliott v Dep’t of Social Services, supra, p 129. See also Shunk v Michigan (after Remand), 132 Mich App 632, 636; 347 NW2d 767 (1984), and the dissenting opinions in Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985), and in Sanford v Detroit, 143 Mich App 194; 371 NW2d 904 (1985). Affirmed.	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Per Curiam. Plaintiff, Donald Stabley, appeals as of right from an order granting accelerated judgment to defendants pursuant to GCR 1963, 116.1(2) [now MCR 2.116(C)(4)], on the ground that the general rule that administrative remedies must be exhausted before judicial relief is sought is inapplicable in this case. Plaintiff filed a complaint for superintending control in the Macomb County Circuit Court on July 18, 1983. Plaintiff alleged that the oral portion of the civil service examination administered to plaintiff on June 16, 1983, for promotion from police sergeant to lieutenant, was not "unbiased and non-partisan” as required by statute. MCL 38.512; MSA 5.3362. The oral portion of the examination was designed by Shelby Township Civil Service Commissioners, defendants Byron Kuxhaus, Helen Popkey and Leland Schubring. Plaintiff asserted that the commissioners were biased against plaintiff for the reason that plaintiffs brother, Gerald Stabley, was a political rival Of defendant Kuxhaus. It was also alleged that Kuxhaus had actively tried to influence the examiners by taking them to dinner. As a result of the allegedly arbitrary, capricious, and biased test administered to plaintiff, plaintiff claimed that he received a low test score which prevented him from being promoted to the position of lieutenant for the Shelby Township police force. On the basis of the complaint, the circuit court entered a temporary restraining order on July 18, 1983, enjoining defendants from promoting to lieutenant any persons in the Shelby Township police department. A preliminary injunction was later entered restraining defendants from promoting any applicants to the position of lieutenant until further order of the court. Defendants’ joint motion for accelerated judgment was subsequently granted on April 27, 1984. The issue we address is whether the trial court erred in granting defendants’ motion for accelerated judgment. Plaintiff argues that the trial court erred in granting defendants’ accelerated judgment motion because an action for superintending control could properly be maintained on the basis that there was no other plain, speedy or alternative remedy. GCR 1963, 711.4 [now MCR 3.302(D)] empowered the circuit court to issue an order of superintending control. Such an order "enforces the superintending control power of a court over lower courts or tribunals”. GCR 1963, 711.1 [now MCR 3.302(A)]. The superintending control power of a circuit court extends to administrative tribunals of a judicial or quasi-judicial nature. Beer v City of Fraser Civil Service Comm, 127 Mich App 239, 243; 338 NW2d 197 (1983). A civil service commission acts in a quasi-judicial capacity when it renders a decision on an appeal by an employee. 127 Mich App 243; see also In re Fredericks, 285 Mich 262; 280 NW 464 (1938). Although the circuit court may exercise superintending control over an administrative agency acting in a quasi-judicial capacity, an order of superintending control is an extraordinary remedy and is not available where there is a plain, speedy and alternative remedy. In re Bay County Prosecutor, 102 Mich App 543, 547; 302 NW2d 225 (1980), lv den 411 Mich 1002 (1981); GCR 1963, 711.2 [now MCR 3.302(B)]. Here, plaintiff requested and was afforded a hearing before the Shelby Township Civil Service Commission (commission). He even appeared at the time and place of the hearing, but refused to participate or present evidence. Plaintiffs contention that there was no plain, speedy or alternative remedy available to him is therefore without merit. Plaintiff cites and relies on Turner v Lansing Twp, 108 Mich App 103; 310 NW2d 287 (1981), lv den 413 Mich 871 (1982), and further contends, however, that he was not required to participate in a hearing before the commission because it would have been futile. In Turner this Court discussed the. exceptions to the doctrine of exhaustion of administrative remedies and stated: "Where it is clear that appeal to an administrative body is an exercise in futility arid nothing more than a formal step on the way to the courthouse, resort to the administrative body is not required.” 108 Mich App 108. This Court also noted, however, that there is a presumption that the administrative agency, "if given a chance to pass upon the matter, will decide correctly and will not fail in the performance of its duty”. 108 Mich App 110. In the instant case, the commission held a hearing to consider plaintiffs grievances. Plaintiff, as stated earlier, refused to participate in or present evidence at the hearing. Defendant Kuxhaus abstained from voting on plaintiffs charges and the other two commission members, defendants Pop-key and Schubring, found that plaintiff’s allegations were without foundation. Plaintiff has not made any claim that defendants Popkey and Schubring were biased against him for political or other reasons. We conclude that plaintiff has failed to establish that a hearing before the commission would be futile. Plaintiff’s nonparticipation in the commission’s hearing resulted in no record being developed which supports plaintiffs contention that there was misconduct at the civil service examination. The absence of an administrative record in this case also procluded the circuit court from exercising superintending control over the commission. Lepofsky v Lincoln Park, 48 Mich App 347, 357; 210 NW2d 517 (1973). The absence of a supporting administrative record also precludes the determination that plaintiff was denied any due process rights or that defendant Kuxhaus unlawfully engaged in campaign activities while serving on the commission. Thus, it is unnecessary for us to review plaintiffs claim that these allegations, if true, would exempt plaintiff from having to pursue his administrative remedies. Affirmed.	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Beasely, J. In this action for breach of an oral contract, quantum meruit, and intentional interference with contractual relations, defendants’ motion for summary judgment under GCR 1963, 117.2(3) was denied. After the trial court entered an order to that effect and certified a concise statement of facts and proceedings that was approved as to form by both sides, defendants appeal by leave granted. Plaintiff Cardillo & Associates, Inc., is a Michigan corporation wholly owned by plaintiff Jerry E. Cardillo. Defendant Canusa Extrusion Engineering, Inc. (Canusa), is a Michigan corporation owned principally by defendant Jack Stott Group, Ltd. (Limited), a Canadian corporation. Defendant Jack Stott was president of both Canusa and Limited. In the fall of 1978, plaintiffs entered into an oral agreement with defendant Canusa to find a buyer for the assets of Canusa. The terms of the oral agreement were that if plaintiffs found a buyer and the purchase transaction closed, they would receive a fee of 8% of the first $1 million of the sale price and 5% of the balance of the purchase price which exceeded $1 million. Neither Jerry Cardillo nor Cardillo & Associates, Inc., had a real estate brokers licnese. Beginning in the fall of 1978, plaintiffs expended time and money in an effort to find a buyer for the assets of Canusa. Defendants Canusa and its officers were aware of plaintiffs’ efforts and never asked them to cease their efforts or to stop expending time and money in an effort to find a buyer. In March, 1979, plaintiffs brought a prospective buyer, Sifco Industries, Inc. (Sifco), to Canusa. In October, 1979, Canusa and Sifco Consummated a purchase and sale transaction for the assets of Canusa, pursuant to which Sifco agreed to purchase the nonrealty assets of Canusa for $850,000 and to lease Canusa’s building for three years at $50,000 per year. Claiming to have performed their obligations under the oral agreement, plaintiffs demanded that Canusa pay them a fee of $80,000 and/or compensate them for the reasonable value of their services on a quantum meruit basis. When defendants did not pay and negotiations broke down, plaintiffs started this suit. Defendants filed a motion for summary judgment pursuant to GCR 1963, 117.2(3). They argued that plaintiffs were precluded from recovering a brokerage commission because they were not li censed under the real estate brokers licensing act, and that plaintiffs’ claims were barred by the provisions of the statute of frauds. The trial court decided that a person who does nothing more than find a buyer does not fall within the definition of a "real estate broker” contained in the statute. Finding that plaintiffs were not real estate brokers and not finding any Michigan cases holding that a mere finder cannot recover for services rendered, the trial judge concluded that plaintiffs had stated a cause of action for breach of contract or, in the alternative, for quantum meruit on a traditional common counts bases. Next, the trial court found that once one party fully carries out an oral agreement by performance, the agreement ceases to be void under the statute of frauds and is, therefore, enforceable. Consequently, defendants’ motions for summary and accelerated judgment were denied, and the case was set down for trial on the merits. On appeal, defendants argue that even if plaintiffs were acting as a "finder”, they are precluded by the brokers licensing act from collecting a commission for finding a buyer because they were not licensed as required by the statute. Under Michigan law, a party who brings suit to recover a brokerage fee must allege that he is a licensed real estate broker. Thus, if plaintiffs come within the statutory definition of real estate broker, they cannot recover the commission or finder’s fee they sought in the trial court._ The legislative history shows that in 1919, the Legislature enacted the brokers licensing act, 1919 PA 306, which was titled "AN ACT to define, regulate, and license real estate brokers, real estate salesmen and business chance brokers and to provide a penalty for a violation of the provisions [of the act]”. Section 2 of that act provided in pertinent part: "A business chance broker within the meaning of this act is any person, firm, partnership association, copartnership or corporation, who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of a business, business opportunity, or the good will of an existing business for others as a whole or partial vocation.” In 1937, the following provision was added to section 3 of the act: "The commission of a single act prohibited under the Michigan statutes defining, regulating and licensing real estate brokers and salesmen shall constutite a violation thereof.” 1937 PA 188. Thus, a party cannot circumvent the act by claiming that he only engaged in an isolated transaction. In 1943, the separate definition of business chance brokers was dropped, and the definition of real estate broker was expanded to include: "A real estate broker within the meaning of this act is any person, firm, partnership association, copartnership or corporation, who with intent to collect or receive a fee, compensation or valuable consideration, sells or offers for sale, buys or offers to buy, appraises or offers to appraise, lists or offers or attempts to list, or negotiates the purchase or sale or exchange or mortgage of real estate, or negotiates for the construction of buildings thereon, or who leases or offers to lease or rents or offers for rent any real estate or the improvements thereon for others, as a whole or partial vocation, or who sells or offers for sale, buys or offers to buy, leases or offers to lease, or negotiates the purchase or sale or exchange of a business, business opportunity, or the good will of sin existing business for others, or who, as owner or otherwise, engages in the sale of real estate as a principal vocation.” 1943 PA 57. This definition was broader than the earlier definition of business chance brokers because it no longer required that an individual engage in the activity as a "whole or partial vocation” to come within the purview of the statute. This change in the statutory definition was consistent with the 1937 amendment to the statute, which imposed liability even for isolated transactions. In 1979, when this transaction took place, the definition of real estate broker had not been changed significantly. Consequently, we will look to the above quoted 1943 definition in this case. In 1980, after the transaction at issue here took place, 1919 PA 360 was repealed by 1980 PA 299. The current licensing provisions for real estate brokers can be found at MCL 339.2501 et seq.; MSA 18.425(2501) et seq. We note that our decision would be the same under the statutory provisions now in effect. At the outset, we must decide whether plaintiffs are precluded from collecting an agreed upon sales commission by failure to comply with the above quoted brokers licensing act. For our purposes, the pertinent language in the statute relating to its coverage is: " 'Real estate broker’ means an individual * * * who with intent to collect * * * compensation * * * sells or offers for sale, buys or offers to buy, * * * leases or offers to lease or negotiates the purchase or sale or exchange of a business, business opportunity, or the good-will of an existing business for others”. In interpreting this statute, the trial court concluded that a mere finder or middleman is not included in the definition of a broker. We do not agree. In application of the licensing provisions to a particular fact situation, we look to both the nature of the activities performed and the character of the property involved. One important part of a broker’s function is to find a purchaser. To negotiate a purchase or sale connotes a wider, different function than merely to find a purchaser or seller. The statutes contemplate that normally brokers will engage in various activites. But, the statute uses the word "or”, not the word "and”. Thus, in general, it is unnecessary that in a particular transaction a person perform all functions that are the usual business of a broker. Sometimes, performing one of the usual functions, such as finding a purchaser, will be enough to subject a person to the broker licensing requirement. In Smith v Starke, the Supreme Court remarked that procuring a purchaser of another’s property is of the very essence of brokerage services. To find a purchaser of a business for a commission is within the statutory definition of a broker. Regarding the character of the property covered by the statutory licensing requirement, it is clear that the statute is not limited to real estate, but extends also to businesses, which are essentially in the nature of personal property. In this connection, it should be noted that while, in the within case, leases of real estate were included in the transaction, we need not and do not rest our decision on that fact. Applied to the within case, we are satisfied that included within the words "business, business opportunity or the good will of an existing business”, as used in the statute, is the sale of the assets. We believe that sale of the assets of this engineering company, which included machinery and equipment, is squarely within the statutory meaning of a "business”. In Krause v Boraks, the plaintiff, an attorney relying upon an oral agreement to split a real estate commission with a licensed broker, persuaded two of his clients to buy a vendor’s interest in a land contract. The Supreme Court said that the plaintiffs service was only to sell the vendor’s interest for compensation and, as such, was subject to the brokers licensing law and that, lacking a license, the plaintiff was not entitled to recover as the agreement was void. Specifically, the Supreme Court said: "Neither niceties of language nor fanciful designations can change the substance or the transaction. There can be no doubt about the proposition that the procurement for another, for compensation, of the sale of a vendor’s interest in a land contract is controlled by the so-called brokers’ licensing act * * . "But an attorney engaging solely in the function of obtaining a prospective purchaser for an interest in realty, in conjunction with a broker, is clearly invading another scope of activity which, in the absence of being licensed so to do, is prohibited by statute. That an attorney is well qualified to engage in such endeavor cannot be denied. * * Plaintiffs services were not within the exemption provision of the statute hereinbefore quoted. [ ] In Curry v West Point Hills, Inc, we held that the plaintiff was not entitled to recover under a written agreement for a commission for obtaining mortgage commitments for the defendant because he lacked a broker’s license. We held: "The trial court found that plaintiff was acting as a real estate broker within the meaning of the statutes, supra, and that his complaint did not allege that he was a licensed real estate broker and that it did not appear from the complaint why plaintiff should not be licensed * * * * * * "The contract on which plaintiff relies for recovery is void and unenforceable as in violation of public policy.’[ ] In Jaenicke v Davidson, the Supreme Court said: " 'It is a well-settled principle of law that all contracts which are founded on an act prohibited by a statute under a penalty are void, although not expressly declared to be so.’ In re Reidy’s Estate, 164 Mich 167. "Neither law nor equity will enforce a contract made in violation of such a statute or one that is in violation of public policy.” In 1980, giving effect to what appeared to be settled law, the Legialature provided: "A person engaged in the business of, or acting in the capacity of, a person required to be licensed under this article, shall not maintain an action in a court of this state for the collection of compensation for the performance of an act or contract for which a license is required by this article without alleging and proving that the person was licensed under this article at the time of the performance of the act or contract.” MCL 339.2512a; MSA 18.425(2512a). Under this analysis, we would hold that in finding a purchaser for defendants’ assets under a commission agreement, plaintiffs were subject to the real estate brokers licensing statute and, lacking such a license, plaintiffs’ suit for compensation must fail. We believe this represents both the correct interpretation of the Michigan real estate brokers licensing statute and the majority view concerning this issue. In so holding, we recognize the existence of a minority view, but are not persuaded it should be adopted in Michigan. In the within case, perhaps more important is the fact that plaintiffs and defendants voluntarily made an oral agreement whereby defendants agreed to pay a commission if plaintiffs found a purchaser for them. Plaintiffs performed their promise, although there was perhaps a misunderstanding regarding the price Canusa was expecting. Nevertheless, defendants stood by and watched plaintiffs’ efforts and then reaped the benefits. Based on these facts, plaintiffs also seek recovery in quantum medruit, in its present form, as a successor to the traditional common count employed in cases arising out of breach of contract. Unfortunately for plaintiffs, established law does not permit recovery under quantum meruit in these circumstances. The Supreme Court has held that, if a contract is void under the statute requiring brokers to be licensed, no recovery may be had in quantum meruit for services rendered. Consequently, plaintiffs may not recover on their claim for quantum meruit, and the trial court’s order denying summary judgment must be reversed. Since our resolution of this case under the brokers licensing act prohibits plaintiffs from recovering a commission for their services, it is unnecessary for us to consider defendants’ alternate theory that the oral contract was void under the statute of frauds. Reversed. GCR 1963, 806.3(2). In their concise statement, the parties say that, while not admitting the facts, they are to be assumed to be true for purposes of summary judgment. MCL 451.201 et seq.; MSA 19.791 et seq., now MCL 339.2501 et seq.; MSA 18.425(2501) et seq. MCL 566.132; MSA 26.922. Krause v Boraks, 341 Mich 149; 67 NW2d 202 (1954); Jaenicke v Davidson, 290 Mich 298; 287 NW 472 (1939); Curry v West Point Hills, Inc, 30 Mich App 114; 185 NW2d 907 (1971); MCL 339.2512a; MSA 18.425(2512a). Curry, supra; Krause, supra. See 1975 PA 224, §2. For an interesting analysis of this question, see Weiner, Broker/ Finder: Can You Collect?, 59 Mich SBJ 330 (1980). 196 Mich 311, 314; 162 NW 998 (1917), which case is cited with full approval in Krause, supra. Krause, supra. Krause, 341 Mich 153, 155. Curry, supra. Curry, 30 Mich App 115-116. Jaenicke, supra, p 304. See Alford v Raschiatore, 163 Pa Super 635; 63 A2d 366 (1949). See Bottomley v Coffin, 121 RI 399; 399 A2d 485 (1979). Krause, supra, p 157; Smith v Starke, supra, pp 313-314; Mead v Rehm, 256 Mich 488, 490; 239 NW 858 (1932).	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Per Curiam. Respondent, the personal representative of decedent’s estate, appeals from a probate court order awarding petitioner, decedent’s surviving spouse, a homestead allowance and family allowance. The decedent, William F. Burton, died on March 29, 1981, and was survived by his wife, Lillian E. Burton (petitioner). His will, dated July 14, 1978, was admitted to probate, and in it he left all of his tangible personal property to his wife. He left the remainder of his estate in trust for the support, comfort, and maintenance of his wife for her life time, with the remainder on her death to various relatives. The decedent and petitioner owned their residence as tenants by the entireties and, consequently, upon the death of the decedent, petitioner became the sole owner. Petitioner has been in a nursing home since 1977 and is presently under a guardianship and conservatorship. Her sole income consists of social security payments in the amount of $424 per month and a pension in the amount of $255 per month. Petitioner’s bills for nursing home care and medicine amount to approximately $1,100 per month. She contributes approximately $610 per month toward the nursing home bill, and spends approximately $90 on personal needs. Medicaid pays the balance of her nursing home bill. Dolores L. Cox, as the conservator of the estate of petitioner, filed a petition with the probate court for an order allowing petitioner a homestead allowance, exempt property, and a family allowance. The personal representative of the estate objected to the petition and filed a brief arguing that the homestead allowance should be charged against the home owned by petitioner as the survivor of the tenancy by the entireties and, also, that petitioner was not entitled to a family allowance. The probate court found that petitioner was entitled to a $3,500 cash allowance and that she was also entitled to a homestead allowance and a family allowance of $610 per month, retroactive to May, 1982. Respondent first argues that the probate court improperly awarded petitioner a homestead allowance. At the time of the probate court order, § 285 of the Revised Probate Code provided in pertinent part: "(1) The surviving spouse of a decedent who was domiciled in this state is entitled to a homestead allowance of $10,000.00 * * *. "(2) The homestead allowance is exempt from and has priority against the estate as provided in section 192. The homestead allowance is charged against any benefít or share passing to the surviving spouse or minor child by the will of the decedent, by intestate succession, or otherwise, but the allowance shall not be diminished if it is greater than the benefit or share.” MCL 700.285; MSA 27.5285. (Emphasis added.) Appellant argues that a surviving spouse’s homestead allowance may be charged against will substitutes as well as benefits or shares passing by testate or intestate succession based on the phrase "or otherwise” contained in subsection (2). The probate court considered the meaning of the phrase "or otherwise” and determined that it should not include property passing to a surviving spouse by joint rights of survivorship. The recent legislative amendment of § 285, 1984 PA 377, effective March 29, 1985, obviates the need to define "or otherwise”. We are further of the opinion that the probate court properly determined that, under the prior version of § 285, "or otherwise” does not include property which passes by will substitute. Property acquired by a right of survivorship in a joint tenancy is received by the contract of joint tenancy and is not a share or benefit passing from an estate. See Boehm, New Questions Under New Probate Code, 2 Mich Probate Review, (1982). Consequently, we find that the probate court properly granted the homestead allowance. Appellant also argues that the probate court improperly found petitioner entitled to a family allowance of $610 per month. Under § 287(1) of the Revised Probate Code, a surviving spouse and minor children of a decedent whom the decedent is legally obligated to support are entitled to a reasonable family allowance out of the estate for their maintenance "according to their circumstances”. MCL 700.287(1); MSA 27.5287(1). Appellant argues that in the present case petitioner has no needs and there are other resources from which to provide for her care and support. We disagree. The determination of the amount of a surviving spouse’s allowance is left to the sound discretion of the probate court. Freeman v The Washtenaw Probate Judge, 79 Mich 390; 44 NW 856 (1890). Under the circumstances presented in the present case, we find no abuse of discretion. Affirmed. The amended version defines the phrase "or otherwise” as referring to several sections of the Revised Probate Code, none of which include property passing by will substitute. See MCL 700.285(2); MSA 27.5285(2).	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R. L. Tahvonen, J. Defendant, Todd Alan Cannon, pled no contest to a charge of breaking and entering an occupied building with intent to commit the crime of larceny, MCL 750.110; MSA 28.305. The plea was offered as part of an agreement which incorporated a recommendation by the prosecutor to the trial judge that sentencing be delayed and that the case be dismissed if the defendant abided by any terms or conditions imposed by the court. In addition, the agreement incorporated an understanding that no additional charges would be brought against the defendant on the basis of information provided by an accomplice. The trial court accepted the plea and told the defendant that if the court could not follow the prosecutor’s recommendation the defendant would be given an opportunity to withdraw his plea. The trial court further advised the defendant that a delayed sentence could encompass, as a condition, time in the county jail. On the date set for sentencing, the defendant moved to withdraw the plea. Defense counsel stated to the court that he had advised his client that under the appropriate statutes a delayed sentence could not include county jail time as a condition or requirement. Counsel indicated that defendant also wished to assert his innocence. The trial judge denied the motion to withdraw the plea and delayed sentencing for one year subject to the five conditions: the defendant not violate the laws of this state, the defendant pay assessed court costs, the defendant not associate with his accomplice or any other known felon, the defendant pay restitution following a formal restitution hearing to be scheduled by the prosecutor, and the defendant serve 45 days in the county jail. The dispositive issue before us is whether the trial judge erred in denying the defendant’s presentence motion to withdraw his plea of no contest. We find the trial court did so err and, therefore, vacate the delayed sentence order, reverse the defendant’s conviction and remand for trial. A presentence motion to withdraw a plea of guilty, when not obviously frivolous and accompanied by an assertion of innocence, should be considered with great liberality. People v Paulus, 121 Mich App 445, 450; 328 NW2d 659 (1982), vacated on other grounds 417 Mich 1100.15 (1983). In the present case, defendant’s motion was made prior to sentencing and was accompanied by an assertion of innocence. The motion was based upon defense counsel’s unrebutted representation that he had advised the defendant that jail time could not be a condition of a delayed sentence. Defense counsel’s offer to place the defendant on the stand to support that assertion was denied by the trial court. The record clearly shows that the trial court accepted the truth of defense counsel’s representation and yet denied the motion to withdraw the plea. Since we are persuaded that jail time cannot be imposed as a condition of a delayed sentence, the defendant’s reason for wishing to withdraw his plea was not obviously frivolous. The statute that authorizes the imposition of a delayed sentence is MCL 771.1(2); MSA 28.1131(2), which provides: "\|T]n an action in which the court may place the defendant on probation, the court may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order stating the reason for the delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period.” The purpose of a delayed sentence is to give the defendant an opportunity to satisfy the trial court that he or she can fairly be placed on probation instead of sentenced to prison. In People v Clyne, 36 Mich App 152, 155; 193 NW2d 399 (1971), this Court held that a delayed sentence could be conditioned upon requirements which "were reasonably well designed to assist the court in determining whether or not [a defendant] would be eligible for probation when the [delayed sentence term] ended”. In determining whether or not a defen dant can successfully complete a term of probation, the trial court may quite properly impose conditions for a delayed sentence that would be similar in most respects to those associated with the probationary term itself. Therefore, in the present case, the trial court could reasonably require that as a condition of the delayed sentence the defendant not violate any further laws, pay court costs, not associate with known felons and pay restitution. Compliance with each of those conditions of the delayed sentence would increase the likelihood that the defendant would comply with similar or additional conditions as part of probation. However, the court also required that the defendant spend 45 days in jail. There is nothing about the ability to remain in jail for 45 days that is of assistance to a trial judge in determining whether or not a defendant should be placed on probation. That is so because spending time in jail does not reflect upon either the willingness or the ability of the defendant to voluntarily comply with terms of a probation order. A defendant in jail simply has no choice and his or her "success” at serving a term in jail is not related in any fashion to his or her ability to comply with the requirements of an order of probation. Therefore, simple incarceration in a county jail cannot be a valid condition of a delayed sentence. We are quick to distinguish such incarceration from involuntary participation in an in-patient substance abuse program. Obviously, a trial court could delay a sentence and require as a condition that the defendant participate in a resident substance abuse program since success in such a program could be directly related to success on probation. Cf. People v Stange, 91 Mich App 596; 283 NW2d 806 (1979). We also recognize that in the present case the trial court had advised the defendant at the plea-taking that jail time was a possible condition of a delayed sentence. We are of the opinion that such a statement does not expand the authority of the trial judge and does not authorize the imposition of conditions that are otherwise not permitted by the appropriate statue. The defendant’s conviction is reversed, the order delaying sentence is vacated, and this case is remanded to the trial court for trial.	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N. J. Lambros, J. In this action on a promissory note secured by a mortgage, the circuit court granted summary judgment for plaintiff pursuant to GCR 1963, 117.2(3), holding that there was no genuine issue as to any material fact and that plaintiff was entitled to prevail as a matter of law. Defendants’ countermotion for summary judgment was denied, and defendants appeal as of right. The affidavits and other evidence before the circuit court showed that on June 28, 1978, plaintiff loaned defendant Ren-Cen Indoor Tennis & Racquet Club $1.1 million and received a promissory note for that amount secured by a first mort gage on property located at 37101 East Lafayette Street in Detroit. Defendant Brown was the Guarantor of that note. On August 4, 1980, plaintiff loaned defendant club an additional $500,000 and received a promissory note for that amount secured by a second mortgage on the same property. Defendant club defaulted on both loans. Plaintiff foreclosed its second mortgage on the property at 37101 East Lafayette Street by advertisement pursuant to MCL 600.3201 et seq.; MSA 27A.3201 et seq., and purchased the property itself at the foreclosure sale on August 31, 1982, for the amount owed on the second note. Plaintiff took possession of the property after expiration of the redemption period and commenced this action to recover the amount owed on the first note. Defendants submitted an affidavit, uncontradicted by any affidavit or other evidence submitted by plaintiff, indicating that the fair market value of the property was more than $3 million on August 31, 1982. MCL 600.3280; MSA 27A.3280 provides in part: "When, in the foreclosure of a mortgage by advertisement, any sale of real property has been made after February 11, 1933, or shall be hereafter made by a mortgagee, trustee, or other person authorized to make the same pursuant to the power of sale contained therein, at which the mortgagee, payee or other holder of the obligation thereby secured has become or becomes the purchaser, or takes or has taken title thereto at such sale either directly or indirectly, and thereafter such mortgagee, payee or other holder of the secured obligation, as aforesaid, shall sue for and undertake to recover a deficiency judgment against the mortgagor, trustor or other maker of any such obligation, or any other person liable thereon, it shall be competent and lawful for the defendant against whom such deficiency judgment is sought to allege and show as matter of defense and set-off to the extent only of the amount of the plaintiffs claim, that the property sold was fairly worth the amount of the debt secured by it at the time and place of sale or that the amount bid was substantially less than its true value, and such showing shall constitute a defense to such action and shall defeat the deficiency judgment against him, either in whole or in part to such extent.” Pursuant to this section and the undisputed evidence as to the fair market value of the property, an action against defendants for a deficiency judgment could not have been successfully maintained if there had been one note and one mortgage here rather than two. Plaintiff was able to avoid this defense here, because there were two mortgages and two notes. Defendants argue, however, that the first promissory note, secured by the first mortgage, was discharged when plaintiff purchased the mortgaged property at the foreclosure sale on the second mortgage. In Blackwood v Sakwinski, 221 Mich 464; 191 NW 207 (1922), the assignee of two mortgages on the same property foreclosed the first mortgage and purchased the mortgaged property at the resulting sale. The assignee then brought suit on the second mortgage note, but the circuit court held that the second mortgage had been destroyed by merger when the assignee acquired the mortgaged property and that the assignee was therefore estopped from obtaining a personal judgment on the note. The Supreme Court rejected the circuit court’s reasoning, explaining: "The doctrine of merger in satisfaction of the debt does not apply to this case. The purchaser at the foreclosure sale under his first mortgage did not assume payment of the second mortgage. He could no longer look to the security but he could look to the mortgagors on their note. The note and mortgage did not make the land primarily liable for the debt, and plaintiff nowhere along the line has placed himself in a position to be held to look to the land alone for his money.” 221 Mich 469. A crucial distinction between Blackwood and this case is that in Blackwood the mortgaged property was purchased by the holder of both mortgages at a foreclosure sale on the first mortgage, while here the purchase was at a foreclosure sale on the second mortgage. A purchaser at a foreclosure sale of a second mortgage takes the property subject to the first mortgage. MCL 600.3236; MSA 27A.3236. The contrary is not true. The distinction was explained on Osborne, Mortgages (2d ed), § 274, p 553: "The general rule is that the purchase of mortgaged property by the holder of a junior mortgage at a sale on foreclosure of the senior mortgage, does not extinguish the debt secured by the junior mortgage. And the same is true even though the foreclosed first mortgage also was owned by the purchasing second mortgagee. However, if the holder of both a junior and senior mortgage forecloses the junior and buys it in on foreclosure sale it is generally held that, in the absence of an agreement to the contrary, the mortgagor’s personal liability for the debt secured by the first mortgage is extinguished. The reason given is that on foreclosure sale under a junior mortgage the purchase is subject to the payment of the prior lien with the result that 'the mortgagor has an equitable right to have the land pay the mortgage before his personal liability is called upon’ and the purchaser, if he owns or acquires the mortgage, will not be permitted to enforce it against the mortgagor personally.” (Footnotes omitted.) See also Anno: Union of title to mortgage and fee in same person as affecting right to personal judgment for mortgage debt, 95 ALR 89, 103-104: "(b) Foreclosure of senior mortgage. "The general rule is that the purchase of mortgaged property by the holder of a junior mortgage, at a sale on foreclosure of the senior mortgage, does not extinguish the debt secured by the junior mortgage. ♦ * * "(c) Foreclosure of junior mortgage. "On the ground that a sale on foreclosure of a junior mortgage is deemed to be subject to prior liens and liens in the hands of the purchaser, and that the purchaser is presumed to have made allowance for prior liens in making his bid, it is generally held that a purchase of the mortgaged property by the holder of junior and senior mortgages, on foreclosure of the junior mortgage held by him, extinguishes the mortgagor’s personal liability for the debt secured by the first mortgage in the absence of an agreement to the contrary.” In Belleville Savings Bank v Reis, 136 Ill 242, 248-249; 26 NE 646 (1891), the Court explained: "When one who is absolutely entitled in his own right to a charge or incumbrance upon land becomes the owner in fee of the same land, with no intervening interest or lien, the charge will at law merge in the ownership and cease to exist. Under like circumstances a merger will take place in equity where no intention to prevent it has been expressed, and none is implied from the circumstances and the interests of the party. "The premises, in such case, become the primary fund for the payment of the mortgage, and whoever acquires that fund and the mortgage also must be regarded as having applied the fund to the payment of the mortgage. "The indebtedness will be presumed to have been discharged so soon as the holder of it becomes invested with the title to the land upon which it is charged, 'on the principle that a party may not sue himself at law or in equity.’ The purchaser is presumed to have bought the land at its value, less the amount of indebtedness secured thereon, and equity will not permit him to hold the land and still collect the debt from the mortgagor.” (Citations omitted.) The economic basis for the rule was clarified in Wright v Anderson, 62 SD 444, 449-450; 253 NW 484; 95 ALR 81 (1935): "When a purchaser buys land subject to a mortgage (without assuming it), he does not become personally liable thereon, but nevertheless an equitable relation arises between himself and the original mortgagor. By virtue of having purchased subject to the mortgage, the land becomes the primary fund for the payment of the mortgage debt. * * * In theory, as between the purchaser and the original mortgagor, the mortgagor has already advanced to the purchaser the amount of the mortgage debt by receiving that much less than the market value of his land at the time of the sale. In other words, it is presumed that the purchaser of land subject to a mortgage deducted the amount of the incombrance from the market value of the land when he bought. The mortgagor therefore has an equitable right to have the land pay the mortgage before his personal liability is called upon and the purchaser will not be permitted to retain the land, go out and acquire the mortgage, and enforce the same against the mortgagor personally. The doctrine has application whenever land is purchased subject to a mortgage, whether the purchase be by private treaty or at foreclosure or execution sale. In any such case the only thing that can be sold, and the thing that is sold and purchased, is an equity of redemption; and a purchaser who was willing to pay money for the equity of redemption will not be heard to say, as against the persons liable on the prior incumbrance, that the land (the primary fund for the discharge of the prior incumbrance) is not worth the amount thereof. It follows therefore that when the purchaser, retaining the land, acquires the prior debt, although he is not personally liable thereon, he is the owner of the res which ought to discharge the debt as between himself and the mortgagor and he will not be permitted to retain the res and at the same time to say it is insufficient to satisfy the debt. Consequently there is, in essence, a coincidence of the capacities of debtor and creditor and, as between the purchaser and the original mortgagor, the debt is extinguished, notwithstanding the fact that there may be no merger and notwithstanding the fact that the purchaser may maintain the validity of the lien upon the land as between himself and an intervening subsequent incombrancer who was a stranger to his purchase.” See also McDonald v Magirl, 97 Iowa 677; 66 NW 904 (1896), Sletten v First National Bank of Carrington, 37 ND 47; 163 NW 534 (1917), and Baxter v Redevco, Inc, 279 Or 117; 566 P2d 501 (1977). Michigan follows the general rule about mergers mentioned in Belleville Savings Bank v Reis. At law, whenever a greater and lesser estate or a legal and equitable estate coincide in the same person, the lesser or equitable estate is destroyed by merger. Equity, however, will generally prevent a merger if the parties did not intend a merger, and an intent to avoid a merger will ordinarily be inferred where it is in the interest of the person holding the various estates to keep them separate. Quick v Raymond, 116 Mich 15, 18-19; 74 NW2d 189 (1898). Plaintiff must look to equity here to prevent the merger which would be automatic at law. As Belleville Savings Bank v Reis, Wright v Anderson, and similar cases show, equity is of no assistance to plaintiff under the circumstances presented here, because plaintiff seeks to avoid a merger to enable it to obtain, in effect, a double recovery. The price at a foreclosure sale on a second mortgage is depressed to reflect the outstanding first mortgage. A third party who purchases the property at the foreclosure sale on the second mortgage would have to satisfy the debt secured by the first mortgage in order to prevent the mortgagee of the first mortgage from asserting a superior claim to the property. Because plaintiff itself is the mortgagee of the first mortgage, plaintiff need not concern itself with the possibility that the mortgagee of the first mortgage would assert a superior claim. Plaintiff wants to obtain the price advantage of purchasing at a second mortgage sale without the disadvantage of having to satisfy the debt secured by the first mortgage in order to obtain uninterrupted enjoyment of the property. Equity will not assist plaintiff to achieve such a result. Instead, the debt secured by the first mortgage was discharged when plaintiff acquired the mortgaged property at the foreclosure sale on the second mortgage. The circuit court erred by granting plaintiff’s motion for summary judgment and by denying defendants’ motion for summary judgment. Reversed.	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Hood, J. This is a class action involving the rates of electricity charged by defendants for common areas of multiple-family dwellings. It is the position of plaintiffs that they are denied the equal protection of the law by being charged commercial rates rather than residential rates. On March 22, 1984, the trial court issued its opinion setting forth its findings of fact and conclusions of law. On April 9, 1984, the trial court issued two judgments, one in favor of defendant Board of Water and Light and one in favor of the remaining defendants. Both judgments found against the named plaintiffs and the class on the issue of liability, and further awarded taxable costs to the defendants. Plaintiffs filed a motion for new trial which was denied by the trial court in an order dated June 26, 1984. Plaintiffs appeal as of right from the trial court’s decision. Plaintiffs are the owners of multiple-family dwellings of three or more units which purchase electricity from defendant Board of Water and Light. The remaining defendants are the Michigan Municipal Electric Association and 13 of its member municipalities involved in the generation and transmission of electric power for retail sale to customers. Plaintiffs receive electricity from the Board of Water and Light for the lighting, and in some instances, heating, of "common areas” in and adjacent to their multiple-family dwellings. "Common areas” in multiple-family dwelling are areas which are appurtenant to the individual dwelling units, such as entrances, hallways, basements, laundry rooms, storage rooms, community areas, parking lots, and other similar areas in and adjacent to the multiple-family dwellings. The electricity provided by the Board of Water and Light for common area use is metered through one or more central or "house” meters. The Board of Water and Light provides electricity to plaintiffs for use in common areas at commercial, rather than residential, rates. Most of the remaining municipal defendants also provide electricity to their customers for use in common areas at commercial, rather than residential, rates. The root of plaintiffs’ problem is that the residential electric rates are less expensive than the commercial electric rates. In 1978, a number of the plaintiffs filed a complaint with the Board of Water and Light alleging that billing for separately metered common rates in multiple-family dwellings at the commercial rate while billing for similar electric use in single-family homes and duplexes at residential rates constituted a denial of equal protection. The Board of Water and Light declined to alter its billing practices. Plaintiffs consequently brought this action in Ingham County Circuit Court alleging that the decision to deny residential rate treatment for electricity for common area use in multiple-family dwellings was arbitrary, capricious, unreasonable, discriminatory, and a denial of equal protection. The Michigan Municipal Electric Association asked leave of the trial court to intervene as a defendant. The plaintiffs originally opposed the intervention motion but the trial court eventually entered a stipulated order adding the Association and the 13 named municipalities as defendants which would be bound by the judgment of the court in this action. The trial court also certified this action as a true class action. The court defined the class as the owners of multiple-family dwellings receiving electricity from any of the defendants for common area use billed through a central meter at a commercial, rather than a residential, rate since March 24, 1972. The court also approved plaintiffs’ proposed notice to members of the class and ordered defendants to mail notice to the class members. Service by mailing and by publication was made and a report was subsequently filed with the trial court. By stipulation of the parties the trial was bifurcated. The trial court first heard testimony on the issue of liability and reserved the issues of the existence and amount of damages to a later time if liability was found. Testimony on the issue of liability was heard by the trial court on 15 days during 1982 and 1983. A voluminous record was compiled, which the trial court considered before entering the judgments resulting in this appeal. Plaintiffs argue that the trial court clearly erred in finding that the rate classification complained of did not violate the equal protection guarantees of the United States and Michigan Constitutions. They first claim that the trial court erred in applying the traditional "rational basis” test of equal protection in its analysis, rather than the stricter "means scrutiny” test. We disagree with plaintiffs’ conclusion that the trial court erroneously relied solely on the rational basis test. The trial court’s opinion clearly shows that while the trial court thought that the traditional test was more appropriate in this case, it specifically held that the classification in question was constitutional under either the means scrutiny test or the rational basis test. In deciding the present case, we find the precedent of Alexander v Detroit, 392 Mich 30; 219 NW2d 41 (1974), instructive. In that case there was a constitutional attack on a Detroit refuse collection ordinance which was no longer in effect. Plaintiffs brought suit to recover money spent for refuse collection during the effective period of the ordinance. The single dispositive constitutional issue was whether Detroit ordinance 442-G was violative of equal protection in that waste from certain apartment buildings with more than four units was improperly classed as "commercial” and subject to charges for refuse services provided free to others in a like class. The Supreme Court held that the ordinance was unconstitutional, but specifically wrote that in reaching this conclusion, "we are heavily influenced by the careful findings of fact of the able trial judge, George Martin, in this cause. Findings of fact will not be set aside by appellate courts unless found to be clearly erroneous. GCR 1963, 517. Analysis of the lengthy trial record strongly supports the accuracy of Judge Martin’s factual conclusions.” Alexander, supra, p 36. Regarding the appropriate tests to guide judicial scrutiny of suspect enactments, the Alexander Court said: "(1) Are the enactment’s classifications based on natural distinguishing characteristics and do they bear a reasonable relationship to the object of the legislation? Fox v Employment Security Commission, 379 Mich 579, 588; 153 NW2d 644, 647 (1967); Beauty Built Construction Corp v City of Warren, 375 Mich 229, 235; 134 NW2d 214, 218 (1965); Palmer Park Theatre Co v Highland Park, 362 Mich 326, 346; 106 NW2d 845, 855-856 (1961). "(2) Are all persons of the same class included and affected alike or are immunities or privileges extended to an arbitrary or unreasonable class while denied to others of like kind? Fox v Employment Security Commission, 379 Mich 579, 589; 153 NW2d 644, 647-648 (1967); Beauty Built Construction Corp v City of Warren, 375 Mich 229, 236; 134 NW2d 214, 218 (1965); Palmer Park Theatre Co v Highland Park, 362 Mich 326, 347-348; 106 NW2d 845, 855-856 (1961). "Applied to the instant factual situation, we hold that inclusion of multiple dwellings with more than four units in the fee-paying 'commercial waste’ category while multiple dwellings with four or less units and condominiums and cooperatives were excluded, was a constitutionally improper classification violative of the state and Federal guarantees of equal protection. Const 1963, art 1, § 1; US Const, art XIV, § 1.” Alexander, supra, pp 35-36. In applying those tests, the Alexander Court arguably did what the trial court did in this case, which was to apply both of them, except that in the Alexander case the Court wrote: "No 'natural distinguishing characteristic’ was adduced at trial bearing a 'reasonable relationship to the object of the legislation’. The City of Detroit, for example, in claiming the object of securing refuse collection fees only from profit-making properties, failed to show that excluded properties, e.g., multiple dwellings with four or less units and condominiums, were not profit-making. As well, no demonstration was made by the city of the 'natural distinguishing characteristic’ of increased expense for collection of refuse at properties included in the fee-generating portion of the ordinance as compared to the like class of excluded properties. "Thus the class of multiple dwellings with any number of rental units and the class of profit-making properties, including condominiums and cooperatives, were not treated similarly under 442-G. The privilege of immunity from the sizeable collection fees involved under this ordinance was granted to one subclass of properties while the plaintiffs’ subclass was arbitrarily denied such benefit.” Alexander, supra, pp 38-39. Also instructive is Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975), in which the Court had before it an act of the Legislature providing that the owner of an automobile driven by another with permission was subject to liability if it was negligently driven and caused damages to property or injury or death to a person, and further provided that neither the owner nor a driver was liable for injury or death caused to a guest passenger by negligent driving. The Supreme Court held that the act was unconstitu tional on equal protection grounds. In doing so, the Court discussed at some length the traditional and means scrutiny equal protection tests, and then opined, p 671: "Whatever label is attached to the analysis — whether traditional equal protection, Dandridge [v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970)] test, Reed [v Reed, 404 US 71; 92 S Ct 251; 30 L Ed 2d 225 (1971)] test, means scrutiny or 'a complete and realistic balancing of interests’ — 'the governing rule is one of reason: The Equal Protection Clause, like the Due Process Clause, is a guaranty that controls the reasonableness of governmental action’. The classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation. "What is reasonable is in each instance a matter of judgment. In the final analysis, it is a value judgment and should be recognized as such. 'Whether the court upholds or invalidates a statute, the court is making policy, making value judgments.’ (Emphasis supplied.) "So, too, is the choice of test a matter of judgment. In my judgment, at least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.” (Emphasis added.) (Footnotes omitted.) In the present case, the trial court quoted the equal protection tests from both the Alexander and the Manistee Bank & Trust Co cases, supra, but stated that there was some question as to which equal protection test should be applied in this case. The trial court cited and relied on McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977), and Smith v Employment Security Comm, 410 Mich 231; 301 NW2d 285 (1981), and concluded that the traditional rational basis test was more appropriate because the interest of plaintiffs was pecuniary in nature and was not based on either a fundamental constitutional right or on a classification which has been perceived precedentially as a suspect classification, such as in the case of gender-based discrimination. The McAvoy case involved consideration of what was commonly referred to as the "70% statute”, which provided that a claim for review filed by a self-insured employer or a carrier from a workers’ compensation award entered by a hearing referee should not operate as a stay of payment to the claimant of 70% of the weekly benefit. The Supreme Court held this statute to be constitutional. After quoting from both the Alexander and the Manistee Bank & Trust Co cases, supra, with approval, it noted: "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. The appellants fail to meet their burden.” 401 Mich 453-454. In Smith v Employment Security Comm, supra, the employer had locked out its employees upon the expiration of their collective bargaining agreement after negotiations to arrive at a new agreement had been unsuccessful. The Michigan Supreme Court granted leave to appeal to decide whether the employees were entitled to unemployment compensation when they were locked out in spite of their willingness to continue working during contract negotiations. In sustaining the constitutionality of the statutory classification as not violative of the equal protection clause, the Michigan Supreme Court said: "In Michigan, the standard of review in scrutinizing legislation which is primarily social and economic against a claimed violation of equal protection is also the rational basis test. Appellees must show that the classification is arbitrary and wholly unrelated in a rational way to the objective of the statute. In re Kasuba Estate, 401 Mich 560, 568-569; 258 NW2d 731 (1977); McAvoy v H B Sherman Co, 401 Mich 419, 453-454; 258 NW2d 414 (1977). "We find that there exists a rational basis for the Legislature’s treatment of lockouts in relation to unemployment benefits. The Legislature could have chosen to distinguish between claimants who are laid off and claimants who are unemployed due to a strike or lockout in order to preserve the state’s neutrality in labor disputes. The policy of the ESA is not only to provide relief from involunatry unemployment, but also includes the subsidiary policy of maintaining the state’s neutrality in labor disputes. Lawrence Baking Co v Unemployment Compensation Comm [308 Mich 198; 13 NW2d 260 (1944)], supra; Linski v Employment Security Comm, 358 Mich 239; 99 NW2d 582 (1959); Noblit v The Marmon Group [386 Mich 652; 194 NW2d 324 (1972)], supra. The Legislature may have determined that the payment of benefits to locked-out employees would weaken the effectiveness of the lockout as a bargaining tactic and may have chosen to leave intact the lockout as the employer’s counterpart to the strike. "The Legislature also could have rationally distinguished between an employee locked out at his own place of work and an employee who is unemployed due to a lockout at a functionally integrated establishment. It is apparent from the 1963 amendments to §29(8), which included the addition of the functionally integrated clause, that the Legislature was concerned with eliminating the weapon which employees previously had in being able to strike a key plant, thereby forcing an employer to pay benefits to laid-off employees at functionally integrated plants. It is not unreasonable to conclude that the Legislature intended to eliminate the corresponding weapon of employers in utilizing a lockout to avoid paying unemployment benefits to employees laid off at functionally integrated plants. This goal furthers both aforementioned policies of the ESA. "Whether or not we agree with the wisdom of the lines the Legislature has drawn, we cannot say that they lack a rational basis. Thus, we conclude that the Legislature’s treatment of lockouts in § 29(8) does not violate equal protection.” 410 Mich 271-272. We find that the trial court erred in relying on the McAvoy and Smith cases as supporting the rational basis test in this case. Those cases are readily distinguishable on the basis that they involve social legislation, which the present case does not. This case is factually more like the Alexander and Manistee Bank & Trust Co cases and should be decided under the tests approved therein. That is, the classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation, or in this case, a reasonable and lawful object of the Board of Water and Light. Manistee Bank & Trust Co, supra, p 671. It does not follow, however, that the trial judge also erred in his findings of fact or ultimate conclusion since he specifically found that under either the means scrutiny test or the rational basis test the classification in question was constitutional. It is vital that we examine those findings of fact since the Alexander case, supra, the one most like this case factually, specifically stated that the court’s conclusion was "heavily influenced by the careful findings of fact by the able trial judge”. 392 Mich 36. In this case we too are heavily influenced by the careful findings of fact by the able trial judge, Ingham Circuit Judge Thomas Brown. He found, in part: "There is evidence that Plaintiffs, who are in the business of renting apartments within their multiple-family dwellings, are billed for electrical services utilized in the common areas at commercial rates, while the residents in Plaintiffs’ multiple-family dwellings, residents of single family homes and duplexes purchase electricity at the lower residential rates. Common areas include: hallways, exterior lighting, parking areas, recreational areas with kitchen facilities, meeting rooms, coin-operated laundries, club houses with or without indoor swimming pools, community buildings, as well as offices used by the owners and/or managers of the apartment building. "Defendant, BWL, did not conduct a cost of service study prior to 1976 and the current load study does not specifically address the question of load in common areas. Nonetheless, there is evidence that Defendant classifies its customers on: 1) the size of the customer based on the amount of kilowatt hours consumed in a given period or, 2) the maximum demand which the customer puts on the system, or, 3) both, and 4) the purpose to which the device is devoted. It is also Defendant’s policy to classify persons engaged in business under the general service or the commercial service rate. "Plaintiffs contend that the exclusion of common areas which are centrally metered from residential class bear no relationship to a determination of the cost of providing service. Defendant concedes there is little distinction between costs of service for general service or residential rates in furnishing electrical service.” (Emphasis added.) An important factual distinction between this case and the Alexander case, supra, is that in the present case all residential units are classified at residential rates. It is only the common areas in multiple-family dwellings exceeding two units which are charged the commercial rate. By contrast, the garbage ordinance in the Alexander case distinguished between refuse produced by residents of multiple dwellings with more than four units and refuse produced by residents of dwellings with four or less units. That is, there was a classification with regard to rates as between the residents in the units themselves. Such a distinction is not present in the electrical classifications involved in this case. The Alexander ordinance also had other classifications within it not present in this case. For example, it amended the existing garbage collection ordinance by adding waste produced by multiple dwellings of more than four units to the classification "commercial waste”, but specifically exempted from this new commercial waste category "condominiums and cooperatives”. It left unchanged the existing collection fee applicable only to commercial waste in excess of 20 bushels per month, and further provided for the discretionary reduction or waiver of fees by the Detroit Common Council "upon petition by any non-profit or limited dividend federally subsidized housing development for low to moderate income families, or by a bonafide non-profit, charitable or eleemosynary organization * * *.” 392 Mich 34. Under these factual circumstances, it is not necessarily controlling in this case, and Judge Brown correctly so found. The trial court’s opinion in this case goes on to state: "The classification of electric rates between commercial and residential users based on practical and functional difference between the two classes of users does not deny equal protection. Plaintiffs are engaged in the business of renting apartments. The electric service in common areas metered by an individual meter is paid for by the owner of the apartment building. Common areas, such as clubhouses, laundry rooms and community buildings, are provided by the landlords as part of a commercial enterprise to make the apartment complex more attractive to potential renters. Additionally, there is evidence that Plaintiffs receive income in addition to residential rents for the use of certain common areas, such as laundry and recreation equipment. Plaintiffs also use common areas to provide business quarters to promote its business in renting the units in the complex. Such use of the common areas is in the nature of a business enterprise. Therefore, Plaintiffs are more similar to the general service customer than to the residential customers. "The evidence establishes that the common areas in multiple family dwellings have a greater level of electric consumption and the types and reasons for that consumption greatly differ from comparable areas of single family homes and duplexes. An argument could be made that the ability to bear the burden is better met by a commercial user than by a residential user. However, Defendant’s expert witness, Patrick S. Hurley, indicated that ability to pay was not a factor in classifying customers. There is evidence that the electric service for common areas in multiple-family dwellings is not billed under the commercial rate on the basis of whether a proñt is made, but because energy is used to operate a business or to compete with other businesses. The electric bills paid by Plaintiffs for the common areas may be taken as a business expense deduction on its income tax returns. This tax treatment is not available to the single family residential homeowner. There is evidence that even if a business purpose is involved in single-family homes, there is an option to wire separately for that service and it will also be charged at a general service or commercial rate. "Based on the foregoing, there is a reasonable relationship between classifying the electric service used in common areas of multiple-family dwellings served by a single meter at a commercial rather than a residential rate. Defendant is charged by the City Charter to fix just and reasonable rates. As testified by Plaintiffs’ expert witness, Jack R. Lundberg, it is proper to have a higher rate of return for general service or commercial than residential rates. It is not unjust discrimination to classify and establish rates on the basis of commercial users and residential users of electric service. "By not charging general service or commercial rates for electric service in common areas of duplexes with a single meter, Defendants are discriminating between customers in the same class of business. A rational basis for this is shown by the proofs. It is administratively impossible for Defendant to determine which houses were converted into duplexes and, further, the electric use in the common areas of such apartments is very minimal. Therefore, Defendant has as policy to charge at the residential rate for electric service in commercial areas of duplexes. "It is concluded that Defendant’s classification has a reasonable basis and does not offend the equal protection clause of the Federal and State Constitutions merely because it is not made with mathematical nicety or because it results in some inequity. See Land v Grandville, 2 Mich App 681; 141 NW2d 370 (1966); Oakland County v Detroit, 81 Mich App 308, 311; 265 NW2d 130 (1978).” (Emphasis added.) The trial court’s opinion adequately sets forth findings of fact and evidence which shows a marked distinction between this case and the Alexander case, supra, as discussed above. Further, the opinion supports the findings that the Board of Water and Light’s classification with regard to common areas of multiple family dwellings of more than two units has a reasonable basis and does not offend the equal protection clauses of the federal and state constitutions merely because it is not made with mathematical nicety or because it results in some inequity. The classification does bear a real relationship to the perceived purpose, i.e., a "fair-and-substantial-relationship-to” its object. Manistee Bank, supra, p 670. We find, therefore, that the trial court’s judgment should be affirmed._ Plaintiffs also argue that the trial court’s award of costs to the defendants was contrary to law and an abuse of discretion. We disagree. Plaintiffs misconstrue the import of GCR 1963, 526.1 (MCR 2.625[A]) completely. That rule does not require that the trial court justify the award of costs to the prevailing party. On the contrary, the rule is quite specific in providing that in any action or proceeding, costs shall be allowed as of course to the prevailing party, except when express provision therefor is made in a statute or in a court rule or unless the court otherwise directs, for reasons stated in writing and filed in the cause. In other words, the trial court does not have to justify the awarding of costs, but rather the failure to do so. We are not at all impressed by plaintiffs’ argument that costs should always be denied in "public question” cases. While we do frequently refuse to award costs in cases involving public questions, this is hardly a "rule of law” such that failure to adhere to it constitutes an abuse of discretion. Taxpayers & Citizens in the Public Interest v Dep’t of State Highways, 70 Mich App 385, 389; 245 NW2d 761 (1976). In addition, this is not a traditional public question case, since plaintiffs have a substantial monetary interest in the cause which they were pursuing. Affirmed. By stipulation of the parties on February 27, 1985, the trial court dismissed the action as to all defendants except defendant Board of Water and Light because they had settled their disputes with plaintiffs. Therefore, we deal in this opinion only with the case of plaintiffs versus the Board of Water and Light. Plaintiffs alleged that the rate classification utilized by defendants "is a denial of equal protection under section 1 of the 14th Amendment of the United States Constitution and section 2 of Article 1 of the Michigan Constitution of 1963.” The "rational basis” test places the burden upon the person challenging the classification to show that it is without reasonable justification, and the classification will not be set aside if any state of facts reasonably may be conceived to justify it. Under this standard, "a classification will stand unless it is shown to be 'essentially arbitrary’ ”. Manistee Bank v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). The "means scrutiny” test is a phrase adopted by Professor Gunther in Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harvard L Rev 1 (1972). Under this test, the court will analyze the classification to determine whether the classification bears a real relationship to the perceived purpose. This approach is also referred to as the "fair-and-substantial-relation-to-the-object-of-the-legislation” test. Manistee Bank, supra, p 670. We note that the Supreme Court has granted leave to appeal in two recent decision of this Court concerning the proper standard. Rouge Parkway Associates v City of Wayne, 131 Mich App 631; 346 NW2d 849 (1984), lv gtd, 419 Mich 923 (1984), and State Treasurer v Wilson, 132 Mich App 648; 347 NW2d 770 (1984), lv gtd 419 Mich 935 (1984).	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Per Curiam. On July 22, 1983, plaintiff com menced an action for violation of the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., and particularly § 8 thereof. Plaintiff alleged that, at a regular meeting of the Howell Board of Education on February 14, 1983, the board conducted a closed executive session for the stated purpose of discussing real estate and that, in the closed session, the board discussed accepting an option to purchase certain school property by the City of Howell. The approved minutes of the meeting, attached as an appendix to plaintiffs complaint, show that a motion to accept the option carried. Plaintiff alleged that another improper executive session occurred at the June 7, 1983, regular meeting; the minutes indicate that the board again went into executive session to discuss real estate and subsequently voted to authorize an extension of the city’s option until August 15, 1983. Plaintiff further alleged that sale of the property was authorized at the June 27, 1983, regular meeting and transfer was made the same day by warranty deed. On information and belief, plaintiff alleged that the city was going to transfer the property to the United States Postal Service. Without specifying which meetings were implicated, plaintiff alleged a failure to give adequate notice to the public of the agenda items and to provide an opportunity to be heard. Plaintiff requested that the June 27 transfer of property be invalidated. Service of process was accomplished on September 26, 1983, on both defendants. On October 13, 1983, the city answered the complaint and raised as affirmative defenses that the claim was barred by the statute of limitations and by laches, and that plaintiff failed to state a claim because he did not allege any willful or intentional evasion of the Open Meetings Act by the board. The same day, defendants jointly filed a motion for accelerated and/or summary judgment on the grounds that the period of limitation had run, that no violation of the Open Meetings Act had occurred, and that willful or intentional evasion of the act had not been alleged. On November 2, 1983, plaintiff brought a motion for leave to amend his complaint "to include allegations that the asserted failure of the Howell Board of Education to comply with the requirements of Michigan’s Open Meetings Act was detrimental to and impaired the public interest and, further, that such violations were intentional and designed to preclude public discussion of the decision of that body to sell” certain school property to the city. Plaintiffs and defendants’ motions were heard on November 7, 1983. Counsel agreed that defendants’ motion was brought pursuant to GCR 1963, 116.1(5) and 117.2(1). The court then granted accelerated judgment to defendants because the complaint was not filed within either 30 or 60 days of February 14, 1983, which the court viewed as being the date when "the substantive meeting took place”. The court also granted summary judgment to defendants, at least in part because plaintiff did not allege "that the public good was impaired or that the school board willfully or intentionally sought to violate the Act”. The court denied plaintiffs motion to amend because the school building, which plaintiff apparently wanted to preserve, had been torn down during the period between commencement of the action and service of process on defendants; the court concluded that leave to amend would work an injustice. However, the court indicated that it would reconsider the motion to amend if plaintiff alleged facts of "some sort of skullduggery or some sort of misdeed as would be suggested by” Esperance v Chesterfield Twp, 89 Mich App 456; 280 NW2d 559 (1979). The court concluded that the conclusory allegations in plaintiffs motion were insufficient. An order dismissing the complaint was entered November 14, 1983, from which plaintiff has appealed as of right. Plaintiff argues that defendants’ motion was defective as a "hybrid” motion and for failure to cite what court rules it was premised on. This Court has repeatedly criticized the use of hybrid motions for accelerated and/or summary judgment. See Ceplin v Bastian-Blessing Division of Golconda Corp, 90 Mich App 527, 530; 282 NW2d 380 (1979), Knapp v Dearborn, 60 Mich App 16, 26; 230 NW2d 293 (1975). However, those cases dealt with the requests for accelerated and/or summary judgment where there was only a single basis presented for dismissing the complaint and that basis was not clear from the motion. In the instant case, defendants’ request for accelerated and/or summary judgment was proper since defendants presented separate reasons for dismissing the complaint. Specifically, defendants asserted that they were entitled to accelerated judgment because the claim was barred by the statute of limitations and were also entitled to summary judgment because the complaint failed to set forth a claim upon which relief could be granted. Defendants were, therefore, making separate claims and were not combining these requests into a single "hybrid” motion. Defendants’ failure to "identify” the court rules under which they were proceeding did not lead to any confusion which would make the granting of the motions improper. In Partrich v Muscat, 84 Mich App 724, 729; 270 NW2d 506 (1978), this Court admonished trial courts and attorneys for the failure to specify the particular subrule of the summary judgment rule under which summary judgment was requested and granted. This Court stated: "Unless the applicable subrule under which a party is proceeding is identified, the trial court’s job of deciding the motion and our review on appeal become much more difficult. * * * Unless attorneys devote more thought and consideration to the basis upon which such motions are brought, the problem is likely to be further compounded with the consolidation of present rules 116 and 117 in the future. * * * At some point, counsel and trial courts may be subjected to a summary remand to clarify the grounds upon which such a judgment is granted.” In the instant case, defendants failed to specify the court rules on which their motion was based. Defendants, however, stated in their motion for accelerated and/or summary judgment that plaintiffs claim was "barred by the applicable limitation period contained within the Open Meetings Act”, and that plaintiff had failed to meet the "threshold jurisdictional requirement” since plaintiff did not allege "wilful or intentional evasion of the spirit and intent of the Open Meetings Act”. Moreover, the particular court rules were identified at the hearing on November 7, 1983. The parties and trial court agreed that the motion for accelerated judgment was brought under GCR 1963, 116.1(5) and the motion for summary judgment was brought under 117.2(1). Neither attorney expressed any confusion as to which court rules were applicable. Consequently, the court rules under which the motions were granted were adequately indicated in the trial court record and we find ourselves readily able to review the lower court’s order on its merits. Plaintiff argues that accelerated judgment was improper because controlling issues of fact existed. Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981). We disagree, being unable to find any genuine issues of fact relevant to disposition of the issue whether the period of limitation had run. Nevertheless, we vacate the grant of accelerated judgment to defendants because the court below used the incorrect date to start the period running. Section 10 of the Open Meetings Act, MCL 15.270(3); MSA 4.1800(20)(3), provides: "The circuit court shall not have jurisdiction to invalidate a decision of a public body for a violation of this act unless an action is commenced pursuant to this section within the following specified period of time: "(a) Within 60 days after the approved minutes are made available to the public by the public body except as otherwise provided in subdivision (b). "(b) If the decision involves the approval of contracts, the receipt or acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal to the electors, within 30 days after the approved minutes are made available to the public pursuant to that decision.” The circuit court found it unnecessary to decide whether the 30 or 60 day period was applicable; we likewise need not reach that issue. What is important is the meaning of "decision”. MCL 15.262(d); MSA 4.1800(12)(d) gives the following definition for purposes of the act: " 'Decision’ means a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.” We hold that the June 7, 1983, decision of the board to extend the city’s option was a "decision” within the meaning of the act. The minutes of the June 7 meeting were approved, and presumably made available to the public, on June 27, 1983. Since plaintiffs complaint was filed on July 22, 1983, the action was timely commenced regardless of which limitation period is applied. We turn next to the grant of summary judgment to defendants. Plaintiff does not contest the requirement of Esperance, supra, p 464, that the complaint must allege that the public body’s failure to comply with the act impaired the rights of the public. See MCL 15.270(2); MSA 4.1800(20)(2). Rather, plaintiff argues the sufficiency of his allegation that the Howell taxpayers were deprived of due process in that they lacked adequate notice and opportunity for a hearing. We believe that this conclusory allegation stated nothing more than the fact that an open meeting was not held as required by the act. Accordingly, we hold that plaintiff’s complaint failed to state a claim. Plaintiff did, however, seek to conform his complaint to the Esperance requirement by bringing a motion for leave to amend. Leave "shall be freely given when justice so requires”. GCR 1963, 118.1. The decision to grant leave to amend the pleadings is within the trial court’s discretion, but leave should be denied only for particular reasons. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973). In this case, we find no abuse of discretion. Plaintiff states that he sought the amendment to include a "procedurally required allegation” that the board’s actions impaired the rights of the public. We disagree with plaintiff’s characterization of the Esperance requirement that impairment of public rights be alleged. Mere recital of the language of § 10(2) of the act is insufficient where there are no factual allegations to support the conclusion. The trial court recognized this and gave plaintiff the opportunity to submit factual allegations. Plaintiff now contends that he was denied the opportunity to do discovery and develop the facts, but we find nowhere in the record where plaintiff sought to develop factual allegations or to request time to do so. Accordingly, we agree with the court below that to protract the case would have been unjust. Affirmed, but the grant of accelerated judgment is vacated. MCL 15.268; MSA 4.1800(18) provides in relevant part: "A public body may meet in closed session only for the following purposes: (d) To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained.” Plaintiff contends that there is no exception for the sale of real property from the general rule that "[a]ll deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public”, MCL 15.263(3); MSA 4.1800(13)(3). The general rule "implicitly requires that all parts of the meeting (unless specifically excluded by the act) also be open to the public”. Esperance v Chesterfield Twp, 89 Mich App 456, 463; 280 NW2d 559 (1979). Nor does plaintiff cite which statutory provisions he is relying on for his asserted notice requirement for agenda items. Section 4 of the act requires notice of the name, telephone number and address of the public body, while § 5 requires notice only of date, time and place. In Haven v City of Troy, 39 Mich App 219; 197 NW2d 496 (1972), this Court distinguished between a public meeting and a public hearing. Although the public board meetings act of 1968 did not require notice of the contents of a meeting, this Court held that, where a public hearing is held at a meeting, notice of the contents of the hearing must be given. Plaintiff in this case does not say whether sale of school property requires a hearing. MCL 15.270(2); MSA 4.1800(20)(2) provides: "A decision made by a public body may be invalidated if the public body has not complied with the requirements of section 3(1), (2), and (3) in making the decision or if failure to give notice in accordance with section 5 has interfered with substantial compliance with section 3(1), (2), and (3) and the court finds that the noncompliance or failure has impaired the rights of the public under this act.”	[ 36, -40, -13, 63, 0, 28, -10, 29, -17, 59, -18, 6, 45, 0, -22, 33, -12, 25, -31, 2, 17, -28, -29, 23, -32, -33, 5, 2, -26, 19, 21, -35, -16, -15, -8, -15, 54, 22, 15, -19, 20, -8, -43, -77, -9, -20, 49, 61, 54, -12, 16, 81, 44, -4, -30, -61, -47, -34, 1, -2, -47, 30, 47, 5, 50, 40, -19, 26, -1, -59, -34, 50, -23, -17, 27, 3, 25, 2, -8, 49, -12, 35, 36, 6, -42, -7, -14, -8, -29, 17, -64, -37, 1, -27, 10, 52, -19, -45, 41, -44, -45, -47, -30, -27, 6, -17, -20, -11, 8, -28, -34, -21, -4, -24, 33, -17, -15, 26, 36, 3, 19, 0, 14, -9, 36, 34, -8, 27, 6, -4, 15, 4, -58, 11, -11, 32, -17, -7, 33, -49, 16, 35, 22, -41, -14, 18, -16, 34, 11, -41, -45, -24, 2, 49, -54, 29, -9, -36, 28, -35, 13, -7, -48, -16, -29, -11, -47, 3, 34, -12, 11, 7, 12, -31, -32, -19, -16, 49, -31, 10, -47, -18, 37, -16, 26, -15, 33, -24, -23, -24, 44, -32, -27, 10, 13, 58, -22, 31, -29, -28, 0, -9, 21, 44, 7, -20, 23, -38, -6, 44, -5, -22, -32, -39, 17, -44, 14, 33, 24, 29, 30, 27, -4, 37, -5, -33, 24, -10, 22, -7, -2, 15, 24, -18, 31, -5, 3, 66, 39, -9, -33, 24, 7, 0, -52, -21, -23, -11, 0, 21, 7, 12, -24, -4, 2, 21, 5, 2, -8, 9, 53, -29, -40, 1, -19, 15, -5, -25, -42, 19, -19, 69, -18, 52, -24, -11, -22, -41, 11, 17, 9, -20, 29, 49, -7, 9, -6, 81, 11, -16, -50, 23, 0, 29, 64, -26, -6, 31, 12, -16, -56, 8, 25, -5, -24, 34, -11, -50, 64, -14, 23, -8, 38, 10, -20, -39, -39, -22, 27, -56, -1, 12, 15, 51, 0, -54, 83, -18, -25, -24, 69, -27, -2, -25, 57, 12, 21, -57, -64, 14, 3, 92, 58, 34, 38, 0, 8, -44, 30, -29, -15, -54, -33, 3, -18, 1, 31, -26, -6, 24, 33, 11, -15, -33, -19, 34, -13, 25, 36, 19, -34, 1, -28, 15, -21, -38, 42, 11, -1, 41, -20, -23, -26, 29, 66, -28, -15, 44, 4, -51, -41, -10, 10, 14, -20, 8, 26, 13, -40, -10, 35, 12, -12, 8, -33, 16, -22, 0, -33, -3, 28, -15, 9, -28, -27, -45, 31, 3, 95, -42, 0, -5, -38, -73, -42, 9, -14, 4, -24, 42, -47, 27, 18, -26, 25, 6, -51, -36, -21, 24, 48, -1, -60, 1, 0, -6, 5, 13, 1, 49, 30, 43, -21, -24, -25, 3, -10, -2, 13, -4, 17, -51, -25, -17, -8, 16, -26, 6, 19, 38, -42, 15, 0, 67, -47, -14, -35, 0, 23, 27, 9, 66, -14, -4, -34, 20, 7, 9, 15, -7, 34, -13, 42, 1, 27, 37, -4, 1, 11, 23, -4, 8, -25, -22, 38, -7, -12, -13, -32, 4, -22, -36, 0, 31, 33, 25, 12, -17, 40, 50, -13, -18, -17, -26, -17, 17, 28, 6, 46, 1, -23, -3, -30, -39, 26, -9, -37, 38, 9, 47, -8, 36, -40, 64, 25, 15, -43, -35, 64, 2, 36, 1, -35, -24, -21, 38, 7, 30, 8, -4, -51, 29, 6, -43, 8, 2, -31, -28, 11, 48, -16, -6, 41, -28, -25, -29, 9, 31, 2, -4, 41, 6, -20, -23, 2, -17, 61, 5, 2, 0, -61, -17, -21, -28, 5, 39, 25, -5, 4, 23, -5, -50, -71, 5, -13, -23, -33, 22, 7, -38, 30, -46, -19, 1, -45, 3, -5, 32, 27, -48, -30, -8, 61, 14, 48, 17, 18, -13, 7, 33, 28, -11, -28, -12, -12, -20, 2, -19, 17, -2, -27, 51, 15, -28, 4, 57, -57, -2, -7, 19, -22, 36, 51, -42, 14, 37, 21, -33, 7, -65, 31, -13, -9, -41, 0, -36, 32, -29, 30, -23, -9, 6, 21, 27, 45, 3, 23, 2, -17, -48, -38, 2, -45, -23, 14, -9, 25, -17, -16, 31, -1, -10, -2, -24, 34, -41, -6, -38, 4, 48, -16, -15, -10, 19, -45, 17, -54, 5, -39, -4, -47, -39, -54, 1, 2, -52, 14, 18, -30, 1, -20, 51, 8, -18, 6, 24, 29, 33, 28, -38, -18, 59, -47, 0, -18, 9, 25, 6, 17, -7, 21, 41, -36, -48, -15, 0, 3, 12, -54, 13, 9, 0, -16, 18, -10, 1, -35, 18, 3, 59, 30, 25, 12, 20, -21, 14, -9, -5, 10, 8, 5, -3, 13, 0, -7, -41, -3, -15, 12, -19, 23, 17, -9, -2, 51, -25, 0, 0, -12, 29, 16, -18, 27, 7, -17, 53, -2, -11, 43, -50, -19, -42, -7, 27, -20, 32, -18, 42, -10, 35, -33, 6, -52, -77, -11, -11, 13, 22, -18, -35, 16, 5, -64, -7, -30, 43, 21, 14, -25, 3, 57, -3, -8, -23, -5, -42, 30, 0, 22, -7, -18, 3, -4, -68, -6, -8, -49, -11, -2, -8, 15, -11, 19, -21, 5, 45, 13, -29, 59, -5, -26, 26, -34, 19, 30, 68, -30, -20, 19, 60, -18, -16, -18, 22, 49, 5, -16, 11, 12, -34, -19, -7, -17, -42, 19, -15, 23, -10, 25, -4, -45, 9, -20, 27, 4, 14, 2, -7, -1, -19, 12, 43, 9, -34, -14, 5, 42, 29, 2, -13, -28, 0, -26, -12, -22, 6, -32, -33, 13, -13, 8, -27, -43, -36, -6, 2, -8, 15, -40, 16, 49, -16, 0, -35, 36, -6, 28, -38, 9, 52, -34, 37, 2, 24, -7, -45, -26, 23, -3, -7, -5, 12, 30, 57, -23, 8, -27, -4, -12, -46, 28, 21, 43, 11, 41, -50, 19, -5, 6, 45, -16, -27, 33, 33, 31, 8, 0, 21, 19, 34, 23, -67, -1, 47, -1, 23, -10, -12, 0, -39, 8, -68, 46, -66, -42, -40, -35, -19, 6, -36, 20, 16, -35, 1, 2, -40, 81, 3, 6, 18, 0, 23, 65, -45, 20, -2, 52, 34, 31, 2, -13, -42, -66, 25 ]
Per Curiam. Petitioner appeals from a decision of the Residential Property and Small Claims Division of the Michigan Tax Tribunal which redetermined respondent’s assessments on petitioner’s property for 1983 and 1984. The property involved is residential, located in Southfield Township, and was assessed at $73,300 for the 1983 tax year and $75,500 for the 1984 tax year. On appeal to the small claims division, petitioner alleged that the assessments failed to reflect the neighborhood’s drastically declining real estate values, failed to take into account various physical aspects of the property, and failed to consider its lack of salability. We address first two issues raised by respondent. Respondent claims that, since petitioner elected to file his petition with the small claims division of the Tax Tribunal, he relinquished his right of appeal to this Court. We have rejected this argument. Gannon v Cohoctah Twp, 92 Mich App 445, 448; 285 NW2d 323 (1979). Next, respondent contends that, because petitioner did not request a rehearing in the Tax Tribunal, his failure to exhaust his administrative remedies precludes review. Section 61 of the Tax Tribunal Act establishes the small claims division and provides that it consist of tribunal members and hearing referees: "A residential property and small claims division of the tribunal is created and consists of 1 or more members of the tribunal appointed and serving pursuant to this act and those hearing referees appointed by the tribunal who shall hear and decide proceedings before this division.” MCL 205.761; MSA 7.650(61) (emphasis added). Section 62, subsection (3) provides; "A person or legal entity entitled to proceed under section 31, and whose proceeding meets the jurisdictional requirements of subsection (1), may elect to proceed before this division of the tribunal. A formal record need not be taken of the division proceedings. Within 20 days after issuance of an order by a hearing referee, a party may request a rehearing by a tribunal member which hearing shall be de novo.” MCL 205.762(3); MSA 7.650(62)(3) (emphasis added). Thus, if an order has been issued by a hearing referee, a party may request a rehearing by a tribunal member. In the present case, a tribunal member conducted the initial hearing in the small claims division. The statute does not require that a party must request a new hearing outside the small claims division after a hearing has been conducted by a tribunal member. Petitioner has exhausted all of the statutory remedies available to him in the tax tribunal. Petitioner argues that the tribunal failed to make adequate findings of fact in accordance with statutory requirements. The Tax Tribunal Act states: "A decision and opinion of the tribunal shall be made within a reasonable period, shall be in writing or stated in the record, and shall include a concise statement of facts and conclusions of law, stated separately and, upon order of the tribunal, shall be officially reported and published.” MCL 205.751(1); MSA 7.650(51X1) (emphasis added). Merely stating that the tribunal has reviewed the evidence and finds it to be insufficient as a basis for relief is not adequate as a "concise statement of facts” and violates MCL 205.751(1); MSA 7.650(51)(1). Plymouth Twp v Wayne County Bd of Comm’rs, 137 Mich App 738, 756; 359 NW2d 547 (1984). Only if the decisions of the tribunal contain the factual and legal basis of the determination will appellate review be meaningful. Almira Twp v Benzie County Tax Allocation Bd, 80 Mich App 755, 761; 265 NW2d 39 (1978). Adequate findings of fact are particularly important in proceedings before the small claims division since review is hindered by the informal record maintained in those proceedings. In this case, the decision rendered provides no underlying reasons or findings for the final determination of true cash value. The petition challenged the assessment on several grounds. The findings of fact do not address any of the issues raised by petitioner. Moreover, there is no indication of which method of valuation the Tax Tribunal used or whether the principles were properly applied. In our opinion, the tribunal erred in failing to make more explicit findings of fact. On this basis we remand. Because we remand, we do not address the issue of whether the Tax Tribunal’s decision was supported by the record. Remanded.	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Allen, J. Plaintiffs appeal as of right from the May 3, 1984, order which granted defendants’ motion for accelerated judgment and dismissed plaintiffs’ complaint for foreclosure. We reverse. Plaintiffs sold to defendants a parcel of real estate by land contract on February 15, 1979. The purchase price was $20,000 with no down pay- merit, and defendants were to make monthly payments of $150. The land contract contained the follwoing standard clauses: "Right to Forfeit "3(f) If the Purchaser shall fail to perform this contract or any part thereof, the Seller immediately after such default shall have the right to declare the same forfeited and void, and retain whatever may have been paid hereon, and all improvements that may have been made upon the premises, together with additions and accretions thereto, and consider and treat the Purchaser as his tenant holding over without permission and may take immediate possession of the premises, and the Purchaser and each and every other occupant removed and put out. In all cases where a notice of forfeiture is relied upon by the Seller to terminate rights hereunder, such notice shall specify all unpaid moneys and other breaches of this contract and shall declare forfeiture of this contract effective in fifteen days after service unless such money is paid and any other breaches of this contract are cured within that time. "Acceleration Clause "3(g) If default is made by the Purchaser and such default continues for a period of forty-five days or more, and the Seller desires to foreclose this contract in equity, then the Seller shall have at his option the right to declare the entire unpaid balance hereunder to be due and payable forthwith, notwithstanding anything herein contained to the contrary.” It is undisputed that defendants failed timely to make the five monthly payments due between September 1, 1983, and January 1, 1984. On January 26, 1984, plaintiffs filed a complaint for foreclosure of the land contract. Apparently, sometime before the complaint was filed, defendants informed plaintiffs that they were unable to make the payments and would be attempting to sell their interest in the land contract. On January 17, 1984, defendants conveyed their interest to a third party and tendered $750, representing the five overdue payments, to plaintiffs’ attorney. That tender was refused and the complaint for foreclosure was filed. Plaintiffs averred that the filing of the complaint constituted an exercise of their option to accelerate the entire unpaid balance of the land contract. On April 19, 1984, defendants filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(5) (now MCR 2.116[C][7]) on the ground that the plaintiffs’ complaint for foreclosure was barred because they had failed to give defendants notice of foreclosure before they tendered payment on January 17, 1984. On April 16, 1984, plaintiffs moved for summary judgment pursuant to GCR 1963, 117.2(3) (now MCR 2.116[C][10]) claiming that defendants did not have a valid defense because the land contract did not require notice of intent to foreclose. After hearing argument on both motions, the trial court held: "All right, I’m inclined to construe the contract as to read paragraph F and G in a manner which allows them both to operate. I don’t see them as being mutually exclusive. It seems to me that what their purpose is to give the seller the right under paragraph F to proceed by summary proceeding and require first that we give a notice of forfeiture so that the vendee may pay up within the 15 day period and avoid being ousted. I see paragraph G has a prerequisite to equitable action by the seller vendor whereby among other things the equity of redemption can be foreclosed and the seller can get a judgment for any deficiency among other things, greater remedies than under the summary proceedings but I read paragraph G as being the default which is specified in paragraph F, that is that a notice to terminate right would have to be given and the notice would specify the monies and other breaches and there would be a 15-day period after service for the purchaser to bring the contract current and avoid either a forfeiture or an equitable action to foreclose. I realize that the paragraph G can be read in the fashion that the vendor would have us read here but it seems to me that is unduly harsh and it would seem stange that the greater penalty, that is, the foreclosure in equity would be predicated upon no notice whereas the lesser remedy of a mere forfeiture without foreclosure of equity would be taken only if notice were given so I will deny the Motion For a Summary Judgment. Interesting question.” The trial court erred in reading paragraphs (f) and (g) in conjunction and in holding that the procedure set forth in the forfeiture provision, requiring notice and establishing a 15-day period in which the vendee may bring the payments to date, applied to the acceleration/foreclosure clause. The remedies of forfeiture and foreclosure are separate and distinct. SeeMinchella v Fredericks, 138 Mich App 462; 360 NW2d 896 (1984). Here, plaintiffs exercised their option to foreclose the contract by proceeding under paragraph (g), the acceleration clause, of the land contract. While plaintiffs could have proceeded under the forfeiture provision, they were not obligated to do so and nothing required them to satisfy the notice requirement necessary for a forfeiture action prior to instituting a foreclosure action in circuit court. Even defendants concede in their appellate brief that plaintiffs "can statutorily foreclose without advance notice even where the land contract fails to provide for foreclosure”. We find that, under prevailing authority and under the parties’ contract, plaintiffs were not required to give notice of their intent to foreclose. See, Minchella, supra; Dumas v Helm, 15 Mich App 148; 166 NW2d 306 (1968). As stated in Bishop v Brown, 118 Mich App 819, 829; 325 NW2d 594 (1982): "Under MCL 600.3101; MSA 27A.3101, circuit courts have jurisdiction to foreclose land contracts. Acceleration clauses in land contracts are valid and enforceable. Larson v Pittmen, 3 Mich App 348; 142 NW2d 479 (1966). The institution of foreclosure proceedings is sufficient notice that the seller has elected to exercise the right to accelerate. No prior notice of the intent to foreclose is necessary, Dumas v Helm. 15 Mich App 148, 151; 166 NW2d 306 (1968).” (Emphasis added.) We also reject defendants’ claim that plaintiffs were required under paragraph 3(k) of the land contract to provide them with a declaration or notice of acceleration by mail. Defendants claim that, in order for plaintiffs to have declared the contract accelerated, they must have performed some unequivocal act, such as filing a complaint for foreclosure or mailing them a formal notice of acceleration, prior to their tender of the past due payments. Reliance on 3(k) is unwarranted. That provision merely provides that properly addressed and posted notices, declarations or other papers are conclusively presumed to be served upon the purchaser once the seller deposits them in a United States Post Office box. It does not set forth a contractural obligation to provide written notice of a declaration of foreclosure. The acceleration clause contained in the land contract allowed plaintiffs to declare the entire unpaid balance of the contract due and payable in the event that defendants were in default for a period of 45 days or more. Although defendants asserted that they had tendered the amount of the overdue payments to plaintiffs on January 17, they did not dispute that the five monthly payments were not paid on their due dates. Thus, it is clear that at least four of the five payments were overdue by at least 45 days at the time or the tender and before the filing of the complaint. Given these undisputed facts, plaintiffs were well within their contractural rights in initiating the foreclosure action based on the default of defendants. Nor do we find that plaintiffs were precluded from exercising their option to foreclose and accelerate the contract due to their rejection of the tender of the five overdue payments. In Cooper v Jefferson Investment Co, 70 Mich App 597; 246 NW2d 311 (1976), rev’d on other grounds 402 Mich 294 (1978), under similar facts, this Court held that the tender of the payment prior to notice of the intent to foreclose was no defense to the foreclosure action. We agree. Here, the default by defendants occurred when they failed to make their monthly payments in a timely fashion. Plaintiffs could have asserted their contractural right to foreclose 45 days after the September, 1983, payment remained unpaid. By delaying the assertion of their contractual right, plaintiffs were not required to accept the tendered payments and they were not estopped from initiating foreclosure proceedings. Defendants’ argument ignores the uncontroverted fact that they did not make the five payments in accordance with the terms of the contract. Paragraph 3(g) does not require plaintiffs to immediately exercise their option to foreclose once 45 days has elapsed. That option remained available. By refusing the tender and by filing the complaint for foreclosure, plaintiffs clearly expressed their desire to foreclose. No other form or type of notice is required. Dumas, supra. The trial court erroneously granted accelerated judgement to defendants by misconstruing the forfeiture and foreclosure provisions of the land contract. Under the acceleration clause, plaintiffs were not required to provide defendants with no tice or to allow them a period of time in which to bring their payments current. Plaintiffs were under no obligation to accept the tender by defendants and they are therefore not barred from maintaining this foreclosure action. We reverse and remand to the trial* court for further proceedings on plaintiffs’ complaint. Reversed and remanded.	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Per Curiam. Plaintiffs appeal from the trial court’s grant of summary judgment in favor of defendant pursuant to GCR 1963, 117.2(3). The court found no material factual dispute as to the extent of the injuries sustained by plaintiff Dana Shortridge in an automobile collision involving defendant. The court further determined that, as a matter of law, these injuries did not constitute a serious impairment of an important body function or a serious permanent disfigurement within the meaning of the no-fault act. MCL 500.3135; MSA 24.13135. We affirm. The primary injuries sustained by plaintiff in the accident were to her teeth. Several days after the accident plaintiff consulted her dentist, Dr. Daniel Hull, D.D.S. He discovered that four lower teeth were loosened as a result of trauma. The left lateral incisor was fractured only to the extent of the enamel, and the only treatment required was the smoothing of this tooth back to a natural shape. The lower center incisor was fractured through the enamel dentin and pulpal tissue. In three separate visits, Dr. Hull performed a root canal and built up this tooth with an etch material to restore its appearance and function. Following this restoration, the tooth has returned to a normal function, has a slightly different appearance and is slightly more fragile than a normal tooth. The accident occurred on Friday, September 18, 1981. Plaintiff returned to school the following Tuesday and resumed playing the trumpet in the school band despite having some discomfort. After the root canal work was completed, by the end of 1981, plaintiff had no eating or speech problems. Because plaintiff failed to establish that her injuries interfered with her ability to lead a normal life, she failed to establish that her injuries constituted serious impairment of an important body function. Plaintiff also claims that the fractures in her left lower central and lateral incisors constitute permanent serious disfigurement because the damage is permanent and her teeth can only temporarily be made to appear normal. Although plaintiff properly argues that the Supreme Court’s holding in Cassidy v McGovern dealt only with the threshold issue of serious impairment of body function, we believe that the Supreme Court’s reasoning and analysis apply equally to the threshold issue of permanent seri ous disfigurement. The goals of limiting overcompensation for minor injuries and reducing excessive litigation in automobile accident cases apply with equal force to cases involving permanent serious disfigurement. In Williams v Payne, 131 Mich App 403, 412; 346 NW2d 564 (1984), this Court held that whether a victim’s injuries constituted permanent serious disfigurement was not an issue for the jury to decide. We do not believe that chipped teeth is the type of injury for which the Legislature intended to allow recovery when it established the threshold of permanent serious disfigurement. Therefore, we hold that the circuit court did not err in granting defendant’s motion for summary judgment. Affirmed. Costs to defendant. "Plaintiff” hereinafter refers only to the injured Dana. Her father’s claims are identical to the injured for purposes of this appeal. 415 Mich 483; 330 NW2d 22 (1982).	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Per Curiam. Plaintiff was unable to start her car and called a tow truck. When the tow truck arrived, she left her car and walked towards it. As plaintiff approached the tow truck, she slipped on a patch of ice and injured herself. Plaintiff then brought this suit seeking recovery of no-fault benefits from her insurer. The trial court denied defendant’s motion for summary judgment and this Court granted leave to appeal. When denying defendant’s motion, the lower court found that plaintiff was an occupant of the motor vehicle and that there was a causal connec tion between her injury and the ownership, operation, maintenance, or use of the motor vehicle. We reverse on the basis that, irrespective of the question of whether plaintiff was "occupying” or "maintaining” a motor vehicle, there has simply been no causal connection established between that activity and the injury sustained. The no-fault act was not designed to compensate all injuries occurring in or around a motor vehicle. Denning v Farm Bureau Ins Co, 130 Mich App 777, 782; 344 NW2d 368 (1983), lv den 419 Mich 877 (1984). The injury sustained in the instant case was unrelated to plaintiffs maintenance, etc., of a motor vehicle, since the injury could "just as well have occurred elsewhere”. 130 Mich App 786, i.e., its connection to a motor vehicle was merely fortuitous. This Court has previously recognized that the typical slip-and-fall injury occasioned by icy conditions where the no-fault claimant is simply going to or from a motor vehicle is "without causal connection with the ownership, maintenance, and use of [a motor vehicle]”. Block v Citizens Ins Co of America, 111 Mich App 106, 109; 314 NW2d 536 (1981). See also, King v Aetna Casualty & Surety Co, 118 Mich App 648, 651; 325 NW2d 528 (1982), lv den 418 Mich 881 (1983); Griffin v Lumbermen's Mutual Casualty Co, 128 Mich App 624, 631; 341 NW2d 163 (1983). Were we to permit coverage here, we would be accepting an extremely attenuated causal connection. Because the facts are not in dispute, we hold that summary judgment should have been granted in favor of defendant. Reversed and remanded for entry of judgment consistent with this opinion.	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Shepherd, P.J. A jury returned a verdict of no cause of action on plaintiffs wrongful death claim arising from the drowning of her eight-year-old son in defendant’s pool. We reverse and remand for a new trail because of the failure of defendant’s attorney to abide by rulings of the trial court on several evidentiary matters. We also conclude that upon retrial plaintiff, as personal representative of her son’s estate, shall not be forced to represent the interests of the boy’s natural father, Lloyd Chambers, if the trial court determines that a conflict exists between the interests of the boy’s mother and father. The decedent was in Chambers’ care when he was found at the bottom of defendant’s pool. At the time of trial, Chambers was in prison in Texas. He did not testify at the trial, by deposition or otherwise. Plaintiffs testimony contained some favorable recollections concerning the relationship between Chambers and the decedent. However, plaintiffs attorney sought exclusion of certain adverse references to Chambers’ character, arguing that Chambers was not his client. The trial court ruled that under the wrongful death statute, MCL 600.2922(2); MSA 27A.2922(2), the personal representative must represent the interests of all those with a potential entitlement to damages, i.e., "that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate”. Id. (prior to amendment by 1985 PA 93). The trial court concluded that, since Chambers was such a person, plaintiff was forced to represent his interests, and evidence of the true nature of his relationship with the deceased was relevant. The court instructed the jury that Chambers was one of the "real parties in interest”. Plaintiff argues, and we agree, that defense counsel’s multiple violations of the trial court’s evidentiary rulings denied her a fair trial. Before trial, the court ruled that plaintiffs marital status and the "illegitimacy” of her two remaining children were irrelevant. Despite the ruling, defense counsel asked plaintiff on cross-examination if it was true that she "[had] never been married”. Plaintiffs attorney objected. With the jury still present, defense counsel responded that he thought the court’s ruling only applied to "the two daughters” (i.e., plaintiffs other children). In our view, the ruling of the trial court was clear and nothing in that ruling justified counsel’s interpretation. In addition, defense counsel repeatedly violated the trial court’s exclusion of evidence that Chambers was a pimp. Also, the trial court had excluded any reference to the fact that Chambers was in a Texas prison at the time of trial. Defendant recalled plaintiff to testify at the close of plaintiff’s proofs, and proceeded as follows: "Miss Roberts, before I ask you any questions, because of the Court [sic] has ruled earlier on several matters of admissible evidence, I want to set the ground rules, all right? "A. (Nodding head) ”Q. Would you answer out loud so the Court Reporter— ’’[PLaintiffs Attorney]: Your Honor, I believe this is supposed to be a question and answer-type thing. I don’t know that [defense counsel] is supposed to set the ground rules. I believe that is for the Court to do, and I believe he is to ask questions and she is to answer. I don’t know that he is supposed to testify and set the ground rules. ’[Defense counsel]: I’m trying to be very careful so as not to elicit testimony this Court has previously said should not be elicited, and what I want to ask Mrs. Roberts is to please listen very carefully to my questions. * * * "I want you to answer only yes or no, because they are yes or no questions, unless you are requested or allowed to provide additional information. Is that satisfactory with you ma’am? "A. Uhhuh. ”Q. Only a yes or no answer. Do you know where Lloyd Chambers is or was— ’’[Plaintiffs attorney]: Objection— ’’[Defense counsel]: —during the week of this trial? ’’[Plaintiffs attorney]: Objection. That is what we talked about. We talked, and the Court has admonished defense counsel about that, and, once more, he is ignoring the Court’s order.” The trial court sustained plaintiff’s objection. Defendant now argues that no explicit reference was made to Chambers’ actual whereabouts. This is true, but defense counsel’s vague reference to matters excluded by the trial court may have left the jurors with the impression that they were receiving less than the full story. We do not believe that an attorney should, in the jury’s presence, "set the ground rules” for cross-examination if, by doing so, he implies that the witness’s answers conceal the full substance of the matter, and that information has been excluded by the trial court. Otherwise, a party may succeed in injecting prejudicial innuendo into the consciousness of the jurors. This alone would not justify reversal but when we consider the other more serious violations we are left with a clear impression that plaintiff was denied a fair trial. The defense attorney succeeded in presenting to the jury information which was, as the trial court had ruled, more prejudicial than probative. MRE 403. His conduct had the effect of distracting the jury’s attention from the relevant issues in the case. Plaintiff objected to most of the acts of misconduct, but we would order a new trial even if no objection had been raised. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 103; 330 NW2d 638 (1982). See, also, Kern v St Luke’s Hospital Ass’n of Saginaw, 404 Mich 339, 352-354; 273 NW2d 75 (1978); Wayne County Bd of Road Comm’rs v GLS LeasCo, Inc, 394 Mich 126; 229 NW2d 797 (1975). Our review of the record leaves us with the firm conclusion that defense counsel acted either with "a studied purpose to inflame or prejudice [the] jury”, Anderson v Harry’s Army Surplus, Inc, 117 Mich App 601, 615; 324 NW2d 96 (1982), lv den 417 Mich 1074 (1983), or with a wanton or careless disregard of the same, inevitable result. Defense counsel argues that these errors were made in good faith. We decline to pass judgment on that issue because of our finding that the errors, what ever their motivation might have been, deprived plaintiff of a fair trial. Plaintiff’s three remaining claims of attorney misconduct are lacking in merit. An argument regarding the location of a room key was harmless, in light of defendant’s admission that there was no pass-key lock on the gate leading to the pool. The motel registration card, containing Chambers’ alias, could have caused no prejudice to plaintiff because the jury was aware of the alias from other testimony. Lastly, the volume of defense counsel’s voice during bench conferences is impossible to discern from the record. Plaintiff objected only once to the defense attorney’s alleged loudness. We conclude no prejudice resulted. Next, plaintiff argues that the trial court erred by forcing her to represent Chambers’ interests. According to plaintiff, this ruling seriously prejudiced her position. It opened the door to inquiry concerning Chambers’ character, the infrequency of his contacts with the decedent, and the impact of these facts on plaintiff’s case. By being forced to represent Chambers’ interests she would have to defend his character and his relationship to the boy when, in fact, she might be better served by arguing to the jury that her damages should be either considered separately or, at least, not reduced by any adverse conclusions the jury might reach on the subject of Chambers’ damages. At the time of trial, the wrongful death statute, MCL 600.2922(2), provided in part as follows: "Every such action shall be brought by, and in the names of, the personal representative of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recov ered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death. The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased. Such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto. * * Defendant correctly observes that Chambers falls within the definition of "next of Kin”, id., adopted by the Supreme Court in Crystal v Hubbar, 414 Mich 297; 324 NW2d 869 (1982). See also, May v City of Grosse Pointe Park, 122 Mich App 295, 298-300; 332 NW2d 411 (1982); Scott v Burger King Corp, 95 Mich App 694; 291 NW2d 174 (1980). Therefore, he was entitled to claim damages in this wrongful death action. However, this does not resolve the issue of whether plaintiff was automatically obligated to assert his interests at trial, even though it might do harm to her cause. We conclude that the Legislature did not intend to force the personal representative to bear weight (in the form of an unsavory, absentee father) which might sink the entire wrongful death action. We do not mean to say that the personal representative has the authority to waive the claims of a "next of kin”. Unless the plaintiff raises a claim of conflict before trial, the court may presume that the plaintiff represents the interests of all those with an entitlement to claim damages. We note that, under the newly-amended statute, the personal representative must serve a copy of the complaint and notice of the right to claim damages upon all of the next of kin. MCL 600.2922(2); MSA 27A.2922(2), as amended by 1985 PA 93. Those failing to respond may be barred from claiming any portion of the proceeds. MCL 600.2922(8); MSA 27A.2922(8). We hold only that, when the plaintiff in a wrongful death action claims that representation of the interests of one or more of the "next of kin” will do harm to the plaintiff’s cause, the trial court must examine the merits of that claim and determine whether plaintiff can adequately represent the interests of both the estate and the other relatives who respond to the notice now statutorily required. If the claim has merit, such "next of kin” must be given an opportunity to intervene in the action. Scott, supra; MCR 1985, 2.105, 2.209. The personal representative will not be obligated to represent the interests of those who do not respond. Those who choose to intervene may be required by the court to proceed with separate counsel if a conflict of interest is found to exist. Thus, the personal representative will not be forced to dilute or destroy the strength of the plaintiff’s case by mandatory representation of every potential intestate heir. Crystal v Hubbar, supra. At the same time, the same potential intestate heir will be given an opportunity to establish a loss under the wrongful death statute, MCL 600.2922. See Crystal v Hubbard, supra, pp 316-317; MacDonald v Quimby, 350 Mich 21, 33; 85 NW2d 157 (1957). The potential conflict to which we refer is one which affects the conduct of the trial. We express no opinion regarding the potential conflicts inherent in the procedure for distribution of the proceeds of the wrongful death action. MCL 600.2922; MSA 27A.2922, MCL 700.222(d); MSA 27.5222(d). Our concern here is only for the fairness of the trial itself, not the proceedings after trial. There may be, however, a relationship between the two conflicts in a given case. Counsel are therefore admonished to call all conflicts to the court’s attention before trial so that the court may make an appropriate order governing the conduct of trial. We can envision a situation where the claims of the heirs are found to be so antagonistic that the interests of justice would require separate trials. See MCR 2.505(B). That would be a matter for the exercise of the sound discretion of the court. Our conclusion is consistent not only with the purposes of the wrongful death statute, but also with the Code of Professional Responsibility. Under DR 5-105, subds (A) and (B), an attorney may not undertake or continue multiple representation if the exercise of his professional judgment "will be or is likely to be adversely affected”. See, GAC Commercial Corp v Mahoney Typographers, Inc, 66 Mich App 186, 190; 238 NW2d 575 (1975); 7 Am Jur 2d, Attorneys at Law, § 184, pp 233-234 (citations omitted). Whether an attorney can adequately protect the interests of the estate and all the next of kin will depend upon analysis of their claims and the facts of the case. In many wrongful death cases, no conflict of interest exists by virture of simultaneous representation of both a personal representative and all of the surviving relatives. Hurt v Superior Court of Arizona, 124 Ariz 45; 601 P2d 1329 (1979). Returning to the present case, plaintiff argues on appeal that her interests conflicted with those of Chambers. However, on direct examination, plaintiff gave testimony which contained favorable references to the relationship between Chambers and his deceased son. We would not order a new trial in these circumstances, since it appears that plaintiff attempted to enhance the possible award of damages by describing Chambers’ relationship with the child in favorable terms. Plaintiff could not have it both ways. The trial court acted properly in this case. Furthermore, counsel for plaintiff never called the conflict to the court’s attention before trial, so that the court could resolve the problem in advance of trial. For this reason also we would not view this as an independent ground for reversal under the circumstances of this case. We have ordered a new trial because of the conduct of defense counsel at trial. On remand, if, after receiving the required notice of the pending action, Chambers does not respond, plaintiff need not represent his interests. If he responds, the trial court shall grant him an opportunity to intervene. The court will then determine whether there is a conflict of interest and whether plaintiff may be required to represent Chambers’ interests. Reversed and remanded for new trial and other proceedings consistent with this opinion. Costs to plaintiff._ The father also qualifies under the definition recently mandated by the Legislature. MCL 600.2922(3); MSA 27A.2922(3) (1985 PA 93). The amendments to the wrongful death statute apply to "matters pending on or filed after [their] effective date”. 1985 PA 93, §2 (emphasis added). The governor approved the legislation on July 10, 1985. The amendments "take immediate effect”.	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Shepherd, P.J. Defendant was convicted in district court of permitting three of its trains to obstruct a street for a period longer than five minutes, MCL 466.23; MSA 22.281(1). Defendant unsuccessfully moved for dismissal on the ground that the statute, MCL 466.23, as applied to the instant matters, violated the Commerce Clause of the United States Constitution, Article I, § 8. The circuit court affirmed. This Court granted leave to appeal. We affirm. The case involves street intersections along a stretch of railroad track known as the "Bottsford Curve” in Kalamazoo, Michigan. Defendant uses this section of track for 90 per cent of its Kalamazoo operations. Due to the 16-degree curve in this area, defendants’ trains cannot move safely in excess of 10 miles per hour. At present, defendant can do nothing to eliminate the curve because it does not own enough of the adjoining real estate. In district court, defendant presented testimony that, based upon an average car length of 75 feet, a maximum of 58 cars can move through the relevant intersection in five minutes at the safe speed of 10 miles per hour. The three trains cited measured 162, 102 and 97 cars, respectively. Thus, to comply with the statute, defendant must reduce the number of cars in each train and, therefore, increase the number of trains. There was testimony that compliance would cause defendant the burden of securing additional locomotives, cabooses and personnel. A defense witness claimed these charges would constitute a "tremendous financial burden”. In addition, use of multiple trains would cause delays in product delivery, because the second or third train would arrive later. The witness stated that the trains would have to be "three to five hours” apart to provide a safe distance. This, as well as the increased overhead, would put defendant at a competitive disadvantage. The same witness opined that an increase in the number of trains would result in an increase of the total time of obstruction of the intersection. The witness explained that, while a 100-car train might occupy the intersection for 10 minutes, additional trains (though shorter) would take longer total time because the crossing protections, including lights and gates, would activate for each individual train. These warnings begin 25 to 30 seconds before a train arrives. The people submitted testimony that delays at railroad crossings can be critical when police officers respond to calls and when officers need assistance to make arrests. In addition, obstruction of intersections may delay the arrival of ambulances to the scene of an injury or illness. Time is a critical factor. An assistant fire chief gave similar views with respect to fire engines and paramedics. A five-minute delay can be fatal to a heart attack victim. The district court found that the prosecution had "shown convincingly that these regulations are necessary and effective in reducing the response time of emergency vehicles”. The court concluded "that the necessity for public safety outweights the interference” with interstate commerce. Significantly, there is no evidence that any other railroad uses the "Bottsford Curve” (indeed, it appears defendant owns the track) or that any other railroad in the state is burdened by the five-minute limitation contained in MCL 466.23. As noted by the Circuit court: "This Court has reviewed all of the facts established on that record. I have reviewed the appropriate law, cited the applicable standards, and I take note of the fact that this statute is not in and of itself directed to the regulation of interstate commerce. It is one concerning health and safety. The ten-mile-an-hour limitation which results in Conrail’s inability to clear the crossings in five minutes, is not a State regulation. It is a self-imposed one because of the nature of the curve. Other railroads do not have this difficulty, but Conrail has. There is a tangential effect on Conrail in their business, but it is not such that it offends the Commerce Clause.” We must decide whether the five-minute limitation on obstruction of intersections unreasonably burdens interstate commerce. States may exercise their police powers over matters of local concern, even though the regulation affects interstate commerce, so long as the free flow of commerce is not impeded. Whether a burden on interstate commerce is unconstitutional depends on "the nature and extent of the burden * * * and the state and national interests at stake”. Indiana & Michigan Power Co v PSQ 405 Mich 400, 416; 275 NW2d 450 (1979). Those who challenge highway safety regulations by reference to the Commerce Clause must overcome a strong presumption of validity. Raymond Motor Transportation, Inc, v Rice, 434 US 429; 98 S Ct 787; 54 L Ed 2d 664 (1978); Bibb v Navajo Freight Lines, 359 US 520, 524; 79 S Ct 962; 3 L Ed 2d 1003 (1959). Unless in the circumstances "the total effect of the law as a safety measure in reducing accidents and casualties[ ] is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it”, the courts should uphold the law. Bibb, 359 US 524; Southern Pacific v Arizona, 325 US 761, 775-776; 65 S Ct 1515; 89 L Ed 1915 (1945). "[T]he inquiry necessarily involves a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce.” Raymond Motor, supra, 434 US 441. Nevertheless, this Court must uphold the statute "unless the burden imposed * * * is clearly excessive in relation to the putative local benefits”. Id., quoting Pike v Bruce Church, Inc, 397 US 137, 142; 90 S Ct 844; 25 L Ed 2d 174 (1970). Defendant advances no evidence or argument that the statute burdens interstate commerce generally. Rather, defendant submits that, as applied to the Kalamazoo operations at the "Bottsford curve”, the statute runs afoul of the Commerce Clause. Defendant cites no cases in which the argument of the party challenging a state statute was based solely on the effect of the regulation on that party’s operations alone (much less only that party’s operations at a single location within the state) and that argument was sustained. Rather, in assessing the burden on interstate commerce, the courts have been concerned with the effect of enactments on the national interest in the free flow of commerce. The United States Supreme Court has always considered the effect of the regulation on the regulated industry as a whole. In Raymond Motor, supra, 434 US 445, the Court noted that Wisconsin’s prohibition of double-trailer trucks imposed a substantial burden on interstate commerce, because all motor carriers engaged in such commerce were forced to haul "doubles” separately, travel around the state’s borders or use single-trailer trucks instead. In Bibb, supra, the Court cited the "increased financial burdens for interstate carriers” which resulted from an Illinois requirement of contour mudguards. 359 US 525. Coupled with a conflicting Arkansas standard, the Illinois statute would require all carriers between the two states to interchange mudguards, "causing a significant delay in an operation where prompt movement [was] of the essence”. 359 US 527. Defendant relies heavily upon Southern Pacific v Arizona, supra, in which the Supreme Court struck down a statute limiting the number of cars in railroad trains. Defendant fails to mention that the Court’s consideration of the burden on inter state commerce was weighted with a concern broader than the interests of the Southern Pacific Company alone: "The findings show that the operation of long trains, that is trains of more than fourteeen passenger and more than seventy freight cars, is standard practice over the main lines of the railroads of the United States, and that, if the length of trains is to be regulated at all, national uniformity in the regulation adopted, such as only Congress can prescribe, is practically indispensable to the operation of an efficient and economical national railway system. On many railroads passenger trains of more than fourteeen cars and freight trains of more than seventy cars are operated, and on some systems freight trains are run ranging from one hundred and twenty-five to one hundred and sixty cars in length. Outside of Arizona, where the length of trains is not restricted, appellant runs a substantial proportion of long trains. In 1939 on its comparable route for through traffic through Utah and Nevada from 66 to 85% of its freight trains were over 70 cars in length and over 43% of its passenger trains included more than fourteen passenger cars. "In Arizona, approximately 93% of the freight traffic and 95% of the passenger traffic is interstate. Because of the Train Limit Law appellant is required to haul over 30% more trains in Arizona than would otherwise have been necessary. The record shows a definite relationship between operating costs and the length of trains, the increase in length resulting in a reduction of operating costs per car. The additional cost of operation of trains complying with the Train Limit Law in Arizona amounts for the two railroads traversing that state to about $1,000,000 a year. The reduction in train lengths also impedes efficient operations. More locomotives and more manpower are required; the necessary conversion and reconversion of train lengths at terminals and the delay caused by breaking up and remaking long trains upon entering and leaving the state in order to comply with the law, delays the traffic and diminishes its volume moved in a given time, especially when traffic is heavy.” 325 US 771-772. (Emphasis added.) This is not to say that a regulation which adversely affects only one carrier or railroad is automatically constitutionally sound. However, defendant’s restriction of its argument and proof to the effect of the application of the statute on its own competitive position, and the complete absence of proof as to an adverse effect on other interestate railroads, is surely relevant to the weight of the actual burden on interstate commerce. We are faced with a statute as applied to a single curve used by a single railroad. We are unconvinced that the Commerce Clause should be applied to such local circumstances, which have little relevance to "the interests of the nation in an adequate, economical and efficient railway transportation service”. Southern Pacific, supra, 325 US 783-784. Defendant’s argument that application of the statute, together with the "Bottsford Curve”, constitutes a de facto limitation on the length of its. trains is not persuasive. Defendant has advanced no evidence that the state is somehow responsible for the curvature of the track. Therefore, this case differs from Kahn v Southern R Co, 202 F2d 875 (CA 4, 1953) (cited by defendant), in which the city had ordinances which limited both the time of obstruction of intersections and the speed of trains. In combination, these ordinances amounted to a governmental limitation on the length of trains, contrary to the holding in Southern Pacific, supra. Moreover, the ordinances applied to all railroad companies and to all intersections within the city. In this case, we have, at most, a de facto limitation on the length of defendant’s trains at but one location, a restriction resulting not from the state’s regulation, but from the curvature of defendant’s own track. The courts of other states have upheld similar limitations, based on evidence that they further the state’s interest in public safety. In People v Indiana Harbor Belt R Co, 102 Ill App 3d 811, 818; 430 NE2d 104 (1981), the Court upheld a ten-minute limitation, noting that "an exception is made for circumstances beyond the control of the railroad”. The Michigan statute has a similar exception for "accident or mechanical failure”. MCL 466.25; MSA 22.281(3). The court also observed that, unlike the statute at issue in Southern Pacific, supra, the Illinois law had a "reasonable basis”, since blockage of thoroughfares "may create very serious safety problems”. 102 Ill App 3d 819. See, also, Commonwealth v New York Central R Co, 350 Mass 724; 216 NE2d 870 (1966); City of Lake Charles v Southern Pacific Transportation Co, 310 So 2d 116 (La App, 1975). In New York Central, the cited train was involved in a switching operation. The court upheld application of the state’s five-minute railroad crossing limitation, stating, "there is presented a local problem without effect on national or interstate uniformity”. 350 Mass 729; 216 NE2d 873. The burden on interstate commerce, relegated solely to the effect on defendant’s operations at one curve in a single city, is so slight that the presumption of validity is enough to sustain the statute. Bibb, supra. For the sake of completeness, we note that it is beyond doubt that the public safety, health and welfare often hinge on the amount of time taken by police officers, firemen and other personnel to arrive at the scene of a crisis. Nor can it be doubted that a train crossing at an intersection may pose an obstacle to such responses. The statute furthers these purposes, despite defendant’s arguments to the contrary. First, defendant urges that the statute forces it to use more trains and that two trains obstruct the street longer than one. This ignores the fact that, as admitted by defendant, the two trains must be three to five hours apart for safety reasons. Obviously, an emergency vehicle will not have to wait as long for either of the two shorter trains as it would for the single, longer train. The people submitted testmony that every minute is critical. "If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective.” Bibb, supra, p 524. Defendant also argues that a larger number of trains increases the risk of mechanical failure and that such failures also cause obstructions of the street. However, defendant submitted no proof as to the chances that a locomotive will become disabled while it blocks this particular street. In fact, there is no evidence that this one crossing (again, the only railroad crossing relevant to the constitutional issue) has ever been occupied by a disabled train. We conclude that defendant has not overcome the presumption of validity attached to the statute or the state’s interest in facilitating timely responses to emergencies. Accordingly, we agree with the result reached by the district and circuit courts. Affirmed. A planned project would alleviate this difficulty, but has not yet been carried out. Or, in the present case, reducing the danger of critical delays of police and other emergency assistance. Of course, the added risk of mechanical failure alleged by defendant adds nothing to the burden on interstate commerce, given the statutory exception contained in MCL 466.25.	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Beasley, P.J. Plaintiff, David Schroeder, appeals as of right from the trial court’s order granting summary judgment to defendants, Canton Township and Canton Township police officers J. Hanna and K. Lazar, on the basis that plaintiff’s action was barred by governmental immunity. Plaintiff alleged that on May 11, 1983, at approximately 12:01 a.m., he was the operator of a motorcycle proceeding east on Michigan Avenue in Wayne County. At approximately 11:30 p.m. on May 10, 1983, two motor vehicles had collided and one of those vehicles remained in the left lane of eastbound Michigan Avenue. At about 12:01 a.m. on May 11, 1983, plaintiff collided with the vehicle that was still in the left lane of eastbound Michigan Avenue and was severely injured. Plaintiff’s complaint included counts of negligence and nuisance. However, at the hearing on defendants’ motion for summary judgment, plaintiff abandoned the negligence claim and agreed with defendants that immunity could only be avoided on a nuisance theory. MCL 691.1407; MSA 3.996(107) provides: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” Prior to its decision in Ross v Consumers Power Co, the Supreme Court held that a properly pleaded claim of nuisance could serve to avoid the immunity provisions of the statute. This Court has concluded that there is an exception to the statute for intentional nuisances and nuisances per se. That exception may survive despite the Supreme Court decision in Ross. Too often, "nuisance” terminology is used to mask what are, in fact, simple negligence claims for the purpose of avoiding some effects of calling it what it is, a negligence claim. Too often this rationale is employed to avoid the legislative decision to impose governmental immunity. The within case gives every indication of being such a case. The alleged failure to act soon enough to put up marker lights or to remove motor vehicles from the highway after a night accident on the highway is a long, long way from traditional nuisance theories. See Justice Fitzgerald’s manful effort to reconcile and resolve "nuisance law” in Rosario v City of Lansing and Dean Prosser’s statement: " 'There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance.” It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.’ Prosser, Torts (4th ed), § 86, p 571.” In the within case, plaintiff’s allegations of nuisance included the following: "14. THAT, when the Defendant Police Officers, J. HANNA AND K. LAZAR, reached the scene of the previous accident which had occurred at or about 11:35, May 10, 1983, they knew or should have known that the unattended and unmarked vehicle left in the left lane of eastbound Michigan Avenue constituted and [sic] obvious danger to traveling motorists and expecially [sic] this Plaintiff and harm was substantially certain to follow. "15. THAT, the near miss collisions of other motorists traveling this highway should have caused the said Defendant Police Officers to act with reasonable speed in removing said vehicle or providing some warning to the general public traveling upon said highway. "16. THAT, the obvious danger associated with said condition of leaving a motor vehicle unmarked and unattended on a public highway at night without warning are well known in fact to each Defendant and, further, that said Defendants failed to correct known and/or obvious danger even though each Defendant had either actual, visible or at least constructive notice of said danger due to the near misses with said vehicle by other motorists upon said highway. "17. THAT, Defendants, and each of them, had actual and/or constructive notice of said known dangér and/or further knew or should have known of said known danger which constituted a hazard and/or unreasonable interference with a right common to the general public. "18. THAT, Defendants, and each of them, negligently or willfully failed and refused to abate said nuisance and/or correct said known hazard in one or more of the following particulars: "(a) Failing to warn oncoming motorists of the abandoned vehicle; "(b) Failing to remove said vehicle from the roadway; "(c) Failing to maintain the highway in a reasonable safe condition. "19. THAT, at all times and in all ways it was feasible to abate said nuisance and the particulars described herein, and that the Defendants, at all times and in all ways referred to and mentioned herein, had sufficient control to do so.” In Young v Robin, the facts were as follows: "Shortly before 7 a.m., two Michigan state troopers observed a vehicle speeding in the southbound lane of I-69. Since the state troopers were in the northbound lane, they attempted to cross the median strip in order to pursue the speeder. The police car, however, got stuck in the median. Shortly thereafter, a truck driver stopped and had a conversation with the state troopers about the best method of extracting the police car. The truck driver ended up parking his vehicle on the left shoulder of the southbound lane, where it extended from two to six feet into the traveled portion of the southbound lane. In other words, although the truck was partly on the road, it was not blocking the road. "Although the police officers called their station to report that their car was stuck, they did not ask for a wrecker. They also did not set out flares by the truck. A number of vehicles passed them without difficulty. However, around 7 a.m., a vehicle containing four passengers and traveling approximately 61 miles an hour smashed into the back of the truck without braking.” 122 Mich App 85-86. We held: "Moreover, we cannot agree with plaintiffs that the alleged failure of the state troopers to police the scene of the disabled vehicle amounts to a nuisance in avoidance of governmental immunity.” 122 Mich App 87. In the within case, relying on Young, the trial court held that plaintiffs allegations did not amount to a nuisance. The facts in this case cannot be distinguished from those in Young. In both cases, police officers allegedly failed to abate a nuisance not created by any affirmative act on their part. In neither case, however, did enough time pass to transform the road condition into an intentional nuisance. Essentially, plaintiffs claim was for negligence and sounded in tort. We agree with the trial court’s conclusion that plaintiff did not plead a nuisance in avoidance of governmental immunity. Affirmed. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). 420 Mich 610-611, fn 27; Christopher v Baynton, 141 Mich App 309, 313; 367 NW2d 378 (1985). Rosario v City of Lansing, 403 Mich 124, 138; 268 NW2d 230 (1978); Gerzeski v Dep’t of State Highways, 403 Mich 149, 153; 268 NW2d 525 (1978), reh den 403 Mich 956 (1978). Moore v City of Pontiac, 143 Mich App 610; 372 NW2d 627 (1985); Jenkins v Detroit, 138 Mich App 800, 805; 360 NW2d 304 (1984); Pate v Dep’t of Transportation, 127 Mich App 130, 135; 339 NW2d 3 (1983). Rosario, supra, p 131. 122 Mich App 84; 329 NW2d 430 (1982). See, e.g., Veeneman v Michigan, 143 Mich App 694; 373 NW2d 193 (1985); Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985); Sanford v Detroit, 143 Mich App 194; 371 NW2d 904 (1985).	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Per Curiam. These consolidated cases arise out of injuries sustained by plaintiff when he dove into the shallow waters of Belle Lake, a private lake located in the Belle Estates Subdivision in Ma-comb County. Suit was brought by plaintiff against more than 200 defendants, including three neighborhood associations and individual subdivision lot owners. In Docket No. 77063, plaintiff appeals as of right from a grant of summary judgment to individual land owner El Camino Homes, Inc. In Docket No. 80284, plaintiff appeals as of right from a grant of summary judgment to the individual land owners who joined in the motion filed by defendants Donald and Virginia Runyon, Ronald and Carol Standlick and Bohdon and Switlana Korduba. On August 24, 1980, plaintiff attended a birthday party at a home located in the Belle Estates subdivision. That evening, plaintiff accompanied several other guests in attendance at the party to nearby Belle Lake for a swim. Upon arriving at the lake, one of the swimmers who was familiar with the lake ran down a hill at the edge of the lake, made a shallow dive, then swam to a raft anchored 50 feet from the shore. Having decided to enter the water, plaintiff took note of several telephone poles which had been laid length-wise along the shore to prevent erosion. Plaintiff ran down the hill and found himself unable to stop before reaching the lake, thus forcing him to step up and over the logs before entering the water. In doing so, plaintiff lost control, and his momentum caused his legs to flip over his head. Plaintiff landed on the back of his neck in 14 inches of water, breaking his neck, resulting in paralysis over the lower two-thirds of his body. Plaintiff filed an initial complaint alleging four counts of negligence which included the failure to provide adequate warning of the water depth, negligent design of the park and lake, and negligent placement and construction of the erosion barrier. Through several amendments, plaintiff added allegations of gross negligence and/or wilful and wanton misconduct in the following respects: "A. In failing to warn the plaintiff that the waterway abutting private park A was not of sufficient depth to allow diving. "B. In failing to place conspicuous warning signs indicating that diving was not allowed off the platform. "C. In failing to maintain the appearance of the waterway abutting private park A in a manner which would dispel the appearance that the depth of said waterway was sufficient for diving. "D. In constructing a platform that gave the appearance of an inviting and appropriate place to dive into the water without any attempt to indicate that it was not safe. "E. In failing to maintain the appearance of the platform in question in such a manner to dispel its apparent appearance as sufficient for use for diving. "F. In failing to use buoys to outline the area of the waterway abutting private park A which were safe for swimming and those that were safe for diving. "G. In failing to have a lifeguard on duty. "H. In failing to have a lifeguard on duty to warn persons such as the plaintiff not to dive off this platform. "I. In failing to have a lifeguard on duty prohibiting persons from diving off the platform in question. "J. In failing to employ barriers and/or fences to prevent diving from the platform in question. "K. In failing to maintain said lake to prevent erosion and decreasing water depth. "L. Maintaining an attractive nuisance in the form of the body of water in question as well as the platform.” We begin by addressing the motion for summary judgment granted in favor of defendant El Camino Homes, Inc. The motion was granted pursuant to GCR 1963, 117.2(3), apparently on the grounds asserted by El Camino, i.e., that it could not be held liable for plaintiffs injuries since it sold its lot in Belle Estates on land contract prior to the date of injury. We find no error. Although El Camino was still the title owner to the property at the time of the injury, the rule in Michigan is that it is the possessor of land, not the title owner, who owes a duty to licensees regarding the condition of the land. As stated in Nezworski v Mazanec, 301 Mich 43; 2 NW2d 912 (1942): "Liability for negligence does not depend upon title; a person is liabile for an injury resulting from his negligence in respect of a place or instrumentality which is in his control and possession, even though he is not the owner thereof.” 301 Mich 56, quoting 45 CJ, Negligence, § 317, p 881. Similarly stated, "[I]t is the unity of possession and control that is disposititve. A 'possessor’ of property must exercise reasonable care in avoiding harm to others on his property from the negligent acts of third persons because he is in possession and control of the premises and in a position to exercise the power of control or expulsion.” Merritt v Nickelson, 407 Mich 544, 553-554; 287 NW2d 178 (1980). (Emphasis in original.) Plaintiff attempts to avoid the effect of the above stated rule by seeking an application of the doctrine of equitable estoppel. In essence, plaintiff argues that, since he mistakenly believed El Camino to be both possessor and owner of title to the land in question, and since the statute of limitations has run as to the true possessor, El Camino should be estopped from denying liability. We cannot accept plaintiff’s argument due to the fact that the doctrine of equitable estoppel has no application to the facts presented. An equitable estoppel may be found where: "(1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts.” Cook v Grand River Hydroelectric Power Co, Inc, 131 Mich App 821, 828; 346 NW2d 881 (1984). Plaintiff has asserted no facts which would support the conclusion that El Camino negligently or intentionally induced him to believe that it had a possessory interest in the land. El Camino’s failure to record the land contract does not constitute such inducement since the recording act affects only subsequent encumbrancers and purchasers. MCL 565.354; MSA 26.674. Nothing in the statute suggests that it was intended to provide plaintiffs in subsequent negligence actions with a means of identifying possessors of land so as to determine potential defendants. The motion for summary judgment in favor of defendant El Camino was properly granted. We next consider the propriety of the order granting summary judgment as to the remaining defendants. This motion was predicated upon GCR 1963, 117.2(1), i.e., failure to state a claim upon which relief can be granted. Defendants argued that under the provisions of the recreational land users act, MCL 300.201; MSA 13.1485, they were entitled to immunity from liability for the ordinary negligence alleged in plaintiffs complaint. In an opinion dated June 22, 1984, the trial court expressed agreement with the defendant’s position that only allegations of gross negligence or wilful and wanton misconduct were sufficient to avoid an application of the immunity granted under the recreational users statute. Since the factual allegations contained in plaintiffs complaint concerned only ordinary negligence, the trial court concluded that no factual development could possibly justify a right to recovery and thus granted defendant’s motion. Plaintiff attacks the trial court’s action on a number of grounds, the first being that the recreational land users act does not apply to land from which the general public is excluded. We disagree. The statute provides as follows: "No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.” MCL 300.201; MSA 13.1485. Through its explicit terms, the statute applies whether or not the injured party received permission to be on the land in question. Thus, the fact that the general public did not have permission to use Belle Lake for recreational purposes or otherwise is entirely irrelevant. Plaintiff’s reliance upon two non-Michigan cases, Georgia Power Co v McGruder, 229 Ga 811; 194 SE2d 440 (1972), and Lacombe v Greathouse, 407 So 2d 1346 (La App, 1981), is misplaced since both cases involved the application of statutes which provide immunity from negligence only where the injured party had permission to use the property of the landowner. The cited cases therefore do not provide any basis for ignoring the explicit and unambiguous language of our own statute. Plaintiff next argues that our recreational users statute was intended to apply only to land located in a rural setting, rather than the populous suburban area of Belle Lake. This argument was raised previously in Syrowik v Detroit, 119 Mich App 343; 326 NW2d 507 (1982), where the Court stated: "Plaintiffs’ argument is without merit. The statute makes no reference to a distinction between urban and rural areas. The imposition of such a distinction by this Court would require the drawing of an arbitrary dividing line between what is urban and what is rural. Furthermore, to give the statute the construction urged by plaintiffs would do violence not only to the wording of the statute but to the intent of the Legislature. This Court has previously held that this statute should be given a liberal construction to carry out the Legislature’s intent to further recreational activities in Michigan by making certain areas available for such purposes while codifying tort law principles limiting the liability of landowners to those who come gratuitously upon their lands. Thomas v Consumers Power Co, 58 Mich App 486; 228 NW2d 786 (1975).” 119 Mich App 346-347. We agree, and thus we affirm the trial court’s reliance upon Syrowik. Plaintiffs final attack on the trial court’s application of the statute concerns the payment of consideration for use of the land. Plaintiff correctly notes that the immunity granted by the statute does not apply where consideration was paid. He also admits that he did not pay to use the lake, but argues that the immunity statute should not apply since his host did pay consideration in the form of annual fees assessed for the maintenance of the lake and through the increased cost of the land due to its proximity to a lake. Even if the maintenance fees and increased land values were the type of consideration intended by the statute, plaintiff has failed to allege that the consideration was paid on his behalf. Further, this Court has stated that, to avoid application of the statute, the consideration must be in the form of "a specific fee for the use of a particular recreational area in question”. Syrowik, supra, p 347. Plaintiff has not alleged that he, nor anyone on his behalf, paid such a fee for his use of Belle Lake for swimming purposes on August 24, 1980. The argument is therefore rejected. Next, plaintiff argues that summary judgment in favor of defendants was inappropriate because his complaint contained factual allegations which were sufficient to support a finding of wilful and wanton misconduct. As set out in Gibbard v Cursan, 225 Mich 311, 322; 196 NW 398 (1923), wilful and wanton misconduct is: "(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.” This test was clarified in Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982), where the Court explained that wilful and wanton misconduct is established only where the conduct alleged shows an intent to harm or such indifference to whether harm will result as to be the equivalent of a willingness that it occur. Burnett, supra, p 455. The twelve specific allegations of wilful and wanton misconduct contained in plaintiff’s second amended complaint were listed previously. We find nothing in these allegations which would support the conclusion the defendants acted with an intent to harm, nor do we believe one could conclude from these allegations that plaintiff’s injury was so probable, expected or likely as to amount to an indifference tantamount to a willingness that it occur. Burnett, supra, p 456. In Burnett, the Court found barely sufficient to comprise wilful and wanton misconduct the plaintiff’s allegations that defendant knew a submerged building in a man-made lake used by the city as a reservoir was creating an unnatural undertow dangerous to swimmers but did nothing to remove it. As noted in Matthews v Detroit, 141 Mich App 712; 367 NW2d 440 (1985), "[a] structure creating an undertow, like exposed guy wires (Thomas v Consumers Power Co, 394 Mich 459; 231 NW2d 653 [1975]) or a precipitous escarpment created by defendant (Lucchessi v Kent County Road Comm, 109 Mich App 254; 312 NW2d 86 [1981]), is inher ently dangerous to anyone coming in contact with it, making the defendant’s refusal to correct the situation akin to an intent to harm”. Matthews, supra, p 719. In contrast, the slippery fountain pool involved in Matthews, like sand dunes used for ORV vehicles (McNeal v Dep’t of Natural Resources, 140 Mich App 625; 364 NW2d 768 [1985]), "presents no threat to most people who come in contact with it, so that even if defendant knows that accidents have occurred in the past, the defendant’s failure to correct the situation does not amount to wilful and wanton misconduct without more facts”. Matthews, supra, p 719. We believe the present case requires the same result as was reached in McNeal and Matthews. The fact that the edge of Belle Lake is too shallow to permit diving presents no threat to most people who come in contact with it; in fact, most people, would presume such a condition to exist near the shoreline of a lake unless investigation proved otherwise. Further, the placement of telephone poles at the shore to prevent erosion simply does not constitute an inducement to dive into the water since there is no logical connection between the two. The plaintiffs complaint therefore fails to allege facts which would support the conclusion that plaintiff’s injury was so probable, expected or likely that the defendants’ failure to place signs, buoys, barriers or provide for a lifeguard evidenced such an indifference to the harm as to amount to a willingness that it occur. Finally, plaintiff complains of the trial court’s refusal to permit plaintiff to file a third amended complaint. Although GCR 1963, 118.1 provides that leave to amend "shall be freely given when justice so requires”, the decision to grant leave is left to the trial court’s discretion and will not be reversed on appeal absent an abuse of discretion. Riddle v Lacey & Jones, 135 Mich App 241; 351 NW2d 916 (1984). Plaintiffs proposed third amended complaint differed from its predecessor only in that plaintiff alleged that on at least one previous occasion a personal injury was sustained as a result of a diving accident in Belle Lake. As noted in Matthews, supra, unless the conditions are inherently dangerous to anyone who comes in contact with them, the defendant’s knowledge of accidents occurring in the past is legally insufficient to establish wilful and wanton misconduct. Matthews, supra, p 719. Therefore, since plaintiff’s proposed amendment would have been futile, the trial court’s denial of his motion for leave to amend was proper. Burgess v Holloway Construction Co, 123 Mich App 505; 332 NW2d 584 (1983). Affirmed.	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Per Curiam:. Teledyne Continental Motors (petitioner) appealed as of right and Muskegon Township (respondent) cross-appealed from the Tax Tribunal’s determination of value of petitioner’s real property located in Muskegon Township. The property is the site of an industrial manufacturing plant operated by petitioner, containing approximately 855,700 square feet and located on approximately 113.680 acres of land. The petitioner contended in the Tax Tribunal that the true cash value of its land and industrial plant was approximately $4,000,000. Respondent contended that the true cash value was $11,000,-000. After considering all the testimony and other evidence, the hearing officer arrived at a true cash value of $7,000,000, considerably above the value offered by petitioner and considerably below that offered by respondent. The Tax Tribunal, in an opinion and judgment dated August 29, 1983, adopted and incorporated the hearing officer’s findings of fact and conclusions of law, with some minor exceptions, and these appeals followed. The questions presented for our determination are whether the Tax Tribunal committed an error of law in determining the true cash value of petitioner’s property and whether the Tax Tribunal’s determination was supported by real evidence. Both parties agreed that the highest and best use for the Teledyne property was for general industrial purposes. Petitioner’s expert as to value, Elden Nedeau, presented an appraisal in which he incorporated three traditional approaches to value: cost, income and market. The tribunal determined that the most appropriate method to arrive at the true cash value of the subject property was the cost approach. This approach reaches value by determining replacement value, minus depreciation, plus land value. Mr. Nedeau determined a replacement cost of $23,212,746, from which he subtracted 84% for depreciation. The 84% depreciation figure consisted of 52.5% for physical deterio ration, 11.5% for functional obsolescence and 20% for economic obsolescence. To this he added a land value, which in his opinion was $198,940, to reach a true cash value of $4,000,000. Respondent’s witnesses adopted a $25,000,000 replacement cost, to which a 58.75% depreciation was applied consisting of 48.75% for physical deterioration and 10% for economic obsolescence. No figure was included for functional obsolescence. Respondent then added a land value of $455,743 to reach its claimed value of $11,000,000. The tribunal adopted petitioner’s replacement cost figures, but disallowed any consideration for functional obsolescence, finding that the use of a replacement cost approach made an adjustment for functional obsolescence improper. This resulted in a depreciation percentage of 72.5%. The tribunal then accepted respondent’s land value figure of $455,743, and added a wiring estimate not included in Nedeau’s appraisal to reach its $7,000,-000 figure. The standard of review of the Tax Tribunal’s determination of value is a limited one. Review of Tax Tribunal determinations, when fraud is not alleged, is limited to the questions of whether the tribunal committed an error of law or adopted a wrong legal principle. Tatham v City of Birmingham, 119 Mich App 583; 326 NW2d 568 (1982); First Federal Savings & Loan Ass’n of Flint v City of Flint, 104 Mich App 609; 305 NW2d 553 (1981), rev’d on other grounds 415 Mich 702; 329 NW2d 755 (1982); Const 1963, art 6, § 28; MCL 205.753; MSA 7.650(53). Thus, on appeal from a ruling of the tribunal, this Court is bound by the factual determinations of the tribunal and may properly consider only questions of law. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229; 276 NW2d 566 (1979). The tribunal is not required to accept the valuation figures or the approach to valuation advanced by either the taxpayer or the assessing unit. It is the duty of the tribunal to adopt that method which is most appropriate to the individual case as the particular facts may indicate. Consumers Power Co v Big Prairie Twp, 81 Mich App 120; 265 NW2d 182 (1978). In the present case, the tribunal rejected the valuation figures offered by the parties and adopted its own method after determining that the replacement cost approach to value was the most appropriate method to reach true cash value in this case. Petitioner first claims that the tribunal erred in ruling that functional obsolescence should not be included as an element of depreciation when the replacement cost approach is used to determine true cash value, i.e., that the tribunal adopted a wrong appraisal principle. Thus, the determination is a legal one and properly before this Court. In rejecting petitioner’s claim for a depreciation deduction for functional obsolescence, the tribunal reasoned as follows: "In using a cost approach to value, the appraiser must consider a reduction in the cost (new) for accrued depreciation due to all causes-physical deterioration, functional obsolescence and economic obsolescence. The distinction between the reproduction cost and replacement cost methods, based upon the above definitions, means to this Hearing Officer that when an appraiser utilizes the replacement cost method he should adjust for accrued depreciation, and the depreciation allowance should not include an amount for functional (utility — either deficient or excess) obsolescence as the replacement cost method has already been adjusted for utility, and use of current materials and design. See footnote* on the bottom of page 262, The Appraisal of Real Estate, supra, 'the dollar difference between repro duction cost and replacement cost usually indicates lack of functional utility.” (Emphasis in the original.) However, the 8th edition of The Appraisal of Real Estate (American Institute of Real Estate Appraisals, 1983) indicates that, while some forms of functional obsolescence are eliminated by the use of the replacement cost approach, this does not eliminate the necessity for measuring other forms of functional obsolescence that may exist in any particular industrial property. The tribunal in this case ruled that all functional obsolescence is eliminated by use of the replacement approach. The tribunal, by not distinguishing between the type of functional obsolescence that is eliminated by use of the replacement cost approach, committed an error of law which requires reversal. The use of the replacement cost approach is one of the accepted methods for determining true cash value. Clark Equipment Co v Leoni Twp, 113 Mich App 778, 781; 318 NW2d 586 (1982). To determine the present value of property, depreciation is subtracted from replacement cost. Depreciation includes physical deterioration, functional obsolescence and economic obsolescence. Fisher-New Center Co v State Tax Comm, 380 Mich 340; 157 NW2d 271 (1968). Functional obsolescence is a loss in value brought about by failure or inability to deliver full service. It includes any loss of value by reason of shortcomings or undesirable features contained within the property itself. Appraisal of Real Estate (8th ed), p 449. Functional obsolescence can be caused by internal property characteristics, such as poor floor plan, inadequate mechanical output, or functional inadequacy or superadequacy due to size or other characteristics. Jd. Clearly, the replacement cost approach does eliminate the need to calculate some types of functional obsolescence. By definition, replacement cost eliminates functional obsolescence due to excess construction or superadequacy. However, a determination of other sources of functional obsolescence, not caused by excess construction, must at least be considered in the replacement cost approach. In the present case, the tribunal ruled that all functional obsolescence is eliminated by use of the replacement cost approach. This amounts to an adoption of the wrong appraisal principle. The tribunal should have specifically determined whether the sources claimed as functional obsolescence by the petitioner are in fact eliminated by use of the replacement cost approach. This is primarily a factual determination, based upon a determination of fairness in each particular case, and we therefore do not presume to suggest a proper result. On remand, the tribunal may well determine that the elements of functional obsolescence claimed by petitioner are not proper factors to be considered in calculating replacement cost. Petitioner also claims that the $455,743 value placed on its land was not supported by competent, material and substantial evidence. We agree. It is an error of law within the meaning of the Michigan Constitution if a decision of the Tax Tribunal is not supported by competent, material and substantial evidence. Kern v Pontiac Twp, 93 Mich App 612, 620; 287 NW2d 603 (1979). The taxpayer has the burden of proof to establish the true cash value of its property. MCL 205.737(3); MSA 7.650(37X3). However, the tribunal cannot merely accept the assessment placed upon the rolls by the assessing authority. Consolidated Aluminum Corp v Richmond Twp, supra, p 232. Petitioner argues that the tribunal’s acceptance of respondent’s valuation of the land was in error because the valuation did not state an independent valuation conclusion but merely relied upon reports and appraisal cards prepared by others. Mr. Wood, Supervisor and Assessor for Muskegon Township, testified for respondent that he obtained his land values from comparable industrial sites in various industrial parks similar in nature to the subject property. He indicated that his comparable land sales were based solely upon appraisal cards that were not prepared by him personally. In addition, because the initial appraisal had been done in 1976, he increased the values based on what seemed fair and reasonable without doing an individual investigation to determine if the values had in fact increased in Muskegon Township during the years 1976 through 1979. Because the township witness did not state an independent valuation conclusion based upon a personal investigation of comparable sales, his conclusion as to land value is not supported by competent, material and substantial evidence. Therefore, the tribunal erred in accepting that valuation in determining true cash value. MCL 211.27; MSA 7.27 requires an assessor in determining the value of property to consider the following: "In determining the value the assessor shall also consider the advantages and disadvantages of location; quality of soil; zoning; existing use; present economic income of structures, including farm structures; present economic income of land if the land is being farmed or otherwise put to income producing use; quantity and value of standing timber; water power and privileges; and mines, minerals, quarries, or other valuable deposits known to be available in the land and their value.” In Consolidated Aluminum Corp v Richmond Twp, supra, this Court reversed a decision of the tribunal where it relied solely on the assessment of the township’s assessor because the assessment did not comply with MCL 211.27; MSA 7.27. The Court concluded that, because the township’s witness merely relied upon figures prepared by others, there was no evidence presented upon which the tribunal could have determined the true cash value of the property in question. Consolidated Aluminum, supra, p 234. The valuation testimony offered by Mr. Wood suffered a similar lack of substantiating evidence. Thus, the tribunal’s determination of land value for the petitioner’s property must be reversed and the case remanded for redetermination of the value of petitioner’s land. Respondent has also raised several claims of error. None merit reversal or remand, but we will discuss them briefly. Respondent’s first claim is that the tribunal should have included landscaping costs in determining replacement cost. It is clear that landscaping costs should have been included in total replacement cost. The petitioner’s expert appraiser testified that he had erroneously omitted landscaping costs from his calculations. However, the failure to include landscaping costs is inconsequential in this case. Landscaping costs only amount to approximately $10,000. In the tribunal’s determination of true cash value it rounded up its valuation figure by some $46,000 to place true cash value at $7,000,000. Thus, any error in failing to include landscaping does not require reversal. Respondent also argues that the tribunal did not add a sufficient amount for buss duct wiring in replacement cost. The testimony regarding the wiring was contradictory. Respondent’s witness said there was 50,000 linear feet of buss duct wiring in the plant. Mr. Nedeau opined that that estimate was overly generous. In determining that there was only 10,860 linear feet the tribunal obviously chose to reject respondent’s figure as unreliable. This is a factual finding which is binding upon this Court. Consolidated Aluminum Corp v Richmond Twp, supra, pp 231-232. For the same reason, we reject respondent’s challenge of the depreciation deduction allowed by the tribunal as being overly generous. Respondent’s argument, in sum, is simply that petitioner’s witness should not have been believed, an attack upon credibility which is beyond review by this Court. Reversed and remanded to the Tax Tribunal for further proceedings consistent with this opinion. We do not retain jurisdiction. The hearing officer relied on the out-of-date 6th edition. The true cash value of land testified to by Mr. Nedeau, the petitioner’s expert, must also be rejected. Mr. Nedeau admitted that his comparable sales were for vacant properties, not ongoing industrial facilities. Thus, the figures offered by Mr. Nedeau as to the value of the land may have understated its value. Thus, on remand the tribunal cannot merely accept the figures as offered by Mr. Nedeau but must take other evidence to establish the true cash value of the real property involved.	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Ryan, J. In this case we are required to decide the validity of the rule that a murder conviction may not be obtained if the victim of the homicide does not die within a year and a day after the assault. We hold that the "year and a day” rule is part of the common law of this state; that the rule is hereby abrogated; and that the abrogation of the rule should not, and will not, be given retroactive effect. On December 15, 1976, defendant Ross Stevenson attempted an armed robbery of the Registrar’s Office of Aquinas College in Grand Rapids, Michigan. It appears that while the robbery was in progress the victim attempted to prevent the crime by jumping on the defendant from behind. A struggle ensued during which two shots were fired, one or both of which struck the victim in the abdomen. The perpetrator escaped without completing the robbery. On December 17, 1976, the defendant was arrested and charged with armed assault with intent to rob and steal, contrary to MCL 750.89; MSA 28.284, as well as assault with intent to murder, contrary to MCL 750.83; MSA 28.278. The prosecuting attorney and the defendant subsequently entered into a plea bargain under which the charge of assault with intent to murder arising out of the shooting would be dismissed in exchange for the defendant’s plea of guilty to the charge of assault with intent to rob. On February 18, 1977, the defendant was convicted upon his plea of guilty of the charge of assault with intent to rob while armed. The charge of assault with intent to murder was dismissed. Although the defendant could have been sentenced to life imprisonment, on April 15, 1977, he was sentenced instead to a prison term of not less than 6, nor more than 15, years, with appropriate credit for time already served. Meanwhile, the shooting victim’s apparent recovery from the gunshot wound proved to be illusory. On December 19, 1977, 369 days after the wound was inflicted, the victim died. An autopsy was performed in which the physician found that the cause of death was infection and hemorrhage resulting from the gunshot wound which had been inflicted over 12 months earlier. On February 1, 1978, a complaint and warrant were issued against the defendant charging him with first-degree felony murder. On March 23, 1978, the district judge granted the defendant’s motion to quash the complaint and warrant for the reason that the prosecution was barred by the common-law "year and a day” rule. The prosecutor appealed this dismissal to the circuit court and, in an order dated July 12, 1979, the circuit judge affirmed. The prosecutor appealed to the Court of Appeals, which affirmed in a published opinion. 101 Mich App 61; 300 NW2d 449 (1980). We granted leave to appeal. 410 Mich 921 (1981). We affirm. I The first argument raised by the prosecutor on appeal is that the Michigan Supreme Court has never "adopted” the year and a day rule. In Chapman v People, 39 Mich 357, 360 (1878), Chief Justice Campbell wrote: "From the earliest history of the common law, all homicides have been regarded as composed of two distinct elements, neither of which has been allowed in theory or in legal practice to merge the other. The injury which causes death is never regarded as constituting the crime of murder or manslaughter. The death of the victim not only within a year and a day, but also within the same jurisdiction was the controlling element which distinguished the guilt of the assailant from a common assault. The time and place of death were always considered as necessary to be averred, and were required to be averred as independent of the averments of assault.” (Emphasis added.) Although the prosecutor correctly characterizes this summary of the common law as obiter dictum, since the holding in Chapman was that a fatal variance existed between an indictment which alleged an assault and immediate death in Meridian Township, Ingham County, and proofs which showed a delayed death in Lansing 15 days later, his argument misses the point. In Michigan, the common law prevails except as abrogated by the Constitution, the Legislature, or this Court. Const 1963, art 3, § 7; People v Aaron, 409 Mich 672, 722-723; 299 NW2d 304 (1980); People v Duffield, 387 Mich 300, 308; 197 NW2d 25 (1972). The prosecutor has failed to cite any provision of the constitution, any statute, or any decision of this Court abrogating the year and a day rule, and our research satisfies us that the rule has not been abrogated in Michigan. Unlike the doctrine of felony murder, which was of "questionable origin” (Aaron, p 689) and may have been part of the common law "only of Sir Edward Coke” (Aaron, p 695), the year and a day rule is well established within the tradition of the common law, dating back as early as 1278. In rejecting the claim that the year and a day rule applied to limit civil liability under the Indiana wrongful death act, the United States Supreme Court noted in Louisville, E & St LR Co v Clarke, 152 US 230, 239; 14 S Ct 579, 581; 38 L Ed 422, 424 (1894): "In cases of murder the rule at common law undoubtedly was that no person should be adjudged 'by any act whatever to kill another who does not die by it within a year and a day thereafter; in computation whereof the whole day on which the hurt was done shall be reckoned first.’ 1 Hawkins, Pleas of the Crown, ch 13; 2 Hawkins, Pleas of the Crown, ch 28, § 88; 4 Blackstone, Commentaries, pp 197, 306. The reason assigned for that rule was that if the person alleged to have been murdered 'die after that time, it cannot be discerned, as the law presumes, whether he died of the stroke or poison, etc., or a natural death; and in case of life, a rule of law ought to be certain.’ 3 Coke, Institutes of the Laws of England, p 53.” We are satisfied that the district judge, the circuit judge, and the Court of Appeals all correctly held that under the existing common law the prosecution of this defendant was barred by the "year and a day” rule. II This Court has often recognized its authority, indeed its duty, to change the common law when change is required. See Aaron, supra; Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979); Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977); Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405; 157 NW2d 213 (1968); Myers v Genesee County Auditor, 375 Mich 1; 133 NW2d 190 (1965). Counsel for defendant argues, however, that this Court lacks the power to change the common law so as to enlarge the scope of criminal liability and cites In the Matter of Lamphere, 61 Mich 105; 27 NW 882 (1886), as authority for that claim. A careful reading of Lamphere discloses, however, that no such proposition can fairly be implied from anything written there. The Court in that case merely held that the defendant’s sentence was too uncertain and indefi nite as to the time of its commencement to stand. The Court then went on in obiter dicta to suggest that the Legislature should consider legislation to resolve the practical difficulties associated with consecutive sentencing. What is more important is that no limitation upon this Court’s authority to "enlarge” common-law criminal liability appears in Const 1963, art 3, § 7, or can be fairly implied from its language: "Sec. 7. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” The suggestion that crimes can only be defined by statute is not well taken, particularly in light of the fact that, in Michigan, murder is defined by the common law and not by statute. Aaron, p 713. If common-law crimes could only be contracted, not expanded, this would tend to slow needed development of the common law, since once the definition of a crime was narrowed, as in Aaron, the Court would lack the power to reverse itself and "expand” liability by readopting, for example, the felony-murder doctrine. Such a "one way” power would unduly and unnecessarily retard the development of the common law in both directions, and we therefore refuse to endorse it. Recognizing that this Court has the authority to abolish the year and a day rule, the question remains whether the rule has outlived its usefulness and should be abolished. The original rationale for the rule was probably tied to the inability of 13th Century medicine to prove the cause of death beyond a reasonable doubt after a prolonged period of time: "If he died after that time, it cannot be discerned, as the law presumes whether he died of the stroke or poison, etc., or a natural death; and in the case of life, the law ought to be certain.” 3 Coke, Institutes of the Laws of England, p 52. Even if expert medical testimony concerning causation had been available at that time it would not have been heard, since in the early English courts the jury reached the verdict upon their own knowledge and not upon the testimony of witnesses having personal knowledge of the facts and expert opinion testimony as is the case today. 65 Dickinson L Rev 166, 170 (1961), citing Thayer, Evidence, p 174 (1898). The advances of modern medical science, by extending life and by providing strong evidence of the cause of death, have undermined the wisdom of the irrebuttable presumption that the death of one who expires more than a year and a day after receiving an injury was not caused by the injury. The availability of modern life-sustaining equipment and procedures, see In re Quinlan, 70 NJ 10; 355 A2d 647 (1976), raises the specter of the choice between terminating life-support systems or allowing the defendant to escape a murder charge. The presumption was wooden and arbitrary from the beginning, since it prevented a murder conviction even in those rare cases when causation could be proved. Now, when medical causation can be proven with much greater frequency and certainty, the old rule is simply too often demonstrably wrong to be upheld. Of course, abolition of the rule would not relieve the prosecution of its duty to prove all of the elements of the crime, including proximate causation, beyond a reasonable doubt. A murder conviction which rests upon uncertain medical specula tion as to the cause of death is not a case which has been proved beyond a reasonable doubt. Fears about murder convictions for death 5, 10, or even 20 years after the injury are therefore unfounded where proximate cause is proven beyond a reasonable doubt. If such proof is available, the conviction is justified. No repose or statute of limitations is available for murder in this state. MCL 767.24; MSA 28.964. Recognizing that the year and a day rule is archaic and should be abandoned, we must decide whether this Court should take such action or whether deference to the Legislature is appropriate. Counsel for defendant argues for deference to the Legislature’s traditional policy of defining crimes by statute and further notes that the choice between the alternatives to the year and a day rule is complex and legislative in nature. As to the first objection, we simply note that murder is a common-law crime and the year and a day rule is a judge-made rule. Under such circumstances, courts are particularly well-suited to act; cf. Pla-cek, supra. As to the second observation, we note that mere multiplicity of choice or a range of options does not make a decision "legislative”. Further, since the Legislature remains free to change the common law, the ultimate decision as to whether to retain the rule or some form of it resides in the Legislature. We hold, in the exercise of our constitutional authority to shape and advance the common law, that the year and a day rule has outlived its usefulness and is therefore abolished. We do so in accord with the growing trend of modern authority. Commonwealth v Ladd, 402 Pa 164; 166 A2d 501 (1960); State v Sandridge, 5 Ohio Op 3d 419; 365 NE2d 898 (1977); State v Young, 77 NJ 245; 390 A2d 556 (1978); Commonwealth v Lewis, 381 Mass 411; 409 NE2d 771 (1980). The only court which has chosen to retain the rule since 1960 was an intermediate appellate court in Maryland. State v Brown, 21 Md App 91; 318 A2d 257 (1974). In Michigan, proof of the proximate cause of death in homicide cases is hereafter to be measured by the same standard whether the victim dies before or after a year and a day; namely, proof beyond a reasonable doubt. Ill The final issue to be decided is whether our abrogation of the year and a day rule can and should be given retroactive effect so as to allow the murder prosecution in this case. The prosecutor argues that the prohibition against ex post facto laws found in US Const, art I, § 9 and Mich Const 1963, art 1, § 10, is not implicated in this case because that bar is directed to the Legislature; that the year and a day rule is one of evidence or procedure, not substance; that the defendant had fair notice that his conduct was criminal; that the defendant did not actually rely upon the year and a day rule; and that adherence to an archaic legal fiction should not free the victim’s killer. We will consider these arguments in the order presented. It is well recognized that while the Ex Post Facto Clause does not apply directly to the judiciary, it is applicable by analogy through the Due Process Clauses of the Fifth Amendment, Marks v United States, 430 US 188; 97 S Ct 990; 51 L Ed 2d 260 (1977), and the Fourteenth Amendment to the United States Constitution. Bouie v Columbia, 378 US 347; 84 S Ct 1697; 12 L Ed 2d 894 (1964). This Court acknowledged the applicability of the Ex Post Facto Clause to the judiciary in its holding in People v Dempster, 396 Mich 700, 714-718; 242 NW2d 381 (1976). While some courts have held that the year and a day rule is merely a rule of evidence or procedure and may therefore be abolished retroactively, we do not find that characterization controlling. One of the abuses which the colonists intended to correct with the Ex Post Facto Clause was acts which "violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony which the courts of justice would not admit”. Calder v Bull, 3 US (3 Dali) 386, 389; 1 L Ed 648, 649 (1798) (opinion of Chase, J.). The key is the importance of the rights concerned and their effect on the defendant, not whether those rights can be characterized as "merely” evidentiary or procedural. Providing fair notice that conduct is criminal is one of the central values of the Ex Post Facto Clause. Dobbert v Florida, 432 US 282; 97 S Ct 2290; 53 L Ed 2d 344 (1977); Bouie v Columbia, supra. But fair notice is not the sole purpose of the clause. As the Court observed in dictum in Bouie, supra, p 353, "An ex post facto law has been defined by this Court as one 'that makes an action done before the passing of the law, and which was innocent when done, criminal; and ptmishes such action,’ or 'that aggravates a crime, or makes it greater than it was, when committed.’ ” (Emphasis in original.) The following definition of an ex post facto law from Calder, supra, was adopted by reference in In re Hoffman, 382 Mich 66, 72, fn 1; 168 NW2d 229 (1969): "1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Calder, p 390. In Weaver v Graham, 450 US 24, 29; 101 S Ct 960; 67 L Ed 2d 17, 23 (1981), the Court defined an ex post facto law as follows: "In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” (Footnotes omitted.) Again, this is consistent with the intent of the framers of both constitutions to prohibit the abuses of the English Parliament, which had "inflicted greater punishment, than the law annexed to the offense”. Calder, supra, p 389. A murderer has fair notice that his conduct is criminal, yet this Court would not approve a retroactive increase in the authorized punishment from life imprisonment to capital punishment, if that penalty were imposable. In this case, abolishing the rule retroactively would permit a possible increase in the maximum authorized punishment from life (assault with intent to rob while armed) to mandatory life without the possibility of parole (first-degree murder). Increasing the authorized penalty after the fact does not deny the defendant fair notice of what conduct is criminal, yet it still violates the rule against ex post facto criminal laws. Abrogating the year and a day rule in this case would apply this opinion to events occurring before it and would clearly disadvantage the defendant unfairly. It is also argued that the defendant did not actually rely upon the year and a day rule at the moment he shot the victim. As dissenting Justice Pashman wrote in State v Young, 77 NJ 245, 264265; 390 A2d 556 (1978), quoting Cooley, Constitu tional Law, 23 U Pitt L Rev 263, 265 (1961), "The defendant in this case could not have so regulated his blows as to ensure that his victim would die a month after the year-and-a-day barrier came into existence, nor should due process afford him a right to try”. Arguably, the defendant could have relied on the year and a day rule, not in expecting that the victim would survive that long, but reasonably expecting that if the victim did in fact survive that long, a murder conviction could not result. However, actual or even fictional reliance is not the sole interest protected by due process. The ex post facto principle also protects against erratic or arbitrary action improper in a lawgiver. Weaver, supra, p 29; Lewis, supra, p 775. It would be nothing if not erratic to declare for the first time today, almost five years after the year and a day rule effectively barred a murder prosecution in this case, that such a prosecution could be maintained. The defendant’s subjective intent or reliance is simply not controlling in this case. Young, supra, pp 254-255. A defendant may not even be aware of various important evidentiary rules or the maximum punishment at the time of the offense, and yet such protections may not be abolished retroactively. See Calder v Bull, supra; Weaver, supra. The weight of modern authority supports the proposition that the year and a day rule cannot be abolished retroactively. Only two courts have abolished the rule with full retroactive effect; in Ladd, supra, the majority felt free to do so because the rule was said to be merely one of evidence or procedure, while in Sandridge, supra, the brief two-page opinion by the judge of the Court of Common Pleas of Cuyahoga County failed to directly address the retroactivity issue. We choose to follow the better reasoned opinions in Young, supra, and Lewis, supra, abolishing the rule purely prospectively. The prosecutor’s view that the Ex Post Facto Clause only prohibits making illegal what was legal when done is far too narrow. Under the prosecutor’s analysis, the Legislature or this Court could retroactively redefine murder to include those cases in which the victim was critically injured, but fully recovered. The retroactive elimination of the requirement that the victim actually die would be justified by the rationale that the defendant did not lack fair warning that his conduct was illegal; that the defendant could not have so regulated his blows as to insure that his victim would be critically wounded but not die from the attack; and that the defendant could not have actually relied upon the victim’s surviving the near-fatal attack. Since this reasoning would strip the Ex Post Facto Clause of much of its substance, we refuse to accept it. As in People v Marshall, 362 Mich 170; 106 NW2d 842 (1961), our decision today is based on our interpretation of both the Michigan Constitution and the Constitution of the United States. We feel constrained to point out that refusing to abolish the year and a day rule ex post facto does not "free” the defendant from criminal responsibility. The defendant was originally charged with assault with intent to commit murder for the attack on the victim. The fact that the victim survived for more than a year and a day was no bar to prosecution for that offense, a felony with a maximum punishment of life imprisonment. The prosecutor is barred from charging that offense now only by the plea bargain in which he agreed to request dismissal of the assault with intent to murder charge (Count II) in exchange for the defendant’s plea of guilty to the charge of assault with intent to rob while armed (Count I). The plea bargain provides a separate and additional reason to forbid a murder prosecution in this case, since to do so would deprive the defendant of most if not all of the benefit of his bargain. It would violate the spirit, if not the letter, of the agreement to allow the prosecutor to obtain a guilty plea by dismissing the assault charge and then at a later date to bring a murder charge based on the very same assault. Following the defendant’s guilty plea, the trial judge sentenced the defendant to á prison term of 6 to 15 years, even though the maximum possible sentence was life imprisonment. The sentencing judge indicated his familiarity with the facts of the attempted robbery and assault, as well as his personal awareness of the seriousness of the wounds of the abdomen suffered by the victim. However, in light of a favorable presentence report and favorable letters from interested parties, including the assistant prosecutor, the circuit judge felt that the sentence imposed would best serve the interests of justice. The prosecutor is now seeking a second conviction and second sentencing in light of the subsequent death of the victim. Clearly the judge lacks authority to vacate a valid sentence and impose a heavier one in light of subsequent events. People v Barfield, 411 Mich 700; 311 NW2d 724 (1981); In re Richards, 150 Mich 421; 114 NW 348 (1907); People v Meservey, 76 Mich 223; 42 NW 1133 (1889). We are convinced that under the facts of this particular case that same result should not be reached by the expedient of obtaining a second conviction based on the same criminal behavior. For the foregoing reasons the judgment of the Court of Appeals affirming the quashing of the murder indictment is affirmed. Fitzgerald, C.J., and Williams and Coleman, JJ., concurred with Ryan, J. Although the year and a day rule as set forth in Chapman was quoted 10 years ago by this Court in an opinion by Williams, J., in People v Duffield, 387 Mich 300, 309, fn 6; 197 NW2d 25 (1972), the quotation was dictum in that case as well. Statutes of Gloucester, 6 Edward 1, ch 9 (1278); 3 Coke, Institutes of the Laws of England, ch 7, p 52 (circa 1620); 4 Blackstone Commentaries, ch 14, p 197; Hawkins, Pleas of the Crown (8th ed, 1824), ch 13, § 9, p 93; 3 Stephen, History of the Criminal Law of England, pp 7, 8; Russell, Law of Crimes (7th ed), p 690; 9 Halsbury, Laws of England (2d ed), § 734, p 428; 3 Chitty, Criminal Law, p 276; 2 Wharton, American Criminal Law, § 1073; 1 Warren, Homicide, p 60; Perkins, Criminal Law, p 605; 40 CJS, Homicide, § 12, p 856; 26 Am Jur, § 46, p 190; Louisville, E & St L R Co v Clarke, 152 US 230; 14 S Ct 579; 38 L Ed 422 (1894). Appellee suggests that the rule should be retained because it prevents potential violations of other important rights: speedy trial, cruel and unusual punishment, double jeopardy, and the like. Recognizing that such rights may be implicated in long-delayed prosecutions, we will continue to be vigilant in the enforcement of those rights where they are shown to have been abridged or denied under the facts of a particular case. Since none of those objections were briefed or argued in this Court in this case, we need not consider them here. (1) The Court could retain the year and a day rule. (2) The Court could modify the rule by extending the span of time, for example, to three years and a day. California Penal Code, § 194. (3) The Court could extend the rule to any length of time it chooses, perhaps two years, five years, or ten years. (4) The Court could change the rule from an irrebuttable presumption to a rebuttable one, but with a higher burden of proof. Cf. Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), requiring clear and convincing evidence. (5) Finally, the Court could simply abolish the rule entirely, leaving the issue of causation to the jury in light of the facts and arguments in each particular case. Commonwealth v Ladd, 402 Pa 164; 166 A2d 501 (1960), where the year and a day rule was abolished retroactively by judicial decision; People v Snipe, 25 Cal App 3d 742; 102 Cal Rptr 6 (1972), where the year and a day rule was legislatively changed to three years and a day after the attack, but before the defense had "vested”, the court allowed "retroactive” application. Commonwealth v Lewis, 381 Mass 411; 409 NE2d 771,775 (1980); see also Weaver v Graham, 450 US 24, fns 15, 21; 101 S Ct 960; 67 L Ed 2d 17 (1981). The text of the letter to the defendant’s attorney, included in the lower court file, is as follows: "This is to recapitulate our office’s position in the above matter. I was most impressed by what I consider a repentant armed robber who did not want the victim shot nor even contemplated a shooting. As I indicated, if his story is confirmed by the victim as to the- accidental nature of the shooting, we will offer a plea to an assault with intent to commit an armed robbery, §28.284. We will dismiss the assault with intent to murder upon a successful acceptance of the plea. I will go on the record, if you believe it necessary, to state that Stevenson be given great consideration for confessing to the crime before he really knew how good a case we had against him. I should say that the identification of our 'line-up witness’ was so good that she can even describe a very small scar that she had noted on your client. 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Fitzgerald, C.J. Four cases were consolidated on appeal to this Court, all questioning the application of the exclusive remedy provision of the Worker’s Disability Compensation Act. Three cases involve a labor broker situation in which temporary employment is provided to a business customer; one presents an unusual employment relationship of hockey teams and the sports league to which they all belong. To facilitate our analysis, we will deal with the labor broker cases together and separately address the hockey case. I Thomas Farrell was sent to work at Dearborn Manufacturing Company by State Labor, Inc. State Labor, Inc., is a labor broker, a company engaged in the business of furnishing employees to others. While operating a press at Dearborn Manufacturing, Mr. Farrell suffered a severe injury to his right hand. He applied for and received workers’ compensation benefits from State Labor’s insurance carrier. The present action was brought by Mr. Farrell against Dearborn Manufacturing as a third-party tortfeasor for negligence in the rebuilding and modifying of the press and for strict liability in tort. Defendant filed a motion for summary judgment on the ground that it was not a third-party tortfeasor, but was in fact Mr. Farrell’s employer and therefore immune from liability because of the exclusive remedy provision of the workers’ compensation act. This motion was denied. Defendant’s application for leave to appeal was denied by the Court of Appeals. This Court, after remanding the case to the lower court so that the trial judge could explain why the motion for summary judgment was denied, granted leave to appeal. Jane Marfuta was employed by Kelly Services, Inc., a labor broker. She was sent to the H. L. Blachford Company to work a diecutting roller press. While on the job, an accident occurred, resulting in the loss of one finger. Plaintiff received workers’ compensation benefits and thereafter began the present action alleging negligence of multiple defendants. While this action was pending, plaintiff amended her complaint to add the Blachford Company as a defendant. Settlements were eventually reached with the other parties. Blachford moved for summary or accelerated judgment on the grounds that it was plaintiff’s employer within the meaning of the workers’ compensation law and that the exclusive remedy provision barred the present action. This motion was granted. The Court of Appeals affirmed in an unpublished per curiam opinion. Ricky Wooten was employed by Employers Temporary Service and was sent, by it, to work at the Sennett Steel Company. He suffered a severe injury to his right thumb while working on a steel shear. Wooten received workers’ compensation benefits from ETS’s insurance carrier. He filed this action against Sennett Steel and Cincinnati, Inc., the manufacturer of the shear. Defendant Sennett Steel moved for summary judgment, alleging that plaintiff’s only remedy was under the workers’ compensation law. This motion was granted by the trial court and the judgment affirmed by the Court of Appeals. Plaintiff John Kellogg, a linesman for the International Hockey League, was allegedly injured when Reginald Fleming, a player for The Hockey Club of Saginaw, Inc. ("Saginaw Gears”), hit him with his hockey stick and pushed him into the goal cage’s steel bars. Kellogg brought suit against the hockey team and Fleming. The Hockey Club filed a motion for summary judgment on the ground that the claim was barred by the exclusive remedy provision of the workers’ compensation act. This motion was denied by the trial judge, but the judgment was reversed by the Court of Appeals in an unpublished per curiam opinion. II The exclusive remedy provision provides that "[t]he right to the recovery benefits as provided in this act shall be the employee’s exclusive remedy against the employer”. MCL 418.131; MSA 17.237(131). The language expresses a fundamental tenet of workers’ compensation statutes that if an injury falls within the coverage of the compensation law, such compensation shall be the employee’s only remedy against the employer or the employer’s insurance carrier. The underlying rationale is that the employer, by agreeing to assume automatic responsibility for all such injuries, protects itself from potentially excessive damage awards rendered against it and that the employee is assured of receiving payment for his injuries. In this scheme, statutory compensation has been substituted for common-law liability for negligence and its related defenses. Smith v Pontiac Motor Car Co, 277 Mich 652; 270 NW 172 (1936); Jones v Bouza, 381 Mich 299; 160 NW2d 881 (1968). Accordingly, it has consistently been held that if an employee receives a personal injury arising out of and in the course of his employment, the right to benefits as provided by the statute shall be that employee’s only remedy against his employer. It is argued that in the labor broker situation, the exclusive remedy provision should not automatically preclude a cause of action against the company or owner of the premises at which the injury took place because the conditions of liability as expressed in the statute do not exist. It is necessary, therefore, to examine the roles of the labor broker and its customers to determine which is to be considered the employer for purposes of the exclusive remedy provision. The labor brokers in three of these cases were engaged in the business of supplying personnel on a temporary basis to commercial and industrial companies. The customers of a labor broker typically call in their employment needs on a daily basis, and workers are sent by the broker to fill these needs. After arriving at the place of business, the worker is subject to the control and authority of the customer and the customer’s supervisory personnel. The customer has the power to discharge the employee from the daily work assignment and can refuse to accept a worker sent by the broker. The customer does not pay the employee directly. Rather, the labor broker pays the employee and includes as part of its charge to the customer amounts to cover its expenses for compensation premiums, social security, and other taxes. The issue of whether employment exists for purposes of the workers’ compensation law has been frequently addressed by our courts. The standard to be used is the economic reality test, a broad approach which, in the oft-quoted language of Justice Talbot Smith, looks to the totality of the circumstances surrounding the performed work. "Control is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one.” Schulte v American Box Board Co, 358 Mich 21, 33; 99 NW2d 367 (1959). See, also, Tata v Muskovitz, 354 Mich 695; 94 NW2d 71 (1959); Askew v Macomber, 398 Mich 212; 247 NW2d 288 (1976); McKissic v Bodine, 42 Mich App 203; 201 NW2d 333 (1972); Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979); Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975); Allos-sery v Employers Temporary Service, Inc, 88 Mich App 496; 277 NW2d 340 (1979). The economic reality test looks to the employment situation in relation to the statutory scheme of workers’ compensation law with the goal of preserving and securing , the rights and privileges of all parties. No one factor is controlling. In Renfroe v Higgins Rack Coating & Manufacturing Co, Inc, 17 Mich App 259, 266; 169 NW2d 326 (1969), the Court of Appeals addressed this specific issue and held that the employee’s exclusive remedy was under the workers’ compensation laws. Looking at the triangular relationship of the parties, the Court reasoned that for the labor broker (ETS) "economic reality is based on the fact that a profit can be made by efliciently matching workers with temporary work needs. ETS maintained control of the workers by its practice of daily reassignment and daily payment at its offices. It also maintained the formalities of employment by handling all paper work and payments incident to the employment.” The customer received a worker each day who was subject to its authority. By engaging the services of the labor broker, the customer knew that, in exchange for a set fee, the broker would pay the employees, handle all paperwork, and provide compensation coverage. The Court concluded that the economic reality was that both the labor broker and its customer were employers within the meaning of the workers’ compensation statutes. We agree with the reasoning and result of this decision. The labor broker providing personnel for temporary employment is a common business practice. The roles of the broker and its customer are defined and structured to fulfill short-term needs of many types of industries. When viewed in terms of control, payment of wages, allocation of responsibilities, maintenance of discipline, etc., it is clear that the two are so integrally related that their common objectives are only realized by a combined business effort. The broker supplies as the customers demand. To conclude that an individual so employed is outside the scope of the exclusive remedy provision would clearly disregard the overall objectives of the statutory scheme. We therefore hold that the exclusive remedy available to the employee in a labor broker situation is provided by the workers’ compensation statute and that a separate tort action against the customer of the labor broker may not be maintained. The judgment of the Court of Appeals is reversed in Farrell and affirmed in Marfuta and Wooten. Ill On May 4, 1975, John Kellogg, a linesman, was assigned by the International Hockey League to officiate at a season game between the Saginaw "Gears” and the Toledo "Goaldiggers”. Kellogg called a play "on-side” in favor of the Goaldiggers, and shortly thereafter the Goaldiggers scored. Reginald Fleming, a player for the Gears, was on the bench when the goal was scored. He skated onto the ice, skated at plaintiff from behind, and allegedly smashed his hockey stick into plaintiff’s back, knocking him into the crossbar and goalpost and then onto the ice. It is further alleged that Fleming continued the attack by holding his stick above Kellogg in an intimidating manner while verbally abusing him. Kellogg filed a petition for workers’ compensation benefits. This claim was redeemed after a decision by a hearing referee that the International Hockey League employed the plaintiff. Kellogg also filed this tort action against The Hockey Club of Saginaw and Reginald Fleming. Defendants moved for summary judgment, claiming that plaintiff’s action was barred by the exclusive remedy provisions of the workers’ compensation act. The circuit court denied the motion, concluding that the "economic reality” of the employment relationship was that the International Hockey League was plaintiffs employer and that the league and its member teams are not one and the same. The Court of Appeals reversed. Using the economic reality test, the Court held that the relationship of the league and its member teams was unique and that the plaintiff should not be allowed to maintain a separate tort action against a member team which had been held liable to contribute to the redemption of the workers’ compensation award. The Court also concluded that MCL 418.827; MSA 17.237(827) barred this suit for an intentional tort against a co-employee. As stated above, the economic reality test is the standard used to determine whether or not statutory compensation benefits are the exclusive remedy available to an employee. The total employment situation must be evaluated, not just isolated factors. No single consideration is controlling. Defendants contend that the International Hockey League is a joint venture, an unincorporated association composed of all member teams organized to foster the team’s efforts in securing a profit. They argue that the league is not a separate and identifiable legal entity apart from its member teams since the league’s very existence is derived from the powers granted to it by the teams. This unique relationship, defendants believe, leads to the conclusion that a civil action against the team and one of its players may not be maintained. Our interpretation of the compensation statutes is aided by the opinions of Justice Talbot Smith, whose prolific writings give guidance to the rela tionship of common-law remedies and workers’ compensation law. See Schulte v American Box Board Co, supra; Salmon v Bagley Laundry Co, 344 Mich 471; 74 NW2d 1 (1955); Crilly v Ballou, 353 Mich 303; 91 NW2d 493 (1958); Powell v Employment Security Comm, 345 Mich 455; 75 NW2d 874 (1956). In urging the abandonment of tort concepts when considering the applicability of compensation laws, Justice Smith’s opinions heralded the economic reality test. Compensation is the sole remedy available to an employee who incurs an injury "during his working day while he was doing a natural thing, a thing which an employee, while working, might reasonably do. The fundamental inquiry is whether or not the act in question, either because of its nature, or local custom, or contractual provision, is reasonably to be regarded as part of the on-the-job activities of the human being involved, a part of his normal and reasonable sphere of activities.” Salmon v Bagley Laundry Co, supra, 490. Exposure to hazards and resultant injuries while performing one’s job was certainly within the contemplated coverage of the compensation acts. "If the injury results from the work itself, or from the stresses, the tensions, the associations, of the working environments, human as well as material, it is compensable. Why? Because those are the ingredients of the product itself. It carries to the market with it, on its price tag stained and scarred, its human as well as its material costs. So says the statute. It does not become us to ignore its plain commands.” Crilly v Ballou, supra, 326. The social and remedial purposes of the laws were structured to quickly and assuredly compensate employees for injuries suffered. The legislation was not, however, designed to be an all-encompassing shield against liability. We do not believe that identifying the league as a joint venture (or conversely, concluding that it is not a joint venture) determines whether or not the plaintiff is able to maintain his cause of action. Rather, we believe that the economic reality test compels us to independently view the relationship of the hockey league and its member teams. The International Hockey League was organized to promote the game of hockey by promulgating rules to govern the conduct of member clubs and by regulating the interrelationships among players, individual member teams and the other hockey clubs. The league is empowered to arbitrate and settle disputes between the teams and their players. It is responsible for preparing, supervising and managing a schedule of ice hockey games. It is a not-for-profit, voluntary, unincorporated association. The league is financed by its member clubs; it has no assets of its own. Each year the league decides what its budget will be and calculates the games fee that member teams must pay. It assesses member teams for any deficits and pays for its expenses out of games fees. The referees and linesmen are responsible to the commissioner and board of governors of the league and, of necessity, maintain very little contact with the member teams. They receive their work assignments from the commissioner, as well as instruction regarding their jobs. Their salaries are paid by the league, and only the league has the power to discipline or fire the officials. Courts have recognized the special nature of organized professional sports and their need for a league structure. "Professional football is a unique type of business. Like other professional sports which are organized on a league basis it has problems which no other business has. The ordinary business makes every effort to sell as much of its product or services as it can. In the course of doing this it may and often does put many of its competitors out of business. The ordinary businessman is not troubled by the knowledge that he is doing so well that his competitors are being driven out of business. "Professional teams in a league, however, must not compete too well with each other in a business way. On the playing field, of course, they must compete as hard as they can all the time. But it is not necessary and indeed it is unwise for all the teams to compete as hard as they can against each other in a business way. If all the teams should compete as hard as they can in a business way, the stronger teams would be likely to drive the weaker ones into financial failure. If this should happen not only would the weaker teams fail, but eventually the whole league, both the weaker and the stronger teams, would fail, because without a league no team can operate profitably.” United States v National Football League, 116 F Supp 319, 323 (ED Pa, 1953). See, also, State v Milwaukee Braves, Inc, 31 Wis 2d 699; 144 NW2d 1 (1966); American Football League v National Football League, 205 F Supp 60 (DC Md, 1962). The league exists to maximize the efforts of the individual teams. By regulating, coordinating and supervising the hockey season, each team is better able to succeed. Whereas the league would not exist were it not for the individual member teams, the teams would not operate as successfully were it not for the league. We must conclude, however, that this dependency does not mean that the league and the teams are one and the same for purposes of the compensation statutes. Their special and unique business relationship is distinct from other commercial enterprises. The league is established as a separate entity with its own specific functions. It regulates the schedules of games, assignment of officials, etc. It is not involved with the teams’ daily operations, contractual negotiations or routine affairs. Each member team is separately owned and autonomously administered. Each team seeks to attract the finest players it can so that game attendance is high and a greater profit realized. We conclude that John Kellogg was employed only by the International Hockey League and not by the Saginaw "Gears”. Therefore, the exclusive remedy provision does not bar this cause of action. The unique relationship of a league, referees and teams does not present the traditional dual-employment situation, nor is it an instance of one individual rendering a similar service for multiple employers. Rather, officials are hired by and work only for the league; the teams contract with and are responsible for their own personnel. No similar business enterprise presents the unusual relationship we must consider in this case. We are persuaded that the economic reality is that referees and linesmen are employed only by the league. Defendants argue that MCL 418.827; MSA 17.237(827) which allows certain third-party actions in addition to the receipt of compensation benefits and bars suits by co-employees for injuries sustained in the course of their employment pre- eludes this action against defendant Fleming. We note, however, that only by concluding that the league and its members are engaged in a joint enterprise can a linesman and a player be considered co-employees. Since we have held that the Saginaw Gears is not plaintiffs employer, its team member is not a fellow employee. Thus, the action against defendant Fleming for an intentional tort is not barred. The judgment of the Court of Appeals is reversed. Kavanagh, Williams, Levin, and Coleman, JJ., concurred with Fitzgerald, C.J. We do not address the questions of whether the failure to warn or instruct employees or whether the affirmative negligence by the-customer of a labor broker will give rise to a cause of action. But see Sewell v Bathey Mfg Co, 103 Mich App 732; 303 NW2d 876 (1981). The relevant language of MCL 418.827; MSA 17.237(827) provides: "(1) 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 the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section.”	[ -5, -2, -25, 55, 49, 27, 23, -57, 9, 20, -25, 35, 41, -13, 1, -46, -13, 6, -19, 50, -41, -8, -5, -3, 10, -13, 6, -26, -20, 10, -18, -10, -19, -19, -114, 5, 51, -4, -14, -31, 24, 34, 25, -4, 6, 23, 24, 11, 46, -46, 11, 5, -5, 20, 50, 12, -4, 10, 8, 16, -17, 19, 44, 7, 46, -23, -3, 3, -40, -9, -48, 28, -13, -23, -40, -18, -21, 27, 6, 3, -11, 16, 13, -93, 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Rehearing denied. Reported at 416 Mich 1. Cavanagh and Kavanagh, JJ., would grant rehearing.	[ 27, -52, -7, 21, 14, 14, 17, 18, -67, 7, 52, -44, 35, -70, 17, 46, -2, -21, 38, -57, -40, -23, -16, 42, -45, 50, 62, 10, 0, -49, 41, -38, -49, 48, -12, -53, 55, 53, -33, 1, -25, -2, -15, -3, 1, -82, -49, 15, 7, 18, -32, -16, -22, 12, -46, 42, -15, -23, -28, 2, -24, 21, 15, 7, -37, 0, -5, -38, -31, 10, 25, 39, -21, 5, 20, 14, -35, -8, 3, 68, 79, 72, 22, 66, -18, 23, 38, -49, 13, -22, 16, -9, -58, 29, 10, -1, 2, 36, 17, 30, 8, 19, -23, -82, -1, 10, -4, 21, -30, 0, 34, -47, 36, -51, 13, -45, -12, -29, -2, 37, -1, 82, -47, -38, -9, 27, 12, -16, 5, 11, 20, 9, 16, 52, 13, -35, 16, 1, -55, -23, -20, 9, 12, 15, 5, -13, -34, -8, -26, 26, 7, -58, -11, 29, -16, 18, -36, -41, 38, 32, 31, 35, -66, -56, -14, -11, 24, 6, 40, -22, -6, -2, -17, 6, -53, -63, 1, 29, 21, 13, 36, 56, 41, -12, 59, 20, -7, -5, 13, 19, -52, 9, 24, 67, 75, -14, 76, -11, 22, -19, 29, 70, -38, -6, 5, -63, 62, 5, -14, 27, -45, 1, -64, -2, 6, -22, 58, 6, 27, 14, -4, 60, 34, 2, -62, 30, 30, 67, 7, -32, 3, 26, -38, 43, 60, -39, 20, 14, 81, -70, -84, -36, -12, -19, 64, 8, -61, -6, 46, -56, 64, 23, 50, -47, -35, 6, -27, 28, 3, -15, 16, 66, -56, -24, -56, -29, -8, 42, 75, 10, 42, -98, -40, -1, 26, 32, 33, -2, 24, 74, -19, 14, -21, 56, -43, -11, 8, 42, 40, 16, 3, 0, 43, 21, 33, -69, -35, 20, 5, 29, 8, 4, 41, 16, 0, -47, -3, -55, 18, 6, -10, 32, 34, 47, 8, -39, -9, -17, -21, -13, -11, -79, 19, -16, -25, 6, 36, 47, 34, -35, 67, 23, 4, -7, -18, -20, 30, -32, 1, 56, 19, 38, -40, -31, -51, -24, -56, -13, 33, 36, -32, -32, -32, 30, 34, 35, -13, -27, -2, -19, 27, -41, 8, 16, -12, 26, -45, 39, -12, 41, 11, -44, -27, -21, -21, 66, 20, -20, -38, -35, -17, -43, -62, 7, 30, 21, -23, 22, 25, 11, 25, 0, -20, -28, -24, 33, -27, -5, -24, 36, -13, -48, 9, 25, -7, -4, -6, 9, 22, 25, -25, -23, -67, -17, -2, -11, -49, 16, 36, 1, -68, -47, -15, -15, 10, -11, 0, 11, 62, 15, -70, -33, 6, -45, -38, -2, 18, -2, 16, -14, -26, -1, -20, 15, 8, -35, -40, -40, -16, 26, 22, 35, -53, -44, -105, -37, -24, 66, 0, 31, -5, -60, -51, 13, 49, -37, -20, -3, -16, 38, 33, -40, 4, 69, -41, 25, 18, -7, -22, 16, -2, 21, -62, -29, 11, -13, -34, -1, -14, 19, -9, 38, 15, 33, -37, 24, -6, -59, -32, 62, -29, 70, -1, 30, -1, -35, -18, -26, -19, -67, 61, 52, 21, 22, -27, 2, -2, 56, 16, -30, 33, 19, -9, -26, -12, -32, -45, -52, 22, 45, 16, -10, 31, -17, 42, -28, -25, 30, 6, 89, 14, 32, -18, -35, 34, 48, -63, -32, 25, 39, 3, -93, -10, 18, -58, -2, 79, -35, -8, -22, 8, -39, -6, 4, 1, 19, -21, 31, 44, 13, 26, 29, 3, 24, 72, -34, 20, 11, -26, 15, 18, 1, 28, 15, -19, -6, -48, -70, -42, 20, -63, 11, -43, -40, -17, 45, 23, 33, 7, 80, 34, 17, -47, 10, -26, 7, 23, -21, 11, 45, -13, -16, -22, -32, -36, 24, -10, 48, 14, -51, -20, 84, -71, -25, 0, -8, 28, 13, 37, 13, -36, 20, -24, 39, -24, 63, -52, -45, 21, 60, -16, -56, -17, -18, 10, -28, 7, 4, -66, 16, 37, 3, 16, 15, -5, 30, 19, -3, 46, 21, 39, 35, 9, 22, -105, -30, 29, 25, 84, 45, 7, 43, 57, -30, 9, -3, 13, -20, -51, -2, 4, -3, -23, 22, 74, 0, -59, -5, -49, 71, 16, -13, 2, -3, -18, 19, 4, -43, -23, -1, -26, -34, 36, -51, -24, -5, 43, -21, 9, -17, -9, -57, -18, 36, 70, -15, -33, 72, 44, 14, 11, 18, 87, 29, -26, -7, 23, -6, 62, -41, 4, -7, 21, -10, -27, 36, -11, -31, -45, 8, -54, -41, -31, -63, -40, -52, 35, -2, -42, 0, 10, 9, -44, 8, -64, 34, -31, -87, -16, 23, 2, 12, -14, -1, -21, -25, 54, -19, 60, 96, 10, -59, -9, 33, -8, 25, 26, 9, -14, 4, 35, -18, -24, 3, 25, -57, -25, -53, -90, -22, 9, -47, -43, 42, 59, 30, 13, -26, -12, 4, -46, -31, -16, -41, 54, -39, -46, -11, 0, 24, 11, 0, -28, -49, 3, -47, 6, 39, 23, -19, 42, 31, 21, -27, -11, -8, -6, 17, -11, 5, -3, 14, 23, 11, -7, -42, 33, -31, 21, 51, -14, -33, 5, 17, -19, -22, -57, 20, -106, 53, 8, 22, -3, -6, -18, -14, -32, -31, -34, 35, -11, 44, 17, -39, -21, 15, 5, -30, 37, -26, 58, -82, -6, 40, -9, 1, 6, -30, 36, 6, -17, 17, 34, -10, 87, 20, -30, -40, -60, -10, 67, 12, 42, 15, 47, -3, 59, -2, -29, 43, -25, 8, -52, 9, 52, -41, -18, 68, -4, 31, 22, 4, -12, -73, 3, -47, -16, -10, 0, 17, 40, -18, 1, -16, 23, -32, 6, -44, 5, -34, 17, 7, -43, -12, -19, -18, -7, 13, -46, 8, 18, 13, -24, -55, -41, 11, -38, 64, 28, 17, -18, -33, 37, -7, -21, 21, 44, -1, -14, -2, 28, 35, -32, 34, -11, -1, -34, 33, -27, 9, 31, 60, 0, -22, -70, 80, -16, 2, 0, -44, 25, 4, 21, -11, -27, 34, 25, 3, 19, -23, -22, 14, -41, -36, -46, 17, -49, -10, -7, 44, 10, 30, 59, 7, 8, 16, 0, 5, 5, -9, -25, 86, 19, 16, 6, -27, 36, -19, 21, 6, 35, 3, -53, 8 ]
Kavanagh, J. This case involves the question whether a worker with a pre-existing vision disability who suffers the specific loss of a hand is entitled to total and permanent disability benefits. We affirm the decision of the Workers’ Compensation Appeal Board that he is not. On September 7, 1962, Edward Hakala lost his right hand in a press accident while working at Burroughs Corporation. Burroughs voluntarily paid specific loss benefits for the injury. On June 17, 1968, Mr. Hakala filed a petition claiming that he was totally and permanently disabled and asking for benefits from the Second Injury Fund. Before his injury in 1962, he had a nonoccupational vision impairment in his left eye. Thus, his claim was that he was totally and permanently disabled under former 1948 CL 412.8a; MSA 17.158(1): "If an employee has at the time of injury permanent disability in the form of the loss of a hand or arm or foot or leg or eye and at the time of such injury incurs further permanent disability in the form of the loss of a hand or arm or foot or leg or eye, he shall be deemed to be totally and permanently disabled and shall be paid, from the funds provided in this section, compensation for total and permanent disability after subtracting the amount of compensation received by the employee for both such losses. The payment of compensation under this section shall begin at the conclusion of the payments made for the second permanent disability.” The section of the workers’ compensation statute setting the periods of compensation for specific losses defined the loss of an eye as "[e]ighty percent loss of vision”. (The present statute is MCL 418.361; MSA 17.237[361].) There is no dispute that Mr. Hakala’s uncorrected vision meets this 80%-loss test, and also that his corrected vision does not meet the test. The referee awarded benefits on the theory that the proper standard was Mr. Hakala’s uncorrected vision. The WCAB reversed and denied benefits on the ground that the corrected vision standard should be used. The Court of Appeals affirmed, but on a different theory — that the prior disability must have been from an injury. Hakala v Burroughs Corp, 48 Mich App 639; 211 NW2d 60 (1973). On appeal, we reversed the decision of the Court of Appeals, Hakala v Burroughs Corp, 393 Mich 153; 224 NW2d 27 (1974), and, On Rehearing, 399 Mich 162, 172; 249 NW2d 20 (1976), remanded the matter to the WCAB to determine "whether Hakala’s loss of vision rendered him permanently disabled in the sense that term is used for purposes of Second Injury Fund coverage”. The referee made detailed findings of fact in May, 1978, which were affirmed by the WCAB in September, 1980. The Court of Appeals denied leave in April, 1981. The WCAB attempted to determine what "permanently disabled * * * for purposes of Second Injury Fund coverage” means. Chairman Gill- man’s concurring opinion said that Hakala was not permanently disabled by his bad eye because he had always been able to work. Member Marshall’s opinion for the board objected to this test because the Second Injury Fund was created to cover precisely that group: handicapped workers able to work. Marshall’s opinion used a different test: because Hakala’s bad eye had not "impaired his ability to do his work or otherwise caused him any employment-related problems”, he was not "permanently disabled”. It is apparent from both opinions that the board believes that a corrected- or uncorrected-vision standard in every case for every claim would best serve the purpose of the act. We are not so persuaded. In Nulf v Browne-Morse Co, 402 Mich 309; 262 NW2d 664 (1978), we affirmed the determination that a person who had a permanent disability on account of the loss of one eye was entitled to total and permanent disability benefits from the Second Injury Fund where an industrial accident caused the loss of industrial vision of the other eye. In Nulf we refused to extend the "uncorrected” vision test to total and permanent claims, although we had adopted such a test for specific loss claims in Lindsay v Glennie Industries, Inc, 379 Mich 573; 153 NW2d 642 (1967). We observed: "In Hakala v Burroughs Corp (On Rehearing), supra, this Court recognized that the question of Second Injury Fund benefits in situations involving the loss of an eye could not be adequately resolved by the universal adoption of either the "uncorrected vision” test or the "corrected vision” test. The Court held that the question of entitlement to Second Injury Fund benefits must be determined by reference to the statutory language creating those benefits found in MCL 418.521; MSA 17.237(521), which requires a determination of whether the employee has suffered a "permanent disability in the form of the loss of a[n] * * * eye”. The determination of whether a loss is a permanent disability within the meaning of that section must be evaluated in terms of the underlying legislative purpose of aiding the handicapped in obtaining and maintaining employment.” 402 Mich 312-313. We are persuaded that the Legislature intended compensation for a specific loss without regard to whether the vision could be "corrected” or restored after the injury. Lindsay, supra. We are now persuaded that the Legislature intended that a different standard be used in determining total and permanent disability inasmuch as it provided that only "total and permanent loss of sight” would constitute the qualifying eye loss for such benefits. We are satisfied that to carry out the legislative intent a "corrected” vision standard should hereafter be used in assaying claims for total and permanent disability involving the loss of sight. We conclude that in this connection that is the sense in which the term "permanently disabled” is used for the purposes of the Second Injury Fund. We recognize that our holding today may be inconsistent with our decision in Hilton v Oldsmobile Division of General Motors Corp, 390 Mich 43; 210 NW2d 316 (1973). In Hilton the permanency of the disability on account of the loss of an eye was not addressed. In any event, to the extent that Hilton is inconsistent with this decision it is hereby overruled. The Second Injury Fund was created to assist the handicapped in obtaining and maintaining employment. That end is served by removing the disincentive for employers in hiring such handicapped persons by eliminating the employers’ potential liability for total and permanent disability benefits if a "second injury” makes the worker eligible. When we originally considered this case, we were apprehensive that a decision on the point in question might affect that end. We are now content that it does not. In light of the fact that it is conceded that Mr. Hakala’s "corrected” vision does not amount to "[e]ighty percent loss of vision”, we affirm the decisions of the WCAB and the Court of Appeals. Williams, C.J., and Levin, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred with Kav-ANAGH, J. The present statute is MCL 418.521; MSA 17.237(521). It does not differ in substance from that applicable to Mr. Hakala’s injury.	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William:s, C.J. (for remand). This is a case of first impression concerning the Michigan Freedom of Information Act. MCL 15.231 et seq.; MSA 4.1801(1) et seq. We are asked to determine whether the identities of two police officers and their incident reports describing the David Prior homicide, which were both requested by the plaintiff newspaper, were properly withheld from disclosure under the FOIA by the City of Troy and its police chief. Specifically, we must decide, first, whether the Oakland Circuit Court and the Court of Appeals erred in holding that the defendants met their statutory burden of proof in withholding the incident reports and the identities of the two officers involved in the David Prior homicide which were contained in the requested reports from plaintiff under a "generic [blanket] determination” standard. MCL 15.240(1); MSA 4.1801(10X1). Second, we must consider whether the defendants failed to meet their statutory burden in neglecting to separate exempt material from that which was nonexempt. MCL 15.244(1); MSA 4.1801(14X1). We answer both questions in the affirmative, and, therefore, we reverse. Finally, in considering the appropriate procedures that a circuit court should employ in determining whether a requested document and the information contained therein should be withheld from disclosure under the FOIA exemptions, w.e generally adopt the procedures set forth in Vaughn v Rosen, 157 US App DC 340, 346-348; 484 F2d 820 (1973), and Ray v Turner, 190 US App DC 290; 587 F2d 1187 (1978). In considering the issues presented in this case, we look first to the basic policy of the FOIA as expressed in MCL 15.231(2); MSA 4.1801(1X2): "It is the public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.” The exemption relied on by the trial court in denying plaintiffs request reads as follows: "A public body may exempt from disclosure as a public record under this act: "(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following: "(i) Interfere with law enforcement proceedings.” (Emphasis added.) MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). Additionally, MCL 15.244(1); MSA 4.1801(14)(1) affirmatively provides that: "If a public record contains material which is not exempt under section 13, as well as material which is exempt from disclosure under section 13, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.” (Emphasis added.) In the case at bar, the trial court, without the defendants producing particularized reasons against disclosure, nevertheless concluded without particularized reasons that release of the reports as well as the identities of the two officers which were contained in the requested reports would interfere with law enforcement proceedings. The Court of Appeals held that the "generic determination” by the circuit court without a showing by the defendants of particular risk was not erroneous. First, we hold that the "generic determination” standard used by the trial court and affirmed by the Court of Appeals that release of the reports along with the information contained in them would "interfere with law enforcement proceedings” and "would indeed have a chilling effect on the investigation” did not meet the defendants’ statutory burden of proof to sustain their denial. Second, we hold that the defendants had an affirmative statutory duty under the act to separate exempt material from that which is nonexempt. The defendants in the instant case failed to undertake this duty. Finally, we reverse the judgments of the trial court and the Court of Appeals and generally adopt the procedures laid down in Vaughn v Rosen, supra, and Ray v Turner, supra. Facts In the early hours of July 31, 1979, two Troy police officers responded to a radio report concerning an ongoing larceny in a parked van. The owner, David Prior, was inside the van and was armed with a pellet gun. While checking the van, one of the officers shot and killed the owner. After the homicide, the two officers and several investigating officers filed their customary incident reports describing the events leading to the killing. The plaintiff Evening News Association, publisher of the Detroit News, made oral requests of the City of Troy on July 31 and during each of the three succeeding weeks. On August 22, 1979, plaintiff confirmed its requests in writing. The requests were made pursuant to the procedures established in Michigan’s FOIA. MCL 15.231 et seq.; MSA 4.1801(1) et seq. The information requested was copies of the two officers’ incident reports and the identities of the two officers involved in the David Prior killing. The identities of the two officers were contained in those reports. The Troy Police Chief and the City of Troy, along with the Oakland County Prosecutor’s Office, refused the requests. The plaintiff, on August 27, 1979, therefore, brought an action in the Oakland Circuit Court to compel disclosure under the FOIA. At a show-cause hearing on September 11, 1979, the defendants asserted that the reports and all the information contained in them were exempt from disclosure under MCL 15.243(l)(b)(i)-(vi); MSA 4.1801(13Xl)(bXi)-(vi). However, a witness admitted that some of the material sought was nonexempt. Plaintiffs witnesses testified that defendants had, in the past, disclosed information of the kind presently being requested and indicated that another police department in Oakland County had also released such information. In upholding the defendant’s denial of disclosure, the trial court "generically” concluded that the release of this information would "interfere with law enforcement proceedings”. MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). The court, without requiring the defendants to particularize their position, stated that the testimony at the hearing indicated that disclosure could jeopardize an ongoing criminal investigation. The opinion also stated that release of the information would allow the plaintiff to obtain conflicting statements by the witnesses noted by the officers in their reports and that release would further inflame an emotional public. About two weeks after the trial court’s decision and almost eight weeks after the homicide, the Oakland County Prosecutor’s Office on September 24, 1979, released a report entitled "Investigation Concerning the Homicide of David Prior” which exonerated the two officers of criminal responsibility for the killing without ever naming them. At no time have the defendants released the requested information to the plaintiff. On appeal, the Court of Appeals affirmed the trial court’s judgment. 101 Mich App 650; 300 NW2d 667 (1980). We granted leave on December 21, 1981. 412 Mich 884. I. The Propriety of a Generic Determination A. Statutory Interpretation The threshold issue is whether under the FOIA the trial court can by a "generic determination” foreclose the right of a citizen to know what his government is doing. We hold that a "generic determination” does not satisfy the FOIA. In reaching our decision, we are called upon to construe three pertinent sections of the FOIA, having in mind that the overall policy of the FOIA is "that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them”, MCL 15.231(2); MSA 4.1801(1)(2), and that the plaintiff in this case is in the business of enabling all persons to have such full and complete information and is not a defendant seeking early discovery in a suit against it. The operative language of the exemption reads as follows: "A public body may exempt from disclosure as a public record under this act: "(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following: "(i) Interfere with law enforcement proceedings,” (Emphasis added.) MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). It is immediately apparent that the exemption from disclosure does not automatically apply to all investigating records compiled for law enforcement purposes. There are three limitations that are importantly applicable: (1) MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i) itself supplies one important limitation on disclosure: "only to the extent that disclosure * * * would * * ' interfere with law enforcement proceedings”. (2) MCL 15.244(1); MSA 4.1801(14)(1), adds another significant limitation: "If a public record contains material which is not exempt * * as well as material which is exempt from disclosure * * , the public body shall separate the exempt and nonexempt material available for examination and copying.” (3) MCL 15.240(1); MSA 4.1801(10)(1), places the burden of proving the right to exemption on the party claiming it: "[T]he burden is on the public body to sustain its denial [of disclosure].” In analyzing these provisions together, it is apparent that the exemptions require particularized justification. First of all, MCL 15.240(1); MSA 4.1801(10X1) puts the burden of proof on the public body seeking exemption. Then MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i) specifies that the exemption applies "only to the extent that” there is interference. Finally, MCL 15.244(1); MSA 4.1801(14)0) makes particularization explicit: "the public body shall separate the exempt and nonexempt material”. B. Case Law We next consider the relevant decisions under the federal FOIA. These cases consider the legislative history and purposes of the legislation. The Michigan Legislature in enacting the Michigan FOIA did so in relation to this federal history. In determining the legislative meaning of the interference with "law enforcement proceedings” exemption, it must be remembered that it was not adopted by the Legislature in a vacuum. Michi gan has had an established history of requiring public agency disclosure before the act was passed. Moreover, we have noted that the Michigan exemptions created in the FOIA generally mirror the exemptions found in the federal FOIA, and we held that "[t]he similarity between the FOIA and the federal act invites analogy when deciphering the various sections and attendant judicial interpretations”. Kestenbaum v Michigan State University, 414 Mich 510, 525; 327 NW2d 783 (1982). See, also, Bredemeier v Kentwood Bd of Ed, 95 Mich App 767, 771; 291 NW2d 199 (1980); Penokie v Michigan Technological University, 93 Mich App 650, 658; 287 NW2d 304 (1979); IBM v Treasury Dep’t, 71 Mich App 526, 535; 248 NW2d 605 (1976); Citizens for Better Care v Public Health Dep’t, 51 Mich App 454, 464-465; 215 NW2d 576 (1974). Our reading of the federal cases finds that the most relevant case is Campbell v Dep’t of Health & Human Services, 221 US App DC 1; 682 F2d 256 (1982). Like the instant case and unlike the case of NLRB v Robbins Tire & Rubber Co, 437 US 214; 98 S Ct 2311; 57 L Ed 2d 159 (1978), on which the Court of Appeals relied in its opinion, Campbell is a "third party” case. A "third party” case is one where the party seeking disclosure of public documents is not itself the target of a legal action by the party from whom the documents are sought, but an uninvolved "third party”. The Robbins Tire case involves a target plaintiff. In the Campbell case, Campbell had advised both his employer and the Federal Drug Administration that his employer was violating FDA regulations. Campbell’s employer responded by discharging him. Thereupon Campbell sued his employer for damages in the state court. In the meantime, the FDA began to investigate Campbell’s employer. At this point, Campbell, for use in his state damage action, requested certain documents that his employer had filed with the FDA. The Campbell court specifically noted that this case did not involve a plaintiff who was an actual or potential target of an enforcement action who was seeking access to records not in its possession, as was the situation in Robbins Tire. Rather, it involved a third party attempting to procure material that a target had submitted to the defendant. 221 US App DC 4. Under its analysis of the legislative history associated with the exemption, the court stated that "the government must show something more than a direct relationship between agency records and a pending investigation in order to demonstrate that disclosure would interfere with enforcement proceedings”. 221 US App DC 6. Campbell noted that Robbins Tire indicated that an agency need not justify its withholding of each and every document. But the Campbell court enunciated this rule: "Congress, we conclude, based on [sic] the words it employed and the relevant legislative history, did not authorize blanket exemption for such [ongoing investigation] records. It required something more. We hold that, to prevail under Exemption 7(A), the government must show, by more than conclusory statement, how the particular kinds of investigatory records requested would interfere with a pending enforcement proceeding.” 221 US App DC 4. This Campbell quotation is significant because it establishes the rule that the government must show: (1) how the particular kinds of records would interfere with a pending enforcement investigation, (2) by more than conclusory statements. As we shall see in the case at bar, the defendants presented conclusory testimony and the court in turn made conclusory findings. The word "how” in required showing (1) is especially significant. It is, of course, the opposite of "conclusory”. It means that the agency seeking to exempt records from disclosure must give factually based reasons for not releasing particular kinds of documents. Along this line, the following sentence from Campbell is instructive: "The government makes that claim but, consonant with the style it has adopted for its other assertions of interference with the investigation, it offers not even a slim bill of particulars.” (Footnote omitted.) 221 US App DC 5. It is a "bill of particulars” that is so obviously missing in the defendants’ testimony and in the court’s determination in the case at bar. Defendants never show "how”, and why, for example, the release of the officers’ names would have a "chilling effect on the investigation”. The "not conclusory-give details” rule is so significant that it recurs like a dominant theme throughout Campbell. For example: "[T]he government does not meet its burden, nor does the district court discharge its responsibility, through conclusory statements, unaccompanied by supporting detail, that these exceptions are applicable.” (Footnote omitted.) 221 US App DC 10-11. In remanding the case to the district court, the Campbell court concluded that the trial court’s affirmation of the agency’s denial rested upon an overly expansive reading of the exemption. It stated that: "Campbell is not an actual or potential target of an FDA enforcement proceeding who seeks early discovery of the strength of the government’s case in order to tailor his defense. Rather, he is a third party seeking information to which a potential target apparently has access and, indeed, has submitted to the agency. * * It does mean, however, that the district court must conduct a more focused and particularized review of the documentation on which the government bases its claim that the information Campbell seeks would interfere with the investigation.” 221 US App DC 10. The same factors which guided the Campbell court not to adopt the generic determination of Robbins Tire also exist in the case at bar, as we shall later detail. Similarly, in Jos Schlitz Brewing Co v Securities and Exchange Comm, 548 F Supp 6 (D DC, 1982), a third party, a competitor of the plaintiff, requested information from the defendant arising from an investigation of the plaintiff. The plaintiff brought suit to prevent the disclosure of documents submit ted by it to the defendant. The court stated that "Robbins [Tire] does not stand for the principle that a party claiming exemption from disclosure need only present a bald claim without more”. Schlitz, p 8. Since the same concerns calling for a generic determination in Robbins Tire did not exist, the Schlitz court concluded that the documents were not exempt. Moreover, in RCA Global Communications, Inc v Federal Communications Comm, 524 F Supp 579 (D Del, 1981), the plaintiff, who was not under a present or pending investigation by the defendant, sought disclosure from the defendant of documents which were submitted to it by a competitor company in response to the defendant’s subpoena. The court refused to affirm the agency’s denial on the basis of a generic determination that these records were exempt. Thus, even though in some cases a generic determination may be possible, the record still must be sufficient to demonstrate the government’s right to exempt as to each category of documents. RCA Global, p 586. In short, the court required some particularization of denial for the relevant documents. The lone third-party decision which does not follow the reasoning of the earlier cases is Copus v Rougeau, 504 F Supp 534 (D DC, 1980). In that case, an apparently non-target plaintiff filed an action to compel disclosure of quarterly compliance review forecasts prepared by the Department of Labor’s Office of Federal Contract Compliance Programs. The court, in denying disclosure, stated that Robbins Tire was contrary to plaintiffs position. The court held that it could determine "the likely effect of disclosure in a common sense generic manner, and the defendant need not show specific examples where disclosure has harmed OFCCP enforcement efforts” (emphasis in original). Copus, pp 538-539. Finally, it indicated that under a generic determination all the agency had to show was that disclosure "would generically 'interfere with enforcement proceedings’ ” (emphasis in original). The Copus court has given the holding of Robbins Tire the most expansive reading to date. Thus, a review of the cases factually similar to the Campbell case clearly indicates that a generic determination should not have been made in this case. First, the plaintiff Evening News Association was not seeking records that were part of the defendants’ inquiry into its corporate conduct. Second, the plaintiff requested the information for the lawful corporate purpose of publishing a newspaper. Third, there were only generic assertions by the defendants that disclosure would harm their investigations. Finally, there was no particularized evidence in the record that disclosure of the incident reports would have interfered with its investigation as it relates to witnesses’ statements. The circumstance that the plaintiff is a third party does not, as the Campbell court said, mean that it "must prevail” but rather that the circuit court "must conduct a more focused and particularized review of the documentation on which the government bases its claim that the information [it] seeks would interfere with the investigation”. 221 US App DC 10. C. Rules Derived From Statutory Interpretation and Case Law From our analysis of the FOIA itself and from the relevant federal cases interpreting the similar federal FOIA, we derive the following rules that should be used in analyzing a claim of exemption from disclosure under the FOIA: 1. The burden of proof is on the party claiming exemption from disclosure. MCL 15.240(1); MSA 4.1801(10X1). 2. Exemptions must be interpreted narrowly. Vaughn v Rosen, 157 US App DC 340, 343; 484 F2d 820 (1973). 3. "[T]he public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.” MCL 15.244(1); MSA 4.1801(14X1); Vaughn v Rosen, 157 US App DC 345. 4. "[Detailed affidavits describing the matters withheld” must be supplied by the agency. Ray v Turner, 190 US App DC 290, 317; 587 F2d 1187 (1978). 5. Justification of exemption must be more than "conclusory”, i.e., simple repetition of statutory language. A bill of particulars is in order. Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings. Campbell v Dep’t of Health & Human Services, 221 US App DC 1, 4-6, 10-11; 682 F2d 256 (1982); Vaughn v Rosen, 157 US App DC 347. 6. The mere showing of a direct relationship between records sought and an investigation is inadequate. Campbell v Dep’t of Health & Human Services, 221 US App DC 8-9. D. Application to Instant Case Application of the statutory construction requirements developed above to the opinion of the trial court results in the conclusion that its determination was conclusory and generic. Because of the defendants’ and the court’s lack of particularized justification of this exemption, the circuit court findings do not indicate that the FOIA requirements were met. The full text of the court’s opinion is included in the appendix, but, for convenience, pertinent portions are set out here for consideration: "It was the testimony of Mr. Thompson, the Chief Assistant Prosecutor, that they are now engaged in an ongoing criminal investigation, that to disclose any information whatsoever, information requested by the plaintiff,, namely the reports filled out by the responding officers, would indeed jeopardize their investigation and interfere with the law enforcement proceedings in that regard. That they have certain information given to them confidentially, although it may not be stated to be confidential, it’s their feeling — that is, the prosecutor’s feeling — that the information was given to them by witnesses who gave it only on the condition that the information would be kept confidential. "The prosecutor claims that any revelation now of the names and reports made by the responding officers would indeed have a chilling effect on the investigation which has taken longer than anticipated, but some things have come up which have to be checked for statements which did not quite align themselves with prior statements made by some to the witnesses. "Again, the plaintiff states that it doesn’t want all the files, just the reports of the responding officers, which therefore should mot endanger or jeopardize the finalization and completion of the investigation. "The only possible prejudice to the public that the court can see at this stage is that the news, when it is obtained, will indeed be stale news. The court finds that enough has been educed from the testimony of the prosecutor’s witness, Mr. Thompson, and the officers that the investigation could indeed well be jeopardized by providing to the plaintiff the information that it seeks at this time. It would be very difficult to screen out names of witnesses which the responding officers may have noted which would be subject to providing testimony or being researched by the press which could conceivably result in conflicting statements and further hamper the investigation; also, piecemeal, partial statements in the press could, conceivably, inflame the public further than it has already been inflamed. "It is the decision of the court, accordingly, that the request of the plaintiff be denied.” The question now before us is whether the circuit court’s opinion evidences that it had found that the particular sections of the public record requested would for particular reasons "interfere with law enforcement proceedings”. The quotation above includes the circuit court’s summary of pertinent testimony and its conclusions. The operative part of the opinion is the last long paragraph. Let us review it sentence by sentence. The first sentence referring to "stale news” relates to the court’s conception of a FOIA balancing test. While in our opinion the Legislature was concerned with more fundamental principles than whether news was fresh or stale, this sentence fails to speak directly to any exemption requirements. Specifically, this sentence gives no reason why disclosure of the two incident reports or the names of their authors would interfere with law enforcement proceedings. The second sentence, "[t]he court finds that enough has been educed from the testimony of the prosecutor’s witness, Mr. Thompson, and the officers that the investigation could indeed well be jeopardized by providing to the plaintiff the information that it seeks at this time” (emphasis added), is the critical one and does not satisfy the statute. To begin with, it was the defendants’ burden to show, and the court’s duty to find, that the particular information the plaintiff wanted "would * * * interfere with law enforcement proceedings”. "Could indeed well be jeopardized” and "would * * * interfere” are obviously not the same thing. The statute is positive. The opinion is tentative. The court has not made the required findings. Furthermore, the sentence by itself is conclusory unless the educed testimony contains particularized justification. However, the testimony relied upon cannot be the basis for proper judicial findings of a reason or reasons for nondisclosure. According to the court, the testimony of Mr. Thompson referred to covered three things. First, "that they are now engaged in an ongoing criminal investigation, that to disclose any information whatsoever * * * would * * * interfere with the law enforcement proceedings in that regard”. That statement at best is conclusory. It offers a statement of opinion, not of reason. Also it is an attempted generic justification for nondisclosure. In any event, no reason is given why such disclosure would interfere with law enforcement proceedings. Mr. Thompson’s testimony, second, indicates, although somewhat weakly, that some of the witnesses testified only because they understood that their testimony would be held confidential. If indeed that was the case, that is a plausible reason not to reveal their testimony. Such testimony need not be disclosed. However, it could be separated from testimony that was not so given. In any event, the direct reporting by the two police officers of what they did and saw has no such protection of confidentiality. Third, in the second paragraph of the quotation from the court’s opinion, it is stated that "[t]he prosecutor claims that any revelation now of the names and reports made by the responding officers would indeed have a chilling effect on the investigation”. As already adverted to, the circuit court opinion attempts to justify denial of release by a conclusory statement and reference to its summary of the testimony. Included in that summary is the following: "The prosecutor claims that any revelation now of the names * * * would indeed have a chilling effect on the investigation.” Again, this statement is entirely conclusory. There are no reasons given. In no way does this statement satisfy statutory requirements. In sum, the court’s second sentence in no way satisfied the statutory requirements which had to be met in not disclosing the officers’ reports. As for the third and last sentence in the court’s operative paragraph, it too fails to satisfy the statute. That "[i]t would be very difficult to screen out names” is not a concern of the statute. The statute states, "the public body shall separate the exempt and nonexempt material” (emphasis supplied). If it can be done, it must be done. In any event, the statement is largely, if not wholly, conclusory. The justification, if any, is that the names of witnesses "could conceivably result in conflicting statements and further hamper the investigation; also piecemeal, partial statements in the press could, conceivably, inflame the public further than it has already been inflamed”. The "could conceivably result”, etc., clause is speculative and conclusory. It certainly is no foundation to justify an exemption. The "could, conceivably, inflame the public” clause not only is speculation, but smacks of public censorship, which would not appear to be the purpose of FOIA. There may possibly be occasions where public safety requires minimal delay of announcements, but not for eight weeks and not on such a speculative basis. In sum, this third sentence gives no justification for nondisclosure either. Careful review of the whole paragraph, therefore, indicates that the trial court failed to find with sufficient particularity that the defendant had specifically justified its claimed exemption. It therefore erred by not showing a proper reason for denying the plaintiffs request. This is the same rationale as that for the Campbell decision, which that court summarized as follows: "We conclude that the district court’s response was too quick and categorical to comport with the congressional directive. That directive, we hold, requires a more particularized showing by the government and a more precise examination by the district court before a judgment may be made that the production sought would 'interfere with enforcement proceedings.’ ” 221 US App DC 2. II. Disclosure of Identity of Two Officers A. Mootness In the instant case, the plaintiff requested from the defendants the names of the two Troy police officers who were involved in the shooting of David Prior. In addition, the plaintiff requested the incident reports made by the two police officers. The record shows that these requests were denied. Several weeks after the trial court affirmed the defendants’ denial, the Oakland County Prosecutor released a document to the public entitled "Inves tigation Concerning the Homicide of David Prior” which exonerated the two officers from criminal liability for the Prior homicide. In that report, all references to the officer who had shot Mr. Prior were blanked out. Moreover, the requested reports were not released with the prosecutor’s report. Finally, at oral argument it was revealed that the requested reports have never been released by the defendants to plaintiff even though a civil lawsuit was filed and won against the defendants by the heirs of David Prior in federal court. In addition, the plaintiff was not sure that the reports were disclosed during the civil trial. While the parties have assumed that the issues in the case at bar fall within an exception to the mootness doctrine which allows further review, our analysis of the record indicates that there is an ongoing dispute between the parties. The requested information has never been released by the defendants to the plaintiff pursuant to its FOIA request. In addition, the record is unclear whether the information was ever released by the defendant to the public. Thus, we have an actual case and controversy which allows us to examine the information sought and the statutory procedures used by the trial judge. B. Interference In addressing whether the disclosure of specific information would interfere with law enforcement proceedings under the federal FOIA, the federal courts generally have stated that "interference” can encompass a wide range of concerns. The grounds which have prevented disclosure are the following: "(1) evidence, (2) witnesses, (3) prospective testimony, (4) the reliance placed by the government upon the evidence, (5) the transactions being investigated, (6) the direction of the investigation, (7) government strategy, (8) confidential informants, (9) the scope and limits of the government’s investigation, (10) prospective new defendants, (11) materials protected by the Jencks Act [18 USC 3500], (12) attorney work product, (13) the methods of surveillance, (14) subjects of surveillance. Kanter v Internal Revenue Service, 433 F Supp 812, 822, fn 18 (ND Ill, 1977). See New England Medical Center Hospital v NLRB, 548 F2d 377 (CA 1, 1976); National Public Radio v Bell, 431 F Supp 509 (D DC, 1977); Electric-Flex Co v NLRB, 412 F Supp 698 (ND Ill, 1976).” Docal v Bennsinger, 543 F Supp 38, 44, fn 12 (MD Pa, 1981). Furthermore, in considering these factors, if we must look to the evidence presented at the hearing, we find no adequate justification of the exemption. The defendants introduced testimony which indicated that several nonthreatening calls, criticizing the two officers, were received by the defendants after the homicide. There was also testimony that release of this information would be unfair to the police officers if they were properly exonerated from the homicide. This threat alone does not meet the defendants’ burden under the act. Critical public reaction is not interference with law enforcement proceedings. However, even if this evidence did indicate that direct harm to the officers would have resulted if their identities were made known, the trial court did not recognize that argument. Furthermore, public praise and criticism is part of the democratic process that'FOIA seeks to promote. In addition, the evidence indicated that the City of Troy and the Oakland County Prosecutor’s Office had disclosed in the past information similar to that sought in the instant case. Regarding the disclosure of names before a formal complaint is made, the FOIA does not recognize this argument. In short, we hold that the evidence presented did not sustain defendants’ burden to sustain denial of disclosure of the identities of the two officers involved in the David Prior homicide. III. Statutory Duty to Separate MCL 15.244(1); MSA 4.1801(14)(1) affirmatively requires that a "public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying” (emphasis added). In addition to this duty, the act places the burden on the public body to sustain its denial. MCL 15.240(1); MSA 4.1801(10)(1). The former provision ensures that the public body will be able to sustain its denial with particularized reasons. In the instant case, the defendants made no effort to separate exempt material from that which was nonexempt. In fact, the defendants’ main witness, .Oakland County Assistant Prosecutor Richard Thompson, reluctantly and vaguely con ceded that the generic exemption raised by the defendants did not blanket all information contained in the two incident reports. Thus, the trial court and Court of Appeals erred in holding that the defendants had met their statutory burden to sustain their denial where the defendants failed to separate admittedly nonexempt material contained in the two incident reports. IV. FOIA Procedures As we reach the point of ordering remand, we are compelled to contemplate, as other appellate courts before us, the inherent difficulties of procedure under the FOIA. Congress and state legislatures have expressed a clear intention that government records be made readily available to the public, because the proper functioning of government and public control of government in a democracy require that the people have full access to public information. Legislative bodies have recognized the necessity of limited practical exemptions from the general rule of disclosure and have attempted to define the standards under which such exemptions may be claimed. These legislative specifications are probably as clear as the situation permits, but that does not make them either clearly or easily self-executing. There are inherent problems. Where one party is cognizant of the subject matter of litigation and the other is not, the normal common-law tradition of adversarial resolution of matters is decidedly hampered, if not brought to a complete impasse. If one adds to this the natural tendency of bureaucracies to protect themselves by revealing no more information than they absolutely have to, it is clear that disclosure becomes neither automatic nor functionally obtainable through traditional methods. The practical aspect of the matter is adverted to in Vaughn v Rosen, 157 US App DC 340, 344-345; 484 F2d 820 (1973). This is how that court saw the matter: "This lack of knowledge by the party seeking disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution. Ordinarily, the facts relevant to a dispute are more or less equally available to adverse parties. In a case arising under the FOIA this is not true, as we have noted, and hence the typical process of dispute resolution is impossible. In an effort to compensate, the trial court, as the trier of fact, may and often does examine the document in camera to determine whether the Government has properly characterized the information as exempt. Such an examination, however, may be very burdensome, and is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure. * * * "The problem is compounded at the appellate level. In reviewing a determination of exemption, an appellate court must consider the appropriateness of a trial court’s characterization of the factual nature of the information. Frequently trial courts’ holdings in FOIA cases are stated in very eonclusory terms, saying simply that the information falls under one or another of the exemptions to the Act. An appellate court, like the trial court, is completely without the controverting illumination that would ordinarily accompany a request to review a lower court’s factual determination; it must conduct its own investigation into the document.” See Ray v Turner, 190 US App DC 290, 307; 587 F2d 1187 (1978). Under these circumstances the courts are challenged to find some way to compensate the inherent problems of (1) only the government knowing what is in the requested documents, (2) the natural reluctance of the government to reveal anything it does not have to, and (3) the fact that courts normally look to two equally situated adversarial parties to focus and illuminate the facts and the law. The longer federal FOIA experience indicates that federal appellate courts have struggled with the problem and have reached some conclusions worthy of our consideration and adoption. In reviewing this challenge, the Vaughn court had this to say: "The simple fact is that existing customary procedures foster inefficiency and create a situation in which the Government need only carry its burden of proof against a party that is effectively helpless and a court system that is never designed to act in an adversary capacity. It is vital that some process be formulated that will (1) assure that a party’s right to information is not submerged beneath governmental obfuscation and mischaracterization, and (2) permit the court system effectively and efficiently to evaluate the factual nature of disputed information. To possible ways of achieving this goal we now turn our attention.” (Emphasis added.) 157 US App DC 346. From these premises, it would appear that the following three-step procedure should be followed by Michigan trial courts: 1. The court should receive a complete particularized justification as set forth in the six rules above (Part IC); or 2. the court should conduct a hearing in camera based on de novo review to determine whether complete particularized justification pursuant to the six rules exists, Vaughn v Rosen, supra, pp 346-348; Ray v Turner, supra, p 311; or 3. the court can consider "allowing plaintiffs counsel to have access to the contested documents in camera under special agreement 'whenever possible’ Ray v Turner, supra, p 308, fn 24, and p 315. The objective, of course, is to secure disclosure of all pertinent information that is not exempt. If the government and the court are mutually aware of the six rules and the government is prepared to act accordingly, the matter should normally be resolved under the first step. Where the government for whatever reason is reluctant or antagonistic, or the court is in doubt, the trial court may have to proceed to the second step. If the matter is relatively clear and not too complex, the court, or the court with a master, may, within acceptable expenditure of judicial energy, be able to resolve the matter in camera. However, if the matter is not that clear or simple, the court may have to consider employment of plaintiffs counsel under special agreement in order to resolve the matter. The stakes are too high to do otherwise. Judge J. Skelly Wright referred to the following words of James Madison to make that point: " 'Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.’ ” Ray v Turner, supra, p 304, fn 10 (Wright, J., concurring). V. Conclusion The basic issue is whether at the time the plaintiff, The Evening News Association, requested the identities of two police officers and their incident reports describing the David Prior homicide, the defendants, the City of Troy and its police chief, properly withheld such information on the basis of the conclusory statement in the language of the statute that such information would "interfere with law enforcement proceedings”, and that such information "would indeed have a chilling effect on the investigation”. We hold first that the trial court erred in its generic determination that the defendants had met their statutory burden to sustain their claim of exemption where it was only alleged that disclosure would "[interfere with law enforcement proceedings” or "would indeed have a chilling effect on the investigation”. MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). We hold second that the trial court erred in concluding that the defendants had met their statutory burden to sustain their denial where the requested documents contained material which was admittedly subject to disclosure. We note that the defendants in their brief have conceded that the investigation is closed. The documents at issue must therefore be released. However, where an investigation is still "open” or in future cases, the three-step procedure adopted herein should be applied by trial courts in determining FOIA exemptions. The judgments of the Oakland Circuit Court and the Court of Appeals are reversed. The matter is remanded to the trial court for further proceedings consistent with our opinion. Kavanagh, Levin, Ryan, and Brickley, JJ., concurred with Williams, C.J. Cavanagh and Boyle, JJ., took no part in the decision of this case. Appendix The Oakland Circuit Court Opinion "The Court: This is a case instituted by the plaintiff, Evening News Association, against the defendants City of Troy and John T. Donovan, Chief of Police for the City of Troy, in which the plaintiff requests information under the Freedom of Information Act adopted by the State of Michigan, MCL 15.231 et seq.; MSA 4.1801(1) et seq. Plaintiff is seeking information relative to the shooting of one David Prior on or about July 31, 1979, in the City of Troy. The plaintiff has been refused any information whatsoever, including the names of the initial two officers involved in the shooting, by the City of Troy, the police department, and the prosecutor’s office which is currently involved in the main investigation of the matter._ "Now the Freedom of Information Act states that it is a public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees. It ends with stating that the people shall be informed so they may fully participate in the democratic process. "Plaintiff claims, in effect, that the people cannot really participate unless the news they get is fresh and not stale and that it’s been more than a month since they first requested this information from the defendants. "There are certain exemptions to the Freedom of Information Act which have been discussed at length as cited under MCL 15.243; MSA 4.1801(13). The defendants claim that these exemptions apply to them, specifically: interference with law enforcement proceedings, unwarranted invasion of personal privacy, disclosure of confidential sources, disclosure of law enforcement investigative techniques or procedures, and possible endangerment of physical safety of law enforcement personnel such as the two officers involved. These are primarily the exemptions as claimed, and it is up to the court to weigh and decide whether the exemptions claimed are indeed properly claimed by the defendants. "It was the testimony of Mr. Thompson, the Chief Assistant Prosecutor, that they are now engaged in an ongoing criminal investigation, that to disclose any information whatsoever, information requested by the plaintiff, namely the reports filled out by the responding officers, would indeed jeopardize their investigation and interfere with the law enforcement proceedings in that regard. That they have certain information given to them confidentially, although it may not be stated to be confidential, it’s their feeling — that is, the prosecutor’s feeling — that the information was given to them by witnesses who gave it only on the condition that the information would be kept confidential. "Also, it was the testimony of Mr. Thompson that there have been a lot of negative comments made regarding the police force in Troy which is buttressed by the testimony of a cadet police officer and another police officer — a lot of negative comment regarding this particular shooting as pertains to the police force of Troy. "The prosecutor claims that any revelation now of the names and reports made by the responding officers would indeed have a chilling effect on the investigation which has taken longer than anticipated, but some things have come up which have to be checked for statements which did not quite align themselves with prior statements made by some to the witnesses. Generally, that was the testimony of Mr. Thompson. "The plaintiff, on the other hand, claims that the exemptions as claimed under the Freedom of Information Act do not really apply to this specific situation as they were promulgated and established primarily to apply to investigations involving 'narc’ type officers engaged in secret identities where, obviously, disclosure of their names would endanger their life. Again, the plaintiff states that it doesn’t want all the files, just the reports of the responding officers, which r therefore should not endanger or jeopardize the finalization and completion of the investigation. "Admittedly this is a close case, but the court, in weighing one litigant against the other with the public interest, is of the opinion that the public interest is best served at this time by denying the plaintiff the relief that it requests. "The only possible prejudice to the public that the court can see at this stage is that the news, when it is obtained, will indeed be stale news. The court finds that enough has been educed from the testimony of the prosecutor’s witness, Mr. Thompson, and the officers that the investigation could indeed well be jeopardized by providing to the plaintiff the information that it seeks at this time. It would be very difficult to screen out names of witnesses which the responding officers may have noted which would be subject to providing testimony or being researched by the press which could conceivably result in conflicting statements and further hamper the investigation; also, piecemeal, partial statements in the press could, conceivably, inflame the public further than it has already been inflamed. "It is the decision of the court, accordingly, that the request of the plaintiff be denied. "Mr. Wolanin: Thank you, your Honor. "Mr. Lyons: Thank you, your Honor. "Mr. Stewart: Your Honor, if I may, does the court wish its opinion to reflect that the court has reviewed this entire file in camera and that its conclusion applies to the whole file? "The Court: The court has reviewed the file briefly, and the court does not feel that either the names or the entire file should be made available at this time. "Mr. Stewart: Second question, your Honor, will you certify this? "The Court: Any objection? "Mr. Lyons: No objection. "The Court: It will be certified. "Mr. Stewart: Thank you, your Honor. "Mr. Wolanin: Thank you, your Honor.” Order of the Oakland Circuit Court "Plaintiff’s motion for an order to show cause why the City of Troy should not produce certain incident reports prepared by the City of Troy Police Department, having come on for hearing and testimony having been taken; "Now, therefore, it is ordered, that for the reasons set forth in this court’s bench opinion of this date, the requested reports are exempt under the Freedom of Information Act and need not be produced. "It is further ordered that this order is certified pursuant to GCR 1963, 806.3(l)(ii). '7s/ Robert L. Templin Circuit Judge” MCL 15.243(l)(b)(i)-(vi); MSA 4.1801(13)(l)(b)(i)-(vi) provides that materials exempt from disclosure include: "(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following: "(i) Interfere with law enforcement proceedings. "(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication. "(iii) Constitute an unwarranted invasion of personal privacy. "(iv) Disclose the identity of a confidential source, or if the record is compiled by a criminal law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source. "(v) Disclose law enforcement investigative techniques or procedures. "(vi) Endanger the life or physical safety of law enforcement personnel.” The federal provision is nearly identical to the Michigan language: "(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel”. 5 USC 552(b)(7). See, generally, Comment, The Freedom of Information Act: A Survey of Litigation Under the Exemptions, 48 Miss L J 784 (1977). See fn 22. The following dialogue took place on direct examination between plaintiff and one of its witnesses: "Q. Will you state your name for the record and my benefit? "A. Joel Smith. "Q. Where are you presently employed? "A. Detroit News. "Q. What are your duties there now? "A. Assistant news editor in charge of our suburban operation. "Q. How long have you been in that position? "A. For about a year and a half. ”Q. Prior to that what did you do? "A. Just prior to that I was the assignment editor for the Detroit News. Prior to that, from 1970 to 1978, I was employed in our Oakland County Birmingham office for from about 1975 to 1978,1 was the Oakland County Bureau Chief in charge of the Oakland County operation. "Q. Was it part of your duty at that time to attempt to gather news from the Troy Police Department? "A. Yes, it was. I covered most of our police operations involving 44 law enforcement agencies including Troy. "Q. Were you here for the testimony this morning? "A. Yes, I was. "Q. Did you hear Chief Donovan testify that it was the policy of the City of Troy not to disclose the name of an officer under investigation until he was charged? "A. Yes, I did hear him say that. ”Q. Do you recall an incident in which the Troy Police Department did not conform to that policy? "A. Yes, I do. "Q. What do you recall about that incident? "A. In January, 1977, I was given information that a Troy police officer, a Sergeant Thomas Morris, was under investigation for gun running. As I pieced together the information, or once I pieced together the information, I went over and sat down and had a conversation with the police chief, at that time, Forrest Fisher. We met at his office, at his desk, and at that point we talked about this story, the information I had, including the point where I asked him if it was in fact Thomas Morris that’s being investigated. He said, 'Yes, it is.’ ”Q. So, in fact, the chief gave you the name? "A. Yes, he did. ”Q. Had that officer been charged? "A. At that point he had not been charged. It wasn’t until the chief did provide information that he was relieved of duty at least a week before, and he was subsequently charged about three months later. ”Q. Did you publish his name at the time you first received it from the chief of police? "A. No, we did not. ”Q. Why? "A. Well, there were a number of reasons. One, there was a federal grand jury investigating this. They still had some secret grand jury testimony to receive yet at this point, and it was just our discretion, we thought that we should withhold the name for the time being. "Q. Did you make an editorial judgment to withhold it? "A. It was an editorial judgment. It was our judgment. ”Q. As part of your duty as the Oakland County Bureau Chief, did you know the policy of any of the other police departments in Oakland County regarding disclosure of names of officers involved in shooting incidents? "A. In Oakland County? "Q. Yes. "A Yes. The policies vary somewhat, but I’ll give you some examples. Like Birmingham, Birmingham has a policy of releasing the names of officers. We had a situation several months ago that within a 30-day period Birmingham police were involved in two high-speed chases. The first one resulted in a car that was being chased running into a — struck another car — at Big Beaver and Woodward, resulting in a fatal accident. Police released the names of the officers that were chasing that car. "About a month later there was another high-speed chase down Woodward Avenue. I believe it was at Normandy in Royal Oak that the Birmingham police car struck a car traveling across Woodward with the green light. The person in the other car lost his arm as a result of this police chase. Birmingham police released the name of that officer who happened — I remember is Tim Gracey. "Southfield, while it hasn’t come up yet, we have been assured through Public Safety Director Roland G. Tobin that the names will always be available. ”Q. When you were in the courtroom this morning, do you recall Chief Donovan saying that it was the policy of the Troy police department that the name of the shopkeeper involved in a shooting would not be released until that-person was charged. 'A. Yes, I did hear him say that. "Q. Do you recall an incident in which the Troy police did not conform to that policy? 'A. Yes, I do. ”Q. What do you recall about that? "A In July, it was like the 12th or 13th, going to work, I heard on the radio that a son of a store owner in Troy, a party store owner, shot and killed a man over an argument over a six-pack of beer. Once at the office, I instructed one of our general assignment reporters, Chris Singer, to call the Troy police, get the information, and do a story. He did that, wrote the story, and it included the names of the— what happened at that party store. "Q. What did happen at that party store; do you recall? "A Well, as I recall, there was a customer who went in, purchased a six-pack of beer. The carton somehow broke. The beer tumbled to the floor and broke. There was an argument over whether the customer should get another six-pack of beer for no charge, and apparently there was a pushing and shoving match. As I recall, the store owner’s son was worried about some kind of metal plate in his face, that it might be dislodged, injuring him severely, and eventually shot the customer. ”Q. Do you know if that son of that party store owner was ever charged? "A. As of last Friday, when I checked with the Troy District Court, he was not charged. "Mr. Stewart: Thank you very much.” Standing to bring an action to compel disclosure under FOIA is given to any "individual, corporation, partnership, firm, organization, or association”. MCL 15.232(a); MSA 4.1801(2)(a). The plaintiff falls within this description. MCL 15.232(c); MSA 4.1801(2)(c) provides that: " 'Public record’ means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are exempt from disclosure under section 13, and (ii) all others, which shall be subject to disclosure under this act.” The federal exemption is nearly identical to the Michigan exception. 5 USC 552(b)(7)(A). See fn 1. MCL 15.232(c); MSA 4.1801(2)(e) provides that: " 'Public record’ means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are exempt from disclosure under section 13, and (ii) all others, which shall be subject to disclosure under this act.” The federal FOIA states that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 USC 552(b). MCL 15.232(b)(i)-(v); MSA 4.1801(2)(b)(i)-(v) states that: "(b) 'Public body’ means: "(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof. "(ii) An agency, board, commission, or council in the legislative branch of the state government. "(iii) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof. "(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority. "(v) The judiciary, including the office of the county clerk and employees thereof when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.” Since we are looking to the federal FOIA and the cases interpreting that act for assistance in our analysis, it is important to note a major legislative change which indicated a congressional intent to narrow the law enforcement records exemptions. See fn 1. The relevant federal provision, as originally adopted, covered "in vestigatory files compiled for law enforcement purposes except to the extent available by law to a private party”. PL 89-487, § 3(e); 80 Stat 250 (1966). Because of a congressional belief that the exemption had been applied too broadly, Congress amended it in 1974 to read "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings”. For the remaining language, see fn 1. Thus, contrary to the analysis employed by the Court of Appeals in the instant case, Congress explicitly rejected a per se rule of exemption under the federal FOIA since such an approach would withhold too much information from disclosure. See Note, FOIA Exemption 7 and Broader Disclosure of Unlawful FBI Investigations, 65 Minn L Rev 1139, 1143-1144 (1981). In fact, this fact was conceded by the United States Supreme Court in NLRB v Robbins Tire & Rubber Co, 437 US 214, 221-236; 98 S Ct 2311; 57 L Ed 2d 159 (1978). See Nowack v Auditor General, 243 Mich 200, 203-204; 219 NW 749 (1928); Burton v Tuite, 78 Mich 363, 375; 44 NW 282 (1889); Booth Newspapers, Inc v Muskegon Probate Judge, 15 Mich App 203, 205; 166 NW2d 546 (1968). The type of case in Schlitz Brewery is generally described as "reverse FOIA” in that a party submitting records to an agency sues the agency to prevent disclosure by asserting an appropriate exemption. See Chrysler Corp v Brown, 441 US 281; 99 S Ct 1705; 60 L Ed 2d 208 (1979). This case is classified as a third-party decision in that at the time the plaintiff made its request there was no present or pending investigation of the plaintiff by the defendant. Moreover, there was no special relationship between the plaintiff and the corporation which submitted the records to the defendant. See RCA Global, 524 F Supp 581. In Copus, the attorney-plaintiff, requesting the documents, was not identified as representing any "person” under investigation by the defendant’s agency. Therefore, Copus is treated as a third-party case. The Copus court seemed concerned that if the requested information was prematurely released, it could end up in the possession of targets under investigation. 504 F Supp 539-540. In Robbins Tire, an employer was charged by the NLRB with committing an unfair labor practice under the FOIA. In anticipation of the administrative hearing on the charge, the employer requested copies of the statements given to the NLRB by all prospective witnesses. The NLRB denied the request, claiming that disclosure would interfere with enforcement proceedings. The employer, who was the target of the agency’s investigation which related to the enforcement proceedings, asserted that the NLRB had failed to show speciñcally that release of the particular statements would hamper the investigation. The United States Supreme Court, however, rejected this argument and, instead, held that the use of a generic determination standard was possible "with respect to particular kinds of enforcement proceedings”. 437 US 236. While the Robbins Tire court, in a three-step inquiry, rejected a case-by-case approach, its holding nevertheless arose from specific concerns about protecting NLRB procedures when it investigates alleged unfair labor practices by employers. 437 US 236-243. First, the court held that the language of this exemption, unlike the other law enforcement exemptions, appeared to allow certain generic determinations against disclosure for particular proceedings like those brought by the NLRB. Id., pp 223-236. Second, the legislative history of the act indicated that this exemption was to eliminate blanket exemptions, like the generic determination, except that such a deter mination could be made "with respect to particular kinds of enforcement proceedings”. Id., p 236. Third, the court was specifically concerned about the deleterious effect upon NLRB unfair labor practice investigations if pre-hearing statements given by prospective witnesses were released to the target employer. Id., pp 236-242. However, none of the same concerns expressed in Robbins Tire exist in the instant case. Moreover, in contrast to the Campbell case, many of the cases interpreting Robbins Tire which were also cited by the Court of Appeals have involved FOIA requesters who were either the target or potential target or had a special relationship to a target being investigated by the public agency. See Ryan v Dep’t of Justice, 595 F2d 954 (CA 4, 1979); Amolsch & Madden, Inc v Federal Trade Comm, 192 US App DC 200; 591 F2d 809 (1978) (did not employ Robbins Tire); Steinberg v Internal Revenue Service, 463 F Supp 1272 (SD Fla, 1979); Kanter v Internal Revenue Service, 478 F Supp 552 (ND Ill, 1979); Grabinski v Internal Revenue Service, 478 F Supp 486 (ED Mo, 1979); Zeller v United States, 467 F Supp 487 (ED NY, 1979). In most cases, Robbins Tire was found dispositive because of concern caused by a party who attempts to impede an agency investigation of the requester. Thus, the requesters generally tried to employ the FOIA as a way to gain earlier and greater access to an agency’s investigation than they would otherwise have had. This was specifically rejected by the Robbins Tire court. 437 US 241. However, the same concerns do not exist in the instant case because plaintiff newspaper is not a target of police investigation seeking early discovery to protect itself against the police. Therefore, these cases are inapposite to the case at bar. Three members of the United States Supreme Court in Robbins Tire believed that an exemption per se should apply in all law enforcement records exemption cases. See Robbins Tire, 437 US 243 (Stevens, J., concurring). See, also, fns 1, 10. The trial court’s review of these records is to be a de novo review which connotes a strict standard of review. This conclusion is also supported by the fact that the Legislature has placed the burden of proof to sustain denial on the public agency. MCL 15.240(1); MSA 4.1801(10X1). The amicus curiae directs this Court to several New York cases which it believes support the notion that the police incident reports should not have been disclosed in the instant case. Wunsch v City of Rochester, 108 Misc 2d 854; 438 NYS2d 896 (1981) (records relating to citizen’s complaint against police officers alleging unnecessary use of force fell within New York’s FOIA); Sheenan v City of Binghamton, 59 AD2d 808; 398 NYS2d 905 (1977) (police complaint was part of an investigatory file and should not be divulged); Westchester Rockland Newspapers, Inc v Mosczydlowski, 58 AD2d 234; 396 NYS2d 857 (1977) (police incident reports on events surrounding death of prisoner should be withheld unless reports present purely factual matters). We refuse to adopt the New York line of reasoning for several reasons. First, it appears that New York, unlike Michigan, did not have a common-law tradition of agency disclosure before its FOIA was enacted. See Wunsch, supra, pp 898-899, citing Cirale v 80 Pine Street Corp, 35 NY2d 113; 359 NYS2d 1; 316 NE2d 301 (1974). See, also, cases cited in fn 11. Second, we read the language in the Michigan FOIA and the federal FOIA as indicating that the respective legislatures did not intend a blanket exemption like the one provided in the New York cases. Third, several other states, considering similar documents, did not apply blanket exemptions. Houston v Rutledge, 237 Ga 764; 229 SE2d 624 (1976) (files relating to deaths of jail inmates compiled by sheriffs department); Reinstein v Police Comm’r of Boston, 378 Mass 281; 391 NE2d 881 (1979) (rejects a blanket exemption in regard to police firearm discharge reports); Lodge v Knowlton, 118 NH 574; 391 A2d 893 (1978) (plaintiff sought file prepared by state police regarding a car accident involving a police cruiser under control of the chief of police). The following dialogue took place at oral argument: "Justice Levin: I have a question. Attached to, as an appendix to the city’s brief there is a report, called 'Report on Homicide Investigation’. And there are some blanked out, apparently blanked out words. Is there a reason why they’re blanked out? "Mr. Rassel: I don’t know why they were blanked out, your Honor. I believe, however, my guess is, they would reveal the identity of the two officers involved. On September 24, some 2-1/2 weeks after the hearing in question, the prosecutor did in fact conclude that- there was no reason to prosecute the two officers involved, and issued the 24-page report which is at the back of appellee’s brief, City of Troy’s brief. Notably the identity of the two officers involved is not in that report. It is specifically withheld. And notably the two incident reports sought by The Evening News Association are not included, not even the nonexempt portions. They have never been revealed. "Justice Levin: That was my second question. At no time have those incident reports been disclosed? "Mr. Rassel: Not to The Evening News Association. Now I do understand, your Honor, it’s represented in appellant’s brief, there was a subsequent civil trial in federal court in Detroit in 1981 in which the two officers and the City of Troy were found liable for negligently shooting this person. I think a civil rights violation actually was the theory under which the case proceeded. And it was a $5-1/2 million judgment against the officers and the City of Troy. It is represented in the brief that in fact the incident reports and the identity of the officers were revealed during that civil trial, but I cannot guarantee that that was the case. But they never were released to us. They were never released as part of the prosecutor’s report. "Justice Levin: Thank you.” See fn 19. The plaintiff wrote the following footnote in its brief: "(2) Although the events underlying this appeal occurred some 2-1/2 years ago, the issues are not moot because the abuse here is capable of repetition. Indeed repetition is invited by the Court of Appeals opinion. See: Nebraska Press Ass’n v Stuart, 427 US 539, 546; 96 S Ct 2791; 49 L Ed 2d 683 (1976): " 'The order at issue in this case expired by its own terms when the jury was impaneled on January 7, 1976. There were no restraints on publication once the jury was selected, and there are now no restrictions on what may be spoken or written about [State v Simants, 194 Neb 783; 236 NW2d 794 (1975)]. Intervenor Simants argues that for this reason the case is moot. " 'Our jurisdiction under Art III, § 2 of the Constitution extends only to actual cases and controversies. Indianapolis School Comm’rs v Jacobs, 420 US 128; 95 S Ct 846; 43 L Ed 2d 74 (1975); Sosna v Iowa, 419 US 393, 397-403; 95 S Ct 553; 42 L Ed 2d 532 (1975). The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one "capable of repetition, yet evading review.” Southern Pacific Terminal Co v ICC, 219 US 498, 515; 31 S Ct 279; 55 L Ed 310 (1911). " 'The controversy between the parties to this case is “capable of repetition” in two senses. First, if Simants’ conviction is reversed by the Nebraska Supreme Court and a new trial ordered, the District Court may enter another restrictive order to prevent a resurgence of prejudicial publicity before Simants’ retrial. Second, the State of Nebraska is a party to this case; the Nebraska Supreme Court’s decision authorizes state prosecutors to seek restrictive orders in appropriate cases. The dispute between the State and the petitioners who cover events throughout the State is thus "capable of repetition.” Yet, if we decline to address the issues in this case on grounds of mootness, the dispute will evade review, or at least considered plenary review in this Court, since these orders are by nature short-lived. See, e.g., Weinstein v Bradford, 423 US 147; 96 S Ct 347; 46 L Ed 2d 350 (1975); Sosna v Iowa, supra; Roe v Wade, 410 US 113, 125; 93 S Ct 705; 35 L Ed 2d 147 (1973); Moore v Ogilvie, 394 US 814, 816; 89 S Ct 1493; 23 L Ed 2d 1 (1969); Carroll v Princess Anne, 393 US 175, 178-179; 89 S Ct 347; 21 L Ed 2d 325 (1968). We therefore conclude that this case is not moot, and proceed to the merits.’ "See also: Richmond Newspapers, Inc v Virginia, 448 US 555, 563; 100 S Ct 2814; 65 L Ed 2d 973 (1979).” The following dialogue took place on recross-examination between plaintiff and defendants’ main witness, Richard Thompson, an Oakland County prosecutor: "Q. You indicate that in your opinion the disclosure of this information would interfere with ongoing criminal proceedings? "A. Yes. ”Q. Is that opinion with reference to every item contained in the incident report? As I recall, and we don’t — it’s not here, but we were dealing with a document that was perhaps half an inch thick. Is that opinion of yours applicable to every piece of information contained in the incident report? "A. No. "Q. So there are some things about — with respect to which — that opinion would not apply? "A. Things that have already been made public, yes. "Q. Well, there are — -there is — -information contained in that incident report with respect to which your opinion would not apply? 'A. Yes.” In the instant case, the plaintiff requests that it be awarded attorney fees and that this Court assess punitive damages in the amount of $500 against the defendants pursuant to MCL 15.240(4), (5); MSA 4.180Í(10)(4), (5). On remand, the trial court should also consider .the propriety of awarding attorney fees and granting punitive damages against the defendants.	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Rehearing denied. Reported at 414 Mich 510. Cavanagh, J., would grant rehearing.	[ 16, -58, -25, 18, 7, 21, 19, 27, -59, 27, 56, -38, 22, -72, 5, 40, 8, -14, 27, -60, -55, -40, -13, 37, -47, 33, 56, 6, -23, -54, 17, -46, -69, 32, -19, -47, 57, 35, -4, 1, -32, -10, -34, -33, -15, -94, -45, 15, 12, 4, -34, -19, -35, 16, -21, 37, 17, -30, -24, 0, -22, 38, 29, 25, -12, 0, -20, -2, -29, 6, 10, 31, -10, -2, 22, 12, -35, -4, 6, 67, 50, 58, 14, 65, -19, 18, 31, -29, 9, -25, 21, -23, -61, 28, 29, 6, -3, 29, 28, 13, 26, 19, -14, -69, 2, -11, -22, 30, -31, -13, 35, -52, 30, -52, 19, -37, -20, 9, 13, 13, 1, 69, -42, -57, 0, 21, 4, -8, 27, 19, 6, -3, 39, 57, 29, -50, 20, 6, -35, -12, 0, 31, 45, -1, 17, -20, -7, 15, -21, 6, -2, -34, -9, 30, 0, 37, -16, -41, 43, 18, 32, 33, -63, -36, 2, -3, 45, -8, 30, -45, -10, 21, -19, 0, -30, -58, -10, 54, 5, 10, 15, 54, 39, -23, 52, 17, -16, -22, -2, 15, -45, 6, 45, 52, 54, 17, 67, -10, -6, -10, 17, 78, -45, -10, -6, -76, 79, -14, -14, 35, -36, 2, -67, 4, 17, -18, 47, 19, 30, 3, -21, 47, 50, -2, -53, 14, 33, 43, -3, -31, 22, 25, -33, 32, 67, -33, 37, 26, 69, -60, -76, -12, 13, 13, 40, -4, -79, 18, 27, -57, 56, -2, 60, -63, -27, 6, -29, 27, -7, -17, 38, 52, -27, -17, -50, -35, 13, 24, 91, -7, 27, -76, -43, 9, 35, 26, 35, -8, 46, 69, -37, -2, -34, 56, -29, -9, 23, 36, 46, 0, -5, 22, 52, 6, 9, -63, -31, 7, 3, 21, 31, 22, 10, 16, -6, -39, -11, -51, 23, 7, 3, 26, 22, 58, 6, -35, -15, -20, -22, -12, 20, -57, -8, -11, -31, 15, 23, 46, 31, -38, 63, 16, -5, 16, -2, -10, 11, -44, -29, 51, 43, 48, -42, -8, -31, -15, -67, -10, 38, 32, -23, -26, -15, 17, 27, 35, -9, -46, -3, 14, 11, -40, 11, 25, -11, 0, -40, 32, 11, 39, 18, -36, -22, -5, -26, 59, 14, -20, -52, -20, -56, -26, -65, 13, 39, 13, -19, -6, 18, 0, 6, 9, -21, -34, -25, 22, -11, 9, -22, 36, -9, -41, -4, 36, -1, -6, -4, 20, 12, 47, -29, -12, -47, -12, -1, -12, -42, 12, 41, -24, -74, -44, -19, 8, 2, -11, -8, 3, 48, 36, -45, -39, 29, -53, -26, -14, 23, -3, 18, -8, -16, 5, -31, -15, 6, -39, -60, -31, -26, -8, 12, 38, -70, -34, -79, -11, -36, 69, 5, -10, -13, -70, -44, -16, 28, -48, -23, 15, -12, 44, 19, -27, -10, 44, -32, 32, 24, -29, -31, 41, -18, 37, -38, -38, 0, -23, -29, -5, -11, -4, -6, 53, 24, 34, -26, 40, 12, -34, -20, 88, -14, 76, -18, 22, 12, -36, -10, 2, -44, -65, 58, 50, 10, 24, 13, 31, -19, 33, 8, -15, 23, 0, 5, -34, -11, -36, -40, -36, -10, 61, 8, -11, 17, -27, 33, -42, 7, 40, -23, 95, 12, 21, -14, -67, 22, 49, -70, -27, 11, 23, -16, -77, -9, 18, -50, -18, 66, -40, -17, -12, -3, -47, -12, 7, 1, 7, -27, 22, 47, 15, 29, 34, 32, 15, 44, -36, 26, 10, -3, 11, 31, -2, 44, 9, -16, -19, -54, -39, -43, 25, -50, 23, -23, -37, -12, 36, -6, 26, 10, 59, -2, 14, -28, 8, -36, 8, 5, -26, 19, 37, -4, -6, -18, -30, -20, 28, -26, 37, 21, -20, -7, 66, -51, -40, 3, -32, 26, -1, 15, 19, -32, 19, -20, 28, -40, 66, -40, -46, 19, 63, -19, -49, 5, -25, -6, -30, 4, 1, -82, 13, 38, 22, 33, 12, 17, -13, 28, -44, 52, 23, 55, 27, -3, 27, -100, -24, 49, 24, 81, 48, -12, 34, 46, -26, -14, -17, 8, -27, -25, 0, -7, -7, -31, 21, 63, -14, -28, 19, -22, 53, 26, -5, 37, -19, -14, 1, 23, -15, -16, 18, -12, -21, 19, -50, -47, 7, 13, -20, -22, -21, -33, -31, 8, 28, 60, -4, -4, 51, 36, 23, 10, -8, 52, 24, -34, -4, 23, 11, 46, -65, 11, 0, 33, -26, -12, 8, 18, -32, -26, -2, -45, -30, -60, -65, -41, -43, 38, -14, -64, -20, 25, -3, -54, 27, -51, 20, -25, -53, -8, 22, -6, 5, -3, 11, -33, -3, 33, -6, 52, 93, 13, -31, -3, -9, 18, 14, 15, 25, 5, 0, 25, -7, -24, 16, 6, -44, -15, -45, -73, -21, 16, -17, -34, 21, 41, 34, 31, -13, 20, 13, -16, -31, -10, -18, 52, -35, -48, -2, -9, 36, 14, 4, -35, -45, 0, -53, 18, 44, 7, -4, 43, 27, 37, -23, -40, -4, 10, 31, -3, -7, -10, 24, 35, 8, -29, -58, 45, -28, 5, 13, -1, -27, 10, 2, -2, -22, -50, 3, -72, 64, 4, 26, -21, -27, -15, -5, -37, -35, -28, 36, -11, 60, 7, -57, -3, 26, 0, -60, 51, -14, 66, -77, -4, 28, 28, -3, 21, -9, 48, -13, -14, 13, 56, -25, 80, 12, -19, -45, -52, 8, 66, 41, 29, 20, 46, -16, 29, 2, -39, 12, -7, 2, -26, -4, 42, -17, -22, 50, -7, 30, -11, 14, -47, -75, -11, -54, -37, 5, -26, 8, 39, -12, -7, -27, 10, -26, 0, -55, 9, -55, 28, 8, -33, -6, -3, -2, 9, -11, -49, 24, 8, 13, -17, -31, -40, 14, -38, 80, 16, 19, -22, -47, 42, -9, -34, 24, 31, -19, -3, -1, 35, 59, -30, 40, -16, 20, -34, 42, -32, 16, 3, 71, 7, -16, -60, 75, -3, 5, 2, -56, 6, -8, 32, -3, -24, 0, 8, 0, 16, -42, -21, 8, -22, -19, -36, 7, -44, -6, 14, 59, 7, 45, 33, 16, 39, 10, 19, -34, -15, 11, -9, 85, -2, 16, 17, -33, 40, -33, 13, 16, 42, 3, -71, -11 ]
Rehearing denied. Reported at 416 Mich 166.	[ 12, -44, -43, 7, 19, 3, 21, 36, -37, 42, 76, -20, 39, -76, 7, 50, -4, 4, 6, -89, -62, -53, -25, 60, -78, 19, 24, 5, -29, -57, 23, -24, -96, -16, 20, -65, 23, 69, -15, 0, -49, -28, 2, -46, -4, -104, -22, 33, 19, 23, -4, 2, -59, 0, -27, 58, 22, -20, -33, -2, -26, 37, 54, -8, -31, -24, -38, 32, -13, 19, 14, 30, -6, 15, 23, 11, -44, 28, 25, 68, 78, 51, 12, 77, 8, 18, 2, -27, -6, -44, 26, -35, -63, 33, 19, 14, -13, 18, 18, -13, 14, 33, -3, -61, -28, -23, -13, 21, -53, -18, 63, -50, 16, -48, 20, -19, 13, 22, 76, 14, 9, 42, -17, -15, 11, -16, 41, -15, 41, -6, 26, 20, 60, 20, 14, -28, 28, -32, -61, -20, -16, 37, 22, 36, 14, -33, 35, 28, 29, -11, -43, -34, 2, 28, -33, 38, 0, -38, 31, 24, 55, -4, -60, -50, 0, 11, 58, 6, 27, -62, 15, 5, -5, -51, -87, -49, -31, 55, 0, 18, 23, -2, 8, -6, 65, 4, -21, -48, -6, 29, -44, 11, 76, 101, 27, 2, 41, 6, -9, -18, 65, 69, -88, 6, 17, -40, 57, 6, -29, 60, -30, -30, -38, 6, 20, -78, 39, 33, 53, 21, -19, 16, 46, 26, -18, -9, 53, 44, -11, -3, 33, 18, -12, -25, 62, -55, 64, 28, 65, -26, -74, -44, 4, 50, 10, -12, -80, -30, 42, -87, 31, -17, 51, -65, -55, -13, -56, 41, -18, -2, 60, 38, -10, 3, -55, 6, -28, 7, 52, -42, 35, -35, -62, 5, 22, 21, 16, 14, 60, 63, -50, -15, -25, 69, -41, -31, 68, 43, 44, -8, -3, 20, 29, 5, 3, -61, -6, 24, 12, 31, 20, 46, -1, 14, -14, -50, 6, -77, 29, 36, 2, 19, 24, 45, 5, -58, 33, -46, -48, -19, 13, -53, 3, 26, -51, 24, -6, 74, 49, -39, 71, 23, -28, 19, 14, -28, 3, -38, -42, 54, 42, 47, -28, 13, -21, 19, -64, 16, 41, 10, -18, -24, -20, 6, 35, 29, -10, -37, -8, 49, 14, -28, 4, 31, -13, -19, -22, 48, 30, 48, -15, -41, -30, -11, -11, 60, -2, -28, -71, -24, -39, -20, -62, 14, 10, -1, -16, -30, 37, -14, 0, 10, -30, -46, 19, 17, 7, 17, -21, 24, 5, -29, 0, 64, 32, 8, 18, -1, -4, 48, 13, -21, -22, -36, -46, 6, 21, 37, 19, -17, -52, -30, -50, -10, -9, -42, -37, 26, 37, 53, -12, -11, 19, -56, -30, -14, 32, -24, 34, -14, -15, -1, -19, -36, 15, -53, -35, -20, -33, 8, -12, 15, -43, -27, -44, -5, -49, 71, -14, -15, -41, -86, -66, -3, 1, -45, -3, 28, -31, 83, -2, -30, -28, 25, -19, 12, -12, -36, -35, 30, -28, 47, 7, -69, 4, -37, -16, 9, 0, 46, -21, 36, 11, 46, -19, 27, -6, -1, 0, 100, -49, 70, 1, 29, 20, -35, -7, -15, -48, -74, 78, 47, 7, 39, 4, 18, -38, 2, -7, -13, -13, 45, 7, -29, 5, -7, -48, -56, -42, 78, 10, -36, 24, -20, 11, -70, -14, 36, -31, 114, 15, 29, -39, -48, 45, 75, -58, -38, 6, -24, 6, -47, 25, 1, -55, -53, 84, -35, -3, -7, 8, -4, -27, 20, 10, 17, -35, -15, 50, 6, 3, 86, 12, 5, 33, 0, 24, 12, -10, 0, 17, 16, 75, 6, -12, -20, -35, -44, -35, 24, -42, -3, -25, -44, -5, 15, 2, 4, 22, 36, 22, -5, -56, 9, -21, -20, -15, -31, 34, 30, -6, -2, -31, -7, -28, 22, -17, 20, 22, -17, -4, 80, -14, 14, 6, -37, 24, -19, -11, -5, -75, 33, 12, 5, -40, 21, -9, -37, -7, 62, -18, -65, 26, -32, -13, -58, -21, 2, -38, 29, 14, 32, 23, 2, 9, -15, -12, -69, 60, 24, 16, 54, -25, 11, -60, -51, 65, 25, 98, 29, -14, 34, 0, -32, -20, -15, 4, -5, -28, 15, -6, 6, -34, 1, 57, -56, -11, 22, -1, 28, 33, 13, 52, -24, 42, 5, 10, -9, -44, 3, -7, -8, 14, -57, -49, 4, -15, -48, -31, -7, -54, 0, 8, 24, 71, -9, -15, 52, 40, 33, 31, -8, 40, -5, -26, -11, 39, 35, 43, -47, 8, 26, 22, -37, 2, -8, 36, 21, -22, 2, -11, -54, -44, -48, -54, -46, 59, -7, -53, -37, 18, 41, -47, 28, -36, 29, -14, -18, -3, 32, 22, -2, -4, 8, -19, 14, 0, -9, 54, 71, -10, -14, 19, 25, 37, 18, -7, -4, 5, 1, 39, 16, -4, -4, 9, -33, -9, -25, -55, -45, 36, -44, -56, 21, 63, 49, 32, -3, -2, 2, -20, -39, 7, 10, 25, -29, -74, -1, -21, 30, 27, 2, -32, -39, 27, -38, 23, 62, 29, -25, 27, 15, 49, -46, -53, -16, -47, -2, 8, 14, 26, 18, 44, -5, -50, -66, 57, -38, 5, -9, 20, -39, -14, -16, -18, -6, -40, -30, -52, 36, 2, 5, 25, -23, -29, 45, -35, 17, -26, 40, -13, 24, 4, -38, 1, 30, -8, -54, 24, -7, 57, -73, -13, 53, 37, 26, 33, 9, 49, -6, 4, 18, 62, -51, 69, -33, -45, -34, -10, 26, 62, 36, 22, 10, 53, -15, 54, 9, -42, 3, 3, 19, -78, -11, 0, -46, -15, 21, -41, 1, -23, -25, -53, -59, -14, -58, -47, -1, -50, -15, 27, -16, 22, -53, 3, -21, -16, -18, 14, -62, 69, 41, -55, -7, 12, -15, -5, -34, -7, 35, -17, 16, -36, -44, -21, 27, -71, 89, -14, 33, -1, -29, 34, -6, -31, 44, 38, -43, 12, -20, 50, 63, 1, 46, -9, 44, -27, 30, -26, 32, 2, 54, -12, -28, -50, 53, -34, -4, -32, -13, -12, 1, 37, 3, -1, -41, 1, 20, 39, -20, -16, -5, -29, -46, -42, 9, -52, -10, 5, 66, 21, 37, 46, -2, 60, 33, 35, -72, -5, 30, 17, 103, -31, 41, 36, 8, 31, -11, 68, 24, 42, -9, -71, -2 ]

Butzel, J. George J. Kolowich, of Iiamtramck, Michigan, was convicted of embezzlement and the felonious abstraction and misapplication of bank funds, as defined in section 66 of the general banking act (Act No. 66, Pub. Acts 1929; 3 Comp. Laws 1929, § 11963). The first count of the information charges that on the 15th day of May, 1930, defendant, as president, director, agent, servant, and employee of the State Bank of America of Hamtramck, Michigan, came into possession of $82,933.58 of the bank’s moneys, and that he fraudulently and feloniously embezzled it, etc. The second count, substantially like the first count, charges that he abstracted the money. The third count charges him with misapplication of the funds. All of the counts charge that he disposed of and converted to his own use the personal property of the value stated, and that, without authority of the board of directors of the bank, he drew orders, bills of exchange, and drafts with intent to injure and defraud the bank, and that he made false entries in books, reports, and statements of the bank with intent to deceive his fellow officers of the bank and the State bank examiner. It is claimed that defendant’s motion to quash the information should have been granted because the evidence taken on the examination was insufficient to sustain the charge. The testimony on the hearing appears in the record and was sufficient to justify holding the defendant for trial. Defendant claims further that he was entitled to a directed verdict, and that the verdict was against the great weight of the evidence. For this reason, it is necessary to detail some of the facts. Defendant occupied a prominent position both in public life and in financial circles. He had been very successful in the years previous to 1929, and had amassed a considerable fortune, represented by real estate, land contracts, stocks, etc. He had been actively engaged in the banking and real estate business, and at one time he, with several others, owned a private bank in Hamtramck, known as the Merchants & Mechanics Bank, and herein referred to as the “private bank.” His wife purchased the interests of those previously, associated with him, so that he became virtually the sole owner and proprietor of the private bank, owing to the inability of a married woman to become a copartner of her husband. Just previous to its failure, the bank did a flourishing business and had many depositors, consisting principally of working men and trades people. The State Bank of America of Hamtramck, Michigan, was incorporated under the State banking laws with a capital of $100,000. Defendant owned 650 shares and his brother Adolph 100, so that together they held 75 per cent, of the stock. The board of directors consisted of defendant, his brother, and four others, three of whom owned only 10 shares apiece, and one held 25. The bank was supposedly run under the direction of the board, officers, and loan committee, with usual powers. One Willard Babcock was a director and the cashier. He had been advanced to this position after a short period in a less important capacity. Defendant, who was responsible for his employment, turned over to him without consideration 10 shares of stock so as to enable him to qualify as a director. Babcock testified that he never took instructions from any member of the board other than defendant while -acting as cashier and director. They had frequent conferences, and, during the fiscal month in which defendant is alleged to have committed the crimes charged,' Babcock saw defendant daily at his private bank, discussing with him the affairs of the State Bank of America. The business of the private bank was conducted by defendant with the assistance of John W. Kempisty, acting as cashier and manager. There were also a number of tellers, bookkeepers, messengers, etc. The private bank deposited its funds with the State Bank of America, and also had a checking account with two Detroit banks. During the 30 days during which the alleged embezzlements, etc., took place, the private bank deposited over $500,000 with the State Bank of America, but its withdrawals far exceeded this amount. Defendant authorized Kempisty to sign drafts of the private bank on the State Bank of America. The drafts were printed with the words “President-Cashier” appearing below the line reserved for the signature. When Kempisty signed the drafts, the word “president” was stricken out. Due to his frequent absences from the private bank, Kempisty made a practice of signing blocks of 25 or more drafts in blank, leaving the spaces for the date, name of the payee, and amount, to be filled in by the tellers as funds were needed. When the demands of depositors were particularly heavy, and additional cash needed, the blank spaces in the drafts would be filled in by a teller and the drafts sent over to the State Bank of America, where they would be honored, and the cash brought back to the private bank. During the 30 days following May 15, 1930, 11 drafts, signed by Kempisty and aggregating $82,933.58,.were paid by the State Bank of America, though there were no funds to the credit of the private bank with which to pay them at the times they were presented. All of them, with the exception of one made payable to M. J. Meehan & Company, brokers, in the amount of $9,980, represented cash withdrawals by the private bank. During this 30-day period, there was a run on the private bank by its depositors, so that there was an immediate need of funds to prevent the closing of the bank’s doors. Defendant claims that he had no idea of the extent of the overdrafts, that there was no intention on his part to overdraw, his account, and that he always had good reason to believe that he would have no difficulty in making good any overdrafts; that he was not guilty of any crime, even though he may have committed a misdemeanor as defined in 3 Comp. Laws 1929, § 11932. This section provides that any officer or employee of a bank who knowingly, wilfully, and persistently overdraws his account shall be guilty of a misdemeanor. There is competent testimony showing that when these overdrafts reached the State Bank of America, where they were paid under orders given by Babcock, they were carried as cash items in order to avoid the appearance of the overdrafts on the books. Babcock claims he was acting under the express instructions of the defendant. The State Bank of America’s records were falsified so as to make it appear that the overdrafts were cash on hand, consisting of a large number of bills of particular denominations, never actually in the possession of the bank. Defendant had previously issued overdrafts but had always taken care of them. He claims he did not know of the extent of the overdrafts until they had all been honored by the drawee bank. He alleges that he did not know of the practice of overdrawing. On June 16,1930, when defendant’s attention was called to the large amount of the overdrafts, he immediately attempted to secure a loan from a number of Detroit banks, where he had reason to believe that he had a large line of credit. The Detroit banks refused to come to his assistance, owing to the fact that his assets were not sufficiently liquid in nature. Without delay, he reported the condition of the bank and his overdrafts to the State banking commissioner. Defendant immediately turned over to the State Bank of America, with the consent of its board of directors, valuable real estate that apparently would have been more than ample security to protect the bank against loss had it not been for bankruptcy proceedings in which Kolowich and his private bank were involved, with a resultant setting aside of the preference. The State Bank of America went into the hands of a receiver, and the prosecution of defendant followed. There are many facts that tend to show a lack of criminal intent on the part of defendant in the entire transaction. However, Babcock’s testimony that he was acting* only under the instructions and directions of defendant; that he saw defendant daily during the time the money was being taken from the bank; that overdrafts were carried as cash items in accordance with instructions received by Babcock from defendant and transmitted by him to the teller; that he told defendant that overdrafts wer& being carried as cash items; that, according to additional testimony, defendant was at the private bank at least four hours each day while the moneys were being withdrawn from the State Bank of America; that, at the very time in question, defendant was making heavy withdrawals by issuing drafts on the drawee bank for the payment of stock and bonds in which he was dealing, as well as many other facts, tend to overcome defendant’s claims. There was sufficient testimony to justify the verdict of the jury. It was not against the great weight of the evidence. Numerous other errors are assigned. Defendant contends that, even looking at his conduct in the most unfavorable light, he was only guilty of overdrawing. Defendant’s acts are repeatedly referred to by the prosecution as “overdrafts.” There is no question that this terminology is correct. However, securing the funds by overdraft is only the means that defendant is charged with having used in committing a much more serious offense. One may be guilty of a lesser offense in committing a much more serious one. If one, with the connivance of a bank officer whom he has under his control, secures possession of the bank’s funds by means of an overdraft and converts them to his own use with intent to defraud the bank, continuing such conduct over a protracted period so as to secure possession of a large amount of the bank funds, he becomes guilty of more than the misdemeanor defined by the ba.uking law, 3 Comp. Laws 1929, § 11932. An overdraft of itself may or may not be a misdemeanor. An act apparently innocent on its face, or under certain circumstances a misdemeanor may become a much more serious offense when committed with the purpose of defrauding the bank. See People v. Comstock, 115 Mich. 305; Brock v. United States, 79 C. C. A. 121 (149 Fed. 173); Breese v. United States, 45 C. C. A. 535 (106 Fed. 680); State v. Kortgaard, 62 Minn. 7 (64 N. W. 51); State v. Larson, 123 Wash. 21 (211 Pac. 885); State v. Kubli, 118 Ore. 5 (244 Pac. 512); State v. Owen, 119 Ore. 15 (244 Pac. 516). Over defendant’s objections, the prosecution was permitted to show'by the books of the private bank that, during the time the overdrafts were being issued, large sums were being paid for stocks and bonds by the private bank through checks or drafts drawn on the State Bank of America. Kempisty testified that the private bank was buying “quite a bit” from a firm of stock brokers, and one of the tellers of the private bank stated that large amounts of money were paid during the 30-day period to stock brokers for the purchase of stocks and bonds. While the law does not prohibit the purchase of stocks and bonds, nevertheless, when the owner of a private bank is engaged in purchasing stock and at the same time illegally taking the funds of another bank under his control, his general conduct in the course of his business becomes a matter of vital importance in so far as the determination of intent is concerned. Under section 27 of chapter 28 of the criminal code (3 Comp. Laws 1929, § 17320), it is provided: *• “In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved,-whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.” When defendant is charged with defrauding the bank and he claims an absence of criminal intent as a defense, it becomes important to show defendant’s other transactions at the time, for the purpose of showing his financial condition, the reasons for making his withdrawals, and other facts, all as bearing on his motive and intent. See People v. Armstrong, 256 Mich. 191; Dimmick v. United States, 70 C. C. A. 141 (135 Fed. 257); State v. Kubli, supra; People v. Rowland, 12 Cal. App. 6 (106 Pac. 428); Quertermous v. State, 95 Ark. 48 (127 S. W. 951); Ambrose v. United States, 45 App. D. C. 112; Camp v. State, 31 Ga. App. 737 (122 S. E. 249); State v. Lindstrom, 180 Minn. 435 (231 N. W. 12). Defendant contends that these three acts, embezzlement, abstraction, and misapplication, are entirely different crimes, so inconsistent in nature that they may not be joined in the same information. We can see no.merit in this claim. The fact that the legislature named them in the same section of the statute, even in the same sentence, is strong’ indication that their inclusion was designed to prevent escape from just punishment through technical evar sions based upon possible slight variations in the elements of these crimes. There was no error in drawing these counts so that one of them might be found to meet the evidence as presented. In Jewett v. United States, 41 C. C. A. 88 (100 Fed. 832, 53 L. R. A. 568), the court said: “Nevertheless, while ‘embezzlement’ and ‘misapplication’ are not convertible terms, ‘misapplication’ is the broader, and covers ‘embezzlement.’ The statute, in this particular, is one of those frequently found in criminal legislation, as well as in other legislation and in private instruments, where there is first used a word of narrow application, and after-wards a broader one, and so continued until there is a certainty that the entire purpose sought to be accomplished is accomplished. It is not necessary, under sncli circumstances, to apply the rule that every word in a statute must have its effect, to such an extent as to hold that the generic term is to be so peculiarly construed, contrary to its settled meaning, as to exclude from its scope the narrower word, which, precedes it. ’ ’ It would seem that, even assuming there is some merit to defendant’s contentions, he was not injured by the alleged error in joinder, inasmuch as a verdict of guilty was returned on all three counts and identical sentences imposed for each count, to run concurrently. Defendant, however, claims that the prosecution should have made an election as to which count it relied upon. Where one is charged with several crimes very similar in character, each carrying the same punishment and calling for much the same testimony, it does not at all become necessary for the prosecution to make an election. People v. McKinney, 10 Mich. 54; People v. Aikin, 66 Mich. 460 (11 Am. St. Rep. 512); People v. Dyer, 79 Mich. 480; People v. Warner, 201 Mich. 547; People v. Sachse, 252 Mich. 275. In People v. Grabiec, 210 Mich. 559, the court again approved of the rule which it quoted from People v. Warner, supra, as follows: “Election between counts cannot be required on the ground that distinct offenses are charged, where they are committed by the same acts, at the same time, and the same testimony must be relied on for conviction. ’ ’ The precise question as to whether the statute intended separate punishments for embezzlement, felonious abstraction, and misapplication arising out of the same transaction, is not properly before us. Under the facts in the case, there may be some question, as to whether defendant could be guilty of embezzlement and fraudulent abstraction in the same transaction. The court should have instructed the jury that the defendant could not be guilty of both embezzlement and abstraction under the evidence. The prosecutor asked Babcock on redirect examination as follows: “Q. You took your orders from Mr. Kolowich, didn’t you? “A. Yes, sir. “Q. Did you ever try refusing one of these drafts when Kolowich told you to cash it?” An objection to this question was overruled, and witness answered: “I never tried it.” The question was absolutely improper, because it assumed points in controversy not yet proved. As the case must be tried again, we call attention to the error. See People v. Lange, 90 Mich. 454; Branch v. Klatt, 173 Mich. 31; Nelson v. Hunter, 140 N. C. 598 (53 S. E. 439); White v. City of Boston, 186 Mass. 65 (71 N. E. 75). Error is further charged in admitting the testimony of the bank examiner showing loans made to defendant’s wife, his friends, and corporations in which he was interested. No irregularity is shown as to most of these loans. They were well secured at the time the money was loaned, and were made long before May and June, 1930. Some of them were repaid. The tendency of such testimony in the present case would be to impress the jury with the fact that defendant had looted the bank. Almost all of these loans and the aggregate amount of them have no bearing upon the intent or motive for the commission of the crimes charged. However, such loans as were irregularly made would tend to show defendant’s control of the bank’s affairs. On a retrial, testimony as to loans made in the regular course of business should not be admitted unless it is shown that the loans were made in order to aid defendant directly or that the transactions otherwise throw light upon defendant’s financial condition. In the closing argument, defendant’s attorney, in addressing the jury, argued that Kolowich was the victim of the general business conditions that resulted in so many bank failures. The argument was possibly provocative in character, but the prosecution went far beyond any reasonable bounds in its reply. The assistant prosecutor, in his closing argument, said: “I haven’t much more to say to you. I ask you to do what you think is right in this case, but I ask you to remember that there are more ways than one for justice to work. I ask you to remember that those poor people out there who put their money in this bank have a right, the same as he has, in this country, and counsel may say it is conditions. Of course, it is conditions, I suppose he would also tell you that the Bob Allan transaction had nothing to do with the American State Bank failure.” A short time preceding defendant’s trial, one Robert Allan had been convicted of felony in connection with the failure of the American State Bank, a very large banking institution in the city of Detroit. The trial, lasting several weeks, and the conviction itself, held the public interest. Complete accounts occupied the front pages of the newspapers, and the blame for the failure was attributed to the conduct of Allan, its president. The familiarity of the public •with the case is shown by the very language used by the prosecutor in reference to the failure and Allan’s connection with it. He must have assumed that the jury, in common with the general public, knew about the failure and Allan’s conviction. One natural inference would be that Allan’s guilt indicated that of the defendant. The remarks were made without the opportunity of the trial judge to prevent them and he instructed the jury in no uncertain manner to disregard them. The loss wrought by a bank failure is visited on' its many innocent depositors, whose indignation and resentment justly follow., When, as has been brought to our attention, there have been so many bank failures during recent years, the entire public conscience is aroused. If the failures are due to the dishonest acts of bank officers, the zeal of the prosecutor in vigorously prosecuting the offenders, in line with his duties, is to be highly commended. However, with public indignation at its height, it still remains his duty to see that the constitutional right to a fair trial is afforded the accused. This duty is neglected when, in a trial of this kind, the prosecutor in his final address to the jury, calls its attention to a different bank failure, to the very recent trial of its president, and his conviction, attended by very great publicity, despite the fact that it is not in the remotest degree related to the case being tried. It was highly prejudicial in the instant case when the intent of defendant, a very close question, became the pivotal point in the case. It is true that the trial judge expressly instructed the jury to disregard the remarks, but the damage was done. An ini?: spot may be blotted out in part, but the stain still remains. We have at times refused to reverse cases on account of improper statements of counsel made in the heat of argument, when the entire record shows that the result has not been affected thereby and that there has been no miscarriage of justice. 3 Comp. Laws 1929, § 15518. In the present case, however, the intent of defendant was the all important question for the jury to determine, and the verdict, based largely on the decision of an exceedingly close question, may well have been affected by the reference to the failure of another bank and the conviction of its president. The remarks were so highly prejudicial that we cannot say defendant had a fair trial. In Michigan, it has been held that refusal by the trial court to sustain an objection to references to another unrelated crime constitutes reversible error, if such references tend to exert a prejudicial effect upon the jury. People v. Nixon, 243 Mich. 630. Cautionary instructions by the court may be insufficient to cure the damage done. Burrows v. State, 38 Ariz. 99 (297 Pac. 1029); People v. McLaughlin, 337 Ill. 259 (169 N. E. 206); People v. Chrfrikas, 295 Ill. 222 (129 N. E. 73). It is law in Michigan and most other jurisdictions that inflammatory remarks irrevelant to the issue may be so prejudicial that they cannot be cured by the instructions of the court to disregard them. Solomon v. Stewart, 184 Mich. 506 (Ann. Cas. 1917 A, 942); Cluett v. Rosenthal, 100 Mich. 193 (43 Am. St. Rep. 446); Hillman v. Railway, 137 Mich. 184; Wells v. Moses, 87 Minn. 432 (92 N. W. 334); Dannals v. Sylvania Township, 255 Pa. 156 (99 Atl. 475); Bloodgood v. Whitney, 200 App. Div. 56 (192 N. Y. Supp. 383); Seaboard Air Line R. v. Smith, 53 Fla. 375 (43 South. 235); Ernst Zobel Co. v. Canals, 188 App. Div. 231 (176 N. Y. Supp. 537); Mittleman v. Bartikowsky, 283 Pa. 485 (129 Atl. 566); Robinson v. United States (C. C. A.), 32 Fed. (2d) 505 (66 A. L. R. 468). See, also, 78 A. L. R. 1438 for a complete annotation of this subject. The conviction is set aside, and a new trial ordered. McDonald, C. J., and Potter, Fead, and Wiest, JJ., concurred with Butzel, J.

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Potter, J. Plaintiff sued defendant William Bolles in assumpsit. A writ of garnishment issued to Fidelity & Guaranty Fire Corporation. It disclosed liability for loss under an insurance policy. Dorothy Bolles, wife of defendant William Bolles, intervened and claimed the fund in controversy. The trial court sustained her claim. Plaintiff appeals. Defendant William Bolles owned land in Monroe county. He desired to plat and sell it. To carry out his plan, the property was deeded to the Commerce Guardian Trust & Savings Bank of Toledo, Ohio, in trust. Subsequently a new trustee was appointed. Dorothy Bolles, wife of William Bolles, the principal defendant, bought a lot from the trust company and built a house thereon. She sold this house and lot on land contract to George D. and Jeanette T. Wuerfel. The Wuerfels defaulted in payments to be made on the contract. Notice of forfeiture of land contract was given. Before Dorothy Bolles recovered possession of the premises, the house burned. The land contract purchasers had insured the house and contents in Fidelity & Guaranty Fire Corporation, loss, if any, payable to Dorothy B. Bolles, George D. Wuerfel, and Jeanette Wuerfel, as their interest might appear. Defendant William Bolles joined with the insured iii making proof of loss under the policy. He verbally claimed the lot was deeded by him to the trust company by mistake. His signature was included on the proof of loss by the adjuster for the insurance company to shut him off from making any claim under the policy. After the adjustment, plaintiff sued William Bolles and garnisheed the insurance company. The trial court held the proceeds of the insurance policy belonged to Dorothy B. Bolles.and George D. Wuerfel and Jeanette Wuerfel his wife, that William Bolles had no insurable interest in the property, and plaintiff was not entitled to recover in the garnishment proceedings. We think the trial court was correct. Judgment affirmed, with costs. McDonald, C. J., and Clark, Sharpe, North, Fead, Wiest, and Btitzel, JJ., concurred.

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Cynar, J. Defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2), after a jury trial in Wexford County Circuit Court in March, 1984. He was sentenced to from 30 to 50 years for armed robbery and two years for felony-firearm. Defendant appeals from his convictions and sentences to this Court as of right. Debra Richardson was working as a sales clerk in a Payless Shoe Store in Cadillac, Michigan, on February 1, 1982. She testified that defendant entered the store late that afternoon, ostensibly to purchase shoes. Defendant locked his arm around her neck and placed what Richardson took to be a weapon behind her left shoulder. He forced her into the back room and demanded she show him the safe. Defendant made her sit in the back room and used tape to fasten her wrists behind her back. When two customers entered the store, he released her and instructed her to wait on the customers. Richardson assisted the women and they left. Defendant then made Richardson put the money from the register and safe into a paper bag along with a pair of shoes. Defendant left Richardson in the store’s bathroom after securing her hands and ankles with tape. Defendant’s girlfriend, Pam Stefan, was waiting outside of the store in an automobile. Stefan testified that he came back to the automobile with a gun stuck in his pants, a new pair of shoes, and a shoe box filled with money. Stefan said defendant told her to drive away carefully. Defendant later related other details of the robbery to Stefan. On March 11, 1982, Detective Eugene Ambs of the Michigan State Police received information that defendant may have been involved in the robbery and was now in Missouri. The information came from defendant’s probation officer, Robert La Pisto. A photographic lineup was held for Richardson’s benefit on March 12, 1982. Richardson identified defendant. Ambs was soon informed that defendant was under arrest in Bridgeton, Missouri, for armed robbery. Ambs obtained an arrest warrant and informed the Bridgeton Police Department of that fact. The warrant was entered into the Law Enforcement Information Network (LEIN) and Ambs requested that the Bridgeton Police Department place a "hold” on defendant. They informed Ambs that a hold had already been placed on defendant by the Michigan Department of Corrections for violation of parole. Defendant was convicted of larceny from a person in Missouri. He was sentenced to one year in the county jail. On December 15, 1982, he was transferred from the Missouri jail to the Muskegon Correctional Facility to serve time for violation of his parole. On June 2, 1983, defendant was brought to the Wexford County jail. The preliminary examination began June 14, 1983. It was continued on July 7, 1983, after an adjournment requested by the defendant so that a corporeal lineup could be held. Defendant was bound over for trial. After numerous pretrial motions by defendant, the trial was scheduled for January 24, 1984, but was postponed until March 13, 1984, at defendant’s request. Defendant was found guilty on March 14, 1984. He made a motion for a new trial which was denied in an opinion issued by the trial court on May 23, 1984. Defendant was subsequently sentenced on June 18, 1984. Defendant’s first claim is that the charges should not have been brought against him because the Interstate Agreement on Detainers (IAD), MCL 780.601; MSA 4.147(1), was violated. In order for the IAD to apply a detainer must be lodged against a defendant. People v McLemore, 95 Mich App 536; 291 NW2d 109 (1980). Article III of the IAD provides that: "(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ jurisdiction written notice of the place of his imprisonment and his request for a final dispostion to be made of the indictment, information or complaint * * * "(c) The warden, commissioner or corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.” (Emphasis added.) There is no exact definition of the term detainer. It has been held that an index card marked with the notation "detainer” and sent to the prison authorities of another jurisdiction is a detainer for the purposes of the act. People v Paulus, 115 Mich App 183; 320 NW2d 337 (1982). A letter from the court clerk to prison authorities may be considered a detainer for purposes of the IAD. People v Beamon, 83 Mich App 121; 268 NW2d 310 (1978), lv den 403 Mich 850 (1978); People v Browning (On Rehearing), 108 Mich App 281; 310 NW2d 365 (1981). A letter accompanied by an administrative warrant has also been considered a detainer. People v Office, 126 Mich App 597, 602; 337 NW2d 592 (1983), lv den 418 Mich 883 (1983). However, a writ of habeas corpus ad prosequendum, filed with state authorities directing the production of a prisoner for trial on federal criminal charges, is not a detainer for the purposes of the IAD. United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978). The generally recognized definition of a detainer is a notification filed with the institution in which an individual is serving a sentence, advising that the prisoner is wanted to face pending charges in the notifying state. People v Bentley, 121 Mich App 36, 41; 328 NW2d 389 (1982), lv den 417 Mich 877 (1983). Senate Report 91-1356, 91st Cong, 2d Sess, 3 US Code Cong & Admin News, p 4865 (1970). Applying the Bentley, supra, definition it is clear that no detainer was filed. The notification was not made in writing, therefore the definitions of a detainer in Beamon, supra, Browning, supra, and Office, supra, do not apply. Furthermore, while a "hold” was placed on the LEIN there is no indication that this was acknowledged by the sender in Michigan or the recipient in Missouri as a detainer. These less formal communications are insufficient to activate the IAD. This case is unlike Beamon, Bentley and Office where the authorities clearly invoked the act, albeit informally. In this case the authorities in Michigan had not invoked the act. Furthermore, when defendant was finally returned to Michigan it was not under the aus pices of the IAD, but for violation of parole for leaving the state. The IAD is not applicalbe to parole violation detainers. Buchanan v Dep’t of Corrections, 50 Mich App 1; 212 NW2d 745 (1973). We hold that a telephone call and entry of a notation in the LEIN system is not a detainer within the scope of the IAD. Because the authorities did not file a detainer, the IAD does not apply to defendant. People v Barnes, 93 Mich App 509; 287 NW2d 282 (1979); Beamon, supra. Defendant’s next claim is that the trial court lost jurisdiction over him because he was not brought to trial within 180 days of his incarceration in Michigan as required by MCL 780.131; MSA 28.969(1). The 180-day rule only applies to inmates in state penal institutions in Michigan. The statute imposes three basic conditions for the 180-day rule to affect an untried charge: (1) the charge must be against a prison inmate; (2) the offense must be one for which a prison sentence might be imposed upon conviction; and (3) notice must be received of the outstanding charges and a request to act on the charges must be delivered to the appropriate prosecuting attorney. People v Woodruff, 414 Mich 130, 136; 323 NW2d 923 (1982). It is clear from the record that the first two conditions apply to this situation. Defendant was a prison inmate and the charges carried potential prison terms. However, the record before us does not show if the Department of Corrections was aware of the outstanding warrants or when the prosecutor was informed that defendant was within the custody of the Department of Corrections. It is thus impossible for us to determine when the 180-day period began to run. It could have started on December 15, 1982, upon defendant’s return to Michigan, if the Department of Corrections had received notice of the outstanding warrants. It could also have started at a later date depending on when the prosecutor had notice that defendant was in the custody of the Department of Corrections. We cannot decide the issue on the record before us. We are therefore remanding the case to the trial court for a hearing to determine when the Department of Corrections had notice of outstanding charges and when the prosecutor had notice that defendant was in the custody of the Department of Corrections. The trial court must then determine if the prosecutor made a good faith effort to bring the case promptly to trial. People v Woodruff, 106 Mich App 155; 306 NW2d 432 (1981), aff'd 414 Mich 130; 323 NW2d 923 (1982). Defendant’s next claim is that he was denied constitutional and statutory rights to a speedy trial. There was a delay of 15 months between the time that officials in Wexford County became aware of defendant’s arrest in Missouri on March 12, 1982, and his arraignment in Wexford County on June 3, 1983; his preliminary examination was begun on June 14, 1983, and continued on July 7, 1983, after defense counsel requested an adjournment. Defendant filed a number of pretrial motions on various dates after the preliminary examination which further delayed the trial. The trial was finally held on March 13 and 14, 1984. The question presented is whether the prosecution was obligated to attempt to extradite defendant from Missouri, and, if so obligated, at what point was the prosecution required to begin extradition proceedings consistent with defendant’s right to a speedy trial. The period between arrest on March 12, 1982, and sentencing in Missouri in July, 1982, cannot be charged to the prosecution. This delay was not an attempt to hamper his defense in Michigan. Disposition of the criminal charges in another state should not be considered to be the responsibility of the Wexford County prosecutor. Hoag v New Jersey, 356 US 464, 472 fn 6; 78 S Ct 829; 2 L Ed 2d 913 (1958); People v Bradley, 54 Mich App 89, 96-97; 220 NW2d 305 (1974)._ The record indicates that the prosecution knew or should have known that the defendant had been sentenced in Missouri by September, 1982. Nonetheless no attempt was made to secure his presence in Michigan. As noted above, no detainer was filed and there was no attempt to extradite him. In Smith v Hooey, 393 US 374; 89 S Ct 575; 21 L Ed 2d 607 (1969), the United States Supreme Court ruled that a state has an obligation to make a good faith effort to bring a defendant to trial once the defendant demands a speedy trial. No demand was made by the defendant. While it cannot be presumed that defendant waived his right to a speedy trial by not making a demand, his failure to make such a demand may be considered. Defendant testified that he made such a demand verbally in Missouri after he was sentenced in July, 1982, although no written demand was made. This factor cannot be weighed heavily against him but it also does not weigh heavily against the prosecution in this case. Another factor to be considered is the length of the delay. Defendant became a Michigan prison inmate on December 15, 1982, in Muskegon for parole violation. Wexford County officials learned that defendant was brought back to Michigan on January 31, 1983. Defendant was returned to Wexford County on June 2, 1983, and arraigned on June 3, 1983. Examination took place on June 14, 1983, and July 7, 1983. His trial ended on March 14, 1984. This was a delay of 21 months. On its face the amount of time would appear to be presumptively prejudicial to defendant. However, an examination of the reasons for the delay reveals otherwise. We have already noted that the case proceeded steadily toward trial after arraignment; most of the delay was attributable to the defendant. The delays after he was returned to Wexford County on June 2, 1983, which were attributable to the prosecution were consistent with its good faith obligation to bring defendant to trial. The prosecution’s failure to attempt to extradite defendant can be attributed in part to the charges being prosecuted against the defendant in Missouri. The record also indicates that the prosecution expected defendant to be returned to the custody of the Department of Corrections. Extradition would have been more expedient, but this case does not show the egregious type of conduct on the part of the prosecution that was the case in Moore v Arizona, 414 US 25; 94 S Ct 188; 38 L Ed 2d 183 (1973). The delay which is not attributable to the defendant was not in bad faith, unreasonable or part of a considered attempt to deny him a speedy trial. While this delay must be attributed to the prosecution, it does not weigh heavily as a factor in evaluating the speedy trial claim. The final factor to be considered is the prejudice to the defendant. Defendant has not enumerated any specific difficulties he faced in marshalling his defense because of the delay. No witnesses to the crime were unavailable as a result of the delay; there is no indication that evidence was lost. Defendant would have been incarcerated in Missouri and Michigan even if he had never faced the charges because of his conviction in Missouri and parole violation in Michigan. Furthermore, as noted in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), and Moore v Arizona, supra, the factors listed therein must be considered with any other circumstances which may be relevant. We note that defendant faced charges in Missouri which had to be disposed of by the Missouri courts and that defendant was subject to the jurisdiction of the Department of Corrections for violation of parole. These are relevant circumstances which ameliorate the delay in this case. We conclude that defendant, in this factual context, was not denied his right to a speedy trial. Defendant’s next claim is that he was denied his constitutional right to the presence of counsel at the photographic lineup held for the benefit of Debra Richardson on March 12, 1982, at about 9:15 a.m. Defendant had been taken into custody by Missouri authorities at about 12 midnight. The record indicates that the Wexford County authorities did not know that defendant was in custody in Missouri when the lineup was conducted; he was certainly not in the custody of the Michigan authorities. He was also not readily available. The record before us also indicates that, while he was a suspect, he was not yet the clear focal point of the investigation which would require the presence of counsel. Defendant was not entitled to the presence of counsel at the time that the photographic lineup was conducted. People v Harrison, 138 Mich App 74; 359 NW2d 256 (1984). Defendant’s next claim is that error occurred when the prosecution failed to indorse the two customers who entered the store and departed during the course of the robbery. The issue is properly before this Court because it was raised as part of defendant’s motion for a new trial. People v LeFlore, 96 Mich App 557; 293 NW2d 628 (1980), lv den 409 Mich 927 (1980). The defendant sought a hearing under People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). The trial court denied the request. It is clear that the women were res gestae witnesses because they observed part of the contin uum of the criminal transaction. People v Rivera, 114 Mich App 419; 319 NW2d 355 (1982). There has been no showing of due diligence on the part of the prosecution in producing the evidence. The evidence cannot, on the record before us, be considered cumulative; the women’s descriptions of the robber conflicted with other testimony. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). The women were not participants in the crime. The defendant did object to the prosecutor’s failure to indorse. The prosecution should have indorsed the witnesses. The defendant’s failure to move to indorse the witnesses does not excuse the prosecution’s failure. People v Reynolds, 93 Mich App 516, 522, fn 1; 286 NW2d 898 (1979). This case must be remanded for a Robinson hearing to determine if the prosecution was diligent, if the women’s testimony would have been cumulative, and if defendant was prejudiced by the prosecution’s failure to indorse and produce the two women at trial. Defendant’s next claim is that error was injected into the trial by the prosecutor’s closing argument. The claim was not preserved by a timely objection and no manifest injustice has been shown; therefore, it has not been preserved for appellate review. People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977). Defendant’s final claim is that his sentence was based on inaccuracies in the presentence report, not supported by sufficient reasons, excessive in length and that he was not given sufficient credit for time served. Our review discloses that the sentence is not excessive. People v Coles, 417 Mich 523, 542-543; 339 NW2d 440 (1983). The court imposed the sentence it did because of defendant’s prior record, the fact that he was unlikely to reform himself, the abuse of his other opportunities for reform and because he presented a danger to society. These were valid reasons for the sentence. Coles, supra. Defendant’s claim that the trial court sentenced him based on inaccurate information is also without merit. Defendant claims the trial court took into account unprosecuted crimes. However, the trial court specifically stated that it would not consider that information in sentencing. Defendant also states that the trial court referred to the fact that he threatened to shoot the clerk and possessed a gun during the robbery. There was no need to address the "inaccuracies” because the proofs at trial supported these statements in the report. Defendant’s claim that the trial court believed he was convicted by a guilty plea is without merit; the trial judge presided over his jury trial and it was unnecessary to respond to this point on the record. Defendant’s claim that he should have been given credit for the time he served in the Missouri jail is also without merit. The time he spent in jail in Missouri was unrelated to this charge and he cannot receive credit. People v Manifee, 112 Mich App 705, 710; 317 NW2d 232 (1982). He is also not entitled to credit for the time spent in the Michigan facility for his parole violation. People v Patterson, 392 Mich 83, 88-89; 219 NW2d 31 (1974). The case is remanded for an evidentiary hearing on the 180-day rule claim and the res gestae witness claim. The convictions are otherwise affirmed. We do not retain jurisdiction. US Const, Am VI; Const 1963, art 1, §20; MCL 768.1; MSA 28.1024. The following motions and attendant proceedings occurred after the conclusion of the preliminary examination on July 7, 1983: July 18, 1983; defense motion for psychiatric examination. July 25, 1983; order authorizing psychiatric examination. August 1,1983; psychiatric examination. September 21,1983; defense motion to hire a private investigator. September 21, 1983; order granting motion to hire a private investigator. September 28, 1983; defense motions for: speedy trial, return of personal property, dismissal of the felony-firearm charge, suppression of identification testimony, discovery, additional psychiatric examination, and use of a law library by defendant. October 11,1983; amendment to September 28,1983, motion. October 19, 1983; motion hearing rescheduled from October 24, 1983, to October 31,1983, by order of the court. October 31,1983; hearing and disposition of some defense motions. November 21, 1983; prosecution memorandum in apparent response to supplemental brief mailed to court on November 11, 1983, and entered in file January 5, 1984. January 3,1984; opinion disposing of various defense motions. January 5, 1984; supplemental brief dated November 11, 1983, filed with brief dated October 31,1983. January 9, 1984; defense motion to reschedule trial and change venue. February 2,1984; motion for rehearing brought by defense counsel. February 10,1984; notice of hearing. February 10, 1984; prosecution motion to add witnesses; notice of hearing February 13,1984. February 15, 1984; supplemental brief filed by defense counsel regarding speedy trial issues. February 15,1984; opinion on reconsideration filed. March 5, 1984; amended information motion to add witnesses and notice of hearing filed by the prosecution. March 13 and 14, 1984; order granting immunity to Pamela Stefan, jury trial. It is clear from this list of activities that the case steadily was proceeding toward trial after the preliminary examination was concluded. The prosecution need only make prompt good faith efforts to bring the case to trial. People v Freeman, 122 Mich App 260; 332 NW2d 460 (1982), lv den 417 Mich 1052 (1983). It is clear the prosecutor was doing so. Furthermore the numerous delays attributable to defense motions are not chargeable to the prosecution. People v Pelkey, 129 Mich App 325; 342 NW2d 312 (1983).

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Per Curiam. Following a bench trial conducted on June 29-30, 1983, defendant was convicted of fleeing and eluding a police officer, MCL 750.479a; MSA 28.747(1). On July 11, 1983, defendant was sentenced to imprisonment for one year, to be served consecutively to a sentence he was already serving at the time of trial. He appeals as of right, claiming that the trial court committed error by granting the prosecution’s request to amend the information to add the present charge. We agree and reverse defendant’s conviction. The prosecution’s case against defendant turned on whether defendant assaulted a police officer with a dangerous weapon, namely a pistol, on the evening of January 20, 1983. The evidence introduced by the prosecutor was that two police officers were pursuing an automobile when, after this automobile stopped, the passenger thereof exited from the vehicle and fired a pistol at one of the officers. Defendant was the only person apprehended following the incident. The other individual made his escape into the night. At trial, defense counsel indicated during her opening statement that her client did not do the shooting but, rather, he was the driver of the pursued automobile. Thereafter, during trial, defendant took the witness stand in his own defense and testified that indeed he was the driver, rather than the passenger, of the automobile and, therefore, he could not have been the person who committed the felonious assault. At the close of all the proofs, the prosecutor sought to amend the information to add a count of fleeing and eluding a police officer, which is not a cognate or lesser included offense to the original charge. The trial court granted the prosecutor’s request, found defendant not guilty of felonious assault, and convicted defendant of committing the offense of fleeing and eluding a police officer. Although this Court has held that an information can be amended when a criminal defendant reveals a crime during trial, see e.g., People v Johnson, 110 Mich App 735, 738; 313 NW2d 93 (1981), we are unwilling to permit such amendments unless the defendant’s revelation at trial results in actual surprise to the prosecution. See and compare People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). In this case, the record reflects no surprise to the prosecution. The prosecutor knew before charging defendant with felonious assault that defendant may have been the driver of the automobile. Likewise, during defense counsel’s opening statement, it was indicated that defendant was not guilty of the assault offense because defendant was the driver of the automobile, not the passenger. Not until after defendant took the witness stand in his own defense to testify that he was indeed the driver, rather than the passenger, did the prosecution seek this amendment to the information. We review the prosecutor’s tactic not as being in response to defendant’s "surprise revelation” but, rather, as the prosecutor’s possible assessment of a weak case. Accordingly, we conclude that the amendment was improperly allowed. Defendant’s second claim of error is without merit. Reversed. We do not retain jurisdiction.

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O’Hara, J. This is an appeal on leave granted to defendants American Tank Company and its workmen’s compensation insurer, Pacific Employers Insurance Company. One basic question presented is whether an insurance company, although admitted to do business in this state as well as in many other states, can limit its liability to the benefit schedule of a state to which a particular contract of insurance is made applicable. The policy involved in this case reads as follows: "Item 3. Coverage A of this policy applies to the workmen’s compensation law and any occupational disease law of each of the following states: Missouri.” In addition to the above-stated question, several others have arisen by reason of the nature of the holding of the referee in the original hearing. They include the effect of the appeal by plaintiff to the Workmen’s Compensation Appeal Board; the silence of the opinion of the board as to that issue; the effect of the order of the board as opposed to its opinion; the claimed estoppel of appellant Pacific Employers to deny its liability and the differing legal status if any as between appellant insurer Pacific and its insured American Tank Company. It may be an understatement to observe at the outset that the legal and procedural issues do not want for complexity. The facts are not in dispute. The right of the injured employee to the benefits due him under the Michigan schedule of benefits vis-a-vis the Missouri schedule is not contested. The question is who is obligated to pay them. We do not suggest by the foregoing statement that liability is limited to just one of the parties litigant. Robert Woody was grievously injured and suffered tragic residuals in an industrial accident that arose out of and in the course of his employment. He is totally and permanently disabled. If there were a category of injury greater than total and permanent disability he would qualify for it. He was knocked from the ladder upon which he was working when a section of an old water tower owned by the City of Fremont was being disassembled by his employer American Tank. The employer had been engaged by the city to do the work. The City of Fremont is a Michigan municipal corporation. It carries workmen’s compensation insurance afforded by Citizens Mutual Insurance Company. Thus plaintiff is a resident of Missouri employed by a Missouri company which was performing services for a Michigan municipal corporation in this state. To the extent that it may be relevant, American Tank was covered by Pacific Employers under the Assigned Risk Plan of the State of Missouri. It is the position of the Pacific Employers that its liability is limited to the benefits payable under the Missouri Compensation Act by reason of the clear unequivocal language of its contract with American Tank. Pacific further contends that if by its opinion and order the Michigan appeal board in legal effect held Pacific was estopped to assert its policy defense the board was without legal competence to do so, and that even if the board possessed such power it would not by the exercise thereof extend the doctrine of estoppel to providing coverage that did not originally exist. American Tank argues that under our statute which accords to the injured workman the right to recover his scheduled benefits directly from his employer irrespective of any insurance, and also the right to enforce in his own name the liability of any insurance company, the finding of the appeal board that Pacific was "on the risk” was a finding of fact, and completely impervious to judicial review in this state. The authority for this limit upon judicial review is so well established we eschew needless supporting citations. That limitation, however, does not answer the question of whether the action of the board in finding Pacific on the risk was indeed a finding of fact or a conclusion of law. If the latter, obviously the legal conclusion is subject to judicial review. The City of Fremont and its insurer Citizens are not engaged in any internecine warfare. They were represented before us by one counsel, and their position is set forth in a joint brief. First they challenge the right of plaintiff Woody to question the finding by the referee that the City of Fremont and its insurer are not "the employer or principal within the meaning of the Michigan Workmen’s Compensation statute” because plaintiff did not cross appeal from the opinion and order of the appeal board. Plaintiff did appeal the referee’s finding to the board, but did not pursue its appeal to this Court. The opinion of the board makes no mention of this appealed issue. The order simply states that "the decision of the hearing referee * * * is affirmed”. Plaintiff contends that though the board did not use the term "estoppel” in its opinion the effect of its opinion and order affirming the referee did operate to estop Pacific from denying coverage of American Tank as to all benefits due plaintiff under the Michigan act. He further argues that the issue of estoppel is cognizable by the bureau, i.e., the referee, even though the board did not point-blank answer the question. He vigorously supports the right of the board to read out of Pacific’s policy the limitation to the Missouri benefit schedule. Finally, plaintiff contends that if the immediate employer American Tank is found not to be covered by Pacific Employers then the City of Fremont and its carrier Citizens are liable by reason of the following provision of our act: Section 418.171 of the Workmen’s Compensation Act (MSA 17.237[171], former Part I, § 10, MCLA 411.10; MSA 17.150) provides as follows: "Sec. 171. (1) If any employer subject to the provisions of this act, in this section referred to as the principal, contracts with any other person, in this section referred to as the contractor, who is not subject to this act or who has not complied with the provisions of section 611, and who does not become subject to this act or comply with the provisions of section 611 prior to the date of the injury or death for which claim is made for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and if compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. A contractor shall be deemed to include subcontractors in all cases where the principal gives permission that the work or any part thereof be performed under subcontract.” With the battle lines thus drawn and various positions of the parties delineated, we will undertake to perform our limited role of judicial review. Before writing to each issue we consider properly before us, we commend all counsel upon the excellence of their briefs and their forceful oral presentation. When wé do not, as we will not, attempt to discuss each cited case and distinguish or reconcile apparent conflicts we refrain only because we fear we might well add to what must be conceded is a murky area of law. We will follow specific precedent where we believe our Supreme Court has spoken unequivocally. We will, as obligated, reach our own conclusions of law where such precedent does not control or where precedent is in our view in conflict. In so doing we will restate and collate the statement of questions involved from the composite of parties’ phraseology. They will not necessarily follow the order in which we set them forth earlier herein. First, we uphold as a matter of law the status of plaintiff to challenge the finding of the hearing referee that the City of Fremont and its carrier Citizens are not an employer or principal within the meaning of our statute. We do this on no particular case precedent but for the very pragmatic reason that remanding to the appeal board would serve no useful purpose. We will assume that the appeal of plaintiff from the finding of the hearing referee, and the failure of the appeal board to mention the issue in its opinion and the blanket affirmance of the referee in the order leaves the legal conclusion of the referee before us for review. It is manifest the facts relating to this legal issue could not be varied by resubmission. Thus, the procedural question of status we resolve in favor of plaintiff. Now as to whether American Tank, apart and distinguished from Pacific Employers, is liable directly to plaintiff. Of course, it is. American came into Michigan and performed services under a contract here. One of its employees was injured. The employee was entitled to all of the benefits of the Michigan act and the Michigan schedule of benefits for the simple and irreducible reason that our act makes it liable directly to him ("the person entitled to such compensation * * * shall, irrespective of any insurance or other contract, have the right to recover the same directly from the employer”). MCLA 414.2; MSA 17.196. As we noted with particularity earlier herein, the fact that American is directly liable to plaintiff does not carry with it the inevitable conclusion that no one else is. We mention it again here because it is relevant to our ultimate holding. We turn now to Pacific Employers, the carrier for American Tank. Its varying positions in the litigation like quicksilver are difficult to catch and hold long enough to analyze. On March 7, 1968, it directed a letter to Michigan’s Compensation Department, over the signature of the supervisor of its policyholders service, stating unequivocally: "This is to advise that this company, through the Missouri Assigned Risk Pool, does provide a standard Workmen’s Compensation policy for American Tank Company. However, this coverage is applicable to Missouri only. There is no coverage for any other jurisdiction. * * * We have notified the employer, American Tank Company, that, since our policy does not afford the employer coverage under Michigan law, no appearance will be made on his behalf if and when this Michigan claim comes up for hearing. ” (Emphasis supplied.) On April 5, 1968, by letter to Pacific, plaintiffs counsel (apparently made aware of this position indirectly; the record is unclear on the point) suggested that "it would seem that the retention of counsel to protect your interests might be a very wise step”. Despite this thoughtful and altruistic action on plaintiffs counsel’s part, neither Pacific nor its parent company, Insurance Company of North America, entered an appearance. This fact was also noted by the referee, after inquiring as to whether notice of the proceedings at Grand Rapids had been sent to North America. Thereupon, plaintiff’s counsel (with an assist by counsel for the City of Fremont) stated on the record that "it [the notice and failure to appear presumably] raises estoppel”. But plaintiffs counsel was careful to add "there is insurance here [by Pacific] despite estoppel”. Much time on oral argument and by brief was devoted to whether Pacific was estopped to deny coverage. It deserves more than passing notice that neither the referee nor the appeal board ever used the word "estoppel” in their respective findings, opinion or orders. We think it would be injudicious of us to write decisionally to a point that really is not before us by reason of any specific holding by the referee or the board that Pacific was estopped to deny coverage. Thus, it becomes unnecessary to dissect, quote and interpret a veritable avalanche of correspondence between Pacific and American Tank on the subject. However, to insulate the proceedings already long drawn out from an unnecessary remand to us should the Supreme Court review this matter and require us to pass upon the matter, we hold in that event our position would be that the appeal board is a statutory body exercising specific legislatively delegated powers. It is without inherent judicial power. Specifically, we hold the board lacks the jurisdiction of a court of equity to pass upon this issue as between Pacific and American Tank. We rest this position upon Michigan Mutual Liability Co v Baker, 295 Mich 237; 294 NW 168 (1940). It is all said in one brief quotation in Baker from Jones v St Joseph Iron Works, 212 Mich 174, 178; 180 NW 374, 375 (1920): "While the industrial accident board [the present Workmen’s Compensation Appeal Board] performs quasi-judicial duties, it is not possessed of judicial power.” Baker, supra, p 242; 294 NW p 170. If American Tank and Pacific need to enter the ring in that controversy, equity, we are sure, will dispose of the matter. Be that then as it may, the referee held Pacific "in” and the appeal board afiirmed. In so doing, while they talked the language of estoppel, they rested their finding on the following language: "The Workmen’s Compensation Act of Michigan provides in Compiled Laws of Michigan 418.621: " 'Sec. 621. (1) Every contract for the insurance of the compensation provided in this act for or against liability therefore, shall be deemed to be made subject to the provisions of this act and provisions inconsistent with this act are void.’ "[T]hus the limitation to benefits of Missouri is null and void and for the above reasons, the order of the referee is affirmed.” (Emphasis supplied.) To understand this holding all of the Bar not party to the proceedings themselves should understand that Pacific, after its initial denial of coverage, did get into the act. It modified its position, and paid plaintiff all benefits due him up to the time of oral argument before us, under the Missouri compensation act, which is much less beneficial to plaintiff than those provided by the Michigan schedule. We are urged by plaintiff that recent Federoff v Ewing and its appellate consolidated companion case Shannon v Star Wrecking Co, Inc, 386 Mich 474; 192 NW2d 242 (1971) controls and is totally dispositive. Federoff vo. this particular has not been judicially construed, and stands as the law for its own facts. To us then, its interpretation is of first impression. The interpretation of Federoff contended for by plaintiff seems to imply that an insurance carrier admitted to do business in Michigan as well as in many other states cannot write a policy restricted to coverage in one or several other states as a matter of private contract which is sustainable as between the carrier and the insured. Plaintiff suggests that the unilateral act of the insured of engaging in work in Michigan, and the injury of a workman in this state, vitiates the restrictive condition in the policy. We do not so read Federoff. Great is the power of the sovereignty. The broadest possible construction must be given by courts to effectuate the salutary objective of our act. We do not believe, however, that this power extends to reading the Michigan Workmen’s Compensation Act provisions into the limited insurance contracts made in the 49 other states. A similar holding by the other sovereign states would be to make 50 different contracts for every workmen’s compensation policy issued. We do not believe that is what Federoff, fairly read, holds. In the first place, Federoff was concerned with enforcement of benefits under a policy admittedly effective in Michigan. What the Supreme Court said, wisely and salutarily, is that an employee injured in Michigan, under a policy issued by an insurer which went into receivership, was not bound by the terms of a reinsurance contract between the defunct insurer and its reinsurer. In effect, said the Court, the injured employee is not to be required to go through , the interminability of filing a claim in the receivership, and exhausting his remedy against the primary insurer. The Court said further, that since the reinsurer was admittedly on the risk, over and above payments by the defunct primary insurer, the exculpatory language in the reinsurance contract was void. What the Court struck down and rewrote in Federoff is the following proviso: "The actual payment in cash by the company [the defunct insurer] of any loss shall be a condition precedent to any recovery under this agreement, and subject to such condition.” The Court held the reinsurer directly liable. In short, Federoff-Shannon is inapposite. Does this then mean that plaintiff Woody must be content with payments of the Missouri schedule which Pacific chose to make, meager as they are by Michigan standards? Emphatically we answer "no”. Neither must he, as his counsel suggested wryly, take over the business of and operate a tank disassembling company. The City of Fremont at its peril and to its own detriment and that of its compensation insurer engaged a company to perform services in Michigan that had inadequate, if any, Michigan insurance coverage. We reject the argument of Fremont and Citizens, that because the referee held that Fremont and its insurer are not the employer or principal within the meaning of the Michigan act, that is a finding of fact insulated completely from judicial review. We think it is clearly a question of statutory interpretation and thus just as clearly a question of law. It has been and remains the law of Michigan that the "contracting under” doctrine will protect the employee of an independent contractor and enforce his rights against the principal when injured while engaged in any task which can be seen to be a part of or necessary to the overall enterprise of the principal. The City of Fremont chose to tear down a water tower which admittedly it owned, so it could more advantageously sell the realty on which it stood. It let the job out on bids. American Tank was selected from the bidders. It was the burden of Fremont, as it was and remains the burden of every principal hiring independent contractors, to see that the selected contractor has clear, unquestioned, approved, and adequate workmen’s compensation coverage. We caution that a mere "certificate of insurance” of the existence of a policy, inadequate or inapplicable, does not suffice. See the litany of cases beginning with Burt v Munising Woodenware Co, 222 Mich 699; 193 NW 895 (1923), through and including cases on into 1959 (except Roman v Delta Broadcasting Co, decided in 1952, which we do not attempt to explain, distinguish or reconcile except to say that the weight of Supreme Court precedent is all contra). But says Citizens, what of the following statutory proviso: "A person employed by a contractor who has contracted with a county, city, township, village, school district or the state, through its representatives, shall not be considered an employee of the state, county, city, township, village or school district which made the contract, when such contractor is subject to this act.” MCLA 411.7; MSA 17.147. See current provision in MCLA 418.161; MSA 17.237(161). We think the city misreads the theory of plaintiffs case if it depends on the foregoing proviso. Plaintiff never contended he was an employee of Fremont. Clearly he asserted throughout that he was an employee of American Tank. However, we observe that if the proviso were to be read to exclude the enumerated units of government a most serious constitutional equal protection question would be raised. So now we have American Tank liable to plaintiff because American was his immediate employer who came into Michigan, subjected itself to our act and its schedule of benefits. We have Pacific Employers raising a valid policy coverage defense sustained by us to the degree that Pacific invoked it, namely a limitation to the Missouri benefit schedule. We also have Pacific estopped or not estopped to assert that defense as the case may be in a court of competent jurisdiction and thereby possibly liable to any one with status to assert the estoppel. We have the City of Fremont and its insurer, whose positions before us are identical, liable to plaintiff because it engaged an independent contractor whose insurance coverage was inadequate to meet the Michigan compensation benefit schedule. The question of first impression seems to be: where does this leave plaintiff as to enforcing his right to the full Michigan schedule of benefits? Certainly he should not have to proceed, in some manner, against American directly. As his counsel with righteous indignation observed in oral argument, "Mrs. Woody and her dependent children are not interested in, even if competent, to operate a tank company”. Certainly plaintiff should not have to wait until American or some other party with status can enforce the asserted estoppel of Pacific to deny full coverage of American. Thus, the query becomes, even though American Tank is the immediate employer, with the City of Fremont and Citizens liable directly to plaintiff only if the coverage by Pacific Employers is nonexistent or inadequate, can plaintiff proceed under our Workmen’s Compensation Act and enforce liability against Fremont and Citizens directly? We think that he can and moreover that he did. The caption of the stenographic record of proceedings before the referee is entitled, "Robert Woody, plaintiff vs. American Tank Company and [the] City of Fremont”. We think with or without Federoff, supra, but certainly strengthened by the ratio decidendi of that case, Fremont and Citizens are concurrently and not consecutively directly liable to plaintiff under our act. We see no reason in law or logic why this should not be so. The city owned the property and the tower on which it was located. It wanted to sell the realty and apparently according to the testimony would be better able to with the obsolete tower removed. Had it chosen to remove the tower itself the removal would have been an insured risk, (except perhaps under inexplicable Roman, supra, fn 3). We think we do no injustice to Citizens. It insured the city and collected its computed premium therefor. Thus we conclude that since we have held Fremont and Citizens concurrently liable, we adopt the rule that under the facts of this case and in cases of identical factual situations, it becomes the option of the. injured employee or his proper representative to proceed against the direct employer or the principal who engaged the independent contractor and its compensation insurer. We reverse the legal conclusion of the referee that the City of Fremont and its carrier Citizens are not liable directly to plaintiif under our act. To the extent that the order of the appeal board sub silentio or expressly affirmed this legal conclusion we likewise reverse the appeal board. We remand the cause to the board with instructions to enter its order finding the City of Fremont and its insurer co-equally directly liable to plaintiff with American Tank for the full benefits due plaintiff under the Michigan Workmen’s Compensation Act from the date of injury until further order of the board. We reverse the appeal board in its legal conclusion that Pacific Employers is liable directly to plaintiff for benefits beyond those provided under the Missouri act. We express no opinion as to the liability of Pacific Employers under the asserted estoppel theory and leave that issue to judicial determination in a court of competent jurisdiction at the instance of any party legally competent to assert that estoppel. Against whomever plaintiff chooses to enforce his right to all Michigan scheduled benefits, that party shall be credited with the payments thus far made to plaintiff by Pacific Employers. All defendants entered upon the appeal. They appeared and argued before us. We deem them all defendants of record. Not one of them prevailed in full as to his or its asserted position. Plaintiff prevailed in full and may tax costs equally against • all defendants. The cause is remanded to the appeal board for entry of an order embodying the legal conclusions and results reached herein. All concurred. MCLA 414.2; MSA 17.196, has since been repealed. The current provision is MCLA 418.651; MSA 17.237(651). MSA 17.237(621). 334 Mich 669; 55 NW2d 147 (1952).

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O’Hara, J. This is an appeal of right by defendant husband from an order denying modification of a judgment of divorce. The judgment was entered January 14, 1972. On April 26, 1972, appellant by counsel other than the attorney of record in the case in chief filed a petition to modify the judgment. The petition recites that: "Defendant’s petition is based on the attached affidavit and on facts to be presented to the court by a hearing wherein defendant will show that the economic status of the parties has changed substantially since the judgment was entered and that the defendant can no longer afford and has not been able to afford to pay the support payments in the amount of sixty ($60) dollars per week in that he is no longer employed in the same capacity as he was at the time of judgment. "Petitioner further states that plaintiff no longer needs the sixty ($60) per week for the support of the children.” The accompanying affidavit tells us that instead of $238.23 per week take home pay at the time of the entry of the judgment, the defendant’s income as of the date of the execution of the affidavit is $77 per week unemployment benefits. Surely this is a classic case for relief based upon a change of financial circumstances. Because we were concerned we ordered up the total record, pleadings, docket entries and the transcript of the testimony upon the hearing of the motion to modify. We have reviewed the record with microscopic care. It makes interesting reading. In addition to examination by both counsel of record, the Friend of the Court entered an appearance and also examined defendant. This examination elicited the information that between the time of the entry of the judgment of divorce and the date of the hearing on the motion to modify it, defendant managed to accumulate an arrearage of approximately $1,100. It further established that defendant was not laid off until April 12, 1972. Thus except for seven or eight weeks defendant’s income was the same as it was at the time of the entry of the judgment. The record strongly suggests, though it does not conclusively establish, that the terms of the judgment were arrived at by negotiation between defendant’s then counsel and counsel for plaintiff wife. It would have been better practice to make of record the fact that the terms of the judgment were a matter of stipulation — if indeed they were. The transcript establishes that defendant is a certified welder and a licensed pipe fitter. It further establishes that except for waiting for a call back to work from his former employer he made no effort to find work in his skilled trades elsewhere. Defendant candidly admitted that the time of year of the hearing of his petition and the time of year since his layoff was the season generally known as the best part of the year for pipe fitters and certified welders. The trial judge noted on the record: "I think I have heard as much as I care to in this case. I refer the matter to the prosecutor’s office. * * * I think after a proper investigation, you [Friend of the Court] make your report to the court and give counsel a copy and then I’ll make my decision * * * .” The investigation was made and á detailed report was submitted to the court. So far as the record shows both counsel received a copy. At least appellant does not complain that he did not. The trial judge entered a detailed order denying the petition to modify the judgment and providing for payments of support at the original figure of $60 per week together with "such other additional payments to reduce the delinquency now due on such child support payments in such amount as shall be set by the office of the Friend of the Court for the County of Alpena”. A stay of execution was issued upon the furnishing of a bond. In the order staying the execution the trial court ordered that the defendant pay $40 per week as child support and that: "Defendant shall still be responsible * * * for the $20 per week payment which this court is hereby staying execution upon and shall constitute an arrearage should the Court of Appeals affirm the order of this court appealed from.” The appeal in this case, to consolidate the grounds asserted, amounts to claimed error on the part of the trial judge in using "extraneous evidence not presented at the time of hearing and clearly abusing its discretion in ignoring defendant’s testimony completely”. As to the "extraneous matter” issue, the trial court made crystal clear to both counsel that he was seeking a report from the Friend of the Court’s office, and that each counsel would receive a copy thereof, and after the report was delivered to the court, he would make his decision. If either counsel had any objection it was his duty to speak up — as the saying goes — loud and clear. Whatever the merit of this claimed error, if any, clearly it is not before us. As to the abuse of discretion in disregarding completely defendant’s testimony, we think rather the trial judge not only did not disregard it, he was led to his conclusion by it. We find no merit in the claimed errors. Haskins v Haskins, 11 Mich App 487; 161 NW2d 415 (1968), cited by appellant, if authority for anything relevant hereto, supports our legal conclusion that it was received by agreement. This is especially true when appellant stated from the stand he would itemize for the Friend of the Court’s office all his expenses. The wording of the order we quoted earlier herein providing for "such other additional payments to reduce the delinquency * * * as shall be set by the office of the Friend of the Court” is both unfortunate and legally infirm. It may have slipped into the record without notice by the learned trial judge. Obviously, the office of the Friend of the Court cannot "set” payments of delinquencies or any other kind of payments. Recommend it can, exercise judicial functions it cannot. To this extent the order quoted is vacated and held for naught. The trial judge reserved to himself continuing jurisdiction to modify the stay order "should the Court of Appeals affirm”. We do to the extent that we affirm the order denying the petition for modification of the judgment of divorce. We remand to the trial court for the limited and specific purpose of allowing the trial judge to enter a separate order incorporating the payments of child support and delinquency payments which were embodied in the order staying execution of the judgment. We retain no jurisdiction. In view of the fact that appellee neither filed a brief nor in any other way participated in proceedings in this Court, no costs of this Court are awarded. All concurred.

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Danhof, J. These four workmen’s compensation cases have been consolidated for appeal. At issue is the potential liability of the Second Injury Fund in cases where an alleged employer has neither admitted liability under the act, nor been adjudicated liable, but rather where liability has been redeemed pursuant to the first provision of MCLA 412.22; MSA 17.172, currently MCLA 418.835; MSA 17.237(835). Plaintiffs appeal from decisions of the Workmen’s Compensation Appeal Board which hold that liability of the Second Injury Fund is derivative from that of the employer, so that the fund cannot be subjected to a separate, independent hearing as to liability for differential payments once the employer’s alleged prospective liability has been redeemed via a negotiated settlement. - For the factual circumstances out of which these disputes arose, we have drawn extensively from the four opinions of the Workmen’s Compensation Appeal Board. John B. White was a race driver who was injured on June 14, 1964 while driving one of defendant Weinberger’s vehicles at Terre Haute, Indiana. His injuries included partial severing of the spinal cord, leaving him described by medical testimony as a tetraplegic. There was strong disagreement over his actual employment status at the time of his injury and defendant and its insurer never admitted to liability. No voluntary compensation was paid until a redemption agreement was reached in the amount of $75,000. This was paid in the form of a six-month "jurisdictional payment” in the amount of $1,539 at the time of the redemption hearing, with the balance paid subsequent to the approval by the referee and director of the bureau. The record reveals that plaintiff was completely aware of his options before the redemption was consummated. Plaintiff and his counsel made clear their intent to proceed against the fund for additional benefits, but plaintiff acknowledged that he would be willing to redeem for the stated sum regardless of the outcome of his pending claim against the fund. No hearing on the merits of plaintiffs claim against defendant Weinberger was ever held, nor was any decision ever entered in that regard. John Boyko was injured when struck in the back by a hi-lo truck on October 19, 1957 and has not worked since November 14, 1957. Defendant Chrysler Corporation voluntarily paid total disability weekly benefits to the end of the statutory 500-week period. Plaintiff Boyko then petitioned for permanent and total disability, claiming loss of industrial use of both legs. The claim was denied by Chrysler. A redemption was entered into between plaintiff and Chrysler in the amount of $5,400 and was approved by the referee. The Second Injury Fund was dismissed as a defendant "without prejudice to plaintiffs right to re-file against said defendant in the future”. Hansel O. Moorhouse fell from a ladder while in the employment of defendant Candler Company, at age 70, on September 11, 1956. His injury was reported as "severe spinal injury”, and voluntarily weekly benefits were paid for 500 weeks. At the end of this period, plaintiff petitioned for permanent and total disability based on the loss of industrial use of his legs. A redemption of defendant firm’s prospective liability was approved by the referee in the amount of $5,000. No proofs were taken on the claim of loss of industrial use. The record reveals that plaintiff and counsel intended to proceed against the Second Injury Fund subsequent to the redemption, but were also aware that the redemption involved possible waiver of plaintiffs right to proceed against the fund. Roosevelt Pitts froze the fingers of both hands while working for a gas station on January 1, 1968 in sub-zero weather. This resulted in amputations through the middle phalanges of the four fingers of the left hand and through the middle phalanges of the index and middle fingers of the right hand. No weekly benefits were paid because of a lack of insurance being carried by the gas station proprietor, and because there was (quoting plaintiffs brief) "substantial question as to whether the Citron Oil Company was a statutory employer within the meaning of Section 10(a) of Part I of the Workmen’s Compensation Act”, formerly MCLA 411.10; MSA 17.150, currently MCLA 418.171; MSA 17.237(171). The liability of defendant gas station and defendant oil company was redeemed for $9,000 in an action approved by the referee. Plaintiffs counsel stated on the record at the redemption hearing that he believed "there is a good chance of perhaps collecting benefits from the second injury fund even though this Redemption is approved”. Plaintiff thereafter petitioned for benefits from the fund, claiming loss of industrial use of both hands. Plaintiffs make the following arguments in support of their contention that the redemptions agreed to should not foreclose a hearing on the merits of their claim against the Second Injury Fund. (1) Since the Silicosis and Dust Disease Fund specifically now states that redemption of liability with the employer or an insurance company shall remove all liability of this fund, failure to so specify in the Second Injury Fund sections of the statute should be interpreted to mean that redemption does not effect that fund’s liability; (2) That there is no jural identity between the employer and the Second Injury Fund; (3) That the fund’s liability is not based on the contract between the employer and the employee, but is based solely on the employee’s status as a totally and permanently disabled person. The Attorney General on behalf of the Second Injury Fund contends that the fund’s differential payments to the totally and permanently disabled were intended as a supplement to basic compensation payments, not as a substitute for them; that the fund is liable for differential payments only if the employer’s liability for total and permanent disability benefits has been established through admission or adjudication. Finally the Attorney General points out that the long standing practice of the fund has been to adopt whatever position the employer/carrier adopted whether it be to pay voluntarily, to defend, to appeal, or not to appeal; that the fund’s passive-derivative role is to the advantage of claimants who are thereby spared the financing and delay of two trials, one with the employer/carrier and the other with the fund, before receiving the full benefits under the act. The primary purpose of the Second Injury Fund, one not involved in this appeal, is to enhance the prospects of employment of certain handicapped persons who had previously sustained specific losses. Verberg v Simplicity Pattern Co, 357 Mich 636, 643; 99 NW2d 508, 512 (1959); Whitt v Ford Motor Co, 383 Mich 726, 730-731; 178 NW2d 917, 919 (1970); 2 Larson’s Workmen’s Compensation Law, § 59.31 et seq. The statutory source of the fund’s liability for differential and additional benefits is contained in MCLA 412.9(a); MSA 17.159(a) and read at the time of White’s, Boyko’s, and Moorhouse’s injuries as follows: "Any permanently and totally disabled person as defined in sections 8a and 10 who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of this amendatory act receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now receiving per week and the amount per week now provided for permanent and total disability with appropriate application of the provisions of paragraphs (b), (c), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this act for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.” The intent of the statute would seem to be clear, i.e., to protect the totally and permanently disabled employee who is entitled to compensation under the act from inflation by passing on legislative improvements in benefits without assessing a single employer for benefits not in effect at the time of injury. Rasar v Chrysler Corp, 382 Mich 169, 175; 169 NW2d 303, 306 (1969). Although the wording of the statute was slightly different at the time of Pitts’s injury, none of the parties contend that the issue should turn on this variation. Rather, our task is to determine whether the longstanding practice of making the fund’s liability derivative is reasonably grounded in the plain meaning of the statute. The redemption agreements in all four cases were voluntary compromises entered according to the first provision of MCLA 412.22; MSA 17.172, as opposed to lump-sum advances under the second provision, and were final settlements of all liability under the act of the respective employers and their carriers. Wehmeier v WE Wood Co, 377 Mich 176, 185, 189; 139 NW2d 733, 737 (1966). The voluntary weekly benefits paid to Boyko and Moor-house, the jurisdictional payments to White and Pitts, and the amounts under the redemption agreements themselves cannot be construed as admissions or adjudications of liability. MCLA 413.6; MSA 17.180. These four redemption agreements operated to foreclose among other things determination under the act as between the alleged employers and claimants of the following issues: jurisdiction over out-of-state injuries (in White’s case); whether there was a contractual or statutory relationship of employer-employee (hotly disputed in White’s and Pitts’s cases); whether the claimed disabilities could be defined as total and permanent under the act; whether the disabilities resulted from personal injuries arising out of and in the course of employment. The statute is clearly to the effect that a claimant must be "entitled to receive payments of workmen’s compensation under this act” in order to participate in the fund’s differential and additional benefits, and it makes no provision for those who might have been entitled to receive payments had they not redeemed. If plaintiffs are allowed a determination of issues previously compromised for the sole purpose of adjudicating the liability oí the fund, the litigational and investigatory burden would no doubt be shifted to the fund by the employers who have no further interest in the outcome. The direction that a fund participant receive differential payments "without application” would become meaningless and we would chart an uncertain course as to whether the fund could contest issues not contested by the employer. As the Attorney General points out in his brief, "The term 'without application’ was removed from the above section by 1968 PA 227, effective July 1, 1968, but the practice remains in filing against the employer without a separate application directed to the fund”. Were we to judicially redefine the traditional passive-derivative role of the fund, a role we have seen to be well-grounded in the statute, we would risk upset of an orderly administrative procedure which usually works to the benefit of claimants. As stated in the controlling opinion of the appeal board in the case of John B. White: "To find an independent liability on the part of the Fund would be to not only impose investigatory, administrative and litigation responsibilities heretofore unanticipated, but would issue license to take an independent stance on any and all cases pending before the Bureau or this Board. The Fund could then dispute cases not disputed by the employer/carrier, in addition to joining in defenses of employer-defendants. "Thus we tell the injured claimant that he has not one case, but two to prove before the full benefits of this Act become due him. Finding such a separate liability could well benefit John White, who chose to redeem the liability of his case before legal entitlement had been admitted or proven, but we would place before other injured Michigan employees twin hurdles to leap on their road to the full enjoyment of legislated benefits.” 1972 WCABO 1506. We therefore affirm the holding of the Work men’s Compensation Appeal Board that the establishment of employer liability, either by admission or adjudication prior to redemption, is an absolute prerequisite to Second Injury Fund liability. We note, as did the appeal board, the case of Derouin v Director of Workmen’s Compensation Department, 19 Mich App 309, 313; 172 NW2d 463, 466 (1969). There employer liability was redeemed after there had been decisions establishing both employer and fund liability. In holding that the fund’s statutory obligation to pay differential benefits was not terminated by the subsequent redemption agreement, this Court stated: "Although payment from the fund is dependent in the first instance upon the employee being a permanently and totally disabled person, as defined in the act, who on or after June 25, 1955, is entitled to receive payments of workmen’s compensation, once these facts are determined affirmatively, the Second Injury Fund is required to pay the increased benefits as stated in the act.” (Emphasis added.) Larson cites Derouin and Levi v Special Indemnity Fund, 389 P2d 620 (Okla, 1964), for the proposition that fund liability is purely derivative, making an award against the employer a condition precedent to differential benefits. Larson, supra, § 59.31, p 88.123, fn 61 (1973 Cum Supp): "Derouin v Yeager, [19 Mich App 309;] 172 NW2d 463 (Mich App 1969). Claimant suffered compensable injuries that left him totally disabled. His employer was ordered to pay compensation, and the Second Injury Fund was ordered to make supplemental payments. The employer terminated its obligation by entering into an agreement for the payment of benefits in a lump sum, and the Fund ceased making its payments. The Court held that the Fund’s obligation to pay, once it was ordered to do so, was separate and apart from that of the employer, and the discharge of the employer’s obligation did not discharge the Fund.” (Emphasis added.) In the case of John B. White, the dissenting members of the appeal board refer to the case of Bugg v Fairview Farms, Inc, 385 Mich 338, 351-352; 189 NW2d 291, 297 (1971), where it is stated: "In any event, in this case, we need not determine the abstract question of whether an approval of a redemption agreement is a determination of the conditions of liability under the act by the compensation commission. * * * 'There is no good reason why parties may not settle any part of a controversy upon which they may reach agreement and leave the controverted part for litigation.’ Wolverine Insurance Co v Klomparens, 273 Mich 493, 497 [263 NW 724, 725] (1935). * * * The conditions of liability under the act are necessarily determined by the compensation department for the purpose only of approving a redemption agreement. But this does not necessarily adjudicate the issue for all purposes.” The Bugg case does not, however, portend the result that should be reached in the present case. That case involved a wrongful death action brought by the widow-administratrix against the employer and fellow employee of plaintiffs decedent. The employer’s liability for compensation had been earlier redeemed, with an express reservation by the parties of the issue of whether the deceased had died in the course of his employment. The specific holding of the Supreme Court was that defendants were estopped to raise the redemption agreement as a defense because the disputed issue as to whether workmen’s compensation was to be the exclusive remedy against the employer was reserved for determination in the law action. In the instant case, we are not concerned with the defense of res judicata, but rather with specific statutory language mandating certain prerequisites to the liability of the Second Injury Fund. Plaintiffs argue that the Legislature specifically provided that redemption of liability with the employer/carrier eliminates all liability of the Silicosis and Dust Disease Fund and that failure to make the same provision for the Second Injury Fund shows the intent of the Legislature to make the latter fund’s liability separate and independent. However, the Silicosis and Dust Disease Fund as first created on May 1, 1966 provided, MCLA 417.5; MSA 17.223(1): "(i) The trustees of the fund or their authorized representatives shall be permitted to compromise its liability by redemption in conjunction with a redemption entered into by the employer or its insurance carrier. A redemption of liability with the employer or its insurance earner shall in no way affect the liability of the fund unless it participates therein. ” (Emphasis added.) In order to clearly designate a change in legislative intent, it was necessary in the Workmen’s Compensation Act of 1969 for the Legislature to enact the following provision, MCLA 418.545; MSA 17.237(545): "Sec. 545. After a carrier has paid an employee $12,500.00 for disability or death due to silicosis or other dust disease, the trustees may compromise the liability of the silicosis and dust disease fund by entering into a redemption of liability directly with the employee if in the judgment of the trustees it is in the employee’s best interest to do so. Redemption of liability shall terminate all liability of the fund. A redemption of liability by a carrier for compensation paid for disability or death from silicosis or other dust disease made with the employee prior to the actual payment by the carrier of $12,500.00 in compensation benefits shall eliminate all liability of the silicosis and dust disease fund.” Thus the reference to redemption in the current statute reflects a legislative change of mind about the desirability of the silicosis and dust disease fund having a liability apart from that of the employer where there has been a redemption and therefore, does not support plaintiffs’ argument. Of interest also is the new chapter 9 added to the workmen’s compensation law in 1971, effective July 1, 1972. MCLA 418.901 et seq; MSA 17.237(901) et seq. Based on that chapter, a vocationally handicapped person as defined in the act may also under certain circumstances receive payments from the Second Injury Fund. However, MCLA 418.935; MSA 17.237(935) provides that redemption of employer liability before actual payment by the employer of those benefits which have accrued during the period of 104 weeks after the date of injury eliminates all liability, including vocational rehabilitation, of the Second Injury Fund. Lastly, the opinion of the dissenting members of the appeal board in the case of John B. White cites an opinion of the Attorney General, 1 OAG, 1955, No 2244, p 475 (September 20, 1955) for the proposition that the Second Injury Fund has failed to follow the orders of the Attorney General to participate in redemption agreements and pay its pro rata share thereof. However, a careful reading of that opinion reveals that it was premised upon a person receiving compensation for permanent and total disability — payments which already included differential payments from the Second Injury Fund. In the case at bar, the fund has not made payments to plaintiffs because the employers’ lia bility was never admitted or adjudicated. Had employer liability for permanent and total disability been established, and had lump-sum payments in advance been approved by the commission under the second provision of MCLA 412.22; MSA 17.172, amounts due from the employer and the fund could have been commuted on the present worth thereof in accord with the opinion of the Attorney General. Affirmed. All concurred.

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Targonski, J. The plaintiff, Vinnia Goodman, moved to Michigan in 1959, after doing industrial work in other states from 1941 to 1959. After moving to Michigan, she worked steadily, though at four different places of employment, until November 8, 1968. As of that date, she was disabled due to pulmonary emphysema, chronic bronchitis, probable bronchiectasis, probable byssinosis, and kyphosis of the dorsal spine. The plaintiff then brought an action under the Workmen’s Compensation Act against her prior Michigan employers for the past ten years. The Silicosis and Dust Disease Fund voluntarily entered an appearance. A hearing was held on February 17, 1970, and the hearing referee dismissed the case against all the plaintiff’s prior employers except for Bay Castings and Color Grafters. The referee found that the plaintiff was suffering from a "dust disease” and ordered that Bay Castings pay compensation to the plaintiff. The referee further ordered Color Grafters to reimburse Bay Castings to the extent of 49.25% of the amount that the latter had to pay to the plaintiff. The decision was appealed to the Workmen’s Compensation Appeal Board. The board ordered the referee’s determination of the liability of the dust disease fund stricken from the record but affirmed the rest of the referee’s decision. From this affirmance Color Grafters brings this appeal and Bay Castings appeals that portion of the board’s decision that finds plaintiff does not have a "dust disease” within the provisions of Part VIII, Section 4, Workmen’s Compensation Act. I The first claim of error raised by the appellants is that the deposition of Dr. Ira Avrin was improperly admitted since they were never notified of its taking. This claim would seem to be well taken since it is well settled that a deposition may not be used against a party who was not notified of its taking. GCR 1963, 302.4; White v Dirks, 380 Mich 1; 155 NW2d 165 (1968). However, a review of the record reveals that the following colloquy took place prior to the admission of the deposition and while counsel for the appellants was present: "Mr. Libner: At this time I would offer the deposition of Dr. Ira Avrin taken on December the 10th, 1969, in Southfield, Michigan. "The Referee: Are there any objections other than as therein contained? "Mr. Hale: No. "The Referee: Go ahead, Mr. Libner.” Mr. Hale, who stated he had no objections, was representing Bay Castings but Color Crafter’s counsel was in the courtroom and had an opportunity to object to its introduction. The necessity for objecting to the admission of a deposition is stated in 9 Michigan Law & Practice, Depositions, § 23, p 383, as follows: "In general, defects, irregularities, or omissions in a deposition, its introduction, or its taking, are waived by failure to object at the proper time and in the proper manner.” See also In re Zick’s Estate, 205 Mich 681; 172 NW 382 (1919); 3 Callaghan’s Michigan Pleading & Practice (2d ed), § 35.85, at 306. In the instant case, the appellant had an opportunity to object and the failure to do so precludes it from challenging its admissibility in this Court. The board is affirmed on admissibility of Dr. Avrin’s deposition. II. The appellant next contends that the hearing referee erred in ordering apportionment because the exposure with the last employer was of a separate and distinct nature from such exposure with prior employers. The governing statute is MCLA 418.435; MSA 17.237(435) which states in relevant part: "The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If any dispute or controversy arises as to the payment of compensation or as to liability therefor, the employee shall give notice to and make claim upon the last employer only and apply for a hearing against the last employer only. If the employee was employed by prior employers in an employment to the nature of which the disease was due and in which it was contracted, the hearing referee to whom the case is assigned or the director on motion made in writing by the last employer shall join any or all prior employers, mentioned in the motion, as parties-defendant. * * * The hearing referee shall enter an order determining liability for compensation as between the employee and the last employer. The hearing referee shall apportion liability for compensation among the several employers in proportion to the time that the employee was employed in the service of each employer in the employment to the nature of which the disease was due and in which it was contracted and shall enter a separate order in favor of the last employer and against prior employers for their proportionate share of liability, which order may be enforced in the same manner as an award for compensation.” The appellants contend that under the statute two tests must be met before the last employer is entitled to apportionment. First, and employee must have been employed by prior employers in an employment in which the disease was contracted. Secondly, the employee must have been employed by prior employers in an employment to the nature of which the employee’s disability was due. As to the first contention, we feel the statute does not require proof that the disease was actually contracted while working for a prior employer. This interpretation was given to our statute in 3 Larson, Workmen’s Compensation Law, § 95.32, p 508.161, which stated: "Several statutes which place initial liability, so far as the employee is concerned, upon the employer who provided the last injurious exposure, follow this provision with a procedure whereby liability may be apportioned among previous employers whose employments have contributed. ” (Emphasis supplied.) Larson, supra, at 508.161. Therefore, if the prior employments contributed to the disease this is sufficient to hold the prior employers liable under the statute. Furthermore, the determination of whether or not the employee was employed in an employment to the nature of which the employee’s disease was due is primarily a question of fact. In the instant case the employee was exposed to paint fumes while in the appellant’s employ and to dust while in the employ of Bay Castings. The depositional testimony of Dr. Ira Avrin was to the effect that exposure to paint fumes can aggravate, accelerate, or cause pulmonary emphysema. The appellants, in an attempt to discredit findings, rely on other testimony to support their theory that the plaintiff was not exposed to fumes which caused her condition while employed by them. However, this Court must affirm, if there is any evidence in the record to support the findings made by the Workmen’s Compensation Appeal Board. Couch v Saginaw Malleable Iron Plant, 42 Mich App 223; 201 NW2d 681 (1972); Lemanski v Frimberger Co, 31 Mich App 285; 187 NW2d 498 (1971). In the instant case there was sufficient evidence to support the board’s findings and we must affirm as to Color Grafters subject to modification set forth hereinafter. III. The hearing referee determined that with respect to the right to seek reimbursement from the Silicosis & Dust Disease Fund after the payment of $12,500, Bay Castings would be entitled to such reimbursement while Color Crafters would not. The Workmen’s Compensation Appeal Board or dered any reference to dust disease stricken, stating: "His [referee’s] decisions are modified only to the extent of striking any reference to dust disease as defined by the Act. In accord with Graham v Chrysler Corp, 1971 WCABO 875, and subsequent 1971 decisions of this Board, defendants shall seek reimbursement from the Dust Disease Fund, if they deem that appropriate after payment of $12,500.00.” (1972 WCÁBO 74, 79.) What the appeal board said in Graham, supra, and seems to be saying in the instant case, is that the referee has no jurisdiction over the dust disease fund until the employer has paid $12,500 in benefits and a dispute has arisen over the employer’s right to reimbursement from the fund. The relevant statutes are MCLA 418.531; MSA 17.237(531) and MCLA 418.541; MSA 17.237(541). MCLA 418.531 reads as follows: "Sec. 531. In all cases in which any carrier shall have paid, or cause to be paid, compensation for disability or death from silicosis or other dust disease either to the employee, or to another employer under the provisions of section 435, the carrier shall be reimbursed from the silicosis and dust disease fund for all sums so paid in excess of $12,500.00, excluding payments made pursuant to sections 315, 319, and 345 which have been paid by the carrier as a portion of its liability.” MCLA 418.541 reads in relevant part: "Sec. 541. (1) All payments from the funds shall be determined by the trustees and made upon an order signed by a trustee. If a dispute arises between the trustees and a carrier as to any determination by the trustees or the obligation of any carrier to make payments on behalf of the second injury fund, the dispute shall be deemed to be a controversy concerning compen sation and shall be determined in accordance with this act. "(2) In all cases in which the carrier shall be entitled to be reimbursed, notice of claim for reimbursement shall be filed with the trustees within 1 year from the date on which the right to reimbursement first accrues. After the carrier has established a right to reimbursement, payment shall be made promptly on a proper showing periodically every 6 months.” In Graham v Chrysler Corp, supra, the Workmen’s Compensation Appeal Board discussed the fact that the employer himself is liable under the statute to the sum of $12,500 at which point the employer is eligible to make application for reimbursement by the Silicosis & Dust Disease Fund for any payments in excess thereof. It is then the burden of the employer to show that his liability is limited by statute and that he is entitled to such reimbursement. The board further took the position that at the time an employee’s cause of action accrues the Silicosis & Dust Disease Fund is not an indemnifier of liability imposed upon the employer and that the payment of $12,500 as a minimum and the filing by the employer of an application for reimbursement within one year after such right to reimbursement accrues are prerequisites to any liability of the fund. The board felt that allowing the issue of reimbursement from the fund to be determined at the initial hearing where the employee’s rights are determined would effectively determine the liability upon the fund where none in fact may ever exist. To wit, the employer may never make payments in excess of the sum of $12,500 and, even in the case of admitted disability due to silicosis, the fund may never become liable because of the lack of payment of the sum required. The board was of the opinion that there should be no hearing or adjudication as to the liability of the fund until the maximum employer limit had been paid and that, when the employer made application in event of dispute with the fund, at that point then the employer could satisfy his burden of proof by introducing into evidence the record of any hearing which may have previously been held upon any dispute which might have existed between the injured employee and the employer. Such introduction of the prior record, in the opinion of the board, would serve as prima facie evidence, rebuttable by evidence submitted on behalf of the fund at any hearing held pursuant to statute to resolve disputes relating to the rights and liabilities existing between the employer and the Silicosis & Dust Disease Fund. This dismissal of the dust disease fund from the proceedings by the board was predicated upon the board’s opinion in Graham v Chrysler Corp, supra, hence the decision will be examined in considerable detail. The board in Graham assumed that the presence of the dust fund in the employee’s suit for compensation would require that the employee prove both his claim against the employer and show that his employer’s liability is limited to a certain sum. In Felcoskie v Lakey Foundry Corp, 382 Mich 438, 446; 170 NW2d 129, 132 (1969), it was stated: "Hence whenever an employer asserts that the limitation of section 4 should be applied to the dust disease causing the disability for which compensation is sought, such employer shall bear the burden of proving that such disease is so common and widespread as to present a threat to the industry comparable to silicosis, phthisis, or pneumoconiosis. ” (Emphasis supplied.) Clearly from the above it is established that the burden of proof is upon the employer and not upon the employee. The employer must establish the $12,500 ceiling upon his liability and the employee need only show a permanent disability due to occupational disease. If the employer seeks reimbursement from the dust disease fund for expenditures over and above $12,500 it is his responsibility to show that he merits reimbursement from the fund contrary to the assumption of the board in its Graham opinion. The board in Graham also indicated a fear that if the dust fund liability, although contingent upon the employer’s prior payment of $12,500 in benefits, is determined in the initial proceeding as done in this case the procedure would effectively eliminate the statutory requirement for the minimum payment and the filing of the application for reimbursement within one year after accrual of right to reimbursement. There is no basis or substance to such a fear and the dust fund in its brief has cited no instance where such consolidation resulted in the lack of fulfillment of the above-mentioned statutory requirements. Any fair interpretation establishes that the statutory requirements for minimum payment and application for a reimbursement must be complied with and the only question that need not be litigated would be the liability of the dust fund, as this would be established in the initial hearing. The employer would have no right to reimbursement until he made a showing of the payment of $12,500 in benefits as a condition precedent. The board in Graham also makes the objection that if the future liability of the dust fund is determined at such an early stage the fund’s liability may be determined where none in fact may ever exist. There is some merit to this objection, as the fund would have been put to the expense of litigating liability even though the liability might never ensue because of other developments which would preclude the employer’s payment óf the sum required for reimbursement. The disadvantage which this possibility indicates is outweighed by the economy of consolidation. The board in Graham indicated that the record of the hearing as to the injury óf the employée " * * * may well have become res adjudicata [sic] of the rights and liabilities [which might have existed] between the employee and his employer and could well serve as prima facie evidence of the possible subsequent liability imposed upon the Silicosis & Dust Disease Fund.” Graham, supra, at p 886. Such conclusion is contrary to the rules of evidence. If the dust fund’s participation in the original hearing is stricken the record of the prior decision could not be used against the dust fund at the later reimbursement hearing since the doctrine of res judicata requires identity of parties. Johnson v Nationwide Life Insurance Co, 7 Mich App 441, 446; 151 NW2d 840, 842 (1967). Furthermore the dust fund’s right of cross-examination of the witnesses against it would be vitiated by the admission of the record of the original compensation proceeding intó evidence if the dust fund was not a party to such original hearing. As further justification for striking the dust fund as a party the appeal board in Graham stated: "Consolidating these hearings which deal with rights and liabilities of different parties and which accrue at different periods of time contrary to the intent of the Legislature does not facilitate the administrative duties imposed upon anyone but tends to complicate and confuse and results in the shifting of responsibilities placed upon an employer by the Legislature to the injured employee or else requires the employee to at least wait until the employer proves his right to something that may accrue in the future.” Graham, supra, at 887. To require two separate hearings as the appeal board has done will result in more time consumption and confusion and not less as urged in Graham. With all parties present at the first hearing, including the dust fund, the referee can get all the necessary information at one time and at a time reasonably proximate to the contraction of the disease. We fail to see any basis for confusion in having the referee in the same proceeding determine the employer’s liability to the employee and the dust fund’s future liability to the employer. If this is not done at the initial hearing, at the second hearing after payment of the sum of $12,-500 over a period of years, the employer will be obliged to bring back witnesses who were present at the first hearing in order to have them testify all over again since the record of the first hearing would be clearly inadmissible. It appears that it is more convenient and more administratively efficient to consolidate these actions. The dust fund in this matter could have relied upon the same reasoning as employed in Graham and could have fought its joinder to the original hearing. The dust fund instead elected to resolve the matter and any dispute in this one hearing. We must encourage economy of judicial settlements and not frustrate it. The procedure of joining the dust fund was followed for a period of years prior to Graham. We find from reading the applicable statutes that there is no apparent reason to preclude simultaneous resolution of the employee’s claim against the employer and the employer’s claim against the dust fund. Bay Castings and Color Crafters both contend that even if the Graham decision is correct it would make no difference in the instant case because there was no objection to the participation of the dust fund in the hearing as a named party. Consequently, these two parties claim that the dismissal of the dust fund was erroneous because the fund had participated in all proceedings and should be bound by the judgment entered against it. The dust fund, on the other hand, argues that the appeal board could properly dismiss the fund from the action because the appeal board’s review is de novo and further because lack of subject matter jurisdiction can never be waived. It is true that the Workmen’s Compensation Appeal Board hears cases de novo. Fawley v Doehler-Jarvis Division of National Lead Co, 342 Mich 100; 68 NW2d 768 (1955). It is well settled that the question of lack of jurisdiction over the subject matter cannot be waived and can be raised at any stage of the proceedings. Millman Brothers, Inc v Detroit, 2 Mich App 161; 139 NW2d 139 (1966). Thus, if the appeal board in Graham and in the instant case was correct in its interpretation of the statutes the fact that the dust fund participated in the original hearing and made no objection to such participation would be of no consequence because the action before the referee with reference to the liability issue would be absolutely void. Fox v Board of Regents of the University of Michigan, 375 Mich 238, 242-243; 134 NW2d 146, 148 (1965). Both Bay Castings and Color Crafters claim that the issue of reimbursement was not properly before the appeal board because the dust fund did not file a claim for review. This claim fails in light of the fact that the appeal board’s hearing is de novo. Pulley v Detroit Engineering & Machine Co, 1 Mich App 346; 136 NW2d 762 (1965). Perhaps it would have been better procedure for the appeal board to indicate that it was going to consider the role of the dust fund. An application for review was filed by the fund as indicated by the file of the proceedings below. In any event the employers are charged with the knowledge that the review by the appeal board is de novo. Despite this the employers did not seek to limit the scope of the board’s inquiry to the question of finding that the plaintiff had an occupational disease. They filed general claims for review. By this action they knowingly opened up the entire matter to review. Thompson v Continental Motors Corp, 320 Mich 219; 30 NW2d 844 (1948). For the reasons indicated in this portion of the opinion we conclude that the board’s interpretation of the applicable statutes in Graham and in this case is not correct. The referee did have jurisdiction of the subject matter of the employers’ claim against the dust fund and it is proper to dispose of both the issue of the occupational disease and the liability of the dust fund in one hearing at the outset of the case. In fact we urge it for sake of efficiency and minimizing delay as an appropriate form of action in all future proceedings of this nature. IV. We find no error on the question of the referee’s apportionment of liability between the two employers and sufficient evidence in the matter before the appeal board to sustain affirming such apportionment of liability and as a consequence we likewise affirm this finding. The hearing referee found that, with reference to the employment at Bay Castings, the plaintiff had a dust disease but that she did not have such dust disease as pertains to her employment at Color Crafters. The net result of such finding is that Bay Casting’s compensation payments to plaintiff would be the subject of reimbursement by the dust fund after Bay Castings became eligible and made application. The statute makes no provision for reimbursement to the Silicosis & Dust Disease Fund; thus Color Crafter’s apportionment payments would continue to go to the last employer, to wit, Bay Castings, even after the latter began to receive reimbursement from the dust fund which could get nothing from Color Crafters. The referee’s order that plaintiff was suffering solely from a dust disease as to her employment with Bay Castings without apportionment of the amount of disability between that due to the dust disease and that due to other compensable causes creates a novel situation. MCLA 418.535; MSA 17.237(535) provides: "Sec. 535. If an employee’s disability is caused by a combination of silicosis or other dust disease and other compensable causes, a hearing referee shall apportion the amount of disability between that due to silicosis or other dust disease and other compensable causes. The trustees of the silicosis and dust disease fund shall reimburse the employer liable for compensation for that portion of the compensation paid in excess of $12,500.00 that the silicosis or other dust disease disability bears to the total disability.” Thus we are led to the conclusion that the referee was of the opinion that the plaintiff was suffering solely from a dust disease. On the other hand, in ordering Color Crafters to pay 49.25% of the compensation as reimbursement or contribution to Bay Castings the referee found that plaintiff did not have a dust disease. These two positions are inconsistent. Bay Castings cannot have the benefit of an apportionment payment from Color Crafters and reimbursement from the dust fund for the excess benefits over and above $12,500 as this definitely was not within the contemplation of the Legislature in creating these benefits. Bay Castings in its brief disclaims any desire for such double benefits. We therefore conclude that once the dust fund has commenced making reimbursement to Bay Castings, Color Crafters should not be required to contribute any further funds. Since there is no provision for reimbursing the dust fund in a case such as this, Bay Castings would actually be making a profit with no intent on the part of the Legislature to create such an incongruous situation. However, where hospital and medical benefits are concerned Bay Castings, even after payment of $12,500, would be required to continue to make payments for such benefits and Color Crafters should also continue to be liable for its 49.25% of these payments. MCLA 418.531; MSA 17.237(531) specifically excludes reimbursement for such hospital and medical expenses. Therefore with respect to these benefits the apportionment order should stand. V. We find that the Workmen’s Compensation Appeal Board’s opinion in Graham v Chrysler Corp, supra, is too restrictive in taking the position that the Silicosis & Dust Disease Fund can never par ticipate in the hearing of a compensation claim until $12,500 in benefits have first been paid. There is no justification for such blanket prohibition in the statutory law nor do we find any case law to justify such prohibition. In the instant case the dust fund was a party to the hearing without objection and the results of that hearing with respect to the future liability of the dust fund are binding upon the fund. We encourage the joinder of the dust fund at such first hearing so that witnesses concerning the plaintiff’s illness can be heard at one time and that time is more proximate to the contraction of the disease. The employer must still make application for reimbursement within the statutory period and prove that he has in fact paid out more than $12,500 in benefits. We affirm hereby the findings of the Workmen’s Compensation Appeal Board except that we modify the same to terminate contribution by Color Crafters when the dust fund reimbursement to Bay Casting commences, except for hospital and medical benefits for which contribution by Color Crafters shall be a continuing obligation. We reverse the board’s order striking the dust fund as a party to these proceedings and thereby reinstate the fund as a party as in the initial instance in this case. And further, we reverse the order of the board striking the referee’s finding that plaintiff in fact has a dust disease and thereby reinstate the referee’s finding on this point. We further find that the admission of Dr. Avrin’s deposition was proper. Affirmed in part and reversed in part and remanded to the board for entry of an order consistent with this opinion. All concurred. Formerly MCLA 417.4; MSA 17.223: Now MCLA 418.415; MSA 17.237(415), MCLA 418.411; MSA 17.237(411). Formerly MCLA 413.12; MSA 17.186, amended by MCLA 418.861; MSA 17.237(861).

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J. H. Gillis, J. Defendant, Joseph Kelley, was convicted by a jury of first-degree murder on November 23, 1962. He appeals upon delayed leave granted. Because of the unique history of this case, an explanation of events that led to defendant’s arrest and trial is necessary for full understanding of the issues raised on appeal. On October 4, 1960, David Lipton, the proprietor of a drug store in Detroit, was shot and killed during a holdup. A clerk in the store, Sue Valentine, gave descriptions of the three men who perpetrated the robbery to police who arrived at the scene. She subsequently identified Linberg Hall, Robert Clark, and Secóla Kuykendall as the culprits at a lineup and at their trial. In 1961, those three persons were convicted of first-degree murder. At the insistence of Mr. Max Silverman, the assistant prosecutor who tried the first case, the matter was reopened for investigation. The prosecutor, with the help of Lt. John Ware, uncovered evidence leading to the arrest of Ronald Gilliam, Kenneth Anderson, Edward Lake, Gene, Adams, and defendant Kelley. The convictions against Hall, Clark, and Kuykendall were vacated upon the motion of the prosecution. Before defendant’s case came to trial, his alleged accomplices, Gilliam, Anderson, Lake, and Adams were convicted of the first-degree murder of David Lipton. The prosecution’s evidence at defendant’s trial showed Miss Valentine and the decedent were alone in the drug store when, at about 9:30 p.m., a tall, slender man wearing a large bandage under his right eye entered. The man spoke to the decedent while two more men entered. One of the men ordered Miss Valentine to the floor and seconds later she heard a volley of gunfire. After the trio left the store she found Lipton shot. The details of her positive identification of Hall, Clark, and Kuykendall were thoroughly explored on cross-examination and she made no identification of defendant or his alleged accomplices. Johnnie McCoy, owner of a restaurant across the street, from the drug store, and his wife both testified they heard the gunfire and looked out the window of their establishment. Both Mr. and Mrs. McCoy stated they thereafter saw three men, one of whom wore a patch under his eye, leave the store and turn onto a side street. They could not identify defendant or his alleged accomplices and so testified. Defendant was shown to have been in an altercation on September 27, 1960 with Wendell Smith who testified he inflicted facial injuries to defendant’s right cheek. Delphine Coleman testified she was with Lake, Adams, and Gilliam on October 4, 1960. She stated the four of them rode in Lake’s car that night and picked up the defendant, who wore the bandage on his face, and met Anderson thereafter. The group then drove to the drug store where defendant, Gilliam, and Adams left the vehicle and entered the store. Anderson, she said, left, as well, but walked away. Shortly thereafter she heard gunfire and when the trio returned it was announced that Lipton had been shot because he had first fired upon Kelley, striking him in the forearm. Edward Lake corroborated that testimony. However, on cross-examination defense counsel brought out the fact that Lake was not charged as a principal in the case until after he testified at preliminary examination. It was revealed that at the examination stage, where Kelley, Gilliam, Adams, and Anderson were charged, Lake recounted a different story exculpating everyone, and that thereafter Lake was charged with the crime as well. On redirect, Lake admitted his testimony at the examination was false and testified he had, prior to that time, told police his present trial testimony. Redirect examination also revealed Lake thereafter stood trial for the Lipton murder. Defense counsel’s first question on recross-examination (and Lake’s responses) were as follows: 'rQ. What are you serving time for now, Eddie? "A. Armed robbery. "Q. Not murder, is that right? 'A. That’s right.” The prosecution then revealed that while Lake had been convicted of first-degree murder, he had been allowed to plead guilty to armed robbery. Anderson, Gilliam, and Adams were called as witnesses for the prosecution. Each admitted to having stood trial for the Lipton murder. Anderson corroborated Delphine Coleman’s version of the events, but denied knowledge of the robbery and murder, stating he left the scene on his own without incident. Gilliam denied complicity but stated he was present when Adams drew a gun. Kelley, according to Gilliam, was not present. His memory was refreshed with a prior statement where he indicated the contrary. Adams echoed Gilliam’s responses that Kelley was not present. Adams’ memory was also similarly refreshed. Prior to trial, defendant, an indigent, moved for production of the trial transcript of the Hall, Clark, and Kuykendall case on the basis that most of the witnesses against him testified at that trial. Only the testimony of Sue Valentine was produced. Defendant asserts on appeal that the failure to produce the balance of testimony was error. We disagree. We find no significant deprivation by the non-production of prior testimony which established the chain of custody of certain of the exhibits, the identity of the body of Mr. Lipton, or the drawing of maps and diagrams of the scene of the crime. The cause of Mr. Lipton’s death was largely uncontested. We find the prior testimony of the witnesses who established those facts was not so essential for impeachment purposes or discovery so that deprivation denied due process. We realize a financially able defendant could have obtained a transcript of this prior testimony and considerations of equal protection of law are relevant to this issue. See Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 891 (1956); Britt v North Carolina, 404 US 226; 92 S Ct 431; 30 L Ed 2d 400 (1971). However, through hindsight, we perceive the prior testimony sought, but not produced, did not establish crimination of defendant, but only the corpus delicti of the incident, an issue which defense counsel practically conceded at the outset of trial. Moreover, the testimony defendant sought to be produced did not even criminate Clark, Hall, or Kuykendall. Of those who testified in both trials, only Sue Valentine’s testimony tended to establish the guilt of any particular person. Thorough examination of the record reveals defense counsel was well versed in the details of the evidence produced in the prior trial, and we are not satisfied that transcription of the testimony there adduced was the only means for obtaining that information. See, e.g., Miles v Clairmont Transfer Co, 35 Mich App 319; 192 NW2d 619 (1971); People v Dellabonda, 265 Mich 486; 251 NW 594 (1933). We do not attempt to fashion a rule in this regard for the benefit of the trial bench for each and every case. Our decision here is based on hindsight, but we recognize the dilemma facing our brethren who preside over trials where this issue initially arises. People v Joines, 46 Mich App 427; 208 NW2d 193 (1973), announces that the state must provide indigent defendants with transcripts of prior proceedings when needed for preparation of an effective defense. In that regard, we note that while a financially able defendant might have seen fit to pay for the production of the Hall-Clark-Kuykendall transcript, it is apparent it would have been an unnecessary expenditure. Clearly, prior testimony offered against a particular defendant is valuable for both discovery and impeachment purposes. People v Glass, 38 Mich App 735; 197 NW2d 140 (1972). However, we decline to rule that production of prior testimony establishing a rather mundane corpus delicti of the same crime in another case against another defendant is necessary in order to provide a subsequent defendant with a fair trial. Defendant made a tape recorded statement showing his involvement in the crime. Before the confession was introduced, the detectives who had interviewed defendant indicated the statement was taken in Marquette Prison. That information, although inadvertently given in response to legitimate inquiry, was objected to and formed the basis of defendant’s motion for mistrial. The transcript provided on appeal shows that after defendant’s motion was denied, the tape-recorded statement was played, in its entirety, to the jury. The introductory remarks of the taped statement clearly show it was obtained in Marquette Prison, and contained therein is the following passage: By defendant]: I been back in jail now over a year, I been locked up over a year now, ever since I been back in jail, I just been more or less waiting for [an investigation of defendant’s involvement].” The basis of defendant’s motion for mistrial concerned the prejudicial effect on the jury of the revelation of defendant’s criminal record. The transcript does not show any argument to the jury on what effect, if any, such a history should have on their deliberation, and it must be remembered that this trial took place at a time when the jury was called upon to determine the voluntariness of a defendant’s confession. Pursuant to that now abolished rule, prior precedent indicates all the facts surrounding the confession were to be shown to the jury. People v Cleveland, 251 Mich 542; 232 NW 384 (1930); People v Hepner, 285 Mich 631; 281 NW 384 (1938). In at least one case, the fact of incarceration at the time of confession was considered a principal factor on the issue of voluntariness. See People v Barker, 60 Mich 277; 27 NW 539 (1886). Since the record only shows the fact of incarceration, and then only as it related to the circumstances surrounding obtaining the confession, we cannot say the trial court erred in denying the motion for mistrial. See also People v Harry Fleish, 321 Mich 443; 32 NW2d 700 (1948). Defendant contends it was error to allow the prosecution to impeach Anderson, Gilliam, and Adams by asking if they had been tried for the Lipton murder. While it is true that the prosecution may not seek to impeach the testimony of accomplices, People v Green, 32 Mich App 482, 486; 189 NW2d 122, 124 (1971); People v Virgil Brown, 15 Mich App 600; 167 NW2d 107 (1969), or argue that their prior conviction for the same crime by another jury is evidence of another’s guilt (see People v Eldridge, 17 Mich App 306; 169 NW2d 497 [1969]), we know of no rule of law that prohibits the prosecution from asking unflattering questions of its own witnesses not designed to accomplish such an unlawful purpose. Review of the record shows the questions put to these accomplices were not designed to impeach their testimony. Their convictions were not put forward by the prosecution. The inquiry served to establish that the prosecution had not "singled out” one defendant for prosecution as well as showing that those witnesses, protected by the doctrine of former jeopardy, had no motive for lying. The fact that some of their subsequent testimony did not precisely establish defendant’s culpability does not mean the questions were designed to impeach credibility. The transaction concerning the production of Edward Lake’s testimony is not error. If a prosecution witness has received leniency in return for his testimony, it is incumbent upon the prosecution to show the details. Rehabilitation of a witness sought to be impeached with prior inconsistency by showing an earlier consistency is proper. Affirmed. All concurred. The tape recorded statement was not transcribed by the court reporter. However, in 1968 a Walker hearing was held where the text of the statement was reported. It is from that hearing that the content of defendant’s confession is taken.

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Per Curiam. Beattie Eugene Mellon was employed by Vettese Brothers Contracting Company (hereinafter referred to as Vettese Co.), subcontractors engaged by defendant Edward Rose & Sons, Inc. (hereinafter referred to as Rose, Inc.), to install cellar foundations for private residences. Rose, Inc. was the owner of the land upon which the residences were built and acted as general contractor for the construction of the homes. On November 16, 1965, Vettese Co. was in the process of installing a cellar foundation for Rose, Inc. Power lines belonging to defendant Detroit Edison Company (hereinafter referred to as Edison) were located over the construction site. Beat-tie Mellon was the "hook-up man” whose job was to watch the crane being used to set forms for foundations to make sure it did not come into contact with the overhead wires. Mellon never signaled the crane operator that the crane was too close to the wires. It came into contact with them, and Mellon was electrocuted. This action for wrongful death resulted. At the time of the accident, pursuant to the Construction Safety Act of 1963, MCLA 408.711 et seq.; MSA 17.469(1) et seq., "General Safety Rules and Regulations for the Construction Industry” had been promulgated. Rule 1303 of these regulations dealt specifically with overhead wires. There was extensive testimony at the trial as to whether defendants had violated Rule 1303, and whether the work being done by deceased was inherently dangerous. At the close of all proofs, both defend ants moved for directed verdicts. The trial judge granted the motions. From such grant, plaintiff has appealed. Issue I Were defendants subject to "The General Rules and Regulations for the Construction Industry” and, if so, did the testimony create a question of fact as to whether violation of such safety rules proximately caused decedent’s death? MCLA 408.712(b); MSA 17.469(2)(b) provided at the time of the accident: "(b) 'Construction industry’ means construction firms and contractors (but not including ñrms or companies, whose principal business is other than construction work, and whose construction work consists only of maintenance construction work performed on their own property by their own employees) whose classification as construction industry is in accordance with the standard industrial classiñcation manual prepared by the technical committee on industrial classifications, office of statistical standards, 1957 edition, and who are subject to the workmen’s compensation law other than by voluntary assumption of the law.” (Emphasis added.) The principal business of Edison- is the production, transmission, and distribution of electrical energy. Edison is not defined as part of the construction industry by this statute. It is expressly excluded. The opening paragraph of the introduction to the "Standard Industrial Classification Manual” states: "Purpose of the Classification. "The Standard Industrial Classification was developed for use in the classification of establishments by type of activity in which engaged; for purposes of facilitating the collection, tabulation, presentation, and analysis of data relating to establishments; and for promoting uniformity and comparability in the presentation of statistical data collected by various agencies of the United States Government, State agencies, trade associations, and private research organizations.” The Manual’s discussion of "contract construction” opens with the following paragraph: "This division includes establishments primarily engaged in contract construction. The term 'construction’ includes new work, additions, alterations, and repairs. Three broad types of contract construction activity are covered; namely, (1) building construction by general contractors, (2) other construction by general contractors, and (3) construction by special trade contractors. Operative builders who build on their own account for resale or lease, and investment builders who build structures on their own account for rental, are classifíed in Major Group 65, Real Estate. ’’(Emphasis added.) The "Standard Industrial Classification Manual” defines "operative builders” as: "Builders primarily engaged in construction for sale on their own account rather than as contractors”. Rose, Inc. was engaged in building residences "for sale on their own account rather than as contractors”. Under the provisions of the "Standard Industrial Classification Manual”, Rose, Inc., would be classified as being in the real estate business and not the construction business. Therefore, neither Rose, Inc., nor Edison was subject to the safety rules and regulations known as the "General Safety Rules and Regulations for the Construction Industry”. Plaintiff nevertheless contends that evidence of the violation of such rules by Rose, Inc., or Edison would constitute evidence of negligence on their part. Rule 1303 of the "General Safety Rules and Regulations for the Construction Industry” provides: "Overhead electric power line. "Equipment shall not be operated in close proximity to overhead electric power lines, until the owner of the lines has been notified and operation coordinated with them. "In addition, such operations shall not be conducted unless 1 of the following conditions are satisfied: "Power has been shut off and positive means taken to prevent lines from being energized. "Equipment being used, or any part thereof, does not have the capability of coming within 10 feet of contacting lines. If equipment does have the capability of making contact, it shall be positioned and blocked so as to assure no part thereof can come within 10 feet of the line. A notice of the 10-foot limitation shall be posted at the operator’s position. "Public utility contractors working on overhead power lines shall be exempt from the proximity requirement.” It is plaintiff’s contention that both Edison and Rose, Inc., violated the above regulation. In granting the motion for directed verdict on Edison’s behalf, the trial court found that Edison was not apprised of the fact that a crane would be operated close to the electric wires on the date in question, and was not asked to take any precautions. The trial court further found that Rose, Inc., had absolutely no control over the work performed by Vettese Co. The following review of the undisputed evidence confirms the findings of the trial judge: Clare F. Andrews, chief of the Construction Safety Division, Department of Labor, testified that under the Construction Safety Act of 1963, supra, there was recognized one relationship, that of employer-employee. Andrews put responsibility under the act on the superintendent in charge of the work, who has control over work operations and equipment. Jack R. Rose, secretary of Rose, Inc., testified that a superintendent employed by Rose, Inc., was on the job at the time of the accident, with the responsibility of expediting and coordinating the various subcontractors. Rose stated that Vettese Co. excavated and poured the walls at the site of the accident. Gerald Durkin, the superintendent of Rose, Inc., had no authority to direct or control the actions of any employee of Vettese Co. There was no written contract between Rose, Inc., and Vettese Co. Dominic Vettese, one of the owners of Vettese Co., testified that deceased was employed as a laborer. Rose, Inc., had no control over the equipment or the men of Vettese Co. Durkin assigned only the lots to be worked on. Dominic Vettese was in control whenever he was at the job site; otherwise Bob Osantowski, the crew leader, was in control. No one from Rose, Inc., had attempted to exercise any control over the men or equipment of Vettese Co. On the morning of the accident, Dominic Vettese gave Osantowski instructions on where to place the crane and truck so as to avoid the hazard of the overhead wires. Vettese was not at the site at the time of the accident. The truck had not been placed where he had instructed. No one from Vettese Co. had informed Edison that a crane was at work at the construction site on the date of the accident. If the truck had been placed where Vettese had instructed, there would have been a 25-foot clearance between the wires and the crane. Robert Osantowski, the crew leader for Vettese Co., testified that he, along with deceased and three others, had been instructed on where to place the truck and the crane. The truck was not so placed because it got stuck, and the employees were going to move it after they had lightened its load. The only reason the truck was not moved after its load had been lightened was because the men forgot to move it. Osantowski did not call Edison on the day in question because he thought the equipment was in a safe position. Dale Case was the crane operator at the time of the accident. On the morning of the accident, he and his coworkers discussed the overhead wires and the position of the truck and crane. Deceased was the "hook-up man”, part of whose job was to signal when the crane was too close to the wires. Deceased never signaled that the crane was too close. The standard to be applied in deciding a motion for a directed verdict is to take all of the facts and view them most favorably to the party opposing the motion and then decide whether reasonable men must agree on the question of negligence. See Brown v Page, 39 Mich App 50; 197 NW2d 74 (1972); Mackey v Island of Bob-Lo Co, 39 Mich App 64; 197 NW2d 151 (1972); Simonetti v Rinshed-Mason Co, 41 Mich App 446; 200 NW2d 354 (1972). Applying this standard to the uncontroverted facts in the present case, it is clear that the trial judge did not err in finding that neither defendant was guilty of negligence as a result of a violation of Rule 1303 or otherwise. Issue II Was there testimony creating a question of fact for the jury as to whether defendant Edison was negligent in not warning deceased or deceased’s employer regarding the danger in working close to the overhead transmission lines? Edison, since 1954, had assumed the duty of going to the field to communicate with construction workers at job sites about the hazards of working in close proximity to overhead transmission lines. It is clear from Michigan case law that Edison was not negligent under these facts in maintaining the power lines in the vicinity of the construction work. Koehler v Detroit Edison Co, 383 Mich 224; 174 NW2d 827 (1970); Dees v LF Largess Co, 1 Mich App 421; 136 NW2d 715 (1965). In Prosser, Torts (4th ed), § 56, p 343, it is stated: "Where the duty is recognized, it is agreed that it calls for nothing more than reasonable care under the circumstances. The defendant is not liable when he neither knows nor should know of the unreasonable risk, or of the illness or injury. He is not required to give aid to one whom he has no reason to know to be ill.” While Edison had engaged in a program to educate people in the construction industry regarding the dangers of working in close proximity to overhead wires, it is undisputed that Edison had no knowledge a crane was to be used at the construction site on the date in question. Since the contractor failed to inform Edison of the use of equipment in close proximity to the lines, no duty on the utility’s part arose to inform the contractor or his employees of the hazard of working near overhead transmission lines, a hazard of which they were all admittedly well aware. Issue III Did the testimony create a question of fact as to whether or not the work performed by plaintiff’s decedent was inherently dangerous? The doctrine of inherently or intrinsically dangerous activity, like the now extinct-in-Michigan doctrine of assumption of risk grows increasingly more complex, involved, and confused with each litigated case. The latest pronouncements by the Michigan Supreme Court are set forth in three opinions in McDonough v General Motors Corp, 388 Mich 430; 201 NW2d 609 (1972). While all three opinions recognize the doctrine, they do not agree upon the extent to which it may be applied. For purposes of decision in this cáse, it may be noted that in McDonough Justices Black and Swainson signed the per curiam opinion, Justice Black added a separate addendum, Chief Justice Kavanagh’s opinion was signed by him and Justice Adams, Justice Williams concurred with the per curiam opinion and the Chief Justice’s, and Justice Brennan’s opinion was joined in by Justice T. G. Kavanagh. Chief Justice Kavanagh wrote (p 449; 201 NW2d at 617): "On the other hand, I find as quite cogent the reasoning of Justice T. E. Brennan’s opinion, relating to reliance upon the independent contractor’s and likewise his employees’ expertise to perform the job and/or repairs for which they were hired. It is fair to assume that the landowner retains the independent contractor because of the latter’s expertise to perform the task properly and carefully. Absent special factors, such as supervening control by the landowner, the method and means of executing the task are entrusted to the independent contractor and his employees.” Justice Brennan wrote (p 456; 201 NW2d at 620): "Thus, if I employ a contractor to remove a tree stump from my yard by use of explosives, I am liable to my neighbor whose garage is damaged by the concussion. This is because it is I who have set the project in motion; it is I who have created the unusual peril; it is for my benefit that the explosives were used. As between myself and my neighbor, I ought not to be permitted to plead that it was the contractor’s negligence and not my own which damaged his property. "But if the contractor should blow up his own truck, I should not be liable. He is the expert in explosives and not me. I had neither the legal right nor the capability to supervise his work. The same would be true if the contractor’s workman had injured himself, or been injured by the carelessness of a fellow workman or the negligence of his employer. Neither the contractor nor his employees are 'others’, as contemplated in Cooley’s statement of the rule. Indeed, they are privy to the contract which creates the peril.” It would therefore seem that a majority of five Justices are in agreement as to the limitation of the doctrine set forth above. For the purpose of passing on this issue, we assume that the work was inherently dangerous. Applying McDonough to the undisputed facts in this case, we conclude that "the method and means of executing the task [were] entrusted to the independent contractor and his employees”, and that, absent any control by Rose, Inc., no duty to plaintiff arose. Issue IV Was it proper for the trial court to ñnd as a matter of law that deceased's contributory negligence was the proximate cause of the accident in question? Plaintiff objects to the following statement by the trial court: "Parenthetically an additional item, in addition the court finds after due consideration of the presumption of due care which is due the deceased, that there is clear evidence of contributory negligence and such contributory negligence was the proximate cause of the accident and the jury could not decide other than the decedent was in fact contributorily negligent.” Both defendants are correct in stating that this issue had nothing to do with the trial court’s decision to grant the motions for a directed verdict. The judge begins his statement with the words "parenthetically an additional item”. The issue is without merit. Affirmed. Costs to defendants. See Feigner v Anderson, 375 Mich 23; 133 NW2d 136 (1965). In McDonough v General Motors Corp, 388 Mich 430, 447; 201 NW2d 609, 616 (1972), Chief Justice Kavanagh wrote: "I am unwilling to foreclose, by exclusive and restrictive reliance upon this doctrine, the applicability to this or future cases of other rules of tort law which affix liability upon the landowner who, for economic benefit or otherwise, engages an independent contractor and then negligently injures an employee of the independent contractor. To base liability of negligent landowners upon a single doctrine ignores the innumerable factual circumstances giving rise to the cause of action and varying relationships of the parties.” Query: Are not the other rules of tort law fully capable of meeting a plaintiffs claim in terms of duty, proximate cause, etc? The trial court found: "There is testimony that high voltage electric wires are inherently dangerous but there is no testimony in this case from which the jury could find that the operation carried on with the crane was inherently dangerous because of the Detroit Edison line. The testimony is that there was sufficient room in which to work and that the workers fully understood the dangers of wires and the importance of staying away from them.”

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Per Curiam. Defendant was convicted on his plea of guilty to the charge of armed robbery, MCLA 750.529; MSA 28.797, and sentenced to a term of 7-1/2 to 20 years in prison with credit for time spent in jail prior to sentencing. Defendant appeals from denial of his motion to vacate the guilty plea and grant a new trial, and motion, in the alternative, for resentencing. He was approximately 16-1/2 years old at the time of the offense. Jurisdiction was waived by the Juvenile Division of Kent County Probate Court after a full hearing in which defendant was represented by retained counsel. Defendant was originally charged with breaking and entering an occupied dwelling with the intent to commit a felony, MCLA 750.110; MSA 28.305, and assault with attempt to rape MCLA 750.85; MSA 28.280, as well as armed robbery. On appeal he challenges the validity of his guilty plea. He claims the plea was negotiated on the basis of the prosecutor’s agreement to drop the remaining charges for a plea of guilty to the charge of armed robbery. Defendant does not claim that promises on the part of the prosecutor were unfulfilled. People v Bartlett, 17 Mich App 205; 169 NW2d 337 (1969); People v Merkerson, 35 Mich App 395; 192 NW2d 656 (1971). He claims, however, there was insufficient evidence to support the charge of assault with intent to rape. He further argues that the breaking and entering with which defendant was charged was an integral part of the armed robbery offense to which he pled guilty. He argues that any breaking and entering was merely preparation for the intended crime of armed robbery. He reasons that as mere preparation, the lesser offense would of necessity be absorbed within the greater charge and could not properly be treated as a separate offense or prosecuted as such. He concludes, finally, that since separate convictions could not have been obtained under the charges dismissed, any plea bargains based on them were illusory and fallacious bargains. Normally, this Court would review the transcript of the preliminary examination in order to determine whether there was a sufficient factual basis to support a charge, such as assault with intent to rape in this case. Defendant, however, waived his right to preliminary examination and thereby failed to preserve a record from which such a determination could be made. Arguments that defendant’s waiver of preliminary examination was involuntary and uninformed are digressive. He failed to preserve it as a side issue in the proceedings below and fails to treat it directly with authority and arguments on appeal. Matter does appear in defendant’s brief on appeal suggesting that there did exist a factual basis to support the attempted rape charge. Appended to defendant’s brief is the petition for waiver of jurisdiction addressed to the Juvenile Division of the Kent County Probate Court and filed by the prosecutor in this case. The petition contains the following charge: "(d) The said KENNETH ROGERS did assault [name of victim], 85 years old, on January 21, 1971, with intent to commit the crime of rape, by stripping off her panties, wrapping them around her neck and dragging her into the living room of her home, contrary to Section 28.280 of Michigan Statutes Annotated, as amended.” A full hearing was held on the waiver petition in which defendant was represented by counsel. Opportunity was had to challenge the sufficiency of the attempted rape charge at that time. While the waiver hearing is not taken as a direct equivalent of a preliminary examination, nevertheless, defendant was put on notice as to the factual nature of the charge resting against him and any serious doubt as to the sufficiency could have been raised before he entered his plea. In view of the fact that no record was preserved from which we can test the sufficiency of the attempted rape charge on appeal and that no direct challenge has been made on appeal to the factual matters contained in the prosecutor’s petition, we must reject defendant’s general challenge to the sufficiency of the charge. Next we take defendant’s challenge of the breaking and entering charge. In substance breaking and entering is a distinct and separate offense from that of armed robbery. Appellate counsel fails to provide authority establishing that breaking and entering is a lesser included offense to that of armed robbery. That defendant broke into and entered the victim’s house merely in preparation for the intended crime of robbery and that the two constituted a single transaction is merely a defense theory of the case. It is in no way binding on the trier of fact. Had the matter been submitted to a jury, the members would have been as free to find two separate intents and two separate crimes as they would have been to find a single crime. Accordingly, we fail to find that defendant has established any insufficiency or impropriety in the charges presented against him and cannot conclude to any error in the acceptance of his guilty plea. Moreover, while the trial court is obliged to inquire into the truth of the guilty plea, People v Blewett, 18 Mich App 327; 17 NW2d 897 (1969), rev’d 382 Mich 793 (1969); People v Coates, 32 Mich App 52; 188 NW2d 265 (1971), we have not gone so far as to require additional inquiry into every other matter raised against the pleader. Defendant raises additional questions on appeal. He claims his attorney committed serious and prejudicial mistakes and he was thereby denied effective assistance of counsel. Examination of the record and briefs fails to disclose the contended serious mistakes on the part of the defendant’s attorney. Moreover, nothing in the record and briefs indicates that defendant has properly preserved the issue of effective assistance of counsel by requesting a full Jelks hearing and making a testimonial record in connection with his motion for a new trial or relies on anything brought out at such a hearing. People v Jelks, 33 Mich App 425, 431; 190 NW2d 291, 294-295 (1971); People v Melvin Harris, 36 Mich App 231; 193 NW2d 339 (1971). Finally defendant contends that the trial court erred by considering his juvenile record in setting sentence. The law in this state is to the contrary. The trial court is entitled to examine a defendant’s juvenile record for the purpose of determining sentence. People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973). In closing it should be noted that we are not unaware of People v Fields, 388 Mich 66; 199 NW2d 217 (1972), which deals with the validity of the procedures for waiving juveniles in criminal cases from probate to circuit court for trial. However, Fields is inapplicable to the instant case inasmuch as it is now on rehearing before the Supreme Court. Therefore in the event Fields is approved and made retroactive, the defendant may, without prejudice, file a motion for rehearing on the question of his waiver from probate to circuit court, otherwise defendant’s conviction and sentence are affirmed.

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Bashara, J. Plaintiff instituted suit against defendant for breach of a contract to install electrical equipment alleging damages in excess of $100,-000. The same day plaintiff filed affidavits for writs of prejudgment garnishment under the authority of GCR 1963, 738.2. The affidavits alleged indebtedness in the same amount as stated in plaintiff’s complaint. The affidavits further stated: " * * * that Plaintiff is justly apprehensive of the loss of said sum * * * unless a Writ of Garnishment is issued for the reason that said defendant has failed to pay its debts as they mature and may have incurred debts in excess of its assets and without said writ of garnishment may at any time release, remove, secrete, transfer, dispose of or withdraw its assets or prefer other creditors, thereby leaving itself without sufficient assets to satisfy plaintiffs judgment.” After service of writs of garnishment on six Detroit area banks, one garnishee defendant disclosed indebtedness of about $3,000. Defendant H & S Electric Co. sought a bill of particulars. Plaintiff eventually replied, revising damages to $69,035.58 to reflect the amount plaintiff alleged was paid out in excess of the original contract price as a result of defendant’s failure to complete the contract. Defendant moved to quash the writ of garnishment contending that plaintiff failed to set forth facts sufficient to support its claim as required by GCR 1963, 738.2(3). It was defendant’s further contention that the writ stated an incorrect indebtedness as shown by the plaintiff’s bill of particulars. The trial judge granted defendant’s motion to quash. This Court has granted plaintiff’s application for leave to appeal from that order. Plaintiff contends on appeal that the statement contained in its affidavit was specific enough to satisfy the rule. GCR 1963, 738.2(3) provides that the writ shall issue if plaintiff or his representative avers that: "the plaintiff is justly apprehensive of the loss of his claim against the defendant unless a writ of garnishment is issued and setting forth the facts in support of this claim. ” (Emphasis supplied.) The question regarding the degree of specificity of the affidavit on prejudgment garnishments under the present court rule appears to be one of first impression in the appellate courts of Michi gan. In Tsingos v Michigan Packing Co, 272 Mich 7; 260 NW 783 (1935), the Court stated that the purpose of garnishment is to impound security for satisfaction of a demand where the plaintiff or affiant is justly apprehensive of the loss of the security unless a writ of garnishment issue. GCR 1963, 738.2(3), which requires the affidavit, is meant to impose a limitation on the power of the plaintiff to impound such security by requiring him to show that he is not only apprehensive of loss, but to also set forth the facts in support of his claim. The principal defendant is thereby given notice of the allegations which have caused a freezing of his assets and may come forward to deny or repel such allegations. Two interesting West Virginia decisions appear to shed some light on the problem. Roberts v Burns, 48 W Va 92; 35 SE 922 (1900), required the statement of material facts to be certain and definite in legal point of view in order to inform the defendant of facts he must repel. In ruling on the necessary degree of specificity of facts supporting an affidavit for writ of attachment, the West Virginia Court cited with approval an earlier case, Delaplain & Co v Armstrong, 21 W Va 211, 214 (1882). The Court there stated: "The manifest object of the statute in requiring the material facts to be stated, is to guard the property of the debtor against improper seizure and to enable the court to judge and determine whether the information, thus supplied by the affidavit, furnishes reasonable proof of the main fact involved — the fraudulent intent of the debtor.” The inherent difficulty in requiring specific facts in affidavits for prejudgment garnishments is that there has been no opportunity for discovery. GCR 1963, 738.9 (1)(4); GCR 1963, 302-313. Were discov ery available, however, and defendant put on notice, the plaintiff’s apprehension of loss could well become a reality. This could defeat the security the rule means to provide. The court rule was intended to force the plaintiff to a disclosure of some facts beyond the mere conclusion of apprehension of loss. This disclosure would enable the principal defendant to have notice of, and an opportunity to repel, those more specific allegations upon which the writ is founded. Application of the foregoing principles to the instant affidavit results in the following analysis: Plaintiff claims it fears loss because defendant failed to pay its debts as they matured. Such an allegation, if supported, provides notice to the defendant of a fact he must repel, tends to prove plaintiff’s apprehension of loss, and notifies the court of potential risk. Plaintiff next alleges that defendant’s liabilities may exceed its assets. While defendant claims such a statement is conclusory and speculative, without discovery greater specificity of supporting facts is improbable. Plaintiff further notifies the defendant, by this allegation, of a fact he must repel. Defendant next argues that the trial court order should be upheld because plaintiff stated an incorrect amount of indebtedness in the initial writ. When damages are ascertainable by standards established in the contract, the amount stated in the writ need not be absolutely correct: "The statute requires that the affidavit in garnishment shall state that the principal defendant is indebted to the plaintiff in a given amount. This requirement was met by plaintiff’s garnishment affidavit; and it is not required that the amount be stated with absolute correctness as determined by the amount ultimately found due to plaintiff in the principal suit. In the case at bar, the damages may be ascertained by the standards set up in the alleged contract, if proven.” (Emphasis by the Court.) Talbert v Solventol Chemical Products, Inc, 304 Mich 557, 565; 8 NW2d 637, 640 (1943). See also Geistert v Scheiffler, 312 Mich 36, 39; 19 NW2d 477, 479 (1945), and Goldblum v United Automobile, Aircraft & Agricultural Implement Workers of America, Ford Local No 50, 319 Mich 30, 40-41; 29 NW2d 310, 314 (1947). The contract here provides: "If, for any reason, the Contractor shall fail to complete any of the portions or the whole of this contract within the time specified, ALCO may have the work done by others and the cost of completion of said work shall be charged to Contractor.” The damages were ascertainable by reference to the cost of completion standard in the contract. Plaintiffs estimate of the cost of completion was as reasonable as could be expected at the time the complaint and affidavit were filed. It is, then, our opinion that the trial judge was incorrect in quashing the writ of garnishment on the facts before us. We, therefore, reverse and remand with direction to reinstate the original writ. Holbrook, J., concurred.

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O’Hara, J. The tortuous trail of this litigation began in 1967 in the case of Jordan v CA Roberts Co, 379 Mich 235; 150 NW2d 792 (1967). Since then it has been reported on rehearing in 381 Mich 91; 158 NW2d 901 (1968), and as Jordan v Whiting Corp, 42 Mich App 448; 202 NW2d 477 (1972), in the Court of Appeals. Presently it is before us on rehearing from our decision in the latter case. The order granting the rehearing provides: "It is further ordered that plaintiff shall file a brief with supporting record references to sustain her contention that the trial court erred in directing a verdict in favor of defendants. The brief and supporting record references shall be specific as to the duty defendants owed plaintiff’s decedent, how it was breached, what implied warranty is relied on and how it was breached. Plaintiff shall have 30 days to file and serve her brief.” Thus it becomes our duty to discuss the relationship of each of the three defendants to plaintiff’s decedent as to the claimed negligence and the breach of an implied warranty of fitness. We start with the undisputed facts. C. A. Roberts Company, decedent’s employer, wanted an overhead crane for its place of business. It ordered one from Dearborn Fabricating & Engineering Company. Dearborn in turn purchased certain component parts of the whole unit from Whiting Corporation, which manufactured them. The whole unit depended upon electrical power to function. Dearborn engaged N & K Electric Company as a subcontractor to do some of the electrical work to energize the unit. Next, we recite facts that while not totally undisputed are on required favorable view to plaintiff to be taken as true for the purpose of testing the grant of a directed verdict in favor of all three defendants in the trial court. Plaintiffs decedent was at work on the overhead crane. Under permissible inference on favorable view he was there to repair it. He was found dead lying across the unit. His death was caused by electrocution. There were no witnesses to his' death. He was presumed to have been in the exercise of due care for his own safety. This presumption was raised to the level of substantive evidence by the majority opinion in In re Wood Estate, 374 Mich 278; 132 NW2d 35 (1965), and Wirtanen v Prudential Ins Co, 27 Mich App 260; 183 NW2d 456 (1970). First, we analyze the relationship of N & K Electric as to negligence. The modern view which has been incorporated in general terms and in basic principle into our tort law is expressed by Professor Prosser as that duty is that obligation "recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Prosser, Torts (3d ed), § 30, p 146. This concept incorporates the historic element of reasonable foreseeability. Under a written contract, which became an exhibit in the trial court, N & K undertook to install certain electrical controls, do some wiring and extend the feeders to the crane’s power lines. It manufactured nothing. It sold nothing. It designed nothing. It simply supplied the materials and did the wiring so the unit could be electrically energized. Among the things it included was a lockbox by which the electric current to the crane could be shut off, leaving the unit inert. The switch was not in the "off” position when plaintiff’s decedent was electrocuted. His wife was permitted to testify in substance that he always shut off the power before making any repairs to the crane. There is no off-record explanation as to how it came to be "on”. There is no allegation of any general or specific act of negligence on the part of N & K Electric. Bench questioning on rehearing as to what negligent act plaintiff relied upon to sustain its case in negligence against N & K elicited a generalized answer, with the candid statement by appellate counsel that he was not authorized to agree to dismissal of any party. There simply is no case against N & K in negligence or in warranty. Short of stationing a guard at the lockbox, N & K could have done nothing to prevent decedent’s electrocution. The trial judge was right when he initially directed a verdict in favor of N & K. We were in error when we affirmed his grant of a new trial as to it. We direct the reentry of the directed verdict in the trial court as to defendant N & K Electric. We turn now to the case against Whiting Corporation. This defendant manufactured components which were ordered and bought from it by Dear-born. As to foreseeability and tort liability, Whiting could not have known — at least so far as the record shows — how these components were to be fashioned or fabricated into the completed unit. The obligation that generates the duty to avoid injury to another which is reasonably foreseeable does not — at least yet — extend to the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit designed, assembled, installed, and sold by another. We test the claimed liability against Whiting by the specific allegations of negligence and breach of implied warranty. Three of them relate to alleged failure to (a) use reasonable care in relation to installation of the crane’s electrical lockout box; (b) failure to provide adequate warnings on the electrical lockout box; and (c) failure to ground the electrical system of the crane. Manifestly, Whiting had nothing to do with any of the foregoing. The point is so clear as to warrant no discussion. The fourth allegation was: "(d) Failure to design, sell, and install a crane with interlocking arms of sufficient strength to avoid a repairman having to climb atop the crane to straighten the arm.” The general nature of the allegation would certainly have been the proper subject of a motion to make the allegation more specific as to defendant Whiting. But then it is not part of the function of an appellate court to tell defendant how to try its lawsuit. Under our adversary system Whiting may well have chosen to say in effect "let plaintiff prove all of that; it has nothing to do with us”. Whiting, according to the record, did not design and did not install a crane. Neither did it sell a crane to anybody. It sold certain units to be assembled into a crane which in turn was fabricated or assembled and sold by another to a purchaser of the completed unit. The only vestigial connection Whiting might have had was to manufacture interlocking arms which would never need repairs. We are cited no law and extensive independent research reveals none which imposes that duty in law. The last of plaintiff’s allegations against all defendants is: "(e) Failure to install insulating covers on the crane trolley wires or buss /sic/bars.” Plaintiff does not specify whose burden it was to install the covers. Mayhaps she did not know. Mayhaps she conceived it the burden of the three named defendants to establish whose failure (assuming the "failure” was actionable) it was. As previously noted it surely was no failure by or duty of N & K. Whiting in its reply brief concedes that it "also made a cover for the electrical buss [sic] bars and would have been glad to sell the plaintiffs (decedent’s) employer a cover”. The brief further recites that the "employer * * * did not want to buy a cover”. We can hardly be expected to hold, since the exposed bars did not violate any electrical code legislatively imposed (a fact conceded by plaintiff), that Whiting had the obligation, and more importantly the right to insist that the purchaser buy the covers. The case against Whiting fails in negligence because whatever the claimed defects of manufacture or the interlocking arms Whiting could not possibly be held reasonably to foresee that a repairman would be involved in servicing that part of the total assembled units when the adjacent wires were "hot”. The case against Whiting fails in warranty because there is no testimony that decedent was at the place where he was electrocuted in order to repair the allegedly defective arms. True there was testimony by the one witness that problems had been experienced previously because an arm would bend and the crane would not lock in position. Another witness testified that if, and we emphasize the "if’, the arm were designed too "soft” or too long it might bend (again the emphasis is ours) and become inoperative. Two witnesses agreed that the component could have been de signed so it would not bend. In the last analysis breach of warranty by Whiting would have to rest upon the premise that Whiting was obligated to manufacture a component that would not need repairs. We are cited no law, nor has our very extensive research disclosed that any such a duty exists under the theory of either negligence or warranty. This standing alone, of course, is not reason enough to deny recovery against Whiting. Any time a new duty is judicially promulgated some court has to say it for the first time. We do not believe it would be within the realm of reason to proclaim such a duty. Reasonable performance can be demanded in warranty. Perfection and the non-requirement of repairs seems to us to exact more of a manufacturer than human limitations can meet. However, this issue might become subject to review by the Supreme Court. That Court might take a contrary view. Therefore we hold additionally that even in warranty there must be evidence of causation. Because a device had needed repairs before the question of the cause of the electrocution of a repairman who might possibly have been making additional repairs does not become jury-submissible with only that quantum of proof and no more. The trial judge was right initially when he directed a verdict in favor of defendant Whiting. We were in error when we affirmed the grant of a new trial. As in the case of N & K, we direct the reentry of the directed verdict in favor of defendant Whiting. Finally, we examine the case against Dearborn Fabricating and Engineering Company. Under Dearborn’s statement of facts the following is its position in the litigation: "Dearborn Fabricating received an order for an over head crane from the C. A. Roberts Company, which order particularized the kind of crane Roberts desired and the respective parts that were to make up the crane. The order was sent by Dearborn Fabricating to defendant Whiting Corporation, which delivered the respective parts to defendant Dearborn Fabricating. Dearborn Fabricating then assembled the parts into a crane and installed it for C. A. Roberts.” The statement of facts also recites that "Dear-born * * * sold it to decedent’s employer”. It is, of course, obvious that Dearborn is somewhat more involved in the case than either Whiting or N & K Electric. True the purchaser specified the parts to be used to make up the completed unit. However, Dearborn did assemble it, sell it and install it. We recognize that Dearborn’s duty and liability, if any, are to be tested essentially by the same legal principles that control the duties and liability of N & K and Whiting except as the additional facts of the case may vary the relationship between plaintiff’s decedent and this defendant. Earlier herein we set out verbatim plaintiff’s allegations of the conduct of the three defendants upon which she depended for sustaining her cause of action. We need not set them out with that specificity again. We will discuss them, however, as they relate to Dearborn. The case against Dearborn fails in negligence as to all of the alleged duties save one because Dear-born too could not possibly have foreseen reasonably that an employee of the purchaser would be undertaking any service or repair of the unit while electricity was being fed to the unit when there was a lockbox which could cut off the power and which could be locked in the "off” position. Yet manifestly it was not off or plaintiff’s decedent could not possibly have been killed. The case against Dearborn fails in warranty in all particulars save one because as we noted earlier even in warranty under the most strict liability there must be some evidence that will establish or support a reasonable inference of causation before a jury-submissible question is made out. The one exception we note is the failure to ground the electrical system. Since N & K was limited to the items specified in a written contract, and this item was not included, N & K cannot be held for this omission, if it be actionable. Since Whiting did not install the crane in the purchaser’s building, it too is excluded from the force of this allegation. Dearborn did install it. In this particular we cannot find of record a clear unequivocal direction by the purchaser not to ground the unit as was the case in the choice not to insulate (other than by isolation) the bus bars or trolley. This brings us to the thus far undiscussed question of the difference in degree of duty of a manufacturer, designer, seller or installer to one operating the device and one who in any other lawful way is exposed to and injured by a claimed malfunction or defect in design, selection of material, or assembly of components. Obviously in law and in reason there must be a difference. Defendant cites Shanks v Insurance Co of North America, 211 So 2d 729 (La App, 1968), for the proposition that the duty of care a manufacturer owed to users and the general public does not exist as to a repairman engaged in making repairs when injured. Plaintiff counters not with cited precedent, but with the provocative inquiry if it will become the law of this state that "repairmen are expendable” and no duty is owed. We think the rule of reason lies somewhere in between. We would be imprudent to undertake to fashion it inflexibly. We think that either in negligence or warranty this principle obtains and should be our controlling law. The repairman by the very nature of his undertaking exposes himself to hazards the injurious results of which might be actionable by a user or the general public but not actionable by him. Where then lies the line of demarcation? We think we must revert to the long-standing legal principle (it has been called by many the "legal fiction”) that when the minds of reasonable men cannot differ the question is one of law for the court and will require a purely legal determination. Where the facts adduced may fairly be said to support differing conclusions or inferences the question must be submitted to the trier of the facts be it jury or court sitting without a jury. It is not an exact rule, we know, but neither is law an exact science. The appellate adjudication does its best within its manifest and recognized limitations. By this test then let us try to weigh the issue as between plaintiff and Dearborn as to the failure to ground the crane which plaintiff says gives rise to a question of fact in either negligence or warranty. Under the order for rehearing calling for specifics as to legal duties and supporting transcript references Dearborn in compliance with the Court’s order says: "As the last duty allegedly breached by defendants, plaintiff points to a claimed failure to ground the electrical system of the crane. It has been pointed out that defendant Dearborn Fabricating did not perform the electrical work. Furthermore, Mr. Joseph A. Daoust testified that the crane was grounded (T. 674) and Mr. Stephen Squillace testified repeatedly upon cross-examination that he didn’t know if the crane’s grounding system had anything at all to do with decedent’s electrocution. (T. 408, 411, 439). Thus, the testimony of plaintiff’s own expert makes any inquiry into the crane’s grounding system irrelevant.” Plaintiff replies: "[T]he question of defendants’ failure to ground the crane was likewise for the jury. Only the trier of fact could determine whether, in light of Mr. Squillace’s testimony, defendants were negligent in failing to ground the crane. In a similar case in Mulcahy v Argo Steel Construction Co, 4 Mich App 116; [144 NW2d 614] (1966), this Court stated in view of the testimony that grounding might have prevented the injury that: " 'The question that must be answered in this regard is not whether [defendant] or its employees were aware or realized the benefits to be derived from the use of the grounding devices on the power crane, but whether or not a reasonably prudent person in the position of [defendant], would have realized the benefits of grounding devices and equipped the power crane with such devices. This is a question of fact for the jury to be determined from the evidence. ’ ” 4 Mich App at 122; 144 NW2d at 617 (plaintiff’s own emphasis). Let us try to distill the voluminous record into those facts and that testimony that either does or does not create a jury submissible case on the one narrow and last remaining issue raised by the complaint. We will set forth what we consider controlling numerically in an attempt to pinpoint the reasons for our holding. 1. Plaintiff’s decedent was electrocuted at the place of his employment where he had a right to be in the performance of duties he had performed in the past. 2. There was a lockbox that had been installed which would shut off the electric current carried into certain components of the whole unit. If the current had been shut off the decedent could not have been killed. 3. No one knows with certainty why defendant was where he was at the time of his death. He was found dead. Under the majority opinion of In re Wood Estate, supra, he was presumed to have been in the exercise of due care for his own safety. The same majority holding raises that presumption to the status of substantive proof. No inference adverse to decedent can be taken from the fact that the power was not shut off. 4. Dearborn sold and installed the whole unit. 5. A witness, qualified as an expert and thus allowed under our system to give opinion evidence, testified that the crane was improperly grounded. He testified further and drew a diagram to explain why that had it been properly grounded decedent would have had a 70 to 80 percent chance of survival even though brought into contact with the "hot” wires or bars. 6. That same witness also testified under cross examination: ”Q. [T]hen you don’t know whether the grounding had anything to do with his death or not, do you? ’A. That’s right. I don’t.” So there is the whole remainder of the lawsuit. Was it controlling and dispositive that the expert who testified to improper grounding, also testified he could not testify opinion-wise to any causal relationship between the alleged improper grounding and decedent’s death? We must say in candor that much of the testimony concerning "built-in” grounding, external grounding, lack of grounding and testimony of another of plaintiffs witnesses that the crane in fact was grounded makes out at best what must be called a close case. Yet there is no gainsaying that the testimony is there and our appraisal of its weight is not to the point. We would not be understood to mean than any testimony, however preposterous, however much discredited by cross examination which results in a testimonial conflict, is not susceptible of judicial disposition by the trial or appellate bench. Such is not the situation here as we view it. While the question is close — very close — as the Supreme Court very recently held: "A very close question is presented, but * * * the doubtful case in each instance calls for jury instruction and jury verdict rather than a verdict by order of the court.” Washington v Jones, 386 Mich 466, 471; 192 NW2d 234, 237 (1971). We vacate the original order of the trial judge granting a directed verdict as to defendant Dear-born, and affirm our holding of a grant of a new trial as to defendant Dearborn in 42 Mich App 448; 202 NW2d 447 (1972), above cited. Because our decision here is on rehearing granted and because our opinion here renders all issues other than plaintiffs allegation of failure to ground the unit res adjudicata in the trial court and this Court, we limit the proceeding in the trial court to the pleadings now of record in that court. We respect the request of the trial judge that in the event of the grant of a new trial the cause be assigned to another trial judge. It is so ordered. The question of taxing costs is no less complex than the questions in the case. We have examined both GCR 1963, 526 and 822 and the annotations thereunder. Plaintiff did not improve her position upon rehearing and cannot be considered a prevailing party. Dearborn improved its position by reason of narrowing the scope of its exposure to liability, but only as to plaintiff. As to N & K and Whiting, whose interests were to a degree adverse to Dear-born, Dearborn did not prevail. Thus Dearborn cannot be said to have prevailed in full. N & K and Whiting prevailed in full as to plaintiff and in full as to Dearborn to the extent their interests were adverse. N & K and Whiting may each tax its costs apportioned as follows: one half the costs of each against plaintiff, one half the costs of each against Dearborn. Dearborn prevailed in part as to plaintiff and may tax one half of its costs against plaintiff. We deem the foregoing to be compliance with GCR 1963, 526.1. All concurred. Subsequently, the trial court reversed its position after a limited order of remand by this Court, and granted a new trial. In our original reported opinion, 42 Mich App 448; 202 NW2d 477 (1972), we affirmed the grant of a new trial. The basic issue abides, however, the propriety of the direction of a verdict in favor of all defendants. For a useful discussion relative to "foreseeability” see Elbert v Saginaw, 363 Mich 463; 109 NW2d 879 (1961). See generally Piercefield v Remington Arms Co, 375 Mich 85; 133 NW2d 129 (1965); Heckel v American Coupling Corp, 384 Mich 19; 179 NW2d 381 (1970); Parsonson v Construction Equipment Co, 386 Mich 61; 191 NW2d 465 (1971). We note with interest but without comment since we find no specific testimony on the point that N & K’s "quote” provides: "Power wiring to insulate bar to be done by others”. Defendant Dearborn alone cites Shanks, supra.

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McGregor, J. In this child custody case, appellants raise two substantial issues: (1) whether the appellants have been denied their parental rights without due process of law, and (2) whether the statute giving the probate court jurisdiction over neglected children is void for vagueness. The initial proceedings in this matter were instituted in probate court under MCLA 712A.2; MSA 27.3178(598.2) by petitions alleging that the children involved fell within the jurisdiction of the court under section (b)(2) of the act, which provides that the probate court shall have jurisdiction over any child in the county "whose home or environment, by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in”. There are two sets of children involved in this case, the Smith children and the Brown children. According to the allegations in the petitions, the home was rendered unfit because the mothers were living together in a state of lesbianism which created an immoral atmosphere. A hearing was held on May 13, 1970, at which it was represented to the court that the families were no longer living together. The probate judge indicated that he believed that the court should take jurisdiction but he continued custody with the mothers on the condition that they live apart. The written order of the court omitted the condition that the women live apart. On June 5, 1970, another hearing was held, at which an officer of the Michigan State Police testified that on June 3, 1970, he was called to the Smith home where there had been some kind of a fight, and that Mrs. Brown had tried to kill herself. Unfortunately, the trooper’s testimony is almost entirely subject to objections, either as hearsay evidence or that the trooper lacked personal knowledge of the facts to which he was testifying. At the conclusion of this hearing the probate court ordered the children placed in foster boarding homes. By an order entered on June 20, 1970, the custody of the Brown children was awarded to the maternal grandparents. After a hearing on July 15, 1970, custody of the Smith children was awarded to their father. A hearing involving only the Brown children was held on August 5, 1970, at which Mrs. Brown was represented by court-appointed counsel, and at which it was indicated that Mrs. Brown consented that the grandparents have custody of her children. At another hearing on June 22, 1971, it developed that the grandparents were unable to continue their custody of the children because of illness, and the court restored custody of the children to their mother. On December 30, 1970, a hearing concerning only the Smith children was held, at which it was shown that Mrs. Smith had taken her children to her home. After a subsequent hearing on February 9, 1971, the court restored custody of the Smith children to their mother. On October 29, 1971, a hearing was held involving both sets of children, at which both women were represented by the same attorney. When it was shown that the families were again living together, the court ordered that the children be placed in foster homes. This probate order was appealed to the circuit court, which affirmed the order, after hearing the matter on the probate court record. Mrs. Smith and Mrs. Brown appeal to this Court on leave granted. Appellants first submit that they were deprived of their parental rights without due process of law. A more specific statement of appellants’ conten tions in this regard appears in their brief, as follows: "Three subjacent facets of 'due process’ are proposed for the court’s consideration, viz.: "1. Were the respondents entitled to counsel at the determinative proceedings of May 13, 1970? "2. Were the allegations propounded by the prosecutor proven? "3. Was the order of the probate court terminating custody the appropriate consequence of the proceedings?” The answer to the first question is clear. The mothers were entitled to counsel at the May 1970 hearing. "The child, his parents, guardian, or custodian shall have a right to retained counsel and also to court-appointed counsel as provided in this rule; it shall be the duty of the court to so advise them at the first hearing before the court.” JCR 1969, 6.1. With regard to Mrs. Smith, no right-to-counsel problem exists; she was represented. Mrs. Brown had been represented by the same attorney but, at the hearing, he stated that he was withdrawing as Mrs. Brown’s counsel and was representing only Mrs. Smith. The court did not inform Mrs. Brown of her right to appointed counsel, if indigent. Since she later was represented by appointed counsel, it seems likely that she was indigent at that time. There was no waiver of counsel as provided in JCR 1969, 6.2 and JCR 1969, 6.3(A)(2)(b): "Unless waived as provided by Rule 6.2, counsel shall be appointed on the court’s own motion to represent the parents, guardian, or custodian of the child charged with offense against the child at hearings which may involve termination of their rights when legal aid or public defender counsel is not available, and they are financially unable to employ counsel to represent themselves.” It seems clear that Mrs. Brown was denied her rights under the court rule and that Mrs. Smith was not. Concerning the question of whether the prosecutor proved his case, appellants stress the fact that there was no testimony that the women were observed in homosexual activity. In evaluating this contention, the two-step nature of these proceedings is of some importance. First, a determination must be made that the jurisdictional facts exist. Second, if such facts exist, a proper order of disposition must be made. In re Franzel, 24 Mich App 371; 180 NW2d 375 (1970). The first step of these proceedings is referred to in the court rules as the adjudicative phase. "In absence of a valid plea in confession only competent, relevant, and material evidence is admissible at the adjudicative phase, subject to the general rules of evidence in civil proceedings.” JCR 1969, 8.3(A). Thus, if the finding that the court had jurisdiction is to be upheld, the record must contain sufficient evidence, admissible under the ordinary rules of evidence, to support the probate court’s finding. The record is clear that competent evidence was introduced to support a finding that the mothers were involved in a homosexual relationship. The state police trooper testified that, on January 3, 1970, he was called to the Smith residence because Mrs. Brown had allegedly assaulted Mrs. Smith with a rifle. On January 4, 1970, he returned to the residence and talked to Mrs. Brown. At that time Mrs. Brown admitted the assault and stated that she had tried to kill herself, Mrs. Smith, and the children, and that she had at tempted suicide. These statements are clearly hearsay, but it seems equally clear that they are admissions. When asked if she was living in a state of lesbianism, Mrs. Brown stated, "So you know about it”, and then stated that she wanted to break off the relationship. Again, it seems that this testimony would be admissible as an admission. The trooper also testified as follows, regarding a note written by Mrs. Smith to Mrs. Brown: "[S]he did write the note and this note indicated that, read briefly, 'why are you doing this to me. You know your driving me crazy. What you’ve done to me, doll, they are putting me in jail. I still love you * * * ’ it went on, explaining that she wished that Arlene Smith wouldn’t bring these charges against her and that she still loved her.” This seems to be a classic illustration of double hearsay. The note itself is hearsay, but it would seem to be admissible as an admission. However, the trooper’s testimony is hearsay on hearsay and does not fit within any exception to the hearsay rule. The trooper also testified that Mrs. Brown said that the whole dispute arose because Mrs. Brown wished to date a man. He also stated that he spoke to Mrs. Smith on the phone and she said that she wanted Mrs. Brown released and that she loved her. The trooper?s testimony also included the physical aspects of the home, which was a house trailer with some sort of an extension built on it; a total of nine people lived in this home, in which three rooms were used as bedrooms. In apparently unsworn testimony, the prosecutor indicated that he had received telephone calls from a person who identified herself as Mrs. Smith. The caller stated that she wanted Mrs. Brown released and that she loved her. The prosecutor further stated that he accused Mrs. Smith of living in a state of lesbianism and she answered that it was "nobody’s business but our own”. She further told him that she had visited a psychiatrist in Flint who had stated that there was nothing wrong in what she was doing and that it was their own business. There was sufficient evidence to support the conclusion that the women were engaged in a lesbian relationship. However, there is very little to support the conclusion that this relationship rendered the home an unfit place for the children to reside. In light of the fact that Mrs. Brown was not afforded counsel at the May 13, 1970 hearing, and that there was little, if any, material and admissible evidence to support the finding that the appellants’ homosexual relationship rendered their home unfit for their children, the case is remanded to the probate court for a full hearing relative both to its jurisdiction and the disposition of the children, if jurisdiction is found. Pending the probate court’s decision on remand, the children are to remain in their foster homes. Our disposition renders unnecessary consideration of appellants’ contention that the statute is void for vagueness. Reversed and remanded. All concurred.

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McGregor, J. Defendant appeals a jury verdict of guilty on the charge of breaking and entering general, MCLA 750.110; MSA 28.305. The information charged that this defendant with two companions did feloniously break and enter a building with the intent to commit larceny therein. The agreed statement of facts indicates that the police, responding to a silent alarm, arrived at the scene in time to see two individuals fleeing the building from the rear, inside a closed fence which surrounded the building. When requests to halt were ignored, the officers fired at the fleeing individuals, hitting this defendant as he was allegedly scaling the fence and causing him to fall to the ground inside the fence. Defendant contends that he was an innocent bystander and that he ran into the alley from a nearby gas station when he heard noise and saw lights. He further maintains that he heard a shout to halt and that he answered that he was not involved, and was then struck by gunfire and fell to the ground, outside the enclosure in the alley. At trial, the defense requested that the jury view the scene for the reason that proper comprehension of the scene could not be had from the picture admitted into evidence due to the congestion in the area. This motion of the defense was denied. Prior to the beginning of trial, the prosecution requested that rebuttal witnesses be endorsed upon the information. These witnesses were police officers who arrived upon the scene and were not res gestae witnesses. The prosecutor indicated that it was desirable to call these witnesses because the defense could not be "anticipated”. Counsel for the defense replied that the prosecution should put in all their witnesses in their main case. The court took this motion under advisement, and at the close of the defense’s case allowed these two witnesses to be called. In granting the motion to permit these witnesses to testify, the court stated that the prosecution could not reasonably anticipate this defense. Prior to his opening statement, however, the prosecutor stated, "I have reason to believe that there will be a defense that the defendant, Mr. Curry, was not inside the fenced in area * * * ”. Defense counsel contends that the court erred in allowing the rebuttal testimony. The applicable law on this issue has been concisely stated by this Court: "As a general rule, the admissibility of rebuttal testimony, which could have been offered by the prosecution during its case in chief, rests within the sound discretion of the trial court; and we will not disturb the trial court’s decision unless a clear abuse of that discretion has been shown.” People v Daleo, 43 Mich App 386, 390; 204 NW2d 315, 317 (1972). The question, then, narrows to an interpretation of the abuse of discretion by the trial court. De fendant has failed to present a case of clear abuse of discretion. The testimony of the two rebuttal witnesses in this case simply corroborated earlier testimony as to the location of the defendant when he was shot. In Michigan, it is clear that such rebuttal testimony which merely supports or expands previously admitted testimony is nonprejudicial. Since the testimony admitted was nonprejudicial per se, it is impossible to charge that the trial judge abused his discretion in allowing it. Defendant further contends that the trial court erred in denying his motion that the jury view the scene where the view would have enabled the jurors more clearly to comprehend the evidence already received. Michigan statutes provide: "The court may order a view by any jury empaneled to try a criminal case, whenever such court shall deem such view necessary.” MCLA 768.28; MSA 28.1051. It has been held by Michigan courts that the discretion of a trial judge may be exercised as provided by law when it is believed that a personal view of the scene would enable the jurors to comprehend more clearly the evidence already received. People v Winney, 196 Mich 347; 163 NW 119 (1917); People v Connor, 295 Mich 1; 294 NW 74 (1940); Snider v Jennings, 11 Mich App 562; 161 NW2d 594 (1968); People v Gauthier, 28 Mich App 318; 184 NW2d 488 (1970). The police testimony indicated that the individual who was struck by their gunfire was scaling the fence and fell within the enclosure which surrounded the subject building. Defendant maintains that he was struck while he was in the alley, and that he fell in the alley. The officers testified that they dragged the defendant under the fence, after he had been struck and had fallen inside the enclosure, to a position outside the fence to await the arrival of an ambulance. This led to the question of whether it was possible that defendant could have been pulled under the fence, which was described as 50 feet long, 10 feet high, chain link, with steel posts embedded in cement every 6 to 8 feet. The defense believed that a personal view of the scene by the jurors was necessary because photographs of the area could not portray the entire fence nor the exact spot where the defendant was alleged to have been pulled under the fence. Although the court agreed with the defense that it was difficult to present an exact description of the area to the jurors, the defense motion for a personal view of the scene by the jurors was denied. The trial court stated: "The view today, if it were viewed today, the jury would not be seeing the same site that existed back on October 22, 1971, because we are all familiar with the fact that snow and cold weather of the wintertime changes the terrain, undoubtedly did in this instance. "I think that with the use of the blackboard that you have been freely using, and at least four photographs now that have been received, that the jury can have a complete picture of the situation existing. I don’t feel a view of the property would be of any aid to the jury at this time, so your motion for a view is denied.” Such a reasoned and specific ruling cannot, in light of all of the facts of this case, be said to embody an abuse of discretion. Defendant’s additional assertion that only res gestae witnesses may be called in rebuttal is so insubstantial as to require no argument. Defendant has not shown the clear abuse of discretion by the trial court. Affirmed. All concurred.

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Per Curiam. City of Detroit appeals from the judgment of the trial court which denied the city recovery of 1969 personal property taxes assessed against Co-Med Drug Company, Inc. Appellee, the United States, has accepted the following statement of facts by appellant: "On November 26, 1969, Co-Med Drug Company, Inc., a Michigan corporation, having its principal place of business in the City of Detroit, State of Michigan, filed a petition for corporate dissolution. An order dissolving the corporation and appointing a permanent receiver was entered by the court. On February 15, 1970, the City of Detroit filed its claim against the subject debtor for 1969 and 1970 personal property taxes in the amounts of $1,760.66 and $751.52 respectively, the latter tax item being claimed as an expense of administration. On March 16, 1970, the United States Internal Revenue Service filed a proof of claim for various items of federal taxes assessed at varies [sic] dates in the amount of $13,407.92 and asserted priority thereon under Section 3466 of the Revised Statutes (31 USCA 191). On March 8, 1971, the Internal Revenue Service filed an amended claim in the amount of $11,764.18. All the assets of the debtor have been liquidated and the receiver has on hand for distribution to creditors the sum of $11,277.77. The total claims filed are substantially in excess of the funds available for distribution.” It is the position of the city that In re Dissolution of Ever Krisp Food Products Co, 307 Mich 182; 11 NW2d 852 (1943), dictates that its claim for 1969 personal property taxes has priority over the claim of the United States for its taxes. The United States contends that United States v Gil bert Associates, Inc, 345 US 361; 73 S Ct 701; 97 L Ed 1071 (1953), controls and establishes the priority of the United States tax claim. The trial judge agreed with the United States and overruled Ever Krisp, supra. The Court also ruled that the priority of the United States was subject to the prior payment of administration expenses allowed in the amount of $9,747.50. We agree. See also 31 USC 191. The amount of the lien filed by the United States exceeded the total assets of the estate. The policy decision that the United States may wish to allocate the administration expenses from that portion of its priority should not be disturbed by this Court. See In the Matter of the Estate of William H. Reynolds, 38 Misc 2d 278; 235 NYS2d 752 (1962). Affirmed. "Whenever any person indebted to the United States is insolvent, * ** * the debts due to the United States shall be first satisfied;

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Van Valkenburg, J. The defendant, Richard L. Harley, was found guilty by a jury of uttering and publishing, MCLA 750.249; MSA 28.446, was sentenced to a term of 3 to 14 years, and appeals as of right without having made a motion for a new trial. The first issue arises as a result of testimony given by the defendant to the effect that the chief witness called him in the hospital, apologized for getting him into trouble by lying about the checks, and then indicated that he would straighten the matters out with the prosecuting attorney. During the conference on instructions, the trial judge indicated that he would instruct that such testimony could be used for credibility purposes only; however defense counsel insisted that it be considered as substantive evidence, since it might benefit his client. Naturally, the defense counsel did not object to the instructions as given. Defendant now asserts that the court should have given the original version of the instruction. In light of GCR 1963, 516.2, it is doubtful if this issue is properly before the Court. Exceptions to the "no objection-no error” language of 516.2 have been made where "manifest injustice” results. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965). However, the defendant has no basis for complaint where, as here, his trial strategy failed to produce the desired results. Secondly, the defendant asserts that he was denied a fair trial by virtue of the fact that the jury was coerced into a hasty verdict by certain remarks made by the trial court, citing People v London, 40 Mich App 124; 198 NW2d 723 (1972), and the cases cited therein. The trial court herein exhibited no impatience with the jury, but rather merely explained to the jury that if they were unable to reach a verdict within an hour, they would be taken to lunch at county expense. The court further indicated that it was necessary to limit the cost of this lunch. There was absolutely no attempt to force the jury to reach a verdict before lunch nor any attempt to convey to the jury that they should hasten their deliberations. The third, and perhaps most important, issue concerns certain threats made by the prosecutor to a res gestae witness to the effect that he would prosecute her for the same crime as defendant if she did not leave the county or for perjury if she testified favorably to defendant at trial. The trial court was apprised of the existence of these threats by the witness, whereupon the court in formed the witness that she should not hold back any pertinent evidence. The witness then took the stand and testified favorably to the defendant. There is no question that interference, intimidation and threats by the prosecutor to a witness constitutes grounds for reversal, since such actions usually deprive the defendant of his right to a fair trial. People v Pena, 383 Mich 402; 175 NW2d 767 (1970); People v Butler, 30 Mich App 561; 186 NW2d 786 (1971). While we condemn the prosecutor for his attempts to pervert the ends of justice, we find that no reversible error resulted therefrom. The record clearly indicates that the trial court’s assurances to the witness purged the possible taint left by the prosecutor’s actions. We would note further that neither a motion for a mistrial nor a motion for a new trial were made before the trial court. If the taint left by the prosecutor’s actions gave rise to any hesitancy to testify by the witness which would not appear from the cold words of the transcript, the proper place to raise the question would have been before the trial court who had the opportunity to observe the behavior of the witness. The remainder of the issues raised have been carefully examined and found lacking in merit. Not only was the question of improper remarks by the prosecutor not properly preserved for appellate review, but the remarks fell within the scope of permissible inferences from the evidence. The testimony concerning an assault made by defendant on one of the witnesses was introduced by defense counsel on cross-examination; therefore defendant has no cause for complaint. The question of the weight of the evidence is a jury matter and cannot be raised for the first time on appeal; a motion for new trial being a necessary prerequisite. See Peo ple v Ragland, 34 Mich App 673; 192 NW2d 73 (1971). There was sufficient evidence, if believed by the jury, to find defendant guilty beyond a reasonable doubt. Affirmed. McGregor, J., concurred.

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Griffin, J. A local ordinance purports to impose upon the owner of property abutting a public sidewalk the obligation to indemnify the City of Grand Rapids if the owner fails to maintain the sidewalk and if the city is required to pay damages to a person injured on the defective sidewalk. Because the city lacked authority to impose such an obligation, we conclude that indemnification is not available to the city under the circumstances presented here; and we affirm the result reached by the Court of Appeals. I In March 1989, Tara Bivens filed suit against the City of Grand Rapids and the Kent Country Club, complaining that she was injured when she was thrown from her bicycle while riding on a public sidewalk adjacent to property owned by the club. She alleged that the front tire of her bicycle hit a raised or uneven portion of the sidewalk, that the sidewalk was in a state of disrepair, and that the sidewalk was partially covered with ice and snow. In response to the complaint, the club, owner of property abutting the sidewalk, moved for summary disposition under MCR 2.116(C)(8), claiming that a cause of action had not been stated because it owed no duty of care to an individual user of the public sidewalk. The trial court agreed and granted the motion. No appeal was taken from that order. Shortly thereafter, the city filed a third-party complaint against the club, as the abutting property owner, seeking indemnification for any damages the city might be required to pay plaintiff Bivens for her injuries. In its third-party complaint, the city alleged that the club had breached a duty owed the city under its ordinance 4.84 by allowing the sidewalk to "break up and crumble, thus creating a dangerous condition.” This ordinance, according to the city, not only required the club to maintain the sidewalk in good repair, but also imposed upon the club, as the abutting owner, the obligation to "fully indemnify the City for any damages recovered against the City” as a consequence of the club’s failure to maintain the sidewalk. Once again, the club filed a motion for summary disposition under MCR 2.116(C)(8), and it was granted. The trial court relied on Figueroa v Garden City, 169 Mich App 619, 623; 426 NW2d 727 (1988), and its reasoning: "the city’s ordinance . . . does not create a private right to recover against the landowner and . . . accordingly, the city is not entitled to indemnification.” On appeal, the Court of Appeals affirmed. 190 Mich App 455, 458; 476 NW2d 431 (1991). While it adopted the same Figueroa reasoning, the panel also rested its decision on the ground that the city lacked authority to enact such an indemnification provision. 190 Mich App 458. We then granted the city’s application for leave to appeal. 439 Mich 1019 (1992). II At common law, a landowner is under no obligation to repair and maintain an abutting public sidewalk. Detroit v Chaffee, 70 Mich 80, 85; 37 NW 882 (1888); Levendoski v Geisenhaver, 375 Mich 225, 227; 134 NW2d 228 (1965). Such an obligation arises only when it is imposed pursuant to authority granted by the state. Chaffee, 70 Mich 85; Levendoski, 375 Mich 227; see also 2 Restatement Torts, 2d, § 288(c), p 29. Since 1918, the Grand Rapids city charter has included a provision adopted by vote of the electorate which in pertinent part reads: It shall be the duty of every owner of land situated in the City of Grand Rapids to build, rebuild, maintain and repair all sidewalks upon that part of the street or streets upon which said land abuts, at such times, in such manner, and of such materials as the City Commission may direct. Notice to .. . repair such sidewalks, shall be given in such manner as the City Commission may by ordinance or resolution provide, and if such owner shall neglect or refuse to comply with such notice, the Director of Public Service may cause the said sidewalks to be .. . repaired ... at the expense of the City, and . . . the City shall have a lien on such land for such amount, together with the costs, penalties and interests thereon, until paid. [Grand Rapids Charter, tit X, 208, § 23. Emphasis added.][ ] More recently, in 1984, the city commission adopted ordinance 4.84 which in pertinent part provides: All sidewalks . . . within the City shall be maintained in good repair by the owner of land adjacent to or abutting upon the same. . . . Said owner shall be liable to and fully indemnify the City for any damages recovered against the City by any person for neglect to keep these areas in good repair, and reasonably safe, fit and convenient for public travel. Said owner shall be liable to any injured person for violation of this Ordinance, and any injured person may recover the damages suffered by them directly from the property owner.[ ] [Emphasis added.] Notwithstanding the final sentence of ordinance 4.84, which purports to allow any person injured on a defective sidewalk to bring a civil action against the abutting property owner, the trial court ruled, as already noted, that plaintiff’s complaint failed to state a cause of action against the club. Because that decision was not appealed, the question whether a city may create such a private cause of action is not squarely before us. However, we find it unnecessary to reach that question in any event because the city’s indemnification claim must fall for another fundamental reason: it lacked the authority to impose by ordinance an obligation on abutting property owners to indemnify the city._ III Municipal corporations have no inherent power. They are created by the state and derive their authority from the state. Marxer v Saginaw, 270 Mich 256, 259; 258 NW 627 (1935). An ordinance enacted by the governing body of a home rule city is valid only if it is consistent with the powers conferred by the state in its constitution and statutes, and if it falls within the scope of authority delegated by the electorate in the city’s charter. See Const 1963, art 7, § 22; Home Owners’ Loan Corp v Detroit, 292 Mich 511, 515; 290 NW 888 (1940); Thiesen v Dearborn City Council, 320 Mich 446, 451; 31 NW2d 806 (1948). In this case, the city argues that it derived authority to enact ordinance 4.84 from its charter as well as from constitutional and statutory provisions. The city refers to language in the state constitution reserving to cities "reasonable control of their highways, streets, alleys, and public places . . . .” Const 1963, art 7, § 29. Likewise, the city relies on language in the Home Rule Cities Act that authorizes cities to provide in their charters "[f]or the use, regulation, improvement and control of the surface of its streets, alleys and public ways, and of the space above and beneath them.” MCL 117.4; MSA 5.2081(1). For charter authority to enact ordinance 4.84, the city in its argument points only to the first sentence of tit X, 208, § 23 of the Grand Rapids charter, which imposes upon property owners a duty to maintain and repair the abutting sidewalk. The city argues that the first sentence, when coupled with the cited constitutional and statutory provisions, provides authority for the city to impose upon abutting landowners a duty of care running to individual users of the sidewalk as well as an unlimited obligation to indemnify the city. However, in its argument, the city ignores limiting language which immediately follows that sentence: Notice to . . . repair such sidewalks, shall be given in such manner as the City Commission may by ordinance or resolution provide, and if such owner shall neglect or refuse to comply with such notice, the Director of Public Service may cause the said sidewalks to be . . . repaired ... at the expense of the City, and . . . the City shall have a lien on such land for such amount, together with the costs, penalties and interests thereon, until paid.[ ] By ignoring this language, the city violates the established principle that general language in a charter must yield to specific language. Brady v Detroit, 353 Mich 243, 248; 91 NW2d 257 (1958). As one leading commentator has noted, "[w]here the general provisions of a charter are followed by particular provisions, the general provisions are limited and restricted by the particular provisions.” 2 McQuillin, Municipal Corporations (3d ed), § 9.22, p 917. When read as a whole, it is clear that the 1918 charter provision imposes upon property owners only a limited public duty with respect to abutting sidewalks. First, the duty of maintenance imposed by the charter is not triggered until notice has been given by the city. Further, the liability of a landowner who fails to respond appropriately to such a notice is limited to the expense incurred by the city in repairing the sidewalk, "together with the costs, penalties and interests thereon, until paid.” In light of this limiting language, the ordinance enacted in 1984 by the city commission represents a wide and inconsistent departure from the charter provision approved earlier by the Grand Rapids voters. The ordinance not only eliminates the triggering requirement of notice, but it purports to establish a new and different method of enforcement that would expose abutting landowners to unlimited civil liability. Nothing in the charter provision relied upon by the city contemplates the imposition of such a private duty running to all individual users of a sidewalk or the imposition of an obligation to indemnify the city for all damages that it might be required to pay to those injured on the sidewalk. Surely, it could not be seriously contended that the Grand Rapids voters intended to assume such unlimited liability when they voted in 1918 to approve this charter provision. Indeed, in earlier cases this Court has interpreted language similar to that found in this charter as imposing only a public duty punishable "in some form of public prosecution, and not by way of individual recovery of damages.” Taylor v Lake Shore & MSR Co, 45 Mich 74, 77; 7 NW 728 (1881) (opinion of Cooley, J., emphasis added); see also Lynch v Hubbard, 101 Mich 43; 59 NW 443 (1894). Michigan is strongly committed to the concept of home rule, and constitutional and statutory provisions which grant power to municipalities are to be liberally construed. However, a city may not validly enact an ordinance that contradicts limitations expressly provided in the city’s charter. The charter of a city stands as its "constitution”; it is "the definition of [a city’s] rights and obligations as a municipal entity, so far as they are not otherwise legally granted or imposed.” Jackson Common Council v Harrington, 160 Mich 550, 552; 125 NW 383 (1910); see also Sykes v Battle Creek, 288 Mich 660, 662-663; 286 NW 117 (1939). Moreover, once adopted by a vote of the electors, a city’s charter may be amended only by a vote of the electors. In short, an ordinance must conform to, be subordinate to, not conflict with, and not exceed the charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state. [5 McQuillin, Municipal Corporations (3d ed), § 15.19, P 98.] To permit otherwise, and allow a city commission to enact an ordinance contrary to the charter, would enable the commission to effectively amend the charter without subjecting the amendment to the scrutiny and approval of the local electorate. See, e.g., Thiesen, supra, 320 Mich 453. Because the language used in the Grand Rapids charter imposes only a public duty of care upon abutting owners after proper notice from the city, and because the charter provides a different, specific remedy for breach of this duty, we hold that ordinance 4.84 is invalid. The city, therefore, may not maintain a third-party action for indemnity against the country club under this ordinance. IV For the foregoing reasons, the decision of the Court of Appeals is affirmed. Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, and Mallett, JJ., concurred with Griffin, J._ Grand Rapids city ordinance 4.84 reads: Responsibility and Liability for Sidewalks, Driveway Approaches and Retaining Walls. All sidewalks, driveway approaches and retaining walls within the City shall be maintained in good repair by the owner of land adjacent to or abutting upon the same. This maintenance shall include building, rebuilding and removing all obstacles, including snow and ice as required by Section 4.89. Said owner shall be liable to and fully indemnify the City for any damages recovered against the City by any person for neglect to keep these areas in good repair, and reasonably safe, fit and convenient for public travel. Said owner shall be liable to any injured person for violation of this Ordinance, and any injured person may recover the damages suffered by them directly from the property owner. The Court of Appeals determined that the city had no such authority in light of the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996 et seq., which, the Court said, occupies "the entire field of governmental liability . . . .” 190 Mich App 458. Our order granting leave to appeal did not limit or specify the issues to be considered. However, by subsequent order we invited additional briefing and requested that it focus on the questions whether a municipality may by ordinance delegate its duty to, or impose a separate duty upon, a private landowner to maintain a public sidewalk, provide for indemnification of the city for the landowner’s failure to do so, and create a private cause of action by an injured person against the property owner. Unpublished order of the Supreme Court, entered October 27, 1992 (Docket No. 92160). The complete text of this section of the Grand Rapids city charter is set forth in n 6. See n 1 for the complete text of the ordinance. The complete text of the charter provision reads as follows: It shall be the duty of every owner of land situated in the City of Grand Rapids to build, rebuild, maintain and repair all sidewalks upon that part of the street or streets upon which said land abuts, at such times, in such manner, and of such materials as the City Commission may direct. Notice to build, rebuild or repair such sidewalks, shall be given in such manner as the City Commission may by ordinance or resolution provide, and if such owner shall- neglect or refuse to comply with such notice, the Director of Public Service may cause the said sidewalks to be built, rebuilt or repaired, as the case may be, at the expense of the City, and an accurate account of the expense thereof shall be certified to by the Director of Public Service and filed with the City Treasurer, and a duplicate thereof with the City Assessors. Said certified account shall contain an accurate description of the land abutting on said sidewalk, the expense of building, rebuilding or repairing such sidewalk, and the name of the owner of the land, if known, and if not such fact shall be stated in such account; the City shall have a lien on such land for such amount, together with the costs, penalties and interests thereon, until paid. A copy of such certified account shall be mailed to the owner, if known, by the Director of Public Service: Provided, however, that nothing in this section shall interfere with building sidewalks in connection with and as a part of necessary street improvements. As explained in Brady: "It is an old and familiar principle . . . that where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.” [Id. at 249, quoting 50 Am Jur, Statutes, § 367, pp 371-372.] The wording of the Grand Rapids 1918 charter provision is similar to language construed in Levendoski, where this Court held that such a provision created only a public duty on behalf of the landowners to maintain abutting sidewalks. See also Taylor v Lake Shore & MSR Co, 45 Mich 74; 7 NW 728 (1881). The city cites Levendoski, supra, for support because that Court in obiter dictum ventured the observation that "[a]n ordinance of the type involved here does result in liability when it expressly provides for such liability.” Id. at 227. Aside from its status as dictum, this statement in Levendoski provides no guidance or authority in a case such as the one before us, where the ordinance relied upon is at odds with the city’s charter. Clearly, a city is without authority to impose private liability upon abutting property owners when to do so would exceed limits established by specific language in its charter. Alco Universal v City of Flint, 386 Mich 359, 363; 192 NW2d 247 (1971). Const 1963, art 7, § 34. Of course, although a city has no authority to enact an ordinance that contradicts its charter a city may have authority to exercise powers not expressly stated in the charter. As noted by this Court in Hanselman v Wayne Co Concealed Weapon Licensing Bd, 419 Mich 168, 187; 351 NW2d 544 (1984), cities possess those powers "expressly conferred upon them by the state constitution or state statutes or which are necessarily implied therefrom.” See also Inch Memorials v Pontiac, 93 Mich App 532, 535; 286 NW2d 903 (1979). Streat v Vermilya, 268 Mich 1, 6; 255 NW 604 (1934), citing Paulsen v Portland, 149 US 30; 13 S Ct 750; 37 L Ed 637 (1893). Const 1963, art 7, § 22; MCL 117.15; MSA 5.2094. MCL 117.21; MSA 5.2100. Because the city ordinance goes beyond the specific power conferred in the city charter, it is unnecessary to consider the alternative basis of the Court of Appeals decision, that home rule cities are preempted from imposing civil liability on abutting owners by the governmental immunity act.

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Kelly, J. Plaintiff-appellant was employed by defendant Chris-Craft Corporation for more than 2.5 years. Plaintiff received a severe electric, shock while operating an electric drill. He was driven to a physician’s office where he collapsed and from there was taken by ambulance to the Port Huron,, Mercy Hospital, where he was hospitalized for three weeks. After convalescing at home for four months, plaintiff returned to work but his heart condition made it impossible for him to continue such employment.; The hearing referee granted plaintiff compensation, finding a personal injury arising out of and in the course of employment. Defendants appealed on the ground that (1) plaintiff did not establish that his disability following myocardial infarction is causally related to Ms employment, and (2) plaintiff did not meet the requirements as to notice and claim. Two members of the workmen’s compensation appeal board, with two members concurring in the result only, held that the requisite of notice and claim had not been met and that a review and determination of causal connection between injury and disability would serve no purpose. The Court of Appeals denied leave to appeal because of a “lack of meritorious grounds for granting-same.” We quote the following- from the appeal board’s opinion on review: “Plaintiff relies entirely on his testimony quoted as follows to meet the prerequisites of notice and claim: “ ‘Q. All right. Now, did you in some manner inform your employer that you wouldn’t be in the following day? “ ‘A. Absolutely. My “Missus” went down and told the personnel manager— “ ‘Mr. Felher. I will object. “‘A. Beg your pardon? “ Mr. Freid. Wait a minute. Will you say for the purpose of notice and claim that she is his agent? “ ‘The Referee. Yes. “ ‘Q. (By Mr. Freid): Go ahead, sir. “ ‘The Referee. Your wife did what? “ ‘A. She went down and notified the personnel manager that I had been injured there at Chris-Craft. “ Mr. Felher. I am going to object, your Honor. “ ‘The Referee. And did you tell her the same story you told us? “ ‘A. Absolutely. I told my “Missus” that I had that jolt, and she went right down and told them, so they would be positive that something happened to me there because I couldn’t tell the doctor right off the bat until I come to over there in good shape.’ “The most elementary knowledge of evidence requires the above-quoted testimony to fall within the realm of hearsay and thus incompetent and objectionable.” Defendants’ cross-examination of plaintiff follows in part: “Q. All right. Now, Mr. Dinsmore is the person you stated on direct examination that your wife talked to? “A. That’s right, but he’s not there any more. “Q. She told you she talked to him? “A. Absolutely. “Q. All right. Mr. Dinsmore is no longer with Chris-Craft? “A. That’s right. “Q. Is he living? “A. At least the last I heard of him he’s still alive. “Q. Where does he live, do you know? “A. Marine City. At least that’s where I knew him last. “Q. You don’t know if he’s down in Florida? “A. I couldn’t tell you.” The requirement that a party objecting to the admission of evidence should make known the reason for the objection has been well established in this State since 1859, when this Court in Hoard v. Little (1859), 7 Mich 468, 470, 471 stated: “It is the duty of a party objecting to the admission of evidence, to state the ground of his objection with perspicuity, that the court and the opposing party may not be misled by it.” In Adams v. Novo Engine Co. (1933), 264 Mich 292, this Court in denying appellant’s claim that testimony introduced in a workmen’s compensation case was incompetent, stated (p 297) : “Regardless of the merits of the objection now asserted in appellants’ brief, it was not fairly presented at the hearing, and cannot be sustained in this Court. To hold otherwise would afford the means of tricking a party litigant into relying upon the record made at the hearing, where it might have been amplified.” Quoting appellant: “Plaintiff’s testimony as to notice was correctly admitted because the purpose of such testimony was not to vouch for the veracity of said statements but only to show that such statements were made. * * * “The testimony in question was admissible and competent. Certainly its incompetency was not so clear as to allow for a general objection by attorney for the defendant. This case seems to indicate the very reason specific objections are necessary. The trial judge must have taken the objection of defendant’s attorney to be merely preliminary because the record is clear that he never even made a ruling on the objection. Moreover the attorney for the defendant never insisted on a ruling. Furthermore, it is obvious plaintiff’s attorney was in doubt as to the nature of defendant’s objection as is noted by his request for a stipulation concerning Mrs. Meyer’s agency relationship to her husband vis-a-vis notice. This doubt on the part of plaintiff’s attorney was reinforced by the aforementioned failure of counsel for the defendant to request a ruling on his alleged objection and then to proceed to cross-examine Mr. Meyers concerning the same testimony in question. * * * “However, the record would indicate that counsel for the plaintiff was correct in assuming that counsel for defendant was not interested in, or serious about, his objection and that he was willing to allow evidence as to defendant company’s notice of plaintiff’s injury to go uncontested, One who clothes his objection in snch imperspicuity as to fail to inform both court and opposing counsel as to its nature and intent should not be heard, upon appeal, to complain of the damage caused by his own failure.” There is merit to appellant’s claim. Defendants’ objection was not fairly presented. The requirement of proof of notice has been complied with. The order of the appeal board is reversed. Plaintiff’s prayer that an order be entered “granting plaintiff compensation benefits in accordance with the order of the hearing referee,” is not granted. Defendants, calling attention to the fact that only part of their appeal was decided by the appeal board, state: “The issue of whether the shock caused the anteroseptal infarction was vigorously contested, but was not decided by the workmen’s compensation appeal board, as the board determined that there was a failure of proof as to notice of injury and claim for compensation benefits. Two members of the board concurred only in the result of denying benefits. We believe this would indicate that these members believed that a causal relationship between work and heart attack was not established.” Defendants are entitled to a decision by the workmen’s compensation appeal board as to whether the record established causal relationship between the work and the injury, and we are remanding solely for that purpose. Costs to appellant. Dethmers, C. J., and Black, T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred. January 7, 1963. — Reporter. See CLS 1961, § 412.15 (Stat Ann 1960 Rev § 17.165). — Reporter.

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Kelly, J. The parties to this appeal agree that “The sole question before this Court is whether the action the civil service commission took in filing suit in the Ingham county circuit court on August 20, 1964, was within the jurisdiction of the Ingham county circuit court.” Appellants contend that it is a mandamus action with relief sought being “equivalent to a writ of mandamus,” and, thus, the appellate court and not the circuit court had exclusive jurisdiction to consider such an action. The substance of the complaint follows: (1) The civil service commission endeavored between July, 1963, and December, 1963, to arrange an agreement with defendant Secretary of State Hare in regard to “bringing the Tee offices’ or Tee branch offices’ of the Secretary of State under civil service,” as required by article 11, § 5, of the Michigan Constitution of 1963. (2) On December 19, 1963, defendant Hare was notified that the commission took the following action.at its December 18, 1963, meeting: “The civil service commission finds, after extensive investigation, that the operation of fee branch offices in populous areas which could support a full-time State office is a violation of the civil service provision of the Constitution of the State of Michigan which requires that all such positions in the State- service be filled on the merit system basis. The commission also finds that it would not be feasible for the secretary of State to make an immediate change from fee offices to civil service offices. Therefore, the commission will continue to authorize fee payments as it has in the past until June 30, 1964. “After June 30, 1964, no fee payments will be approved by the commission to persons operating fee branch offices in the Detroit, Pontiac, Flint, Grand Rapids, Saginaw, Bay City, Muskegon, Kalamazoo, and Lansing areas.” (3) In the latter part of July, 1964, Secretary of State Hare submitted vouchers to plaintiff civil service commission, which the commission disap proved, for the nine branch offices for which the commission had notified the secretary of State it would not approve vouchers after June 30, 1964, and the commission advised the controller not to certify or process the disapproved vouchers. (4) Defendant controller, at the request of the defendant secretary of State, did process the vouchers contrary to plaintiff commission’s request and certified same for payment to defendant State treasurer, who signed same and turned the checks over to Secretary of State Hare for delivery by him to said fee branch managers. (5) “That unless restrained and enjoined, the defendants, Glenn S. Allen, Jr., controller of the State of Michigan; Sanford A. Brown, State treasurer; and the department of administration, a statutory agency of State government, respectively, will continue to receive, certify and process all vouchers pre7 sented by defendant secretary of State, representing payment for personal services rendered by the several fee branch office managers located in the nine metropolitan areas of the State under contract with the said secretary of State, and that warrants will continue to be issued by said defendants, signed by defendant State Treasurer Brown and delivered over by him to defendant Secretary of State Hare for delivery by the latter to the payees named thereon, all without the prior approval of plaintiff commission and in direct contravention of the mandate of the people of Michigan, as expressed in the Constitution of 1963.” After making the above allegations, plaintiffs prayed for an order of the court permanently enjoining the defendants from certifying or processing vouchers representing payments to be made from State funds for personal services rendered the secretary of State of the State of Michigan in the operation of the above named fee branch offices, which vouchers do not have the approval of the commission or which have been specifically disapproved by said commission. Defendants filed a motion to dismiss, claiming that “plaintiffs’ sole exclusive remedy, if any, is by way of petition for a writ of mandamus in the Supreme Court,” and, also, an answer and “affirmative defenses” wherein they claimed that: “Appointing authorities can contract for services with independent contractors when it is not administratively efficient to perform the services involved with employees of the State of Michigan. * * * The sole concern of the civil service commission in this case is to classify positions in the State service. The commission has exceeded its constitutional powers in demanding that the secretary of State, against his best judgment, abolish 36 fee offices and replace them with 21 salaried civil service offices and are therefore not entitled for the relief prayed for in their complaint.” The trial court in its opinion, denying defendants’ motion to dismiss, stated: “I cannot find that this matter is in the nature of mandamus or that it is in the nature of a mandatory injunction. My opinion is that it is one of restraint only.” In affirming the trial court, the Court of Appeals held : “It is abundantly clear from the communications between the commission and the secretary of State that the commission is desirous of effecting a significant change in the fee branch office setup of the secretary of State’s office as the appellant alleges. However, if the commission’s legal conclusion is correct that these fee branch managers are actually employees, it should effect the change. “This question can and should he determined in the trial court and the instant suit is a proper vehicle. “We do not agree that the instant suit is really a mandamus action. If the commission is correct these payments may he properly enjoined.” The substance of the complaint and the prayer for relief sustain the trial court and the Court of Appeals’ decision that the instant suit is not a mandamus action. The pleadings disclose a dispute as to whether the employees render personal services as claimed by plaintiffs, or are exempt from constitutional requirements as claimed by defendants. We agree with the Court of Appeals that: “This question can and should be determined in the trial court and the instant suit is a proper vehicle.” Affirmed. No costs, a public question involved. Dethmers, C. J., and Brennan, J., concurred with Kelly, J. “The classified state civil service shall consist of all positions in the state service exeept those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and -within each principal department, when requested by the department head, two other exempt positions, one of which shall be policymaking. * * * “The commission shall * * * approve or disapprove disbursements for all personal services. * * * “No payment for personal services shall be made or authorized until the provisions of this constitution pertaining to civil service have been complied with in every particular. Violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state.” 4 Mich App 1, 3, — Reporter.

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Souris, J. Plaintiff sued defendant city for'damages for injuries she incurred in 1963 while riding in an automobile which collided with another automobile illegally parked on a city street. She claimed that the city had notice of the presence of the illegally parked vehicle, but negligently failed- to remove it or to warn of its dangerous presence to others traveling lawfully upon the street. On defendant city’s motion, the suit was dismissed as to it on the ground that plaintiff had failed to serve written notice upon the city within 60 days from the occurrence of her injuries in accordance with the requirements of chapter 22, § 8 of PA 1909, No 283, as amended (CL 1948, § 242.8 [Stat Ann 19(58 Rev § 9.598]). The Court of Appeals affirmed, 1 Mich App 551, and we granted leave of appeal to this Court. Our decision in this appeal turns upon whether the city is liable in damages for injuries caused by its alleged negligent failure to remove an obstruction in a highway after it had notice thereof. That issue caused this Court some difficulty late last century and early in this one. Our Court, in City of Detroit v. Blackeby (1870), 21 Mich 84, had ruled that at common law a city was not liable for injuries caused by its neglect to keep its streets in repair. Thereafter, the legislature, in 1879, adopted a statute bearing upon the issue. PA 1879, No 244. This Court construed it in Joslyn v. City of Detroit (1889), 74 Mich 458, referring also to PA 1887, No 264, which superseded the earlier act: “This statute was passed in May, 1879. It makes the.city not only liable for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition reasonably safe and fit for travel. The duty is imposed in both cases, and the necessity for it exists in the one case just as much as in the other, and the liability is the same, and it is very manifest that the legislature intended to make it so. It was the object of the legislature in the passage of this statute to avoid the decisions of this Court, by which, before the passage of the act, the law by construction was made to relieve the municipality from all liability of this kind, and we think the statute should be so construed as to effect the object intended by the legislature. “If further evidence of the intention of the legislature upon this subject is desired, I think it may be found in the act of 1887, pages 345 and 346, when it discarded the narrow limits of the common-law liability entirely, as heretofore held by this Court and some others.” 74 Mich 458, 460. The 1879 act, in all relevant respects similar to PA 1909, No 283, which, as amended, was applicable in 1963 at the time plaintiff Kowalczyk’s cause arose, was construed by this Court in McEvoy v. City of Sault Ste. Marie (1904), 136 Mich 172. In McEvoy, we said: “This act was open to two constructions, — one, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use due diligence to keep their highways and streets in good repair. Under the first construction, there would be an obligation on the part of a municipality to remove obstructions within a reasonable time after it had knowledge or notice of their existence. Under the second construction, there would be no such obligation. In the case of Joslyn v. City of Detroit, 74 Mich 458, this Court deliberately adopted the first construction. The facts in that ease were very similar to those in the case at bar, and were these: On the evening of April 23, 1886, plaintiff was driving on Clifford street, in Detroit. Her carriage came in contact with a pile of sand, and was overthrown, and she was injured. This pile of sand was placed in the street to be used for building purposes. It had been there a month or more, during which time it had not been guarded, nor had signals of warning been placed upon it. There was no evidence, as was pointed out in the brief of defendant, that the defendant city permitted it to be placed in the street. The issue raised by these facts required the Court to determine whether municipalities were responsible for negligent failure to remove obstructions placed in the streets by third persons, and this Court deliberately determined that the statute created that obligation.” 136 Mich 172, 176. In both Joslyn and McEvoy dissenting opinions were filed, but the views of the two dissenters never have prevailed in this Court. We are not persuaded that we should abandon the carefully considered opinions of this Court in Joslyn and in McEvoy, in favor of the dissenters’ views, in applying now the relevantly similar provisions of PA 1909, No 283. It is our conclusion, therefore, that that statute imposed upon cities liability for injuries caused by their negligent failure to remove obstructions in th'eir streets after notice thereof. For her failure to comply with the requirement of section 8 of the act, that written notice be given the city within 60 days from the occurrence of her injuries, plaintiff was barred from suing the city. See Trbovich v. City of Detroit (1966), 378 Mich 79. It is not significant to plaintiff’s cause that her injuries occurred after our decision in Williams v. City of Detroit (1961), 364 Mich 231, in which this Court abrogated this State’s common law of immunity for municipal negligence. The cause of action she alleged was one covered, before and after our decision in Williams, by the statute and, therefore, all of its requirements, including section 8’s requirement of written notice, had to be met. In Williams, at p 261, we took care to note that our decision did not affect existing statutes. Affirmed. Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, O’Hara, Adams, and Brennan, JJ., concurred. The cited act has been repealed and now is superseded by PA 1964, No 170, effective July 1, 1985. See, also, Schelske v. Township of Orange (1907), 147 Mich 135, and Walls v. City of Detroit (1912), 171 Mich 612.

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Kelly, J. The facts and issues involved herein are so well and concisely stated in the opinion of the Court of Appeals, 3 Mich App 534-536, that we quote that opinion in its entirety: “Plaintiff Rose Mary Pokriefka commenced the instant actions on July 30, 1962, on behalf of herself and as. guardian of Margaret Pokriefka, a minor, against the defendant as owner of an automobile involved in an accident and operated by defendant’s daughter. The minor Margaret Pokriefka was injured when the defendant’s automobile, in which she was a passenger, ran into the rear of another automobile on the Edsel Ford expressway in Detroit. “At the time of the accident, on February 27, 1962, the plaintiff’s minor and defendant’s daughter were on their way home from classes at Marygrove College in Detroit. “The two girls were 18 years old at the time of the accident and pursuant to an agreement between themselves, plaintiff’s daughter had paid defendant’s daughter $2 a week for daily transportation to and from school. The complaint in each case alleged ordinary negligence rather than gross negligence and relied on the theory that since plaintiff’s daughter had paid for the ride the guest act did not apply, “At trial, defendant’s daughter, then 21 years old, was called to testify, whereupon she stated she desired to disaffirm the contract. A tender of $22 was made to plaintiff and witnessed hy the court. The court then dismissed plaintiff’s case on the basis of the holding in Brown v. Wood (1940), 293 Mich 148 (127 ALR 1436). “This Court considers itself bound by the ruling of the Supreme Court in Brown, supra, and feels that the case is dispositive o.f the issues herein. A reading of the Brown Case will reveal substantially similar facts and issues. “Plaintiff’s contention that the contract was not disaffirmed within a reasonable time after reaching majority is not well taken since a notice to that effect was filed in circuit court approximately 16 months prior to the 21st birthday of defendant’s daughter. “Affirmed. Costs to appellee.” In Brown v. Wood (1940), 293 Mich 148 (127 ALR 1436), this Court held that defendant’s disaffirmance of his contract to carry plaintiff for hire made plaintiff a. guest passenger because “holding the infant liable in tort would in effect enforce a liability arising out of his contract, then, since the infant cannot be held ex contractu, he cannot be held liable for his tort. The injured party is not permitted to enforce against the inf ant. indirectly by an action in tort a liability which he could not enforce directly against the infant by an action based upon contract. * * * Prom our review of this record we are unable to conceive-.how the tort aspect of these actions can be separated from the contractual relation which these minor plaintiffs entered into with the minor defendant.” We cannot agree with appellant that the facts and issues in Brown v. Wood can be distinguished from the instant case and, therefore, we devote the remainder of this opinion to consideration of appellant’s request that we overrule the Brown Case. Appellant urges that we overrule Brown v. Wood because: (a) This is a tort action and the only relation the contract bears to the suit is to establish the status of the parties at the time of the accident; (b) Margaret Pokriefka was a paying passenger in defendant’s automobile when the accident occurred and this Court should apply and follow our decision in Shumaker v. Kline, 333 Mich 346, where we held that the status is determined at the outset of the host-passenger relationship and is not subject to change on the basis of subsequent events; (c) The fact that a contract is involved should not enable the minor driver to avoid liability for his torts and this principle of law is widely accepted, as evidenced by 27 Am Jur, Infants, § 92, p 815, stating: “The mere fact that a cause of action grows out of or is connected with a contract will not shield an infant from liability for a tort which is not a mere breach of the contract, but is a distinct wilful and positive wrong in itself.” (d) While this Court has recognized the minor’s right to revoke executory contracts and contracts for the sale or purchase of goods, chattels, and real estate when such contracts are not necessities, we have held a definite contrary view in regard to a minor’s right to revoke an executed contract for personal services since our 1879 decision in Spicer v. Earl, 41 Mich 191 (32 Am Rep 152), where we held (p 193): “The principle laid down in the case of Squier v. Hydliff, 9 Mich 274, governs this case. It was there held that an infant was hound hy his executed contract of service if it was reasonable under all the circumstances, or not so unreasonable as to he evidence of fraud or undue advantage.” (e) The quotation from 1 Cooley on Torts (4th ed), § 66, p 204: “But if the tort is subsequent to the contract, and not a mere breach of it, hut a distinct, wilful and positive wrong of itself, then, although it may he connected with a contract, the infant is liable,” is applicable to the instant case because the contract was in fact performed, and appellant does not base her case on any failure to exercise the high degree of care urged by a carrier of passengers for hire to the passenger being carried; (f) Margaret Pokriefka never accepted the status of guest and she sustained her injuries as a passenger for hire. In Hunter v. Baldwin, 268 Mich 106, 109, we said: “On the other hand, not everyone riding in a car without payment is a guest.” This quotation was cited with approval in Hall v. Kimball, 355 Mich 333, 335. Also, in Hunter we made the point (p 109) that: “This statute [guest act], being in derogation of the common law, must he strictly construed,” and in Moore v. Palmer, 350 Mich 363, 390, we held: “The owner liability statutes [now CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101)] were aimed at situations in which the common law was helpless. While they were not passed as a substitute for the common law, they were adopted to complement the common law.” (g) The Brown v. Wood decision has never under similar facts been approved or cited as authority for decision in this or any other State. We quote the following from defendant and appellee’s brief as a summation of his position in regard to the Brown v. Wood Case: “Plaintiff-appellant claims that the holding in Brown v. Wood, supra, was erroneous in two respects. It is urged that the Brown Case was not based upon the voidable contract; rather it was based upon his status at the time of the accident and that revoking the contract did not affect the status. This argument is answered in the South Dakota case of Tennyson v. Kern, 76 SD 136 (74 NW2d 316). * * * “Justice Cooley states that the law will not permit the plaintiff to enforce a contract with a minor indirectly by counting on the infant’s neglect to perform it or omission of a duty'under it as a tort. The Oregon supreme court case of Steenson v. Robinson (1964), 236 Or 414 (389 P2d 27), as cited by plaintiff-appellant, completely overlooked this' reasoning as set forth in the Tennyson Case. “Plaintiff-appellant also claims that the Supreme Court in Brown v. Wood, supra, erred in assuming that, if plaintiff were not a paying passenger, she would be ipso facto a guest passenger. As in the case at bar, the sole claim of plaintiff was that plaintiff was a paying passenger. The Tennyson Case, supra, and Michigan cases have recognized that there are certain situations where a passenger may be something other than a guest; however, this is not the case at bar, inasmuch as the sole issue raised by plaintiff was whether or not the plaintiff had paid for. the ride. It should further he noted that in the case at bar the trial court gave plaintiff a chance to amend her claim and she declined to do so. “In summary, it is submitted that the case of Brown v. Wood, supra, should not be overruled, inasmuch as this reasoning is sound, as shown in Tennyson v. Kern, supra; and, further, plaintiff-appellant has claimed that plaintiff was a passenger for hire in his [sic] opening statement and in his [sic] statement of facts to this court and, therefore, that was the only claim before the trial court.” Quotations from the brief of amicus curiae in support of defendant’s position concerning Brown v. Wood follow: “If later and more recent decisions are to be discussed and reviewed as bearing on the propriety and authority of Brown v. Wood, the case of Payette v. Fleischman, 329 Mich 160 (1 NCCA 3d 71), must be brought forth. In Payette, although it arose from circumstances different from those in Brown v. Wood, the Supreme Court, in an opinion written by Justice Detumers, quoted the Brown decision extensively and approved it by application in that case. “A case decided by the supreme court of Oregon is cited by appellants as being ‘critical’ of Brown v. Wood. It rather clearly appears, however, that the so-called criticism is unfounded and the result of the same narrow analysis of the Brown Case as was applied by appellants. Appellants quote the court as saying, in part: “ ‘The status of the parties exists quite apart from the enforceability of their contract.’ * * * “Brown v. Wood has not existed since 1940 in a vacuum. It has been cited and discussed by numerous courts. While it has been ‘criticized’ by the Oregon supreme court, it has also been strongly approved and relied on by other courts. See Moblard v. Klippenstein (1965), 239 F Supp 274, and Tennyson v. Kern, 76 SD 136 (74 NW2d 316).” The only case called to our attention, or produced by our research, that would refute appellant’s claim that Brown v. Wood has never under similar facts been approved or cited as authority for decision in this or any other State, is the case cited by amicus curiae above, namely, the United States district court decision where the court stated (pp 276, 277): “The court is confronted with a decision by the highest court of the State of Michigan, which considered a situation virtually identical with the one in contest here. Brown v. Wood (1940), 293 Mich 148 (127 ALR 1436), involved a high school student who had agreed to transport classmates back and forth from school for 75 cents per week. He was involved in an accident and the passengers sued for damages, claiming that they were passengers for hire and not subject to the provisions of the ‘guest statute.’ The Michigan Supreme Court, North, J., held that to allow the suit in tort would be to give effect to the contract for hire, which the driver' had’ disaffirmed through his guardian, and the court therefore refused to allow the suit. The case has been cited with approval in Payette v. Fleischman, 329 Mich 160 (1 NCCA 3d 71), and followed in Tennyson v. Kern (1956), 76 SD 136 (74 NW2d 316). “Under the settled rule of Erie R. Co. v. Tompkins, 304 US 64 (58 S Ct 817, 82 L ed 1188), this court is compelled to apply the rule of the Brown decision and grant the motion for summary judgment.” This opinion carried the following important footnote : “However, the court feels that it should be noted that Justice Cooley, the eminent jurist of the Michigan Supreme Court, and respected text writer (cited the opinion of Brown v. Wood, supra) held, in the case of Spicer v. Earl, 41 Mich 191 (32 Am Rep 152), that an infant is bound by his executed contract of service, if such contract is, under all the circumstances, reasonable, or not so unreasonable as to evidence fraud or undue advantage. A consideration important to the mind of this court is that in such situations the policy protecting infants from overreaching is honored and the distinction; between infant’s contracts for services and those for goods and intangibles is recognized. For in the-; latter situation, restitution is almost always possible,..] so that an attempt can he made to place the respective parties in the status quo before the contract was entered into. However, in the area of service'-' contracts, the infant’s services, inasmuch as they aré executed are not returnable, and the disaffirm7 anee avoids not the contract, but the performance itself.” The Payette v. Fleischman case referred to in the above United States district court decision involved the question whether the infant defendant, who operated a business, could be held liable as principal for the tort of his agent in laying linoleum in plaintiff’s home. The South Dakota decision, Tennyson v. Kern, referred to above, was overruled April 4, 1967, when the South Dakota supreme court in Friedhoff v. Engberg, 82 SD 522 (149 NW2d 759), approved the-decision in Oregon’s Steenson v. Robinson (1964), 236 Or 414 (389 P2d 27). The South Dakota court held that an 18-year-old minor, whose employment status was not in dispute at the time an authorized passenger was injured, may not, after his negligent conduct has caused damages, disaffirm his employment agreement so as to change the status of a passenger to that of a guest and by so doing avoid liability for his negligent acts. Holding that once the carrier-passenger relationship has been established, the status exists quite apart from the enforceability of the contract of employment, the court said (149 NW2d 762): “To permit the infant to use the doctrine of disaffirmance here to relieve him of his personal tort for which he is otherwise liable would be an exten sion of the guest statute we cannot sanction. We hold an 18-year-old minor may not, after his negligent conduct has caused damages, disaffirm his employment agreement so as to change the status of a passenger to that of guest.” The Steenson v. Robinson decision repudiated Brown v. Wood, stating (pp 422, 423): “The trial court relied upon Brown v. Wood (1940), 293 Mich 148 (127 ALR 1436). Defendant asks this court to approve that decision and to hold that in Oregon an infant may engage to transport a passenger for hire and then, after an accident, dis-affirm his engagement and stand upon his right to avoid contracts as a method of avoiding tort liability. This we decline to do. * * * “Whether or not an infant passenger can avoid his promise to pay a carrier for transportation, or an infant carrier can avoid a promise to transport, once the carrier-passenger relationship comes into being the carrier owes a duty to exercise due care. The status of the parties exists quite apart from the enforceability of their contracts.” The 1959 Kansas supreme court decision in Ehrsam v. Borgen, 185 Kan 776 (347 P2d 260), considered a similar case where the trial court upheld the minor’s right to disaffirm, relying upon our Brown v. Wood decision. The supreme court disregarded our Brown decision, stating that the facts of agreement to transport differed from the facts in their case, but in reversing the trial court held contrary to Brown v. Wood, as follows (pp 779, 780): “There can be no question but what our guest statute was passed in order to cure certain well-known evils that existed prior to its passage, and that it was passed for the purpose of protecting the owner .or operator of an automobile. By the same token, the guest statute should not be extended beyond correction of the evils which it may be assumed were the motivating reasons for its enactment, and, certainly, it was never intended to create a greater evil than that which it attempted to correct. It may be noted that the statute applies to any owner or operator of a motor vehicle and makes no exception as to minors. The statute is plain and clearly reveals that if such owner or operator, whether adult or minor, transports his guest without payment, then such owner or operator shall not be liable in damages for injury to the guest, unless the owner or operator is guilty of gross and wanton negligence. However, if such owner or operator accepts payment or benefits from the passenger, then the act has no application (Sparks v. Getz, 170 Kan 287 [225 P2d 106]), and this is true whether the owner or operator is an adult or a minor. * * * “In the instant case, defendant, by the share-thericle agreement, accepted payment from plaintiff by way of benefits received and plaintiff thereby became a passenger for payment in defendant’s vehicle, with the result that the guest statute was no longer available to defendant as a defense. It is clear that in passing the guest statute the State legislature established the policy of protecting the owner or operator of an automobile, whether adult or minor, from liability for damages under certain specified conditions. It is not the purpose of the act to furnish to the owner or operator of an automobile an escape route for his common-law negligence in carrying passengers for payment. In using a trite expression, we may say that our guest statute was passed to serve as a shield, and not as a sword, for the owner or operator of an automobile. “In view of what has been said, the case of Brown v. Wood, supra, relied on by the trial court, has no application to the facts in this ease and it follows that the judgment of the trial court is reversed.” Considering all that has been set forth above, we hold that the transportation agreement in the instant case was a' reasonable agreement and that Margaret Pokriefka was a passenger for hire and that defendant’s driver’s disaffirmance did not change that status. We are overruling Brown v. Wood and remanding for trial. No costs. Dethmers, C.J., and T. M. Kavanagh, Adams, and Brennan, JJ., concurred with Kelly, J. CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101). Moblard v. Klippenstein (WD Mich, 1965), 239 F Supp 274.

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Kelly, J. Appellant seeks reversal of the Court of Appeals’ decision that the workmen’s compensation appeal board erred in granting plaintiff statutory compensation for loss of a hand. June 2, 1953, defendants filed form 102 with the workmen’s compensation commission alleging that as a result of plaintiff’s May 25, 1951, injury which resulted in the loss of four fingers, they had paid plaintiff 103 weeks of compensation, had arrived at the end of statutory liability and were, therefore, stopping further compensation payments. ■ January 10,' 1961, plaintiff filed an “Application fdr Hearing and Adjustment of Claim” for loss of his right hand as a result of his May 25,1951, injury. Defendants did not contest the fact that the May 25, 1951, injury resulted in the loss of the hand, but claimed plaintiff was barred from recovery because (1) of the general 6-year statute of limitations, and (2) that plaintiff’s claim was an application for further compensation. The workmen’s compensation appeal board, in granting plaintiff compensation for 200 weeks for the loss of a hand with defendants receiving credit for- the 103 weeks they had paid for the loss of the four fingers, said: “In our opinion, the petition for loss of industrial use of his hand is covered by part 3, § 6 (CL 1948, § 413.6 [Stat Ann 1960 Rev § 17.180]), which reads as follows: “ ‘Any controversy concerning compensation shall be submitted to the compensation commission. Neither the payment of compensation nor the accepting of the same by the employee or his dependents, nor the signing of receipts therefor, shall be considered as a determination of the rights of the parties under this act.’ “The finding of industrial loss of use of the hand by the hearing referee is, in our opinion, simply a determination of - the plaintiff’s rights under the above statute as of the time of injury. Since the defendant did not fully comply with the statute by paying compensation due for the loss of a hand, as heretofore found by us, we do not believe that it may now raise, as a barrier to the claim, the general statute of limitations. See Samels v. Goodyear Tire & Rubber Co., 323 Mich 251.” Defendants urged the same two defenses before the Court of Appeals, and a dispute arises in the appeal to this Court as to what reason dominated the- Court of Appeals’ decision in reversing the workmen’s compensation appeal board. •Plaintiff claims the Court of Appeals denied compensation for the loss of a hand because of the general 6-year statute of limitations. Defendants insist that the Court of Appeals failed to answer defendants’ claim that the workmen’s compensation department does not have the power to enter an award of compensation for a period of lime antedating a petition for further compensation by more than six years and, further, that the Court of Appeals denied plaintiff’s claim solely because it decided the claim was an application for further compensation, and contends that even though the Autio Case (Autio v. Proksch Construction Co. [1966], 377 Mich 517) reverses the Hajduk Case (Hajduk v. Revere Copper & Brass, Inc. [1934], 268 Mich 220) and those cases predicated upon Hajduk, it leaves undisturbed the law which provides that the workmen’s compensation department is without power to award compensation for a period antedating a petition for further compensation by more than six years. Buzzn v. Muncey Cartage Co. (1929), 248 Mich 64. We dispose of defendants’ contention by stating that, under'our previous decisions , plaintiff was not barred by tbe general 6-year statute of limitations and, to the extent they may be in conflict, Buzzn and allied eases were overruled by Autio. The Court of Appeals found that “the record in' the instant case shows that the report [defendant-employer’s report to commission] was accurate in’ all details,” even though “the employer did not arrive at a conclusion that as a result of the loss of four fingers, the plaintiff suffered the industrial loss’ of a hand,” and held because of this fact our ruling in Autio v. Proksch Construction Company would not apply. The Court of Appeals concluded its opinion re-, versing the workmen’s compensation appeal board as follows: “The instant case is not one where a further condition developed which was not apparent at the time of the original injury. If the injured employee disputed the propriety of the payments, it was in-cumbént on him to file a claim as required by part 2, § 15, of the workmen’s compensation act, supra. “Reversed. Costs to appellants.” Part 2, § 15, provided: “No proceedings for compensation for an injury’ under this act shall be maintained, unless a notice of the injury shall have been given to the employer within 3 months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within 6 months after the occurrence of the same. * * * In all cases’ in which the employer has been given- notice of the happening of the injury, or has notice or knowl edge of the happening of said accident within '3 months after the happening of the same, and fails,neglects or refuses to report said injury to the compensation commission as required by the provisions of this act, -the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said injury shall have been filed with the compensation commission.” CLS 1961, § 412.15 (Stat Ann 1960 Rev § 17.165). We made known to employers in Weenink v. Allen Electric & Equipment Co. (1936), 276 Mich 561, 564, that if they did not report to the commission “the nature and extent of the injury fully and in detail,” their neglect to do so would be a bar to the employers’ right to raise the defense of six months’ statute of limitations; and,, again, in Paridee v. Great Atlantic & Pacific Tea Co. (1936), 278 Mich 191, we made it plain that the report of an accident must set up the injury, with such particularity of location- and effect, known to the employer, as to indicate its nature and to identify it for the purpose of the compensation law. Defendant-employer’s initial'report to the commission set forth only a “crushing injury to the right hand.” This report failed to set forth “the nature and extent of the injury fully and in detail,” and defendants’ report two years later advising the commission that plaintiff had lost four fingers did not cure this defect. We do not agree with the Court of Appeals’ finding that defendant-employer’s “accurate” report to the commission defeated plaintiff’s claim because plaintiff did not file a claim as required by Part 2, § 15, of the workmen’s compensation act. The award of the workmen’s compensation appeal board is affirmed. Reversed and remanded. Costs to appellant. Dethmers, C. J., and T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred. Black, J., concurred in result. 3 Mich App 405, CLS 1956; § 609.13 (Stat Ann 1959 Cum Supp § 27.605). See currently, CLS 1961, §§ 600.5807, 600.5813 (Stat Ann 1962 Rev §§ 27A.5807, 27A.58-13). — Reporter. Autio v. Proksch Construction Company (1966), 377 Mich 517; Martin v. White Pine Copper Company (1966), 378 Mich 37; Pevarnic v. Northwestern Leather Company (1966), 378 Mich 48; Cook v. Northwestern Leather Company, (1966), 378 Mich 518.

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Per Curiam. The sole question on review by the Court of Appeals, and in turn here, is “whether there is any evidence to support the award'.” Meyers v. Michigan Central R. Co., 199 Mich 134, 137, 138; Thornton v. Luria-Dumes Co-Venture, 347 Mich 160, 162; Coates v. Continental Motors Corporation, 373 Mich 461, 467. “Our obligation is to accept, without question, findings that are certified here if there be any evidence'whatever to sustain those findings, regardless of thought or suggestion addressed to improbability thereof.” (Thornton at 162.) The appeal board found, with ample evidentiary support: “In' the' instant case all four fingers which were opposed to the thumb have been amputated. Since the capacity to grasp comes from the fact that the phalang.es are opposable,' it follows then that the capacity to grasp is destroyed. It is true that plaintiff can hold some objects by using the thumb in conjunction with the palm or surface of the hand. However, this is more-in the nature of-a holding action similar, to that which : might be accomplished by sticking an object between the phalanges of the paw of the performing dog. Plaintiff herein is left with little, if any, more than a pushing instrument. His capaety to use the fofelimb to any degree depends upoii the other parts of the forelimb. While the forelimb is not completely useless, it is of less use than a forelimb fitted with a modern prosthetic hand. Plaintiff is relegated to the ranks of the odd lot who must substitute other bodily functions for that destroyed in order to continue to be gainfully employed. We hold that he has suffered industrial loss of use of his hand. The order of the referee shall stand affirmed.” As against these findings the seated panel of the Court of Appeals reversed the appeal board’s award for plaintiff, stressing an opinion of the defendant employer’s examining physician (“I do not think he’s lost the industrial use of his hand.”). Holding that the presented question “becomes one of law,” and citing Hlady v. Wolverine Bolt Co., 325 Mich 23, as controlling authority, the 3 judges came to this specific conclusion: “While it might seem harsh to find that a man who has lost 4 fingers of his right hand has not, in absence of evidence of any greater injury, lost’ the industrial use of that hand, such is the law. To change the law is the province of the legislature, not of this Court.” (Mitchell v. Metal Assemblies, Inc., 3 Mich App 143, 150). Before turning to the proof upon which the appeal board depended, and from there to the authorities with which we are concerned, it should be noted that the hearing referee and the appeal board ignored the quoted opinion of' defendant’s medical witness. Whether that was done for reasons of credibility, or for some other reason or reasons, is not disclosed. It may be that the administrative triers of fact concluded that the doctor’s knowledge of essential facts was a bit scarce, the doctor having testified: “The referee. Let me put it in converse, Doctor. How much would you say loss of use has there been here? “A. I would have to say that that depends upon the use for which the hand — I mean, industrially speaking, it depends upon the type of use that the hand has been used to. And to actually go on percentages I would say is impossible. Each individual is different. They each can adapt themselves differently. Some people have abilities with their hands and are double jointed and so on, so that it’s hard to measure exactly everyone based on a simple percentage. “I would say that I haven’t seen this man before and not knowing his capabilities, it would be hard for me to give a percentage loss as far as his hand is concerned. I can’t say how well he does his job. I have never seen him do it. I did see him flex his hand and extend it. I saw him move his thumb. I would say as far as those uses are concerned, that he does very well with what he has left. “The referee. Well, let’s put it this way. If you were the examining physician, you were passing upon prospective employees for two-handed jobs, where would he stand? “Mr. Leib: If the court please, I’m going to object to the question by the court. I think it’s highly irrelevant. “The referee. Well, I’d like to have an answer to it. “A. It would depend upon whether the job demanded the dexterity of his fingers. If the job did not — many jobs can be done by just pushing with your palm. If the job demanded dexterity of his fingers, if he had to do emergency work in the hospital like I do, I would say no. I don’t know what his job is.” So far as lifeless print may disclose to a reader thereof, the plaintiff appears to have been remarkably straightforward in giving the testimony upon which the appeal board relied. Unlike the exact situation disclosed in the Hlady Case (see discussion, post), it was shown that plaintiff “suffered complete loss of the little finger, ring finger, middle finger and about four-fifths at least of the index.” He told of going back to “part-time” work on a garbage route; then with a “floor cleaning fellow”; and finally as a “maintenance man.” He said “I sweep up the floor and clean the bathroom and change light bulbs, whatever has to be done”; “fix the machines, put saws in, I mean blades, yes, saw blades, and I do truck driving, high-low.” A fair summary of the extent of the use to which he can employ what is left of his right hand appears from this connected part of his testimony: “Q. Are you able to get along on the job or did you have any special favoritism shown to you, or how do you manage? “A. No, I get along fine as far as I know on the job I’m on now. As far as I know everybody likes me, as far as I know. Nobody says anything to me, I just do my job and that’s it. “Q. I’m talking about your ability to perform your work, are you able to do it all right? “A. Well, as far as sweeping and cleaning up and like that there, yes, sir. “Q. How do you do it? “A. Well, I have a broom and brushes, and Ajax, and stuff like that, I use to clean out the bowls. The only thing I have a hard time with is picking the barrels up and stuff like that, but I do get them up and hold them up there. A lot of times I bang my hand where I wouldn’t otherwise, and I could just jump through the ceiling then, but other than that everything’s fine. “Q. Is there any work you were doing before your injury that you are unable to do at this time? “A. Well, I mean I was doing punch press before and, well, I mean other than doing the punch press, I mean I could do most anything, you know, but there’s a lot of little things I can’t do. Like if I I wanted to fix it on my car or work on my car, or something like that, I can’t get down in there and hold-the wrenches and stuff. “Q. .Well, could you go back and work on the same punch press again? “A. No, sir. “Q. Do you know why? “A. Well, I think it’s because one man couldn’t operate it with one hand, you have to have two hands to operate it. •' “Q. Do you know whether or not you have ever been refused work because of your injured hand? , “A. Well, yes, I’ve applied for kitchen work and stuff like that, and they wouldn’t hire me because of that; they told me right out that I’d probably drop the stuff and break it and I wouldn’t be no good in the kitchen, and I have been refused work because of that. “Q. Have you done that kind of work before? “A. Yes, sir. “Q. Can you tell us where you were refused employment? • “A. I don’t remember the place but it’s in Rochester; it was a high class restaurant and I went in and talked to the lady, and she asked me if I was physically fit and everything and I told her I was physically fit other than my hand, and she looked at my hand and she said I’m sorry, I can’t use you because you’ll drop the dishes, you couldn’t pick this up or carry a bucket, or anything like that. So I do forget the name right offhand, but it was right up in Rochester. I could find out. “Q. Have you had any medical attention on your •hand? “A. Yes, I have. I had to go back one time before when I come out of the hospital, and he cut a little more bone off of here,-but it still does bother me right here.- ' ' • “Q. You’re pointing to the knuckle of your, long-finger? ' ' “A. Well, I guess it’s the bone down here, I guess where he squeezed it down or something, but it’s nerves, the nerve right there, and I can — I mean I can feel it all the time, you know, and it bothers me, and I talked to the doctor about it and I told him that the company did go bankrupt, and he told me wait until I got settled. “Q. Who was the doctor? “A. Doctor Beech, the doctor. “Q. Is he the one who took care of you before? “A. Yes, sir. “Q. Now, are you pointing to that portion of the hand where you’ve lost the middle finger? “A. Yes, sir, the middle part right here. The biggest part, this part down here doesn’t bother me as much as this does here, but he cut part of this bone off and he said I’d probably have to go back quite a few times before he could cut it all off, because he could only cut a- portion off at a time.” This brings us to application of the “any evidence” rule, whether there is any evidence on strength of which the appeal board could rightfully find and conclude as it did. In the first place it is rather firmly settled that, in this particular type of closely disputed “loss of industrial use” case, the issue almost automatically becomes one of fact. See Powers v. Motor Wheel Corporation, 252 Mich 639.; Rench v. Kalamazoo Stove & Furnace Co., 286 Mich 314 ; Lentz v. Mumy Well Service, 340 Mich 1; Rupp v. Hutter Construction Co., 288 Mich 105; Shumate v. American Stamping Company, 357 Mich 689. In the second place we “noted,” in Palazzolo v. Bradley, 355 Mich 284, 290, that “Michigan was once on the right track”, the “right track” being regular application by this Court of its original rule that no amputation in toto is required to entitle the appeal board (formerly board and then commission) to find as a fact that the amputee had lost the industrial use of a substantially amputated member. Our most recent word on this appears in the Palazzolo Case. The rule there approved will bear repeating, along with a new declaration of adherence thereto. It comes from the pen of Mr. Justice Fellows, writing for a unanimous Court in Reno v. Holmes, 238 Mich 572, 574, 575: “Of our own cases, the one nearest in point is Stocin v. C. R. Wilson Body Co., 205 Mich 1. Noting the diagram appearing in that case, it will be seen that the amputation was a short distance below the elbow. We there held that the words used in the act should be given their ordinary and accepted meaning, and, giving them such meaning, we held that there had been the loss of an arm. The supreme court of Massachusetts made a similar holding in Garcelon v. Commercial Travelers’ Eastern Accident Association, 184 Mass 8 (67 NE 868, 100 Am St Rep 540), in construing the words ‘loss of an arm,’ in an insurance policy. The amputation was at a point about four inches below the elbow, and it was said: ‘“We consider the amputation of an arm a little below the elbow to be the loss of an arm in the common acceptation of those words and within their meaning as used in the policy, which specifies merely the “loss of an arm” without mentioning whether the loss is by amputation below or above the elbow joint.’ * * * “The diligence of counsel has brought to our attention but one case dealing with the precise question before us. Payne v. Industrial Commission, 296 111 223 (129 NE 830). In the time at our disposal we have found no others directly in point. In this case the amputation was at a point about 10 inches above the ankle joint. It was held (we quote from the syllabus): “ ‘The loss of any substantial portion of a leg constitutes the loss of the leg within the meaning of the compensation act, and the necessary amputation of the leg’ 10 inches above the ankle joint will entitle the employee to compensation for loss of the leg.’ “It will be noted that the amputation in that case was at practically the same point as it was in the instant case, and while the language of the Illinois act is not identical with ours, the language differing from ours was not stressed in the opinion, but the broad holding was made that the loss of a substantial portion of the leg was the loss of the leg. We are persuaded that we should follow that holding. To hold that one had lost only a foot unless the leg was amputated at the extreme upper part would not comport with the common acceptance of the language used by the legislature or the beneficent purposes of the act.” From here attention is turned to the Hlady Case, supra. It is not to be denied that, if we are duty bound to apply it, Hlady stands in the way of this award. Ordinarily we would follow such an authority, even though the rather abrupt dixit thereof leaves something to be desired. Why? Because it leaves an open inference that the decisions cited to the Court at the time (Lovalo v. Michigan Stamping Co., 202 Mich 85; Powers v. Motor Wheel Corporation, 252 Mich 639; Bench v. Kalamazoo Stove & Furnace Co., 286 Mich 314 and Rupp v. Hutter Construction Co., 288 Mich 105) were slighted purposely in favor of a new and theretofore unknown test-doctrine, that is (Hlady at 26): ' “As a matter of law the commission’s award to plaintiff for the loss of a hand was erroneous, because there was no testimony that plaintiff’s injury was other than the loss of 4 fingers of her right hand which resulted in no more than the normal impairment of industrial use which must always follow '.such amputations, or at least naturally and commonly results.” The trouble with Hlady is that it stands by itself in the midst of earlier and subsequent decisions which adhere to the more flexible, and manifestly more desirable, rule that a claim of industrial loss of use of a hand or other member is not (excepting where specifically applicable statutory language says otherwise) to be judicially determined contrary to supported factual findings of the appeal board. Proof of outright loss of a hand is one thing. Proof of loss of the industrial use of that hand is something else. Proof of either entitles the appeal board to award compensation for loss of industrial use of the hand. In the factual setting of this Mitchell Case, the board found that the loss of all four fingers of the right hand left Mitchell where he had “suffered loss of use of his right hand.” In Hlady the commission found the same way on like proof. Now let us view the commission’s concluding view of Lovalo and the relation of that case to Hlady (p 57 of Hlady’s printed record): “In the case of Lovalo v. Michigan Stamping Co., 202 Mich 85, the Court said, • “ ‘In common terms thé human hand consists of the palm, fingers and thumb, being in combination peculiarly adapted physiologically to the function of prehension, or g-rasping, which is their primary service, locomotion and support being of scant importance -as contradistinguished from the' lower order of animals. In .that sense and for such uses plaintiff has lost-his right hand.’ “Applying the test described in the above case it is self-evident that the plaintiff has lost the primary service of her right hand. The plaintiff has no. useful grasping function in her right hand and it is obvious from a look at the photographs that no one would undertake to employ her at anything but a one-handed job. We, therefore, find that the plaintiff has lost the industrial use of her1 right hand as the result of her .amputations of October 18,1945. We believe she is entitled to compensation for the loss of such hand. The fact that the amputations do not involve any portion of the hand beyond the 4 fingers does not warrant an opposite conclusion.” Due advertence to the earlier cases has been made. As to the subsequent ones, compare Hlady with Lentz v. Mumy Well Service and Shumate v. American Stamping Company, both supra, the latter citing Lents in support of this conclusion (p 692.): “In the present appeal, the record sustains the same finding as in the Lents Case, namely: ‘At most its use (the hand) is limited to that of an unsatisfactory pushing or pulling instrumentality.’ ” If the Court were disposed to distinguish Hlady from this case of Mitchell, rather than overrule Hlady, it would not be difficult to make a factual hair split between the two cases. Mr. Mitchell has left on his right hand but two insignificant stumps of fingers, one of which will require progressively additional amputation (see testimony quoted above); whereas Mrs. Hlady had left 4 stumps of fingers, all longer than those left to Mitchell with one stump extending into the middle phalange. This latter fact appears photographically opposite page 52 of the Hlady printed record. But daintily quartered distinctions and artificial differences are not in order here. Hlady was simply a hurriedly considered nullius films in the annals of the Supreme Court of Michigan. No decision was cited in support of that reversal of a factually supported award of compensation. Nor were any of the decisions of this Court, standing at the time “on the right track,” mentioned or even inferably distinguished. Hlady must in these circumstances be taken as one of those cases the principle of which, contrary as it has always been to Reno v. Holmes, supra, was directly overruled by what was said in Palazzolo v. Bradley, supra, at 291. The Court should say so. Reversed, with instruction that an order enter affirming the award as made to plaintiff. Plaintiff will have costs of both courts. Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred. CL 1948, §413.13 (Stat Ann 1960 Rev § 17.186). — Reporter. “High-low” was subsequently shown as referring to fork-lift floor conveyor trucks. “It is argued that we should not permit recovery for the loss of industrial use of the hands in absence of definite legislative enactment. However, our holding of industrial loss of use is well established. See Lovalo, Powers, and West Cases, infra, and also Suggs v. Ternstedt Manfg. Co., 232 Mich 599; also Lindhout v. Brochu & Hass, 255 Mich 234. “As in the Powers Case, supra, the determination of the loss by plaintiff of the industrial use of his hands is one of fact and, there being testimony to support such a determination, the findings of the department are binding upon us.” (Rench at 320). See West v. Postum Co., Inc. (1932), 260 Mich 545, — Reporter, Of course, if the statute specifically provides otherwise, then the loss-of-use rule does not apply. For debate of this point in the factual setting of Palazzolo, see both opinions of that ease, one by Justice Dethmers for affirmance and the other by Justice T. M. Kavanagh for reversal. Justice Dethmers posed the debated question nicely (Palazzolo at 285) : “Does ‘loss of the first phalange of the thumb,’ as provided in the statute, mean physical loss or does loss of industrial use meet the test?”

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Black, J. Trellsite Foundry & Stamping Company v. Enterprise Foundry, 365 Mich 209, flatly held that the provision in section 9 of part 7 of the workmen’s compensation act (CL 1948, § 417.9 [Stat Ann 1960 Rev § 17.228]) which relates to the apportion ment of an award was unconstitutional. Pointing to the distinction between substantive due process and procedural due process, we went on to say (pp 214, ,215); ' “Naturally, a statutory provision affecting private substantive rights in the interests of the general welfare might be reasonable and hence valid in its application to certain circumstances and the reverse as applied to others. The test of reasonableness has ,npt, however, been applied to the right of procedural )due process.- It is absolute. Statutory enactments "authorizing proceedings for taking life, liberty, or property without providing for procedural due process therein cannot stand under constitutional exactments. As applied to the instant case, the apportion'ment provision of the statute, in failing to provide •for notice of hearing on compensation to prior employers, is unconstitutional, leaving no legal basis for a right of apportionment or contribution, regardless of whether notice is or is not served on former employers in a given case.” •.....When the legislature considered and enacted ámendatory PA 1962, No 189, that body presumptively held Trellsite’s majority opinion in one hand and, in the other, the decision upon which the seated panel of the Court of Appeals (2 Mich App 204) relied principally for holding that Act 189 was not effective retroactively. That decision is In re Davis’ Estate, 330 Mich 647. Therein the Court quoted and applied, from Detroit Trust Co. v. City of Detroit, 269 Mich 81, 84, this firm rule; “We think it is settled as a general rule in this State, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases ¿s the contrary clearly appears from the context of the statute itself. “ ‘Indeed, the rule to he derived from the comparison of a vast number of judicial utterances ■ upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective. operation is-; always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, un-' equivocal and unavoidable implication from the words of the statute taken by themselves and in' connection with the subject matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.’' Endlich, Interpretation of Statutes, § 271.” Act 189 was conceived and born of Trellsite. The legislature sought to enact a statute providing that which, in the constitutional sense, its membership had never provided before. By legal presumption all of the senators and representatives knew at the time that an unconstitutional statutory provision though in form and name a law is from the beginning no law at all; that the invalidity thereof dates from the time of enactment rather than the time of decision branding the provision as unconstitutional, and that such a provision is at no time. ef7 fective for any purpose. The panel below so held. Now with that knowledge at hand, what did :the senators and representatives do by way of prospective or retroactive hint to the judicial branch? Nothing in the “context of the statute” (referring to Act 189) “clearly” or otherwise suggests an intention to render it retro-effective. Neither does the wording thereof manifest or imply unavoidably' a purpose other than that which is presumptive, that is, prospective operation and effect. I think-we should apply the Davis and Detroit Trust Cases rather than ignore them, thereby upholding a settled rule of statutory construction and thereby' reining up short our past tendencies to manufacture more and more now-for-then law by undue and unjudicious process. To summarize; I agree specifically with the panel below that Trellsite’s prevailing opinion “destroyed CL 1948, § 417.9 ab initio” and that Act 189 provides no hint of legislative intent that it should apply retroactively as claimed. On that ground my vote to affirm is cast. Kelly, T. M. Kavanagh, and Adams, JJ., concurred with Black, J. In Welsh v. Ohanesian, 378 Mich 24, four Justices, the undersigned -being one,'followed and applied the rule of Davis.

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Per Curiam. By order for bypass and summary hearing entered May 23 last, the Court has concerned its appellate function with the reserved referendary power and procedure appearing in the first two paragraphs of section 9 of article 2 of the Constitution of 1963. See margin below. It has approached the primary question thus far determined (order of June 9, 1967; see appendix) with attention concentrated from the beginning on the all important duty of the judiciary when constitutional provisions are brought up for interpretation and application. That duty is to ascertain as best the Court may the general understanding and therefore the uppermost or dominant purpose of the people when they approved the provision or provisions thus brought up. To quote Mr. Justice Story: “Constitutions are not designed for metaphysical or logical subtleties, for niceties of'expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” (1 Story, Constitution [5th ed], § 451, p 345.); and Mr. Justice Cooley (from May v. Topping, 65 W Va 656, 660 [64 SE 848]): “A Constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ‘For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ (Cooley’s Constitutional Limitations [6th ed], 81.)” Plaintiffs contend under the two mentioned paragraphs that the aforesaid reserved power cannot “properly” be invoked as against a legislative measure given immediate effect until end of the legislative session during which that measure was enacted and given such effect. The defendants, supported hy the attorney general, stand for the contrary view. This is the primary question to which we have referred. The attorney general advises, in his brief: “On April 13, 1966, the United States Congréss enacted the uniform time act of 1966, being Public Law 89-387 of the 89th Congress. This act imposes uniform daylight saving time upon all States during the period beginning the last Sunday in April of each year and terminating on the last Sunday in October of each year; but section 3(a) of said congressional act specifically provides that: % # “ ‘Except that any State may by law exempt itself from the provisions of this subsection providing for the advancement of time, but only if such law provides that the entire State (including all political subdivisions thereof) shall observe the standard time otherwise applicable under such act of March 19, 1918 ' [15 USC §§261-264], as so modified, during such period.’ “The Michigan legislature enacted and the governor signed Senate Bill No 1 which is denoted PA 1967, No 6, giving said act an immediately effective date of March 24, 1967. “Following enactment of PA 1967, No 6, certain individuals and groups publicly announced their plans to circulate a referendum petition with the intention of filing such petition as soon as a sufficient number of signatures had been obtained. These individuals and groups did, in fact, circulate such referendum petition and filed same with the State board of canvassers.” A number of warring rules for construction of those pivotal words, “within 90 days following the final adjournment of the legislative session at which the law was enacted,” are urged upon us. It is said on the one hand that “strict” construction is in order and that, if the worded purpose is at all doubtful, it should be resolved “in favor of the legislative process and against the referendum process.” On the other, citing authority that the word “within” as employed in statutes providing time for the taking of legal action means “not beyond,” or “not later than,” or “any time before,” it is alleged that “within” does not fix the first point of time; that it does fix the limit beyond which action may not be taken. The issue is not without difficulty. There is nevertheless an overriding rule of constitutional construction which requires that the commonly understood referral process, forming as it does a specific power the people themselves have expressly reserved, be saved if possible as against conceivable if not likely evasion or parry by the legislature. That rule is, in substance, that no court should so construe a clause or section of a constitution as to impede or defeat its generally understood ends when another construction thereof, equally concordant with the words and sense of that clause or section, will guard and enforce those ends. The rule seems to have originated with the handing down of Prigg v. Commonwealth of Pennsylvania, 41 US (16 Pet) 539, 612 (10 L ed 1060, 1088): “Iiow, then, are we to interpret the language of the clause? The true answer is, in such a manner, as, consistently with the words, shall fully and completely effectuate the whole objects of it. If by one mode of interpretation the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them”, and accords fully with Mr. Justice Cooley’s regularly quoted declaration in People, ex rel. Bay City, v. State Treasurer, 23 Mich 499, 506: “Constitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action; and it cannot be permissible to the courts that in order to aid evasions and circumventions, they shall subject these instruments, which in the main only undertake to lay down broad general principles, to a literal and technical construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient.” The construction claimed here by plaintiffs would permit outright legislative defeat, not just hindrance, of the people’s reserved right to test, by referendary process, the exemption made by Act No 6 or any like immediate-effect exemption the legislature might enact come the showers of April each, year hereafter. To be specific: With such construction announced judicially, the legislature would stand free to avoid effective referral of this and future legislative exemptions under aforesaid 3(a) simply by repealing Act No 6 next November, then by enacting another immediate-effect act of exemption next spring and then by another repealer in the late fall, and so on through the years. For that particular reason plaintiffs’ proposed interpretation of the first two paragraphs of section 9 has been rejected and that proposed by defendants and by the attorney general has been accepted. Our order of June 9 attests that result. "We elaborate: Should we adopt plaintiffs’ procedural view of section 9, what would prevent more or less regular, thwart of the referral process, at will of the legislature? The legislative power of Michigan having been committed generally to the senate and house by section 1 of article 3 of the Constitution,, what then of warranted worth would be left in section 9 beyond, of course, the slower and more involved initiatory process ? Quite unintentionally to be sure,plaintiffs are requesting that the judicial branch emasculate the reserved referral process. They are a bit too literal as they view section 9, at least too much for that necessary “play” in the joints Mr. Justice Holmes once described (Bain Peanut Company v. Pinson, 282 US 499, 501 [51 S Ct 228, 229, 75 L ed 482, 491]): “The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” We are impressed by what seems to be the only pinpointed and. wholly unanimous authority extant, that is, McBride v. Kerby, 32 Ariz 515 (260. P 435). Reasoning from a Constitution which corresponds in pertinent essence with ours, the supreme court of Arizona concluded in McBride (p 523) that: “Nowhere in the Constitution can be found even a suggestion that a referendum petition has any effect except the nullification of the particular measure referred until its approval by the voters, which inferentially would leave the legislature in full possession of all other ordinary constitutional powers.” These words were followed by a detailed analysis of the history of the power of referendum and of the evils sought to be remedied thereby; by due adherence to that rule of constitutional construction which would effectuate rather than frustrate such reserved power, and then by conclusion that, after a measure has been referred and prior to the taking of the referendary vote, the legislature may — nay, must needs be left free to — legislate anew in the same area, subject always to the referral process should a sufficient number of electors petition therefor. This descriptive analysis of McBride given, we commend to our profession for application to said section 9 the conclusory reasoning of the court in that case (emphasis supplied by the Arizona supreme court, p 523): “Taken into consideration with subdivision 5, the only logical and consistent interpretation is that when an act of the legislature is referred, that particular act is suspended in its operation, but that such suspension does not deprive the legislature of the right thereafter to pass, in the legal manner any measure it may deem advisable, notwithstanding such measure may deal with exactly the same subject as the referred act, and in the same manner, but subject, of course, to the s?une right of reference as was the original act,” Three additional questions were considered and merged in the Court’s order of June 9, mentioned above. The first was whether by 3(a) of the act of April 13, 1966, congress limited the extended exemptive authority to action by the legislature of “any State,” or whether such exemptive authority was extended to the State’s reserved power to propose laws, to enact and reject laws, and to approve or reject laws. Upon the specific reasoning of Decher v. Secretary of State, 209 Mich 565, 572-578, it is ruled that the people of Michigan may themselves, by proceedings taken pursuant to said section 9, effect or reject the exemption thus authorized. Here congress has awarded the exemptive right to “any State”, not just to the legislature of the State. This means that the acceptance or rejection of the exemption may he accomplished “by law” effected by the people of the State as well as by the legislature of that State. See discussion in Decher of State of Ohio, ex rel. Davis, v. Hildebrant, 94 Ohio St 154 (114 NE 55), affirmed Davis v. Ohio, 241 US 565 (36 S Ct 708, 60 L ed 1172), and this Court’s conclusion with respect to the referral provision of the Ohio constitution considered there (Decher at 573): “The laws of the State include the Constitution as well as the statutes, and, when congress provided that the redistricting should be made ‘in the manner provided by the laws’ of the States, the provision in the State Constitution for a referendum on the action of the legislature could not hut apply. We do not think this decision places any interpretation upon the word ‘legislature’ as used in this constitutional provision. It simply holds that, as congress was given the power to regulate the action of the States in redistricting, it might confer upon the States the right to provide therefor ‘in the manner provided by the laws’ of each State and that the law of Ohio included the referendum provision of its Constitution.” The second question thus merged is based on contention that the act of April 13, 1966, authorizes but one “changeover date” each year and since the last Sunday of April, 1967, passed after the legislature had effected a changeover, by Federal edict there may be no change of the situation until one is made, if at all, precedently for 1968. The point is made by plaintiffs’ stated question 4: “Does the Federal uniform time act (Public Law 89-387) pre-empt the determination of time, establish but one ‘changeover date’ for daylight savings time, and preclude the board of State canvassers or the State of Michigan from making any determination of time other than that specifically authorized by such Federal legislation?” Question 4 poses an open question of interpretation and application of law made supreme by the sixth article of the Constitution of the United States, with respect to which there is as yet no authoritative Federal precedent. It thus becomes the original duty of this Court to interpret and apply entire section 6 of the act of April 13, 1966, rights thereunder having been duly asserted before it. As regards such duty see United States v. Bank of New York & Trust Co., 296 US 463, 479 (56 S Ct 343, 348, 80 L ed 331, 339). The phrasing of section 6 suggests no thought that the extended power of exemption must be exercised prior to the Sunday in April which precedes the intended period of exemption. Neither does it purport to forestall exemptive action covering all or any portion of the Sunday-to-Sunday period ahead should the legislative assembly of the State fail, for any reason, to act prior to the first of the two Sundays. The only restriction laid by congress upon the power thus extended is that, when and if exercised, the result must apply to the entire State. It is therefore ruled that question 4 must be answered in the negative. To hold otherwise would inhibit any and all legislatively enacted and immediately effective exemj)tions for the current year, whether legislatively enacted legislation of the given State is or is not subject to the referendum, once that April Sunday has passed into history. This would be inexorable even though a near unanimous public demand for exemption should well up spontaneously after that April Sunday has passed, the assembly meanwhile being quiescent. The third and last question is presented by plaintiff’s stated question 3: “Are the petitions in the proper form for submission to the board of state canvassers?” The Court has examined the form of the petition as submitted with the briefs and finds that plaintiffs’ objections thereto are without merit. Leininger v. Secretary of State, 316 Mich 644, has no application here in specific fact. In Leininger an initiatory petition was held fatally defective for want of inclusion of a constitutionally required title of the measure sought to be initiated, whereas the instant petition is one of referral of a measure already passed by the legislature. The instant petition appears as being a pretty fair model of the constitutional means by which a sufficient number of validly signing electors may succeed in referring to the electorate a measure already enacted into law; all of such enacted measure having been printed as a part of the petition for referral and the petition otherwise being correct as to legal form. This opinion per curiam presents the constitutionally required reasons for the decision made June 9 by order. For the order, see the appendix hereto. No costs are awarded. Kelly, Black, T. M. Kavanagh, Souris, O’Hara, and Brennan, JJ., concurred. APPENDIX (Order entered June 9, 1967, denying mandamus and injunction and dissolving stay order) “The Court having found (a) that there is no constitutional or other bar to the circulation and filing of the referendary petition here involved prior to adjournment of the legislative session at which PA 1967, No 6, was passed; and (b) that said petition is not invalid as to form: “It Is Ordered that plaintiffs’ complaint for mandamus and injunctive relief, brought here for determination by the Court’s order of May 23, 1967, is denied. The Court’s order staying the board of State canvassers from making official determination of. the sufficiency of such referendary petition is dissolved. An opinion or opinions will follow.” “Sec. 9. The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for State institutions or to meet deficiencies in State funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote east for all candidates for governor at the last preceding general election at which a governor was elected shall be required. “No law as to which the power of referendum properly has been invoked shall be effective thereafter unless approved by a majority Of the electors voting thereon at the next general election.” 80 Stat 107-109 (15 USCA, §§ 260-267). MCLA 1969 Cum Supp §§435.211-435.213 (Stat Ann 1968 Cum Supp §§ 18.872[1]-18.872[3]). — Reporter. An example of these authorities is Duddy v. Conshohocken Printing Company, 163 Pa Super 150, 154 (60 A2d 394, 395): “The word ‘within’ has a number of meanings which are set forth in the various dictionaries and in the judicial decisions collected in 45 Words and Phrases (Perm ed), beginning at page 378. While one of the meanings is to fix both the beginning and the end of the period of time in which to act, another meaning, well recognized, is synonymous with ‘not later than,’ or ‘any time before,’ or ‘before the expiration of.’ In this sense it fixes the end but not the beginning of the period [citing authorities],” US Const, art 6, § 2. — Reporter.

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Souris, J. In 1963 plaintiff’s minor son was injured by an automobile driven by an uninsured motorist. Plaintiff filed claims in the son’s behalf against the Detroit Automobile Inter-Insurance Exchange, on a policy issued by it to plaintiff, which covered certain members of plaintiff’s family, and against the General Accident Fire & Life Assurance Corporation, Ltd., on a policy issued by it to plaintiff’s son. The insurance companies and plaintiff disagreed upon the limits of liability provided by .the policies and plaintiff thereupon started suit in the Jackson county circuit court against the Ex change for a declaratory judgment. Upon;the Exchange’s motion in circuit court, General Accident was added as a party defendant. The pleadings of the parties disclosed that the only issue in the cage was the proper interpretation of each policy’s uninsured motorist coverage, each policy containing “Other Insurance” clauses. The circuit judge rendered a declaratory judgment in plaintiff’s favor interpreting both of the policies to provide insurance up to their stated limit of liability of $10,000 notwithstanding the existencé of other insurance covering the identical risk and notwithstanding the “Other Insurance” clauses contained in each policy. Appeal was taken by defendants to the Court of Appeals and, pursuant to an order of this Court on January 11, 1967, this appeal and others then pending in the Court of Appeals were transferred here for hearing and decision. Both policies state the limit of the insurer’s liability for all bodily injuries resulting from an accident with an uninsured motorist to be $10,000 for one insured person and $20,000 for two or more insured persons injured in one accident. The “Other Insurance” clause of the Exchange policy reads, in pertinent part, as follows: “With respect to bodily injury to an insured sustained while occupying an automobile or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Exchange shall not be liable under this coverage for a greater proportion of the applicable limit of liability of this coverage than such'limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.?’ . The “Other Insurance” clause of the General Accident policy reads, in pertinent part, as follows: “Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” We find no statutory or decisional law of this State applicable in 1963 to the insurance clauses requiring our interpretation and the parties assert there were none. Consequently, our task is limited to determining the intent of the contracting parties. It is plaintiff’s claim, with which the circuit judge agreed, that each defendant is liable for up to a maximum of $10,000 for his son’s injuries, assuming that his son’s damages will be assessed at or above $20,000. His reasoning is that the identical language of both policies, “the sum of the applicable limits of liability of this insurance and such other insurance”, requires that the $10,000 stated limits of liability of each policy be added to determine that the maximum combined coverage for injuries to one insured person is $20,000 and that each defendant is liable for one-half thereof. The trouble with plaintiff’s reliance upon the quoted language is that its context clearly discloses that it was intended to apply only to the determination of each insurer’s pro rata share of maximum combined coverage, “the damages” referred to in both policy clauses. Before that determination can be made, other language identical in both policies, “the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance”, must be applied to determine the maximum combined coverage of the policies. Giving this language its literal meaning compels the conclusion that the maximum combined coverage of these policies is $10,000, since that sum is the stated limit of liability in both policies. Having determined the maximum combined coverage of the policies to be $10,000, the language mistakenly relied upon by plaintiff and that which immediately precedes it in each policy then is pertinent to determine what is each insurer’s pro rata share of such maximum combined coverage, as- we noted earlier, “the damages” referred to in both policy clauses. The pro rata share of each insurer is that proportion of the maximum combined coverage which is equal to the ratio which each policy’s stated limit of liability, $10,000, bears to the sum of the stated limits of liability of all applicable insurance ($10,000 plus $10,000). In this case, then, the maximum combined coverage available to the insured is $10,000 and each of the insurers would be liable pro rata for one-half thereof, a maximum liability for each of $5,000. Reversed and remanded to the circuit court for entry of a declaratory judgment in accordance with this opinion. Defendants may tax their costs. Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, O’Hara, Adams, and Brennan, JJ., concurred.

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Souris, J. Plaintiff’s deceased husband was insured by defendant company against accidental death in two policies in which plaintiff was named the beneficiary. Each policy contained a “sole cause” clause and an “exclusionary” clause. They are set forth in the margin. In her suit for the proceeds of the policies Mrs. Berger claims her husband died as the result of injuries received in an. automobile accident in September of 1960. The insurer’s 'defense is that Mr. Berger’s death resulted at least in part from an arteriosclerotic heart disease and not solely from his accidental injuries. The circuit judge, sitting without a jury, held for the defendant and the Court of Appeals, affirmed. 2 Mich App 269. "We also affirm, but our view of the applicable law differs from that of the Court of Appeals. In Nickola v. United Commercial Travellers of America (1964), 372 Mich 600, decided by this Court during the interim between trial and entry of judgment in this case, we construed a “sole cause” clause similar to those appearing in the policies of insurance here, in accordance with our earlier decision in Kangas v. New York Life Insurance Co. (1923), 223 Mich 238. In Kangas, and again in Nichola, we said that such clauses do not necessarily preclude recovery when death results from a combination of accidental injury and pre-existing disease but, rather, that recovery may be had when it is proved as a matter of fact that “an accidental external injury was the efficient, dominant, proximate cause of the death of the insured.” Kangas, supra, p 244. In this case of Berger, however, the “sole cause” clauses do not stand alone. There is in each policy, in addition, an “exclusionary” clause which expressly negates the insurer’s liability in the event death is caused directly or indirectly, wholly or partly, by disease. The legal effect of similar language appearing in insurance policies, particularly when used in conjunction with a “sole cause” clause, has divided this Court in the past. See Budzinski v. Metropolitan Life Insurance Co. (1939), 287 Mich 495. However, on rehearing in Budzinski, supra, at pp 504, 505, and in Bristol v. Mutual Benefit Health & Accident Association (1943), 305 Mich 145, and Scharmer v. Occidental Life Insurance Co. (1957), 349 Mich 421, this Court committed itself to the view that such “exclusionary” clauses necessarily do preclude recovery when death results from a pre-existing disease or from a combination of accident and pre-existing disease. As we read the cases above cited, they are not now in conflict. Bristol and Scharmer resolved the conflict which divided the Court at the time of Budzinski by ruling that Kangas governs when only a “sole cause” clause appears in the policy of insurance, such as was the situation in Nickola, and that Bristol and Scharmer govern, on the other hand, when an “exclusionary clause” is used alone or in conjunction with a “sole cause” clause, such as is the situation in this case of Berger. In this case the evidence, summarized in the opinion of the Court of Appeals, supra, was sufficient to support the circuit judge’s finding of fact that Mr. Berger’s death was caused at least in part by a preexisting arteriosclerotic heart disease. The “exclusionary” clauses of the insurance policies, therefore, excluded the insured’s death from their coverage. We affirm. Defendant may tax its costs. Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, O’Hara, Adams, and Brennan, JJ., concurred. .The pertinent clauses in the first policy are: “The Travelers Insurance Company, Hartford, Connecticut, Does hereby insure “LuVerne C. Berger under classification “B” by occupation a salesman — office and traveling duties of petroleum products against loss resulting directly and independently of all other eauses from bodily injuries sustained during the term of this policy and effected solely through accidental-means, subject to the provisions, conditions and limitations herein contained, as follows: * * * “The insurance under this policy shall not eover hernia, nor shall it cover aceident, injury, death, disability or other loss caused directly or indirectly, wholly or partly, (1) by bacterial infections (except pyogenie infections which shall occur through an accidental cut or wound), or (2) by any other kind of disease, or (3) by war or any act of war or suffered by the insured while in military or naval service in time of war; nor (4) shall it eover loss resulting from any injury, fatal or nonfatal, sustained by the insured while in or on any vehicle or mechanical device for aerial navigation, or in falling therefrom or therewith, or while operating or handling any such vehicle or device; nor (5) shall it eover suicide or any attempt thereat (sane or insane).” The pertinent clauses in the second policy are: ' “If bodily injury not hereinafter excepted effected directly and independently of all other causes through accidental means shall be sus tained by a member employee while insured under this part and shall result, within 90 days of the date of accident, in any one of the losses enumerated below, the company will pay the sum set opposite such loss, but only one of the amounts so specified, the largest, will be paid for all injuries resulting from any one accident. * * * “The insurance under this part shall not cover “(1) accident, injury, death or other loss caused directly or indirectly, wholly or partly, by disease or infection (except pyogenic infection whieh shall occur through an accidental cut or wound), or by war or any act of war, “(2) suicide or any attempt thereat (sane or insane).”

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O’Hara, J. The fundamental issue presented by this appeal is what measure of direct proof is nec essary to make a submissible case for jury consideration thereby permitting the jury to make inferences from established facts. The action was originally brought against Peterson Distributing Company, Incorporated, and Ralston Purina Company. Peterson, Inc., is engaged in the business of manufacturing, processing, packaging, and selling a mink food product. Ralston Purina is a manufacturer and supplier of one of the components used by Peterson, Inc., in the processing and manufacture of the finished mink food. Plaintiff-appellant is a copartnership which raises mink for the sale of mink fur and of breeding stock. In the trial court, judgment was had against both defendants upon a jury verdict. Thereafter, Peterson, Inc., settled with plaintiff. Ralston Purina alone appeals. Motions non obstante veredicto and for a new trial were denied by the trial court. The Court of Appeals set aside the verdict and judgment and ordered judgment for the defendant non obstante veredicto. We granted leave in part because certain language in the opinion of the Court óf Appeals might be subject to misconstruction. The language could be considered in conflict with settled law. We quote: “There was no analysis of the food fed to plaintiff’s mink and an autopsy of several mink carcasses from plaintiff’s ranch failed to show any salmonellae.” (Emphasis supplied.) 1 Mich App 548, 550. Whatever the weight of the foregoing may be, we feel compelled to point out that positive direct evidence resulting from an analysis of the alleged contaminated food is not a sine qua non to the establishment of a prima facie case of alleged poisoned or contaminated food. So to require is to place an unfair burden upon a plaintiff in this kind of case. There are circumstances attending the sale of allegedly poisoned or contaminated food in which a complaining plaintiff cannot obtain a scientific analysis of the involved product. Such plaintiff should not be totally without a basis of making out a submissible fact question. Neither is an absence of the finding of the- alleged contaminant by autopsy, standing alone, conclusive upon the question of its presence in the product in question. In the instant action, plaintiff rested its case upon a combination of circumstantial and direct evidence which in totality it claims pointed to the presence of a contaminant in defendant’s cereal component in the multi-ingredient food. To support its claim it introduced testimony tending to show that in a relatively wide geographical area of the midwest an outbreak of epidemic proportion- of food poisoning occurred among mink raised for pelting in the year 1961. Among the mink ranches thus affected was an experimental mink-feeding ranch owned and operated by an officer of defendant Peterson, Inc. The cereal additive used in the product mixed and fed to plaintiff’s mink and those on the experimental ranch was furnished by defendant Ralston Purina Company. Many of the other ranchers whose mink were involved in the epidemic used the Ralston cere'al. • All of the affected mink exhibited relatively the same symptoms. An independent research foundation analyzed and found salmonellae in samples of defendant Purina’s cereal. The same research foundation autopsied and found in the carcasses of defendant Peterson’s mink the same type “A” salmonellae. A qualified bacteriologist expressed the opinion that the presence of the same subclass salmonellae in specific organs of the autopsied mink and the cereal indicated to him that the mink exhibiting the common symptoms were victims of salmonellae type “A” food poisoning. Certain additional admitted testimony tended to show that the mink of some ranchers in the area who did not use defendant Ralston’s cereal did not exhibit the common symptoms. The foregoing, we believe, is a fair summary of plaintiff’s theory of the case and the proof in support thereof. In legal essence this is to say that plaintiff rested its case, in part, on proof of a particular fact condition, or event, by evidence of the existence or occurrence of similar facts, conditions, or events under the same or substantially similar circumstances. 32 CJS, Evidence, § 584, p 713, states the general rule as follows: “An issue as to the existence or occurrence of particular fact, condition, or event, may be proved by evidence as to the existence or occurrence of similar facts, conditions, or events, under the same, or substantially similar, circumstances.” This principle is not new to our case law. In a breach of warranty action against the vendor of a metal silo warranted as rust proof, watertight and acid resistant, proof of the condition of other silos was admitted in support of the claim of breach. Wé. said: “Exception is taken to the action of the court in admitting evidence as to the condition of other silos. Plaintiff was permitted to show that other silos of the same material shipped with his, and erected in his neighborhood, had rusted. The proofs showed that the other silos were of like material. Upon the issue whether the silo was rust proof, evidence was received as to the condition of the other silos. We do not think this was error, inasmuch as the other silos were shown to be of the same material, and existing under like conditions. The character of the issue as to whether the silo was rust proof, we think, makes it clearly distinguishable from the case of Second National Bank v. Wheeler, 75 Mich 546, cited by defendant. It is more like the ease of Avery v. Burrall, 118 Mich 672. If the other silos were of the same material, and they rusted, it would certainly be some evidence that the one in question would, and did, rust, as claimed by plaintiff.” In support of its theory plaintiff adduced the following: The animals being raised in early 1961, both at its mink ranch and other mink ranches using any kind of defendant Ralston’s mink food, whether mixed or unmixed with other ingredient mink foods, were gravely affected by an epidemic of food poisoning. The cause was narrowed to defendant Peterson’s complete mink food known as “Redi-Mix.” Defendant Peterson naturally endeavored to search out the difficulty with its ingredient suppliers, and on August 7, 1961, wrote defendant Ralston a letter which fairly sums up the testimony given by David W. Peterson, president both of defendant Peterson Distributing Co. and ultimately discharged defendant Peterson King Co. The letter follows: “Ralston Purina Company Checkerboard Square St. Louis, 2, Mo. Attn — Dr. Paul Kifer, Director of Research Mr. A. H. Leonard, Sales Manager, Mink Feed Division Gentlemen: “I presume you have received the sample of Purina Developer Chow forwarded to you by the Borden Company. We are very pleased that there was a sufficient amount left in the sample for this purpose. “As described to you on the telephone, starting with the report of Roy Bohn on June 12 and during our subsequent telephone conversations, the difficulties encountered might be summarized as follows: After we started feeding Purina Breeder Chow and changing to Developer at the appropriate time over 75% of our Redi-Mix customers seemed to have had serious difficulties. Most of them reported the kits to be unthrifty, rough furred, reduced rate of growth and having rectal prolapses in many kits and swollen vulva in some female kits. Adult nursing females have been lost and now male and female kits are dying from bladder infections and stones. “At the beginning and during the progress of this difficulty we were inclined to blame the weather, bad management, an epidemic or disease of some kind. However the symptoms that finally seemed to be common to most feeders resembled that found in mink which had been fed stilbestrol. Testing of products for stilbestrol by an independent laboratory, Rosner Hixon, resulted in negative findings on poultry being used but positive findings on your cereal which we are using, sample of which has been forwarded to you. “As mentioned on the telephone, we have restricted our discussion of this problem with you and other people to telephone conversations, but are sending you this written description of the difficulty by Dr. Kifer’s request. Yours very truly, Peterson King Co. (signed: D. W. Peterson) D. W. Peterson, president” Mr. Peterson testified fully during the trial. His testimony alone, if believed by the jury, was sufficient to prove the presence of some lethal contaminant in defendant Ralston’s mink food products as manufactured at the time in Ralston’s Davenport plant and to link actionably such products — through defendant Peterson’s admixture thereof in its “RediMix” — with the ailments and deaths of plaintiff’s mink. As to this proof, favorable view suggests a permissible inference that the facts thus brought forth amounted to something more than a series of disconnected and purely coincidental occurrences. The common time, source and effect elements brought them together with evidentiary significance. “We examine the case, of course, upon view of the testimonial record in that light which is most favorable to the plaintiff. Defendant, by its presently tested motion for judgment notwithstanding the jury’s verdict, has for the purposes of such motion stipulated all that the plaintiff may rightfully claim from the adduced proof.” Barnebee v. Spence Brothers, 367 Mich 46, 48. Applying the foregoing test, we are constrained to disagree with the Court of Appeals. Since this opinion stands for reversal of the judgment of the Court of Appeals, it is necessary to consider defendant Ralston’s counterstated questions 2, 3 and 4. Counterstated question 2, eliminating the argumentative part thereof, inquires whether the trial judge erred prejudicially in admitting the testimony of the aforesaid other mink ranchers (some 11 in all), the substance of which was that each experienced the same difficulty at the same approximate time as suffered by plaintiff after having fed their animals defendant Ralston’s cereal mink food; a cereal not directly identified by any of such witnesses with defendant Ralston’s “Mink Breeder Chow SF.” It was “Mink Breeder Chow SF” only, according to defendant Ralston, which was furnished by it to defendant Peterson. In view of the common nature of the trouble these mink ranchers experienced after having fed Ralston mink food in the forepart of 1961, we find no evidentiary error here. It was proper to show these circumstantial facts as some evidence from which the jury might conclude that there was a pattern of causally connected carelessness at Ralston’s Davenport plant in manufacturing, for the market at the particular time, Ralston’s various types of mink food. The proof of sale of such food, for the purpose mutually intended by the defendant manufacturer and the respective rancher-witnesses, coupled with proof of a common, widespread, and almost simultaneously damaging aftermath, rendered it admissible and its probative worth was for the jury. The foundation for its introduction was laid by the substantially corresponding time of feeding of defendant Ralston’s mink food and the substantially corresponding effect of such feeding. Defendant Ralston’s remaining questions 3 and 4 are as follows: “3. “Was it prejudicial error to exclude appellee’s offered testimony relative to lack of complaints by users of its Laboratory Chows produced at the same plant, with the same common ingredients and at the same relevant times as the Mink Breeder Chow SF involved in this case?” “4. “Was it prejudicial error to exclude testimony of mandatory Federal Food and Drug Administration inspections of appellee’s human and animal food plant to show absence of any improper practices during time period relevant to law suit?” Defendant Ralston would have us answer these questions in the affirmative. We agree. When a product liability cause is presented which depends for connecting links on circumstances presented as here, the defendant has a like right to depend in rebuttal upon opposing circumstances of relevance such as questions 3 and 4 suggest. In summary, on due favorable view there is evidence here which, as between plaintiff and defendant Ealston, points to. a specific theory of causation which indicates a logical sequence of cause and effect. As against this the defendant Ealston suggests no opposing theory of cause and effect. Only the old Scottish verdict, “Not proven, M’Lord,” is urged upon us. In the exhaustive evidentiary circumstances disclosed by this record the trial judge ruled properly that such a verdict should not be instructed, and later, that defendant Ealston was not entitled to judgment contrary to the jury’s verdict. We reverse and remand for retrial, leaving the matter of costs to abide the final result. Dethmers, O. J., and Kelly, Black, Souris, and Adams, JJ., concurred. T. M. Kavanagh, J., did not sit. Brennan, J., did not participate in the decision of this case. McNamara, v. E. W. Ross Co., 285 Mich 335, at pp 339, 340. It is fair to say that the results of a subsequent biological test, if believed by the jury as against the Hixon test mentioned in this letter, disclosed an absence of stilbestrol in the same “cereal.”

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Dethmers, C. J. This is a workmen’s compensation case. Two questions are presented. (1) Is plaintiff, pursuant to the provisions of article 6, § 28, Michigan Constitution of 1963, entitled to an appeal as of right to the Court of Appeals from the decision; of the workmen’s compensation appeal hoard? (2) When plaintiff employee sustained a physical injury arising out of and in the course of his em-‘ ployment at common labor and, after a 5-month layoff and treatment because of such injury, returned to work for the same employer, but was physically' unable to perform the common labor he was performing at time of injury and, consequently, was given much lighter work in which he continued for 16 months until forced to retire at age 65 due to the compulsory retirement clause in a union-corn-; pany collective bargaining agreement, was his sub-' sequent wage loss compensable as due to disability because of his injury? The majority of the workmen’s compensation appeal board, in a split decision, answered the s<e<y ond question by bolding that plaintiff’s wage loss after retirement was not due to bis injury but to tbe mandatory retirement at age 65 under the union contract. The Court of Appeals denied application for leave to appeal on the ground that there was sufficient evidence to support the finding of the appeal board that plaintiff had suffered no loss of wage-earning capacity as a result of his injury. From the latter we granted leave to take this appeal. While determination of the first question relating to appeal to the Court of Appeals as of right from the appeal board might not appear necessary in this case because plaintiff is, at all events, having his case reviewed on the merits in this case on leave granted and, although plaintiff did not raise the question in the Court of Appeals but sought appeal there by application for leave, nevertheless the frequency with which the question has been raised, though not decided, in other matters here, suggests that this Court ought now to indicate its view on this question. The Michigan Constitution of 1963, art 6, § 28, provides: “All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.”1 We do not read the above language, “shall be subject to direct review by the courts as provided by law”, to mean that in each such case. review shall be compulsory or as of right upon its being invoked by either party but only that review shall be had when, in the exercise of judicial judgment and discretion, the court shall, on application, so determine, or when so provided by law. No statute provides for such appeal as of right. G-CR 1963, 806.2(2), requires leave to appeal to the Court of Appeals from administrative agencies. When framers of the Constitution sought to provide for appeal as of right in criminal cases they encountered no difficulty in making the requirement clear and left no cloud of doubt on the subject requiring construction of constitutional language. The plain and unmistakable intent of the Constitution’s framers in that regard is expressed in article 1, § 20, as follows»: - “In every criminal prosecution, the accused shall have the right * * * to have an appeal as a matter of right.” In article 6, § 10, it is provided that the jurisdiction of the Court of Appeals shall be provided by law. There is no provision in the Constitution for appeals as of right from the courts in any civil matter. Nothing appears to indicate that article 6, § 28, gives decisions of the appeal board a higher preferred status as to appealability than is given to civil matters in the courts of law. The statute (PA 1961, No 236, §§ 308, 309, as added by PA 1964, No 281 [CL 1948, §§ 600.308, 600.309, Stat Ann 1965 Cum Supp §§ 27A.308, 27A.309]) provides for appeals as of right in civil matters in the courts. It does not do so with respect to decisions of the administrative agencies. The rule of this Court requires application for leave to appeal in the latter and we find nothing in it contrary to constitutional requirements. Plaintiff quotes from Milk Marketing Board v. Johnson, 295 Mich 644, 654, to the effect that this Court has held under the workmen’s compensation law that this' Coui’t will examine the record to determine whether there is any evidence to sustain the findings made by the department of labor and industry, and submits that this requirement cannot be met without an appeal as of right. That was not a workmen’s compensation case. In the same volume appear the reports of several cases which were, and, as observation will disclose, the cases were all here on leave granted. The rules then in effect, Michigan Court Pules (1945), No 60, § 6(a), so required at the time the Court so spoke in Milk Marketing Board v. Johnson, supra, and' such was the requirement with respect thereto before and ever since. The quotation from the case does not support plaintiff’s contention here, but states only what test this Court applies to the department or appeal board’s findings of' facts, and this the Court of Appeals did in the instant case as appears from its: order, reading: “It is ordered that the application for leave to appeal be, and the same is hereby denied for the reason that there is sufficient evidence in the record to support the finding.” "While we do not consider the board’s action to constitute a finding of facts, the Court of Appeals apparently did. Plaintiff urges that the language in Michigan Constitution of 1963, art 6, § 28, that final decisions of an administrative officer of agency shall be subject to direct review by the courts and that this shall include,’as a minimum, a’determination of whether such decisions are authorized by law and supported by the evidence, compels tbe conclusion that appeal shall be as of right, because (1) it calls for a complete hearing on appeal, (2) consideration only of the question whether leave to appeal should- be granted is not a direct appeal, (3) whether the decision of the board is authorized by law is not thus determined, (4) the mentioned required minimum is not thus observed, and (5) whether the fact finding is supported by evidence is not thus decided. "We disagree. The board has authority to grant or deny compensation. Its order denied it. The Court of Appeals, in denying the appeal, found that the evidence supported its finding. Constitutional requirements were duly observed. For years plaintiff had been employed by defendant at heavy common labor. On October 17, 1960, he was accidentally injured on that job. Resulting disability caused about a 5-month layoff from work. He was returned then to his former job, but his disability rendered him unable to perform it. Consequently, he was given much lighter, favored work. The majority of the appeal board said of this job that “basically this was a sit-down job”. By reason of seniority he had the right, under the union contract, to bump the fellow worker who had had that job and take it for himself. This he did. He continued in the latter, at substantially the same pay as received before injury, until July 26, 1962,: when, having reached age 65, he was forced to retire' due to the provisions of a compulsory retirement clause in a union-company collective bargaining agreement. Plaintiff seeks compensation for the period following his retirement as hereinbefore noted. This was denied by the appeal board, application for leave to appeal therefrom was denied by the Court of Appeals, and now it is here on leave granted. We hold that plaintiff is entitled to compensation. The majority opinion of the appeal board states that plaintiff’s original job had been “a man’s job”, that after his injury “he could not take it” and, hence, exercised his seniority right to bump his co-worker for what it found was basically a sit-down job. Then it goes on to say: “If the facts were otherwise, such as the plaintiff having been working only at made or nondescript work up to retirement, his right to further benefits based upon disability would not be open to question.” In effect, the opinion thus states that plaintiff was no longer able to do ordinary common labor, that he has residuals of an injury which prevent him from competing with able-bodied workers in the market for common labor. Two dissenting members of the board also so found. The record supports such finding. It appears to have been the opinion of the majority of the board, however, that plaintiff could not be said to have been working after his injury “only at made or nondescript work” such as to entitle him to compensation after its termination if he then could not do other common labor, because the lighter work he had been doing was a regularly recognized job which existed and had been done regularly by others before and after plaintiff did it. So the opinion was that plaintiff had not actually been engaged in favored employment which establishes no wage-earning capacity in common labor, that he had engaged in regular work after injury and established a wage-earning capacity in a recognized common labor occupation, and that that fact defeats his claim of compensable disability. Defendant contends that the board has found that plaintiff has a wage-earning capacity in common labor, that this is a finding of fact, that it is supported by evidence of facts and, lienee, this Court will not disturb it. Tbe board did find and state in its opinion, however, with respect to plaintiff’s work before injury, “that this was a man’s job is not open to question”, that the work he did after injury was “basically * * * a sit-down job”. The evidence makes it clear that plaintiff could not, after injury, do ordinary common labor. The board did not find that he could. So far from making a finding of such ability, what the board did was not to make a finding of fact of no disability but, rather, to come to the legal conclusion that the favored work performed by plaintiff established a wage-earning capacity in common labor. With that we disagree. The defendant makes the following admissions in its brief filed before the workmen’s compensation appeal board: “There is no argument that plaintiff’s work assignment upon his return to w;ork on March 20, 1961, was favored due to his alleged inability to do his regular job. “We are mindful of the maxim and rule of law that an injured employee’s capacity to earn wages in common labor cannot be measured by his prior ability to earn wages in favored employment,” In our opinion, performance of favored work no more establishes wage-earning capacity in common labor if there be several such jobs in the plant performed as well by able-bodied as by injured men than it would if created only to take care of plaintiff’s specific, injured condition. To hold or find, in effect, as the majority of the board did, that performance of the work which plaintiff did after injury, would not have established a wage-earning capacity for plaintiff had it not theretofore or, perhaps thereafter, been done by others, but did so establish because it was theretofore being dope by another, is not a finding of fact but of law. With it we do not agree. The plain fact is that, as in effect found in the above quoted excerpt from the majority opinion, plaintiff, because of his injury, cannot now compete with able-bodied workers in the market for common labor. Yet that market, of which he long had been a part, was the only one in which, before injury, he could compete. Plaintiff as a matter of law was shown as suffering from a work-connected injury which caused the loss of wages claimed by him. Reversed and remanded for entry of award to plaintiff. Costs to plaintiff. Kelly, Black, T. M. Kavanagh, Souris, O’Hara, Adams, and Brennan, JJ., concurred.

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Mackenzie, P.J. Respondent appeals as of right from a judgment of the Michigan Tax Tribunal cancelling assessments of single business tax deficiency issued by respondent against petitioners. We affirm. Jones & Laughlin Steel Corporation and Wilson Foods Corporation are incorporated in foreign states and have their principal places of business in foreign states. Their products are sold throughout the United States. Jones & Laughlin operates a marketing and sales office, a manufacturing plant, and a retail sales outlet in Michigan. Wilson Foods operates marketing and sales offices and utilizes certain salesmen in Michigan. The Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq., imposes a specific tax on the adjusted tax base of every person with business activity in this state. Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226, 234-235; 362 NW2d 618 (1984); MCL 208.31(1); MSA 7.558(31X1). "Adjusted tax base” is essentially federal taxable income, subject to certain additions and subtractions enumerated at MCL 208.9; MSA 7.558(9). One of these "section 9 adjustments” to the tax base requires the taxpayer to add compensation paid its employees to taxable income. MCL 208.9(5); MSA 7.558(9X5). Since petitioners have taxable business activities both within and without Michigan, determination of their single business tax liability requires that each apportion its adjusted tax base to reflect Michigan activity. See MCL 208.41; MSA 7.558(41). Apportionment is achieved by applying to the adjusted tax base a three-factor formula: "All of the tax base, other than the tax base derived principally from transportation, financial, or insurance carrier services or specifically allocated, shall be apportioned to this state by multiplying the tax base by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is 3.” MCL 208.45; MSA 7.558(45). The three-factor formula produces an apportionment percentage of the taxpayer’s business activity attributable to Michigan. By multiplying the taxpayer’s adjusted tax base by this apportionment percentage, the taxpayer’s Michigan tax base is computed. Application of the apportionment percentage derived from the statutory formula to petitioners’ actual total compensation paid their employees in Michigan yielded a value far in excess of actual compensation paid. During 1976, for example, the actual compensation paid in Michigan by Wilson Foods was $91,642, whereas its apportioned compensation was $2,975,400. Accordingly, from 1976 to 1978, in lieu of calculating their Michigan tax base as provided by the statutory apportionment formula, both petitioners used a two-step apportionment/allocation calculation. First, each petitioner applied the statutory three-factor apportionment formula to its adjusted tax base exclusive of the §9 compensation adjustment. Second, they allocated the exact amount of compensation paid which was attributable to Michigan. From this sum, they determined their single business tax liability. Pursuant to audits conducted by respondent, petitioners’ single business tax for the years 1976-1978 was recalculated by including compensation as part of each petitioners’ adjusted tax base and applying the statutory apportionment formula. Using this method, respondent assessed deficiencies of $556,697 and $37,694 against Jones & Laughlin and Wilson Foods, respectively. The Tax Tribunal ordered the cancellation of the assessed deficiencies pursuant to § 69 of the Single Business Tax Act, which provides in relevant part: "(1) If the apportionment provisions of this act do not fairly represent the extent of the taxpayer’s business activity in this state, the taxpayer may petition for or the commissioner may require, in respect to all or any part of the taxpayer’s business activity, if reasonable: "(d) The employment of any other method to effectu ate an equitable allocation and apportionment of the taxpayer’s tax base.” MCL 208.69; MSA 7.558(69). The sole issue before this Court is whether on these facts petitioners were entitled to § 69 relief. What constitutes "fairness” for purposes of this section is a question of first impression. Respondent contends that fairness is tested by weighing the reasonableness of the taxpayer’s final tax liability against the level of its business activity within the state, citing Armco Steel Corp v Dep’t of Revenue, 359 Mich 430; 102 NW2d 552 (1960), app dis 364 US 337; 81 S Ct 124; 5 L Ed 2d 99 (1960). The problem with respondent’s proposed test is that it does not focus on the fairness of the apportionment provisions of the act, for which § 69 is designed to provide relief. We believe instead that the proper test for invoking § 69 relief is whether the taxpayer’s Michigan tax base, as derived from the application of the three-factor apportionment formula to its adjusted tax base, accurately reflects the extent of the taxpayer’s business activity within the state. Section 69 is, for pertinent purposes, identical to the relief provision of the Income Tax Act of 1967, alternatively referred to as the Michigan corporate income tax, see MCL 206.195; MSA 7.557(1195), and the provision affording relief from the apportionment formula which was once used in determining franchise fees, see MCL 450.305(5); MSA 21.208(5), repealed by 1975 PA 230, § 1. The single business tax is, and the franchise fee was, a levy on the privilege of doing business in the state. Acco Industries, Inc v Dep’t of Treasury, 134 Mich App 316; 350 NW2d 874 (1984), lv den 421 Mich 856 (1985); International Telephone & Telegraph Corp v Michigan, 50 Mich App 5; 213 NW2d 226 (1973), lv den 391 Mich 774 (1974). Although the corporate business income tax is a tax on income, "the logic employed by the court [in interpreting the relief provision of the Michigan corporate income tax] should be equally applicable to the single business tax since similar provisions exist for combined filing”. Weithorn & Zartarian, Taxation: State and Local, 30 Wayne Law Review 789, 790 (1984). Thus, we look to interpretations of the relief provisions found in those statutes to determine what is meant by the proviso that "the apportionment provisions * * * do not fairly represent the extent of the taxpayer’s business activity in this state”. In Donovan Construction Co v Dep’t of Treasury, 126 Mich App 11; 337 NW2d 297 (1983), lv den 419 Mich 894 (1984), the Treasury Department requested that plaintiffs corporate income tax be computed through a separate accounting method, which method would yield a greater tax liability than the statutory three-factor apportionment formula. The Department argued that the apportionment formula resulted in a "gross disparity” in tax liability. This Court upheld use of the apportionment formula, stating: "Only if formulary apportionment does not fairly represent the extent of the taxpayer’s business activity in the state may a different method, such as separate accounting, be employed. The party seeking to employ an alternate apportionment method has the burden of showing that the formulary apportionment method is inappropriate by clear and convincing evidence. * * * Evidence introduced to overcome the formula method of allocation must address each element of the formula’s equation.” 126 Mich App 21-22. Elucidating on the type of showing which must be made, this Court stated: "[Application of the separate accounting [or some other alternative formula] solely on the basis that there is a gross disparity in the results between the different methods results in the use of the separate accounting because the tax liability is greater and not because separate accounting more accurately reflects the corporate taxpayer’s unitary business in the state. This Court is of the opinion that, in addition to the gross disparity between the results, additional evidence should be considered in demonstrating that the statutory formula inadequately or inaccurately represents the taxpayer’s unitary business activity in the taxing state”. 126 Mich App 21, fn 2. (Emphasis added.) In Payne & Dolan of Wisconsin, Inc v Dep’t of Treasury, 138 Mich App 418; 360 NW2d 208 (1984), the Treasury Department also contended that for corporate income tax purposes the separate accounting method more fairly represented the taxpayer’s business activities in Michigan. The basis of the contention was again the "gross disparity” between petitioner’s taxable income under the apportionment formula and the separate accounting method. This Court rejected the argument, stating: "To permit respondent to meet its burden by merely pointing to a 'gross disparity’ between taxable income under the separate accounting method as compared with taxable income under the apportionment formula would necessarily involve a presumption that the separate accounting method is a more accurate means of determining a taxpayer’s business activity in Michigan than is the apportionment formula. We concur with the Donovan panel that to meet its burden the state must show that the statutorily-preferred apportionment formula is itself inadequate as a means of fairly determining the particular taxpayer’s extent of business activity in Michigan”. 138 Mich App 424. (Emphasis added.) In Donovan and Payne & Dolan, the Treasury Department based its requests for relief primarily on a showing of gross disparity in tax liability results and not on a showing that the apportionment formula distorted business activity within the state. Therefore, this Court denied relief. Similarly, because the burden of showing distorted activity was not met in International Telephone & Telegraph Corp, supra, the corporation was not entitled to relief in computing franchise fees. The básis for denial of relief in these cases was not, as respondent suggests, that the resulting franchise fee or tax liability seemed reasonable or not excessive. The inquiry does not turn on the end result, i.e., tax liability. Rather, it turns on whether the basis for computing tax liability is fair, i.e., is the business activity subject to taxation accurately reflected by application of the three-factor formula? This Court reviews Tax Tribunal decisions to determine whether such decisions are authorized by law and whether they are supported by competent, material, and substantial evidence on the whole record. Terco, Inc v Dep’t of Treasury, 127 Mich App 220, 223; 339 NW2d 17 (1983); Const 1963, art 6, §28. Based on Donovan, Payne & Dolan, and International Telephone & Telegraph Corp, supra, it is clear that the Tax Tribunal’s analysis was based on an accurate statement and understanding of the law. Both the Single Business Tax Act and similar provisions in other acts permit relief if business activity within the state is distorted by the apportionment formula. Therefore, the Tax Tribunal’s decision granting relief will be upheld if the evidence regarding business activity supports its determination. The parties stipulated below that (1) 85 percent to 100 percent of the petitioners’ adjusted tax bases were comprised of compensation; (2) use of the apportionment formula indicated that the com pensation was $12,000,000 to $17,000,000 higher than actual compensation for Jones & Laughlin and $2,000,000 higher than actual compensation for Wilson Foods for each of the three years in question; and (3) the compensation attributable to Michigan could be precisely calculated for both corporations. Petitioners did not merely show a gross disparity in tax liability depending on the accounting method employed. Instead, based on the stipulated facts, petitioners presented evidence which demonstrated that the three-factor formula over-apportioned or excessively attributed compensation to Michigan. The facts revealed that the compensation component of business activity subject to taxation was overstated by approximately 50 percent. As required by Donovan, supra, p 21, fn 2, petitioners presented clear and convincing evidence "that the statutory formula inadequately or inaccurately represented] [their] unitary business activity in the taxing state”. We thus conclude that the decision of the Tax Tribunal was authorized by law and supported by competent, material, and substantial evidence on the whole record. Affirmed.

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Campbell, J. Bayn sued out a writ of replevin from a justice of tbe peace in Jackson county, in which the officer who served it was directed to levy it upon “ one lot of wheat, it being i of £§• parts of wheat raised by John Humphrey on the old Bayn farm, in Spring Arbor, that being the share of the said William Bayn of the crop coming to him as owner of one-half and one-fourth of one-eighth of said farm,” etc. Seizure was made of a specific number of bushels, amounting to something over 92 bushels, and the wheat was delivered to Bayn. Bayn declared for “ about one hundred bushels of wheat,” etc., “ which said wheat was the portion belonging, coming to, and due to said plaintiff, as owner of ■££ parts of land on which said defendant raised the same, the amount being i of -L|- parts of the wheat raised by the defendant on said land, more or less,” etc. The writ and proceedings were quashed on motion of defendant Humphreys, on the ground that it appeared from the writ and affidavit that the parties were tenants in common, and the interest sued for was an individual interest. Thereupon defendant waived a return, and the court, after taking time to consider, rendered judgment of $106.80 for the value of the wheat, and $8.42 costs. Bayn removed this judgment to the circuit court of Jackson county, by certiorari, setting up want of jurisdiction, absence of written waiver of return, lack of evidence, and unlawful adjournment, as causes of reversal. The judgment was reversed, and the case comes up for review. The waiver was entered by the justice at the request of the defendant, and nothing more seems to be required by law. The return shows that there was evidence of the value of the wheat, and also shows that the adjournment was made for less than four days after hearing and by consent of parties. These objections, therefore, are not sound. It was decided in Henderson v. Desborough 28 Mich. 170 that a justice could render judgment for more than $100, if the writ was sworn out for less. It-is claimed that this case comes within the principle of Parsell v. Genesee Cir. Judge 39 Mich. 542, where it was held the court could not assess the value of the property because the writ contained no description of any, and had been quashed on that account. That decision was based on the statute which allows an assignment only in cases where “ the property specified in the writ ” had been delivered to the plaintiff. Comp. L. §§ 6758-9. The writ there specified nothing at all. There was no such defect in this case. The property was sufficiently described and identified, and it was seized under the writ. If there was any defect it was in attempting to reach an undivided interest, when the defendant could not lawfully be dispossessed of such an interest by replevin. It was not a void writ, or one which gave no jurisdiction, and the seizure under it was of the property in specie. It is certainly open to question whether the descz’iption is not consistent with a lot of wheat separated fz-om the entire crop and amounting to Bayn’s shaz-e. The officer seems4 to have so treated it, and to have seized what was supposed to be that share. If the case had gone to issue and trial, there can be no doubt the property actually taken would have been lawfully involved in the proceedings. We think the case was one where the justice could deal with the question disposed of. Counsel on both sides agz’ee that the judgment quashing the proceedings was equivalent to a judgment of nonsuit or discontinuance. In such a case, when the property has been given to plaintiff under the writ, the party dispossessed has a right to have a return, or to waive a return and have a judgment for the value of the chattels replevied. Comp. L., §§ 6758-9. This case is within the rule laid down in People v. Tripp 15 Mich. 518, and Forbes v. Judge of Washtenaw 23 Mich. 429. The circuit court erred in reversing the judgment. The judgment of the circuit court must be reversed, and that of the justice affirmed, with costs of all the courts The other Justices concurred.

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Cooley, J. The Legislature of 1869 passed an act to authorize the incorporation of Building and Savings Associations, which is published as chapter 93 of the Compiled Laws of 1871. Several associations were formed under and in supposed conformity with its provisions; and among them the “Detroit Building & Savings Association No. 4,” of which the defendant William Schildbach became a member. The articles of association provided for a capital stock of $250,000, divided into 2000 shares, of which no member could hold more than twenty. The shares were to be had on paying an initiation fee of ten cents, and twenty-five cents a week thereafter. The purpose of the association was declared to be to make loans to members and enable them to procure houses and places of business. Each share was to entitle the holder to a loan of $125, for which he was to give real estate security. Loans were obtained as follows: At each regular weekly meeting, whenever there were more than $125 on hand, the money was to be. sold in loans of $125, and the shareholder who bid the highest premium was to receive it. Each shareholder receiving such a loan was to pay a weekly interest of fifteen cents, and also the weekly dues of twenty-five cents until the dissolution of the corporation. This dissolution was to take place as soon as every shareholder should have received on each share the sum of $125, including the premiums bid as aforesaid, and all mortgages given were then to be discharged or returned to their respective makers. These articles, together with the constitution and by-laws of the association, are given in full in 30 Mich. 51é eb seq. William Sehildbach became the owner of twenty shares in the association, and in May, 1873, was awarded a loan thereon of $125 on each share. , The premium bid for this appears to have been $178.50, and a bond and mortgage were given as security, which bear date June 10, 1873. The conditions of the bond are as follows: “ The conditions of this obligation are such that, whereas, the said William Sehildbach is a member of said association and the owner of twenty shares of its stock, on which stock he, the said William Sehildbach, on the 19th day of May, 1873, made a loan of the sum of twenty-five hundred dollars, pursuant to the provisions of the constitution and by-laws of the said association, on which sum of twenty-five hundred dollars he agrees to pay to said association interest, to wit, the sum of three dollars weekly in advance from the date hereof, on or before the Monday of each and every week during the existence of said association, and in like manner, at the same time and for the same period, to pay a weekly assessment of fifty [twenty-five] cents on each and every share of stock owned by him, and on which he has taken a loan as aforesaid, and also to pay all fines that may be legally assessed against him under and by virtue of said constitution and by-laws, or any amendments that may be made thereto; also, to keep the buildings on the premises mortgaged — to secure the conditions of this obligation— insured, during the existence of said association, against loss and damage by fire, to the acceptance of the directors of said association, in the sum of at least one thousand'dollars for the benefit of said association, and pay all taxes and assessments Avhich may be levied upon said mortgaged premises during the existence of said association, including all taxes that may be assessed on the loan or money hereby secured, and to comply with all and singular the conditions of the constitution and by-laws so far as they are binding upon him. “Now therefore, if the said William Sehildbach shall promptly pa}' to said association said weekly dues or assessments, as aforesaid, and the interest upon the sum loaned, as aforesaid, amounting to the sum of eight (8) dollars, on or before the Monday of each and every week during the existence of said association, as aforesaid, and shall pay all fines that may be legally assessed against him, as aforesaid, shall insure and keep insured said mortgaged premises, as aforesaid, shall pay the taxes which may be legally levied upon them, and upon the sum loaned during the life of said association, and shall comply with all and singular the conditions of said constitution and by-laws, so far as they are binding upon him, then this obligation shall be void, otherwise be and remain in full force and virtue. “ PROVIDED' That in case said William Schildbaeh shall be in default in paying said sum of money, or any part thereof, as aforesaid, for a period of sixty days after the same becomes due, then the whole sum of money loaned, as aforesaid, shall become immediately due and collectible, with the interest in this bond specified. This bond is given as collateral security of a certain mortgage, bearing even date herewith, and executed by the undersigned and wife.” The mortgage was conditioned for the performance of the condition of this bond. Schildbaeh made the weekly payments on the bond and mortgage until' December 7, 1874, and after that date made payments as follows: $50 May 6, 1875; $25 July 15, 1875, and $25 September 30, 1875. He made no payments after the date last named. The last three payments were made to Michael Martz, receiver as hereinafter mentioned. Sometime in the year 1874 one Andrew Mok, who was also a member of the association and had given to it a similar bond and mortgage, filed his bill in the Superior Court of Detroit to have the weekly payments which he had made upon the mortgage, except so far as should be necessary to satisfy the accruing interest at the lawful rate, declared to be payments on the principal sum named in the bond and mortgage, and to have those securities decreed to be satisfied and discharged when the principal sum should be thus paid up. The Superior Court made a decree in accordance with the prayer of the bill, and the defendant appealed to this court. In this court the discussions of counsel were directed mainly to the question whether the act under which the association was organized was constitutionally sufficient for the purpose, and this court was of opinion that it was not. The reasons for the opinion are given in the reported case. Mok v. Deitroit Building & Savings Association 30 Mich. 511. The defect in the act was found to be, that it was not complete and sufficient in itself to permit of incorporations under it, and that it undertook to accomplish the purpose by reference to an indirect and blind amendment of a previous statute, whereas the Constitution requires that all amendments of statutes shall present the provisions in full as amended. The result of this decision was that the association of persons who previously supposed they had been organized into a corporation were left unorganized, and those of their number who had previously acted as officers, had securities or intended securities in their hands made to the supposed corporation, but which now as legal securities had become worthless. Probably they had moneys and other property in their hands also, and they may have contracted debts in the name of the supposed corporation which still remained unsatisfied ; but on these points we have no information. It is not probable that all the members had obtained loans, and those who had not, must have had equities which the others ought to recognize whether legally compellable to do so or not. It would be highly inequitable that the money borrowed should be retained, and the securities at the same time repudiated. In this position of affairs, and on the 29th day of March, 1875, one Peter Geller, who was a borrower from the association of the sum of $2500 less the premium bid for the same, filed his bill in the Superior Court of Detroit against the association, its officers and all the original associated members “ and other associates whose names are unknown to complainant, and whom he prays may be brought in when discovered in such manner as the court may direct;” the purpose and prayer of which was that a receiver of the property, effects and credits of the association might be appointed, and an account be taken of all assets and debts, and the assets be applied in the payment of the debts equally, and the surplus, if any, divided among the shareholders. Schildbach was not brought in or in any way made a party to this bill, but the defendants actually named appeared by counsel, and the court on the 3d day of April, 1875, appointed Michael Martz receiver in accordance with the prayer of the bill. To this receiver Sehildbaeh made payments to the amount of $100, as before stated. Afterwards the present complainant became receiver as successor to Martz. The bill in the case now before us was filed to foreclose the mortgage which Sehildbaeh and his wife gave as is above shown. It sets forth the giving of the bond and mortgage ; alleges that at the time of the filing of the bill the sum of $634.38 was due, and prays for the usual decree of foreclosure and sale. The defendants William Sehildbaeh and wife made answer, in which they insist on the invalidity of the organization and supposed incorporation of the association; deny that either Martz or the complainant was ever legally appointed receiver, or could have been appointed receiver so far as the rights and equities of William Sehildbaeh were concerned in a suit to which he was not a party ; deny that the bond and mortgage had legal existence, but aver that Martz as pretended receiver collected a large amount of money, to a ratable portion of which the defendant William Sehildbaeh is equitably entitled, and his share of which would more than satisfy what is claimed to be due from him on the bond and mortgage. Replication was filed to the answer and testimony taken, and on the hearing the bill was dismissed, but without prejudice to any other or further remedy. The complainant has appealed. Neither party on the argument in this court has called in question the decision in Mok v. Building etc., Association, but the complainant insists that relief may be given him notwithstanding that case. It therefore becomes necessary to see what that case actually decides, and important also, to ‘determine whether decisions heretofore made in the State upon cases more or less analogous have any important bearing. In Mok's Case nothing was directly decided except that the enactment under which the association was formed had no validity. Nevertheless, as the defendant in that case was insisting upon Mok’s mortgage as a valid security for the full amount according to its terms, the court must have rendered a different decree if it had sustained this claim. On the other hand the judgment of this court must have been the same that was actually rendered if the court had reached the conclusion that the mortgage was a valid security, but that all the weekly payments made must be applied as payment. This was what Mok claimed, and this was what the Superior Court decreed in his case. And this complainant, as vac understand it, is satisfied with this conclusion, and makes no objection to its being applied in this case. The obvious difficulty in giving any remedy springs from the fact that these promises to pay had no payee. The bond and mortgage purported to be given to a certain corporation, when there was no such corporation in existence. They were, therefore, as securities, merely null and void. If this point required authority, it is to be found in Green, receiver v. Graves 1 Doug. (Mich.) 351, in which a receiver of a bank organized under the General Banking Law of 1837 was held incompetent to enforce at law the notes given to the bank while it was engaged in transacting business under that unconstitutional law. In the subsequent case of Hurlbut v. Britain 2 Doug. (Mich.) 191, the further ruling was made that a mortgage given to such a bank could not be foreclosed in equity. There seems to be no escape from these decisions : they meet the point squarely, and hold that securities given to what purports to be, but is not, a corporation, are of no validity whatever. There is a difference, however, between the cases in Douglas and this case, which may not be wholly unimportant. The business of banking, when carried on by institutions, associations or persons not lawfully authorized, was at that time forbidden and illegal. Everything done under the General Banking Law was therefore illegal, and no equities could have arisen in favor of any of the participants in the unlawful conduct. But there is no illegality in loaning money, or in associating for the purpose, and it is possible, therefore, for equities to arise in favor of the parties to such a transaction, when it proves not to have been conducted in strict conformity to the law. The vice of intentional disregard of the law does not taint it. But what relief can be given if not upon the securities ? In State v. How 1 Mich. 512, Chancellor Manning held that shareholders in a bank organized under the unconstitutional General Banking Law could not be made liable as partners upon the obligations the bank had issued. But importance was there attached — and justly, as we think — to the fact that the issue of any such obligations was forbidden by law and illegal. If it had not been illegal, possibly it might have been held that those who assumed to carry on banking, business in the name of an association not empowered to do so, were personally responsible as joint promissors to those who had trusted them. Medill v. Collier 16 Ohio St. 599. When persons in good faith proceed to organize what they intend shall be a corporation, contemplating a lawful business, and the organization proves ineffectual, but the money jointly contributed by the members associated finds its way into the hands of one of their number, or of some third person, it ought not to be in the power of such person to retain what he has thus received, and to refuse to account to those who were equitably entitled. There is an injustice in such conduct which equity ought to be able to correct. If the money has been obtained in good faith, in the mistaken belief that a corporation existed, it ought not to be retained when the mistake is discovered, and the corporators, who cannot sue at law, ought to be at liberty to- come into equity for an accounting. We know of no principle of equity that would be violated by giving such redress; and on the other hand there is ground for the argument that it would be entirely competent for the Legislature retrospectively to affirm and validate the promise to repay, so that a suit at law in the name of the association might be brought upon it. Lewis v. McElvain 16 Ohio 347; Savings Bank v. Allen 28 Conn. 97; Parmelee v. Lawrence 48 Ill. 331; Danville v. Pace 25 Grat. 1; Thompson v. Morgan 6 Minn. 292. But tnat point is not before us, and is not decided. One difficulty in this case, which is very serious, is that it was not contemplated the loans to this association should ever be repaid. Weekly payments were to be made until every member had had a loan corresponding to the number of his shares, and the corporation was then to be dissolved and the securities cancelled. The nominal purpose of the organization was to enable members, by a small weekly payment, to obtain a considerable sum of money; and the securities were only to be enforced against them in case the weekly payments were not kept up. The weakness of the system lay in the fact that the weekly payments must pay the expenses of management; and Mole's Case is evidence that these were found very burdensome. But if a borrower is disposed to abide by his contract, it cannot be in the power of the court, or even of the Legislature, to make a new contract for him. He does all that can be required of him if he abides by its terms. The difficulty here is that by the association ceasing to do business, it has become altogether impossible that the terms of the contract shall be kept by either party. Schildbach was to continue to keep up his weekly payments until sufficient had been realized to make proportionate loans to all the members, and was then to be released from all obligation. But as soon as it became impossible to make further loans, there was nothing to limit the time that Schildbach should continue to pay, if he were disposed to perform his contract according to its terms. From that time any remedy that should be open, either to him or to the associates against him must be, to some extent at least, independent of the contract. The position, then, of these associates is this: They have all put moneys — some more and some less — into a common fund. Some of them have received from this common fund considerable sums of money, and others probably nothing, though equally entitled. Equity requires that there should be an adjustment between all the parties on a fair accounting, and that those who have received moneys on an understanding with their associates which cannot possibly be carried into effect, should return them for the purposes of a fair division. And the return should be with interest after allow ing all payments heretofore made. But no decree can be made against any one of the associates based, upon the securities, for these are wholly void in law. The decree can take notice of the money loaned only, and can establish no lien on land where the parties have created none. It has been already stated that the bill in this case is a bill of foreclosure. It is not properly framed, therefore, to entitle the complainant to such relief as is available. It shows no debts owing by the association, and it fails to show that as between Schildbach and the other associates he has not returned all that can equitably be required of him.' But the bill may be easily amended in these particulars, and no good reason is apparent why an amendment should not be allowed now, if the complainant elects to make it, instead of beginning de novo. It is objected that the receiver was not legally appointed because Schildbach was not made a party to Geller’s bill. But Schildbach has recognized the receivership by his subsequent payments, and he should not be heard to question the appointment in this collateral way. The decree appealed from must be reversed and an order entered in this court in accordance with the views above expressed. The complainant in entering the order will elect whether he will dismiss his bill or amend, and the matter of costs will be then determined. The other Justices concurred.

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Campbell, J. Fenn sued Kinsey in ejectment to recover certain lands in Kent county, which under the congressional land grant of 1856, and the State law of 1857, had been set apart, by the proper selection, as appropriated to the aid of a railroad from Owosso to Grand Haven. The plaintiff claimed title under conveyance from William E. Bowes, who claimed under grant from the Port Huron & Lake Michigan Eailway Company, to which company the land had been granted by the Board of Control and the Governor acting in pursuance of their grant, in 1873. We held this action of the Board of Control and of the Governor to be unlawful and void, in Bowes v. Haywood 35 Mich. 241; and had the title stood without further action, there could be no doubt of the plaintiff’s failure to prove any right. But it is now claimed that this title, which was void in its creation, was afterwards made good by confirmation. We must, therefore, look at the various steps in this assumed title to see where the law has left it. The lands became subject in 1857 to appropriation by the Board of Control to such proper party as should be competent to build a railroad from Owosso to Grand Haven, by reason of the failure of the Detroit & Milwaukee Railway Company to accept the act of 1857. The Hoard of Control, in August, 1857, transferred the grant and privileges to certain gentlemen as trustees, who never took any steps to carry out the work, and who subsequently released all their claims to the State. Nothing further was done until 1871, when the Board of Control resolved that if it could lawfully be done, it would be proper to transfer the grant to the Port Huron & Lake Michigan Company. In 1873 a further resolution was passed declaring in substance that this company was engaged in building a road which, with its connections, would form a continued line from Grand Haven to Flint and thence to Port Huron, and releasing the grant to this company, subject to the obligation to sell the lands to actual settlers in occupancy, at a dollar and a quarter an acre. On May 30, 1873, the Governor made a patent purporting to be issued under this resolution, and to convey to the company the interest of the State in these lands. At this time this company had neither built nor intended to build any road west of Owosso, and had actually built nothing west of Flint, but had built sixty miles between Flint •and Port Huron, Whether this had been certified by the Governor to the Secretary of the Interior does not appear and is not important, because that certificate would only cover lands belonging to the line east of Flint. It does not appear that Congress had ever been asked or had ever consented to •extend the time for building a road from Flint or Owosso to Grand Haven, and the time had long run out for doing so. Immediately thereafter the company made a deed whereby they conveyed the lands to William R. Bowes, his “ successors and assigns,” as trustees under a contemporaneous declaration of trust which is not put in evidence, to secure the faithful sale and disposition of the lands according to the conditions of the trust. This deed,-which was made by William L. Bancroft and Edgar White, who claimed to have been authorized by the directors, was afterwards confirmed by a vote of directors, but not by tbe stockholders. Bowes conveyed to plaintiff by warranty deed in 1878. In 1877 the Legislature passed an act to ratify and confirm the acts of the Governor and Board of Control, giving the conveyance effect from its date. Laws 1877, p. 121. On the 3d of March, 1879, Congress released to the State of Michigan the reversionary interest of the United States. 17 U. S. St. at L. 490. The court below held, under various rulings at law, that plaintiff had no title established by the facts found. At. the time when the act of 1877 was passed it is beyond question that the State was bound by the terms of the congressional grant, which were formally accepted by the law of 1857, to dispose of none of these lands except for the specific purposes named in the act of Congress. As the United States reserved a right to all lands not legally disposed of under the trust, and under the grant the State itself had no power to divert them, the act of 1877 was in direct violation of that clause of the Constitution of the United States which declares that no State shall pass any law violating,the obligation of contracts. To hold that such a law operated by way of estoppel would be in effect to destroy the weight of the constitutional prohibition. The only proper way to construe void legislation, is to treat it as absolutely void until the legislative power, after obtaining authority to do so, sees fit to re-enact it. Congress did not attempt to bind the State to carry out its illegal action, and could not have done so. Any State Legislature, after 1877, had a right to treat that legislation as if it had never been passed, and a mere release from the obligations of the original contract by Congress could not operate to ratify the illegal action of the State Legislature. It is for the State itself, now that it has plenary power, to act as if there had been nothing done before. As the illegality of all of these transactions was manifest on the face of the proceedings, it does not occur to us that either the Railway Company or Bowes was in a position to deal with the lands in such a way that mutual estoppels would arise so as to vest him with any trust in the lands. Whatever right his grantees may have against his estate, if he undertook to convey in his own name and by personal warranty, no such right can be traced back through Bowes and the Bail-way Company to bind the. State. As we do not know what the trust was, we need not consider it further. The judgment below is correct, and must be affirmed with costs. Marston, O. J. and Graves, J. concurred. Cooley, J. did not sit in this case.

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Graves, J. This is a hearing on an order to show cause why a mandamus should not issue to require an order for an injunction to be vacated. For an understanding of the case a reference is necessary to the main circumstances. In 1873 the relator’s husband, Arthur Van Norman, was a stockholder in the private corporation in Jackson known as the Central Car & Manufacturing Company, and held 917-2- shares of the capital stock, of the face value of $22,937.50. Sometime about the month of August, 1877,-said Arthur,Van Norman and one Iiiram Gay began negotiations with Luther Beecher for the occupation on special terms of his establishment known as the “ Biddle Blouse,’.’ and they at length ripened into a contract which was reduced to writing and executed by the parties February 14, 1878; and on or about March 27, 1878, they received possession of the real estate and also of certain personal property which, the arrangement likewise covered. . Up to February 19, 1878, or until four days after the execution of said agreement and a little more than a month prior to possession under it, the said Arthur Yan Norman continued his ownership of said stock. But at that date he returned the certificate thereof to the company’s secretary, and with assignments indorsed which purported to convey the stock to relator, and the company immediately issued new certificates to her in place of the old ones. There appears to be no question of the sufficiency, in form at least, of this transfer. January 31, 1879, Beecher obtained possession of the “Biddle House” property. But about two weeks earlier and on the 18th of January he began a suit by attachment in the circuit court for the county of Jackson against the said Arthur Yan Norman and Hiram Gay for an indebtedness he alleged had accrued to him against them under the contract, the ground for the writ, as set up, being that the transfer of said stock to relator was made with intent to defraud his creditors. The sheriff executed the writ by levying on this stock as though it belonged to the defendant Arthur Yan Norman. Subsequently and on the 7th of March, 1879, the company declared a dividend of twenty per cent, and directed payment on all shares except those in question, and ordering that payment on those should be withheld until a determination should be reached of the dispute about their ownership. In July, 1880, the relator sued the company at law for the dividend, and in August following Mr. Beecher filed his bill on the equity side of the court having cognizance of the law cases. The bill seems to be one of first impression and the pleader ■would probably concede that some matters pertinent to its theory are omitted and that others not needful to it are inserted. But thatfis perhaps not important now. It contemplates that by the levy of the attachment Mr. Beecher obtained a positive lien on the stock and on the accruing dividend, and it proceeds upon the idea that the aid of equity as here involved is requisite to protect and enforce this lien. It will not escape notice that if the case requires as an equitable basis that a lien was created by the levy, the necessity would hardly be met by taking the existence of the lien for granted. It might well be argued that whether there be a lien or not is a vital question, and to assume its existence as a ground of equity is to assume the essential point in controversy. If the attachment were considered as well laid the lien would be merely provisional. It might cease before the determination of the action. But if not, it might then turn out that there had never been any just foundation for it, and the authority of equity to intermeddle for the supervision of such a lien is not so clear as to be assumed. There are many cases where the service of mesne process will bind personally for the time being without creating a lien properly subject to equitable protection and enforcement. According to the theory of the bill the dividend was bound equally with the stock, and one is supposed to be in the same plight as the other, and if the case called for it, it might be useful to inquire into the necessity for the bill on its own principle. If a lien was established by the levy, or if the levy bound the stock and dividend as is claimed, the occasion for the suit in equity on its own facts is not self-evident. These observations on the character of the bill are merely incidental and are mine only. An injunction was sought against the relator and the company, and in relation to her the prayer was that she “ be enjoined and restrained from prosecuting her said action in relation to said dividend and from commencing or prosecuting any and all other suits or actions in relation to said stock or dividend, or any other dividend thereon, against the said company or any other party or parties pending the determination of this your orator’s suit, or until this court shall make further order herein, and that she be perpetually, or until the determination of said attachment suit, enjoined and restrained from so doing by the final decree of this court herein, and that she be restrained from transferring or assigning said stock until further order of this court.” In regard to the company the prayer was that it “ be enjoined and restrained from paying over to said Cecilia E. Tan Norman, or to any one for her, said dividend or any other moneys due or which may become due upon said stock until this court shall make further order herein.” On or about August 7, 1879, a preliminary injunction was allowed according to this prayer, and April 27, 1880, the relator moved its dissolution. May 11, 1880, the motion was denied and soon thereafter the present application was made to this court. Were the question to be examined under an assumption that the attachment was well laid, it would not follow as of course that the case made by the bill might be deemed sufficient to serve as a basis for the exercise of discretion on the application for an injunction, but no investigation of the controversy in that aspect is deemed necessary. Fox v. Willis 1 Mich. 321; Williams v. Hubbard Walk. Ch. 28 ; Beck v. Burdett 1 Paige 305. If the levy was not of force to bind the stock at all, the bill as one for an injunction against intermeddling with it, is devoid of substance, and there was no foundation to support an order for the writ, and it should be , vacated. Was the levy good? The attention is first drawn to the special character of the various proceedings. The remedy by attachment is highly artificial and in this State is considered as “special and extraordinary.” The statutory provisions relating to it have invariably been subjected to strict construction, and the rule is fairly established that unless the case is plainly within the terms expressed it cannot be considered as embraced. The leading cases are Greenvault v. Farmers' & Mechanics' Bank, 2 Doug. (Mich.) 498, and Buckley v. Lowry 2 Mich. 419. The same doctrine applies with great force to the subjection of shares of stock in incorporated companies to mesne process. They are not leviable at -common law, and positive provisions are requisite to enable a court of common law to apply its power to them. They are intangible entities and incapable of caption by the gross methods of that system. In order that they may be safely proceeded against without going into a court of equity it is indispensable that the legislature provide specifically therefor and prescribe in detail, or at least in substance, all the means necessary for the object. Blair v. Compton 33 Mich. 414; Denton v. Livingston 9 Johns. 96; Howe v. Starkweather 17 Mass. 240; Williamson v. Smoot 7 Mart. O. S. (La.) 31; James v. Pontiac & Groveland Plank-road Co. 8 Mich. 91. It was in contemplation of the inadequacy of the methods ■of the common law that equity came forward to afford redress to the creditor against such property, and our legislature pro-needed on the same principle when it passed Comp. L. § 5060. It was considered that equity ought to have jurisdiction to afford relief when it was well shown that the law had exhausted its power; and it was also considered that such condition would be so shown, and only so shown in respect to such property, by the due return unsatisfied of a legal execution. The Nevised Statutes of 1846 made provision for ¡subjecting to execution any share or interest of a stockholder in any bank, insurance company, or any other joint-stock company incorporated under the authority of, or authorized to be created by any law of this State, “in the following manner.” Comp. L. § 6112. “The officer shall leave a •copy of the execution, certified by him, with the clerk, treasurer, or cashier of the company, if there be any such officer, •and if not, then with any officer or person who has, at the time, the custody of the books and papers of the corporation; and the property shall be considered seized on execution when such copy is left.” § 6113. “ The officer of the company who is appointed to keep a record or account of the shares or interest of the stockholders therein, shall, upon exhibiting to him the execution, be bound to give a certificate of the number of shares or amount of the interest held by &y\Ca. judgment debtor.” § 6114. “ A copy of the execution and the return thereon, certified by the officer executing the same, shall, within fourteen days after the sale, be left with the officer of the company whose duty it may be to keep a record of the transfer of shares; and the purchaser shall thereupon be entitled to a certificate or certificates of the shares bought by him, upon paying the fees therefor, and for recording the transfer.” § 6115. Having enacted these regulations the legislature seem to have assumed that the suit might happen to be commenced by seizure of the defendant’s share or interest on attachment; and proceeding under that impression it was declared in the next section that if the shares or interest “ shall have been attached in the suit in which the execution issued, the purchaser shall be entitled to all the dividends which shall have accrued after the levying of the attachment.” § 6116. It is unquestionable, however, that no provision was attempted to be made for attaching such property until 1877, and that the supposition that a suit could be so commenced at the date of the previous enactment was a plain error. Of course this mistaken view by the legislature worked no change in the law. Talbot v. Seeman 1 Cr. 1-25. In 1877 it was enacted that “in attaching shares of stock, or the interest of a stockholder in any corporation organized under the laws of this State, the levy shall be made in the ma/nner provided by law for the seizure of such property on execution.” Pub. Acts 1877, p. 3. There is no other authority for levying an attachment on shares in domestic corporations than is found in this provision. The circumstance that it does not directly and affirmatively enact that such property shall be subject to attachment is not overlooked. The point is not considered important. The aim of the provision is to give a mode for attaching a debtor’s shares or his interest in shares in a domestic corporation in the same cases in which an execution would be authorized, and the right to make seizure by attachment is thus confined and can be carried no further. Whether in strictness it can have equal latitude need not be discussed. Now in giving the l’ight to levy executions on corporation shares the law confines it to cases where the debtor’s status is that of stockholder and legal possessor of the interest. Newberry v. Detroit & Lake Superior Iron Co. 17 Mich. 141. In case his right is merely equitable, or in case he has regularly passed to another the legal title so that, as against him, the transfer is good and is one the company is bound to recognize, the shares are not leviable on attachment or execution issued against his property. Newberry v. Detroit & Lake Superior Iron Co. supra. In such circumstances the process of a court of common law is powerless. The property is beyond its scope. Its statutory energy is only capable of applying when the interest is found standing as the property of the debtor. The statute has made no provision for seizing under an attachment against one a share belonging prima facie to another, as an expedient to enable the attaching creditor to contest the title of the apparent owner, and, as before suggested, the remedy is one depending on the statute and not to be in anywise enlarged by construction. If the apparent owner holds by a title in which the creditor, in his character of creditor, can overreach, lie must put himself in a situation to assail it in some other way. In the case before us the stock was found regularly standing in the relator’s name and as her property on the stock-book. The company knew she was a regular assignee. She was prima faeie owner. Turnbull v. Payson 95 U. S. 418; Nat. Bank of New London v. L. S. & M. S. R. Co. 21 Ohio St. 221. And all admit that her title is good against every one except creditors of her husband. She is a stockholder in the company, but her husband is not. She has the legal title, and under the terms of the statute the stock was not subject to levy on the attachment issued against him. I think the writ should issue and that the relator should be allowed her costs of the application. The other Justices concurred.

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Cooley, J. In this ease the circuit judge directed a verdict for defendant immediately that plaintiff’s counsel had concluded his opening to the jury, and the case is before us on exception to that direction. It is denied that the circuit judge has any lawful authority for such direction in any case; the plaintiff in this State having always a right to go to the jury on the facts. Cahill v. Ins. Co. 2 Doug. (Mich.) 124. It is also insisted that the facts stated in the opening were sufficient, if proved, to entitle the plaintiff to a recovery; and therefore, if the circuit judge had the authority which he assumed to exercise, he erred in exercising it in this case. The record presents no other questions. I. The authority to direct a verdict for defendant on the mere presentation of the plaintiff’s case by his counsel, is no doubt one that ought to be very sparingly used if used at all, and the circuit judge ought first to be very certain that the presentation is full and complete, and covers all the points the plaintiff intends or expects to cover by his evidence. The circuit judge must not take advantage of mere accidental or inadvertent omissions as the defendant may when submitting the case after the proofs are all in; but if the case stated is sufficient except upon some particular point, should direct attention to'that point that the counsel may have opportunity to make his ease more complete if he has unintentionally omitted anything. In replevin, for example, and trover, it is sometimes necessary to prove a demand; but the demand in any particular case may be only a formal requisite, and counsel in stating to the jury the merits of his case might not unnaturally fail to mention it. It would be inexcusable in a trial judge, under such circumstances, to turn the plaintiff out of court without first giving him the opportunity to perfect his opening after calling his attention to the omission. But if he observes due care, the circuit judge commits no error in taking the course that was adopted here. The plaintiff’s opening is in the nature of an offer of proofs, and the circuit judge directs a verdict for the defendant because, assuming the proofs to have been received, they fail to make a case. The trial is thereby shortened, and no wrong is done to any one. The circuit judge has an undoubted right, in any case, to advise the jury to return a verdict for the defendant, when the plaintiff gives or offers no evidence to establish any necessary part of his case. Kelly v. Hendrie 26 Mich. 255. There is no claim in this case that counsel had failed to make his opening full and complete. We have, therefore, only to see whether a ease was stated which would entitle him to ask from the jury a verdict in his favor. II. The action was for money had and received by defendant to the plaintiff’s use. The case stated was that for some time previous to 1878, one Sweezey had been in business at Eaton Bapids with the defendant Bonker, as his clerk; that in various ways he had become greatly embarrassed; that plaintiff and defendant were indorsers for him to the amount of $12,000 and upwards; that he had given to plaintiff mortgages as securities for this amount, and to defendant a mortgage for some $2500; that the property mortgaged was otherwise largely encumbered, and was soon to be taken to satisfy previous liens; that it was then in the hands of tenants; that plaintiff ascertained that defendant could do nothing towards paying the Sweezey debts, and the whole burden thereof would consequently fall upon the plaintiff himself ; that under these circumstances, in order to save to himself something from the Sweezey wreck, he made an arrangement whereby defendant was to, and did, assign to him the mortgage defendant held from Sweezey, and Sweezey was to, and did, deed over the property covered by both the Sweezey mortgages; that the purpose of the arrangement was to enable plaintiff to collect the rents of the mortgaged property until the premises were taken on foreclosures; that for convenience and to prevent his own mortgage being merged in the fee, he had the conveyance from Sweezey made directly to plaintiff’s wife, but that defendant understood the whole arrangement, and knew that the object plaintiff had in making it was to secure the accruing rents. It was further stated that plaintiff subsequently discovered that defendant held assignment from Sweezey of leases of the mortgaged property, and had proceeded to collect rents thereon; and plaintiff insisted that in equity and good conscience these rents belonged to him, and that defendant was estopped from setting up any right to them by his failure to notify plaintiff of any claim at the time plaintiff was making the arrangement with Sweezey for the sole purpose of reaching these same rents. To show his right to the rents as between himself and his wife, counsel for plaintiff further stated that he should prove the execution and delivery by plaintiff’s wife of the following instrument: “ For a valuable consideration I, Mrs. O. M. Spicer, have this 29th day of May, 1878, assigned over all the use of the brick and wooden buildings, also the brick hardware store, all in the village of Eaton Rapids, Michigan, known as the property bought of John T. Sweezey, on the 14th day of May last, to Frederick Spicer, for^ his use and benefit. SpicerviUe, May 29th, 1878. Mrs. O. M. Spicer. Witness : George M. Pieros.” The property described in the fox-egoing paper is the same property from the renting of which defendant had been receiving rents. The question is, whether, admitting all these facts to be proved, the plaintiff makes a case. The most obvious objection to plaintiff’s recovery springs from the fact that the conveyance by Sweezey was not made to him, but to his wife. It was the wife, therefore, and not the plaintiff, who had a right to suppose that by Sweezey’s conveyance she was obtaining a right to recover rents from his tenants. If, therefore, there was any estoppel in the case which should preclude defendant from collecting rents, it must be an estoppel which arises for the benefit of the wife herself. But plaintiff, conceding that this may have been so at the outset, insists that he, as assignee of his wife, is entitled to claim the benefit of it under the rule laid down by authorities of which Wood v. Seely 32 N. Y. 105 is an instance. There is no doubt that where an estoppel arises for the protection of property rights, an assignee may have the benefit of it. It would fail to give adequate protection to the party in whose favor it arises if this were not the case. Powell v. Smith 30 Mich. 451. But the serious question in this case is, whether the plaintiff is the assignee of his wife, so as to be entitled to claim the rents as against her. It is not pretended that the instrument she gave him was intended as a conveyance of the equity of redemption ; it does not purport to be so in terms; and is an assignment of the “ use ” only ; and though the statute declares that no deed of conveyance shall be deemed invalid for want of a seal or scroll — Comp. L. § 6194 — yet the absence of a seal may be significant when the purpose of an instrument is not clear, and its terms are indefinite. Indeed we do not understand that any one claims this paper was intended for a deed, and counsel for the plaintiff speaks of it as a parol assignment of the rents. But as a parol assignment there could be nothing for it to. operate upon. Mrs. Spicer did not hold the leases; she was owner of the equity of redemption; and if she had any right to demand and receive moneys from the leases, it was because of that ownership and of the estoppel which was created in her favor'when she acquired the title. Assignment of the “ use ” of the buildings separate from the ownership could not be understood as an assignment of a right to rents under existing leases; for the tenants were entitled to the present use, and Mrs. Spicer to the use subject to the leases. It does not appear that the buildings were all under lease, and there may have been something upon which the assignment could presently operate, irrespective of the rents ; but the operative word “ use ” which is employed in this instrument is too uncertain in meaning to be accepted as an assignment of rents, when the assignor herself does not hold the leases, and can only claim the benefit of them by virtue of an ownership which she still retains in her own hands. Our conclusion is, that the plaintiff was not in jured by the instruction which resulted in a verdict against him, and that the judgment must be affirmed with costs. The other Justices concurred.

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Marston, C. J. The relator was judge of probate of St. Clair county, and he claims the board of supervisors reduced his salary, and asks for a mandamus to compel the board to pay him according to the amount as first fixed. The board answered, and an issue of fact was formed and certain questions sent to the circuit court for a determination and answer. The circuit judge certifies as appears in the margin herewith. It is now claimed that an implied assent is not binding on the relator and that the facts show he made protest to the county treasurer against receiving the reduced salary in full payment. ¥e have no doubt but that an implied assent is sufficient, and that from the very nature of the case nothing farther could be expected. Until the decision of this court in Douvielle v. Manistee 40 Mich. 585, there was almost, if not quite, universal acquiescence in the power of the board of supervisors to fix the salary of the judge of probate from time to time, so that no one thought of making any protest, but accepted the salary as fixed, and under such circumstances, the silent acceptance of the salary must be considered as an assent thereto, and binding upon them. We are also of opinion that a protest entered with the county treasurer cannot be deemed of any force or effect. That officer had no power to fix the salary or take -.any action with reference thereto, nor was it even a part of his duty to report such protests to the board. The protest, to have any effect, must have been made to the body having power to act in the premises. Under the finding of the court the relator should receive at the rate of $1500 for the year 1880, and a writ will issue to that effect, but without costs. The other Justices concurred. As to the three several matters or questions submitted, I find— First. That the said relator did assent (not expressly but impliedly) to the fixing of his salary in the fall of 1878, for the year 1879, but did not assent to the fixing it in the fall of 1879 for the year 1880. This implied assent was in ignorance of the law as afterwards declared by the Supreme Court in Douvielle v. Manistee 40 Mich. 585; and up to the announcement of the decision in April, 1879, the relator, as well as the board, understood that the board had full power and authority to fix the salary of the judge of probate from year to year. Second. So far as the relator did assent, as above found, he assented that the salary should be fixed at such sum as “to the hoard should he just and reasonable.” Third. For the first quarter of the year 1879, the relator did accept, impliedly, full payment at the rate fixed by the board in the fall of 1878, but ever since the first quarter he has insisted upon his right to $1500 per year and since that has not accepted the payments made as a full payment, hut only on account of salary. My conclusion is that for the year 1879 the relator is not entitled to pay beyond the amount fixed by the board in the fall of 1878, which amount has been paid, and that for the year 1880 he is entitled to the amount he claims. Port Baron, December 20, 1880. E. W. Harris, Circuit Judge.

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Cooley, J. This is a bill to restrain the collection of a pavement tax. Complainant is owner of a lot on Woodward avenue, in the city of Detroit, which has been paved and repaved several times, sometimes at the expense of abutting owners and sometimes not, according as the law in force at the time provided. Complainant avers that he has paid two assessments for repaving which were levied on the owners of abutting property. In 1879 the common council passed resolutions for repairing and repaving a section of this avenue, including that portion upon which complainant’s lot abutted, at the expense of the lots fronting thereon, and took steps for the purpose which resulted in an assessment upon complainant of $171.02. The whole expense of the repaving was assessed upon the abutting lots in proportion to the street front. The new pavement was to be of cedar blocks, and an old pavement of cobble stone, which complainant avers was not worn out, had to be removed for the purpose. It is insisted by complainant that an assessment according to frontage is not an assessment in proportion to benefits received, and is unjust and unwarranted by legal principles. No question is made of the sufficiency of the legislation under which the common council assumed to act to authorize the action taken, if the legislation is itself constitutional, but it is denied that it is so. The learned counsel for the complainant states the question at issue to be: The right of the Legislature to authorize municipal authorities to require the owners of property on streets in the city to continue, at their own expense, to repave them, whenever ordered by the common council, and to do so in reference to the extent of frontage, or, in other words, of territory upon the street, with no reference at all as to values. The questions, then, are questions of legislative power. Whether this method of apportioning the cost of pavement or of repavement is equitable or just or politic, is in no way involved in this suit, and we should depart from our legitimate province if we were to volunteer an opinion upon it. The Legislature, acting within the sphere of its powers in the making of laws, judges, and judges finally, upon all questions of policy and of equity. If the Legislature declares the cost shall be collected by general levy, or on the other hand shall be levied upon abutting lots or their owners according to values, or to assessed benefits or to frontage, the determination binds us absolutely and conclusively, provided we discover no want of legislative authority. We must then address our attention to that'point, and to that exclusively. N ow it has been several times decided in this State that it was competent under legislation permitting it, to apportion local assessments according to frontage. The leading case of Williams v. Mayor 2 Mich. 560 was not disturbed by Woodbridge v. Detroit 8 Mich. 274, and was expressly approved in Motz v. Detroit 18 Mich. 495, after most thorough argument and careful and deliberate examination. The case of Jones v. Board of Water Commissioners 34 Mich. 273, to which-complainant calls attention, is foreign to this controversy. It was expressly held in that case that water ¡•ates were in no sense taxes, and they were held not apportionable by frontage on that very ground. Thomas v. Gain 35 Mich. 155 has quite as little relevancy. There was an attempt in that case to apportion a sewer tax in manifest disregard of any principle of justice or equity, and the Court rejected it for that reason, and as having no lawful principle to sustain it. In that very case Williams v. Mayor was recognized, and it was said (p. 161) that !e the idea that underlies statutes for this purpose is, that the benefit to the abutting lots is generally in proportion to the length of their respective fronts, and that as a rule this principle of apportionment is more just than any other.” It would be strange indeed if we eould hold an apportionment to be void for its injustice when it had been prescribed -by law for the very reason that justice and equity require it. We might fill pages with the names of cases decided in other states which have sustained assessments for improving streets, though the apportionment .of the cost was made on the same basis as the one before us. If anything can be regarded as settled in municipal law in this country, the power of the legislature to permit such assessments and to direct an apportionment of the cost by frontage, should by this time be considered as no longer open to controversy. Writers on constitutional law, on municipal law, and on the law of taxation have collected the cases, and have recognized the principle as settled, and if the question were new in this State, we might think it important to refer to what they say. But the question is not new; it was settled for us thirty years ago. It is urged, however, that even conceding it to be admissible to charge the owners of abutting lots with the cost of the first pavement of the street, the special exaction should stop there, and all repaving should be by general levy. But the learned counsel for complainant does not undertake to explain to us how it can be that the legislature can have power to order the first improvement at the expense of adjoining owners, and still not have power to order any subsequent pavement on the like basis. The argument to that effect appears to assume that a pavement once laid is an improvement which is to last for ages, like some substantial structure of granite or marble; and that the adjacent proprietors having incurred the expense of making it, the comparatively insignificant cost of keeping it in condition for use from year to year ought properly and justly to be taken upon the shoulders of the community. But no assumption can be more unfounded. A pavement is but a temporary improvement of the street. It may last for five years, or ten, or twenty, but at the end of some short period the street will need a new one, and the question who shall be at the cost of it is the same as before and rests upon the same equities. It can never be said of any street that it is permanently paved. It is paved for the time being only; and the pavement will wear out or become unsuitable, just as a sewer will decay or become inadequate to the needs it was intended to meet. If there is any soundness in the theory on which the bill is filed, it must be found in this: that when the adjacent owners have once made the street a substantial thoroughfare at their own expense, a principle of constitutional justice requires that the city should afterwards maintain it as a substantial thoroughfare. But any such principle rests upon such a basis of uncertainty that it would not only be difficult of application, but lead to the most absurd results. When shall it be said that the duty of the property holder in making the thoroughfare is fully performed ? Is it when the street is planked ? Or when it is laid with cobble stone ? Or when it is experimented upon with concrete or witli green pine blocks? Or only when dry cedar blocks are laid, or perhaps blocks of granite ? Does legislative power depend upon the uncertain opinions of witnesses as to the substantial nature or permanency of some particular street improvement ? And if it can be exercised but once for all time, as to any particular parcel of land, shall the power a generation hence depend upon the uncertain recollection of old inhabitants as to the nature of the first improvements, and how the cost was borne, or perhaps upon the care with which city records are made up and kept ? Examine the case in whatever light we will, the supposed principle rests upon a fallacy. All street improvements are ordered in view of existing needs, and are, therefore, of one kind at one time and another at another time, as the needs are supposed to require. To-day in an incipient city they are cheap, imperfect and temporary; but ten years hence, if the city fulfils its promise, they may be expensive and constructed with greater regard to durability. The equity that the lot owners shall pay for the cheap, temporary improvement is no greater than that they or their successors in ownership shall pay for that which is more expensive, but which answers the local needs more perfectly and makes their lots more valuable. It will be no less fifty or a hundred years hence, though the improvement may have been renewed many times in the interval. It rested in the first place on the undoubted fact that all these local improvements, while they are public benefits in a general sense, have a special and peculiar value to the lots fronting upon them, and tend to increase their value in a degree bearing some proportion to the cost of the work. Let the improvements go to decay and the value of the lots will deteriorate; let them be renewed, and the price immediately comes up again. Leave a business street without a pavement, and business will be driven from it. These are facts of common observation, but they need no experience to prove them; they are what our reason would teach us to expect. There is ample ground, therefore, upon which the legislature may act when they decide that in their opinion considerations of equity require the cost of paving to be imposed upon the owners of abutting lots. We do not hold that they decide right, for that is not our concern; we only decide that they have the power and the discretion to do what they have done. The decree must be affirmed with costs. Marston, C. J. and Graves, J. concurred. Campbell, J. While I am not satisfied that the legal objections to the charter and ordinance regulations have not some force, I am, nevertheless, of opinion that on this record complainant has not made out a case for relief. We cannot assume, under the pleadings, that the improvement was not one which the city could make, and charge to a district for assessment. We cannot in this case have any certainty that complainant has been seriously, if at all, overburdened beyond what his assessment would have been if made in another way. The proceedings are regular, and unless he shows some distinct and tangible grievance of a serious character, he makes out no cause for equitable interference. I concur in affirming the decree.

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Marston, C. J. Some of the questions which the plaintiff seeks to raise in no way concern him, as the matter complained of could not injuriously affect him. So .the objections based upon the fact that a jury was called are of no sort of consequence, as the jury was called because one party over whose land it was supposed the ditch would extend would not release. As however all the others did release, and the ditch was not extended, but abandoned, over the lands of those not releasing, the action of the jury became immaterial. The drain does not extend over the plaintiff’s lands, but as a part of his lands were benefited by the drain, he was assessed a small amount, which gave him a cause of complaint. The return of the commissioner shows that the said “ Mabee was present when I apportioned the construction of said drain and expressed his entire satisfaction at the part apportioned to him, and promised that he would construct his part as soon as any one else, and then and there tried to let out a job for the same.” A party thus consenting should not after the ditch has been constructed in part and his lands benefited thereby, as the return shows to be the fact, come into court and be heard to complain. Roediger v. Drain, Com’rs 40 Mich. 745. The writ must be quashed with costs as improvidently granted. The other Justices concurred.

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Campbell, J. This case in no respects differs from what it was when formerly before us. Underhill v. Muskegon Booming Co. 40 Mich. 660; Muskegon Boomimg Co. v. Underhill 43 Mich. 629. The plaintiff made out no case whatever, and judgment was properly rendered against him. The attempt in this way to protract litigation is a grievance to the defendant, but as no application is made for more than ordinary costs the judgment is affirmed with costs. The other Justices concurred.

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Cooley, J. This is an application for a mcmdmrms to respondent, requiring him to set aside an order whereby he transferred to the federal court a certain cause to which relators are parties. No application appears to have been made to the circuit judge himself, and for this reason we deny the application without looking into the merits. We must assume, if the application has merits, the circuit judge would voluntarily have recognized them. The other Justices concurred.

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Cooley, J. This is a bill filed by the owner of the equity of redemption in certain lands, to compel a mortgagee thereof to discharge the mortgage and to pay the statutory penalty •for a previous refusal to do so. The grounds on which the discharge is demanded are first, that the amount due has been tendered to the mortgagee and its acceptance refused; and second, that the lien of the mortgage is discharged by an arrangement between the mortgagor and mortgagee, whereby the latter, after complainant became owner of the land, and without her consent or knowledge, gave an extension to the mortgagor in consideration of money then paid to him. The fact of an extension in consideration of a payment of money is not made out on a preponderance of evidence, and we pass that part of the case without further notice. Regarding the tender, defendant says in his answer “that the amorcnt tendered by said complainant was not sufficient to pay the amount due for principal and interest on said mortgage, but this defendant' to avoid trouble offered to receive the same and to discharge the mortgage, and he now renews his offer to do so.” When the discharge of a mortgage is demanded on the ground of a tender, the evidence in support of the tender ought to be very clear and satisfactory, and ought to place the defendant distinctly in the wrong. Potts v. Plaisted 30 Mich. 149 Especially should this be the case when the statutory penalty is demanded; for although this is paid to the complainant in consideration of his trouble and annoyance, it is meant also for a punishment. In this case we do not find the evidence satisfactory. The case rests in the main upon the testimony of defendant and of complainant’s husband, and the one makes quite as good a showing in his own discharge as the other does in support of complainant’s ease. And much reason is found in the record for believing that personal feeling, rather than any substantial difference between the parties respecting their rights, lies at the root of this litigation. The decree of the court of chancery dismissed the bill, and it must stand affirmed with costs. The other Justices concurred. George S. Engle, for the motion. Afterward, at tbe January term, 1881, complainant moved for a re-taxation of costs, objecting that they were taxed as for a hearing, whereas the case was submitted on briefs in the absence of counsel. Submitted and denied January 1, 1881. The Court said it was the practice to treat the submission of briefs on both sides, as an argument of the case, and not as an exoárete submission of it without argument. Denied, without costs.

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Graves, J. Nelson, being a riparian owner on White River, brought this action on the case for certain damages alleged to have been caused by the Booming Company. He claimed that a distinct but exactly similar injury was committed in each of the years 1873, 1874, 1875, 1876,1877 and 1878, and employed a separate count for each year. The only variation in the counts was in the year in which the injury was alleged to have been done, and a reference, therefore, to the first will suffice for all the others. The actionable fault imputed to the Booming Company is charged in this wise — that “ well knowing the premises but contriving and intending to injure and prejudice the plaintiff in this behalf, heretofore, to wit: On the first day of May, A. D. 1873, at the township of Whitehall, the county of Muskegon aforesaid, and divers other days and times afterwards, and before the commencement of this suit, with certain booms, timber, logs, boards, pins, poles, wood, ropes and chains, and other appliances, dammed wp cmd obsU'ueted the running and flowing of the waters of said White Riveras the same had run and flowed and still ought to run and flow, and thereby caused the waters of said Whité River to flow upon and cover the aforesaid lands of the said plaintiff, and to stand and remain upon the aforesaid lands of the plaintiff for a long space of time, to wit: for, the space of five months, and thereby destroyed the aforesaid products, pasture, meadow and growing crops and improvements of said plaintiff, and greatly injured the said lands and the timber thereon, and prevented the plaintiff from, and deprived him of, the use, tillage and cultivation thereof, and depriving him of the products, produce and income and profits of said lands, whereby the said plaintiff has lost and been deprived of a great number, to wit, five hundred tons of hay,” etc. Complaint is made that these various counts overlap, and that a claim is set up for repeated recoveries on account of the same flowage. But this is a misapprehension. It was the obvious design of the pleader to describe a flowage through a certain specified period of time in each year (Gould’s Plead, ch. 3 § 85), and to effect this object he resorted to the expedient of a separate count for each year. The declaration may show that in this regard it is not framed with perfect accuracy and that there exist some formal imperfections. But there is nothing substantial; nothing which may be taken advantage of by exception. It is further objected that as to the several injuries alleged to have been committed in the years preceding 1877 the action was barred by Comp. L. § 7149, which limits the bringing of actions for trespass on land to two years after the accruing of the cause of action: There is no foundation for the point. The action is case for consequential damages, and not trespass, and the Legislature has seen fit to authorize case.to be brought except in certain instances, of which this is not one, at any time in six years. • Comp. L. § 7148 subd. 7. The plaintiff’s evidence was in substance that in each of the years mentioned, the Booming Company dealt in such manner with the masses of logs running in the river that at the sorting ground below the plaintiff they were arrested and turned into jams, which caused the water to dam up and overflow his land and cut off certain of his crops and preclude him from making and getting others. And on the pari; of the Booming Conrpany the evidence was aimed to show that part of the overflow complained of was caused by heavy rainfalls, and that considering the great quantity of logs which were put afloat by the various persons who engaged .therein, and considering the absence or almost entire absence of river banks, and some other conditions, there was no practicable way for getting the logs to their destination with any less overflow of plaintiff’s land than actually occurred. When the judge came to charge the jury he laid down the duty of the Booming Company in these terms: “ This corporation has a duty to perform, that fs, to drive the logs down with ordinary care so as not to injure any of the parties who may own land along the stream or adjacent thereto. It is their duty to furnish a sufficient amount of men to drive those logs down the river, without injury to those owning land along and adjacent to the stream, and so far as this case is concerned they were to drive the logs along the plaintiff’s land so as not to injure the land or crops; it doesn’t ¿natter whether there is one hundred million or a thousand million'; they must navigate it in such a maimer as not to injure those who own lands along the stream, that is, they must put on a sufficient force to pass those logs down the surface of that stream without injury to the plaintiff in this case.” The jury found for the plaintiff below in the sum of $100. So much in these controversies depends on circumstances which may vary indefinitely that it is not practicable to lay down a specific rule applicable to all occasions, places and conditions, as to the duty which may be fairly due to riparian proprietors from the corporations and such private persons as may be engaged in using streams for these immense lumbering operations. The subject is one of considerable difficulty in any case, and, unless the question be confined to a given state of facts, it would be rash to hazard any other than very general views. According to the present record the facts appear to be neither numerous nor intricate and the inquiry seems to be restricted to narrow limits. Premising therefore that in what is said strict reference is made to the case actually presented, it remains to state with as much brevity as practicable the opinion entertained. The charge given is not correct. It was likely to lead the jury to suppose that the Booming Company was in the condition of an insurer and bound at all hazards to guard the plaintiff against loss arising from the presence of the logs in the river; and of course there is no foundation anywhere for such a doctrine. No notice was taken of the evidence for the Booming Company that some of the overflows were caused by extraordinary rainfalls, and finally the drift of the instruction was not adapted to the case. The view which the facts called for in my judgment may be thus stated: As between the plaintiff and the Booming Coinpauy it was the duty of the company to see that its connection with the logs did not result in causing any more flowage of the plaintiff’s land than would occur by the passage of the logs in a purely natural way. It had no right to deal with them in any mode whereby jams would be formed or enlarged so as to cause the water to overflow the plaintiff’s land when it otherwise would not; or cause it to overflow there more than it would were the logs left to themselves; and if jams were formed or enlarged in that way to such extent that they did cause the water to flow the plaintiff’s land the company is liable for all that flowage beyond what the flowage would have been, if any, had the logs been allowed to float down naturally and without artificial interference. It may be objected that this affords an uncertain criterion; because it cannot be known what the consequences would have been in case the Booming Company had had no connection of any sort with the logs. And it is true that the element of uncertainty exists. But that is no reason for rejecting the rule unless a better one can be found. It is not admissible to wholly deny redress because there is infirmity in the method, and on the other hand, it is equally inadmissible to make this imperfection an excuse for compelling the company t.o pay damage which it never had any agency in causing. The uncertainty referred to is no greater nor more embarrassing than is often met with where estimates of damage are to be made, and where such difficulties are never allowed to stand in the way. Actions for injuries to health, to reputation, and for injuries which reach forward into the future, and the like, will exhibit conspicuous fexamples. • In such cases the jury must apply their common sense and experience to the whole facts and act on the rule of probability. No rule more safe or practical is discerned to exclude all ground of damage not chargeable to the company and at the same time allow the plaintiff whatever damage he ought to have from it. The other points were abandoned. I think the judgment should be reversed with costs and a new trial granted. ■Cooley, J. I agree with Mr. Justice Graves that the instructions given to the jury in this case were erroneous. I also agree that if the Booming Company so dealt with the logs in the stream as to cause jams to be formed or enlarged, and thereby to raise the water in the stream to the injury of the plaintiff, the company must be held responsible for the resulting damages. But if the company only makes use of the right of floatage in a proper and reasonable way and without negligence, it is not responsible even though some injury may be suffered by the riparian owner. The rights of the public to run logs in the stream are not subordinate to those of the owner of the bank, but they are concurrent, and each must be enjoyed reasonably, and without any unnecessary interference with the enjoyment of the other, and without negligence. But this is all that can be required. No man can be punished in damages for an enjoyment of his undoubted rights, when he acts reasonably and with prudence. Marston, C. J. concurred. Campbell, J. I do not feel quite satisfied that the charge of the court in this case was designed to convey so extreme a doctrine as would hold plaintiffs in error responsible for injuries to which they did not contribute. But as the language has impressed my brethren as leading to that inference, I do not feel justified in holding that it will not properly bear that construction, and concur in a reversal. I am not prepared on this record to lay down any specific rule, as the testimony is not completely given.

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Campbell, J. .The bill in this cause, having been filed in the circuit court for the county of Menominee, was dismissed on motion, as being in fact a bill for the purpose of reviving the decree in another suit decided in 1865, and as not having been authorized by leave of the court, or by other prerequisites which must be complied with before such a bill can be filed. Appeal is brought from the order of dismissal. The bill, in addition to the points insisted on before the circuit judge, is neither signed nor verified. The only signatures found upon it are printed and not written. No bill can be regularly filed without being signed in person or by counsel. Under our practice every attorney is ex offieio a counsellor, but unless a bill is actually signed by him in some capacity, by the responsible signature of' himself or some authorized representative, it is irregular, and may be stricken from the files. 1 IToffm. Ch. Pr. 97, and notes. The court below did not act upon this.objection, and for other reasons we merely point it out as a matter of some importance. All of the questions passed on by the circuit judge depend upon whether the bill is purely an original bill to set aside a decree for fraud, and not one involving the elements of one of the various forms of bills of review. Before going further it is proper to refer very briefly to a ground taken by the appellant, whose counsel seems to think that by introducing one of the grounds of motion the rest were practically overruled, and grounds of relief so far admitted as to preclude any dismissal as equivalent to a decree on demurrer. The ground referred to by counsel was this: “ Fourth, The bill of complaint herein is in form and substance a bill of review, or a bill in the nature of a bill of review, and states no case to entitle it to be treated as a bill to set aside or impeach a decree on the grounds of fraud.” "We do not appreciate the force of this suggestion. It has never been supposed, and we are not prepared to hold, that a bad ground in a motion can hurt good grounds, or that an objection to the sufficiency of a pleading is for any but the temporary purpose of the particular hearing an admission that all it avers is true. The nature of the present controversy illustrates this very well. The rules do not allow a certain class of bills to be filed without leave. If so filed the practice has always authorized their summary removal from the files. How this can be done without inquiring into the nature and sufficiency of their allegations, it is difficult to imagine. The complainant claims that this is a bill to set aside a decree for fraud, and no more. The defense claims that its purpose is to obtain a new disposal of a controversy once decided. We need not discuss the technical niceties in regard to the various kinds of bills of review, and bills in the nature of a bill of review. Any bill, the main purpose of which is to obtain a new hearing of a controversy already decided, either on questions of law or on the same or further testimony, belongs to one of these classes, although it may involve matters of supplement or revivor, or other additional elements. Perry v. Phelips 17 Ves. 174; Bainbridge v. Baddeley 2 Ph. 705. And as it is elementary law that a decree once granted is binding until set aside, the latter case, which is merely one out of very many, indicates that if the old decree could have been pleaded in bar to the new bill, if not referred to in it, the bill must of necessity be a bill of review, or in the nature of a bill of review. The bill in the present cause recites at length a former cause where the bill was filed by one Jonathan C. Hall against complainant in this cause, to enforce an agreement whereby Hall was to have an interest in certain property entered in the land office at the Sault de Ste. Marie in the name of complainant and one Quimby, which had been put in complainant’s name. Complainant now claims that this agreement, or as he claims it to have been, a resulting trust, was, if made, void under the statute of frauds. It need not be remarked that if any such defect appeared on the face of the bill it might have been demurred to, and if not appearing, it was nevertheless involved in the case, so that Hall could not have recovered without either proof or some waiver of proof of a statutory right. It is also quite possible to lose such a defense by not insisting on it or bringing it before the court. The bill thus shows that on the issues framed the case went to a hearing and decree, upon an answer putting everything in issue properly, and on all the evidence which diligence was able to obtain, and that the testimony of Hall and Quimby was all that Hall introduced that was material. The decree gave Hall the land he asked for. Complainant how claims that this decree is bad and void for want of power in the court to give such relief, and also that it conveyed to Hall merely a life estate which has run out. It need not be suggested that if it really bore this remarkable construction — which it does not — there would be no occasion for this or any other bill to get the reversion. Complainant avers that before the hearing, he was informed by his counsel that there was no possibility of his being defeated, or of Hall’s getting a decree. This is one of the reasons he gives for not proceeding sooner to provide for emergencies; and that after the decree he took certain steps to consult with Mr. Cotton, a lawyer of another State, as to what had better be done, and that meanwhile he had an interview with Hall in which a certain division of lands was suggested, on which complainant desired to consult Mr. Cotton. That he afterwards, on Cotton’s advice, accepted the proposition in writing, and Hall verbally assented and said he need take ■ no further steps, but subsequently, and when too late to appeal, repudiated the bargain. The remainder of the bill is devoted to excuses for delay, and contains statements of the discovery of various matters indicating that Hall and Quimby had sworn falsely, and also that Hall had by a general assignment negatived any right to sue for the land. There are no other important averments, except as to changes in titles. The bill asks relief on the merits to assure his title to the land, and that the decree may be declared void, or if not, that a rehearing may be had. It appears, then, that the merits of the old controversy are the only matters involved in the present bill. The frauds complained of are false testimony alleged to have been given in that case, and the prevention of the appeal by putting complainant off his guard. Reduced to its real meaning, this is nothing more nor less than an application to rehear a controversy on newly-discovered evidence, giving as an excuse for delay various good or bad reasons why the application was not made sooner. The delay in appealing bad no bearing on tbe question of falsehood in tbe evidence or newly-discovered evidence, and only bore on tbe propriety of a technical bill of review on tbe old record. But a rehearing on old or new testimony, or both, is tbe only thing involved in this bill. And bad any other matter been mixed up with it, that could not have deprived the cause of this character. As nothing appears under oath, it would be impossible to give this bill the quality of a petition, so that it might stand as an application under the rules. It is not of such a character that we should be disposed to give it any favor beyond what its technical shape requires. It was properly dismissed. The order must be affirmed with costs. Marston, O. J. and Graves, J. concurred. Cooley, J., did not sit in this case.

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Graves, J. This record presents the single question of law whether it was competent for the plaintiff to give parol evidence that his written assignment to the defendant, absolute in form, of a particular payment described in a mortgage, together with the accompanying note, was in fact made as security for a sum of money borrowed by the plaintiff of the defendant, and not as an unqualified transfer. The circuit judge allowed the evidence and the defendant excepted. The ruling was correct. The purpose of the evidence was to explain the true consideration between the parties to the contract, and apply the instrument to the subject-matter, and this was entirely proper. Colman v. Post 10 Mich. 422; Kimball v. Myers 21 Mich. 276; Bowker v. Johnson 17 Mich. 42. Tbe question of credibility and tbe effect of tbe evidence was for tbe circuit judge wbo found tbe facts, and bis determination is conclusive. Tbe judgment is affirmed with costs. Tbe other Justices concurred.

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Marston, C. J. That Letson was most grossly defrauded by Abell in their land trade has not been and could not be controverted. It but remains to ascertain whether Reed is a tona fide purchaser from Abell, and we are, of opinion that he has not shown himself to be' such. This court has distinctly held that where a fraud has been committed, third parties in order to build up a right thereunder must establish the fact that they are tona fide purchasers and that this cannot be inferred from showing a purchase alone. Berry v. Whitney 40 Mich. 71. There is evidence tending to' show that Reed was such a purchaser, but it would be far from satisfactory even if standing alone, and when considered in the light of the surrounding circumstances, its effect as such is entirely destroyed. The exchange of conveyances between Letson and Abell was made December 24,1877. On January 2, 1878, Letson, suspecting that he had been defrauded, went to Pokagon, saw Abell and requested him to trade back farms which Abell agreed to do, and the next day at Niles was agreed upon as the time and place for such exchange. After this interview and on the same day., January 2d, Abell conveyed the Letson farm to defendant Reed subject to two mortgages thereon which Reed was to pay as part of the consideration. Abell was indebted to Reed in the sum of $374.84 and to Reed & Post $25 — these sums were to be deducted and the balance was to be paid to Abell. One of the mortgages had been given by Letson and there was about $71 due thereon; The other had been given by Abell to one Newton, but not recorded, as his, Newton’s, share for assisting Abell in making the trade with Letson. Reed before making the purchase did not go to see the land, but claims he had some knowledge of its location and value; he examined an abstract of title furnished him which did not show the Newton mortgage, or the amount due on the mortgage given by Letson; he took Abell’s statement as to the amount due or to become due upon these mortgages, and assumed payment thereof; and upon the same day gave to Abell $240 for him to apply and pay upon the Newton mortgage, and Abell was given the deed of conveyance to Reed, to take on the same day and have recorded, and at the same time $25 was paid by Reed to Abell on the purchase. This is Reed’s version of the transaction, and of what was done on January 2d, and it shows pretty clearly that Reed either had more confidence in the honesty and integrity of Abell than his previous acquaintance would have justified, or that he did not exercise that due care and prudence which men under ordinary circumstances would be expected to. While such a transaction is possible it is not according to the usual course of business and is highly improbable. There is evidence tending to show that on January 3d Reed had notice of the fraudulent character of the transaction between Letson and Abell, but whether on that day or later, we are of opinion that he has not shown that he in good faith paid Abell, or discharged his claim against him, or that he legally assumed the payment of any valid subsisting encumbrance on the land over and above the amount of the Letson mortgage — $71—and that still remains a lien upon the land. It follows that the decree of the court below must be affirmed with costs. The other Justices concurred.

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Kavanagh, J. (for reversal). Jesse James Jones was convicted of first-degree murder by a jury and was sentenced to life imprisonment. MCL 750.316; MSA 28.548. The conviction was based in part on his confessional statement, admitted into evidence over his objection. On appeal, the Court of Appeals affirmed in an unpublished opinion, finding under the "totality of circumstances” that the defendant’s confession was admissible. Defendant asserts that the statement made by him pursuant to a plea agreement that he later refused to carry out was improperly admitted into evidence. We reverse the decision of the Court of Appeals and hold that the statement made by the defendant required by the plea agreement is inadmissible per se. We remand for a new trial. On December 28, 1977, Thomas Chiavares was murdered at the Hockstad Pharmacy in Flint, Michigan, during the course of an armed robbery. On April 27, 1978, defendant Jones was arrested for unlawfully carrying a sawed-off shotgun. Sergeant Darby of the Flint Police Department met with Jones on April 28, 1978, while Jones was in custody for federal and state weapons offenses. Jones was advised of his rights under Miranda, and, upon a waiver of his rights, he discussed the weapons charges. During that interview, Jones was told that he was a suspect in the Hockstad murder case. Sergeant Darby asked Jones if he wanted to discuss that crime and reminded him of his Miranda rights. Jones denied knowing anything about the murder, and the discussion returned to the weapons charges. Jones asked about the possible penalty for the federal and state weapons offenses. Darby told Jones that the federal firearms charge had a ten-year maximum sentence and that the state charge had a possible sentence of five years. Jones was also told that he could possibly be sentenced to prison for violating parole. Jones inquired as to what consideration he would be given if he were to discuss the Hockstad murder. He said he knew a great deal and could clear up the case. Sergeant Darby contacted the prosecutor and a federal agent and advised Jones that if he would give a statement implicating himself in the Hock-stad murder and would testify against the others involved, the federal and state gun charges would be dropped and Jones could plead guilty to manslaughter. Jones was again advised of his Miranda rights, and he voluntarily waived his right to counsel and agreed to tell all he knew about the Hockstad case. He then made the confessional statement now at issue to the police. His statement detailed the planning and carrying out of the robbery attempt and killing, fully implicating himself and two others. Later Jones refused to carry out the plea agreement. He was charged with murder in the perpetration of an armed robbery. A pretrial motion to suppress the confession was filed by defendant’s trial attorney, and an evidentiary hearing was conducted. At the conclusion of the hearing, the trial court determined that the confession was voluntary and thus was admissible as evidence. On the morning of the trial, the prosecutor acknowledged a willingness to fulfill the plea agreement, but Jones again refused. At trial, defendant’s confession was admitted into evidence and presented to the jury over the objection of defendant’s attorney. Jones was convicted of first-degree murder and received a mandatory sentence of life imprisonment. The Court of Appeals affirmed defendant’s conviction and found under the "totality of the circumstances” that the trial court’s decision that defendant’s confession was properly admissible as evidence was not erroneous. The use of involuntary admissions in a criminal prosecution is prohibited by the Fifth Amendment right against self-incrimination: "In criminal trials, in courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person 'shall be compelled in any criminal case to be a witness against himself.’ ” Bram v United States, 168 US 532, 542; 18 S Ct 183; 42 L Ed 568 (1897). The Fifth Amendment’s right against compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the states. Malloy v Hogan, 378 US 1, 6; 84 S Ct 1489; 12 L Ed 2d 653 (1964). The reason that involuntary confessions are not admissible evidence was set forth by the Court in Rogers v Richmond, 365 US 534, 540-541; 81 S Ct 735; 5 L Ed 2d 760 (1961): "Our decisions under [the Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods. used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. See Chambers v Florida, 309 US 227; 60 S Ct 472; 84 L Ed 716 (1940); Lisenba v California, 314 US 219, 236; 62 S Ct 280; 86 L Ed 166 (1941); Rochin v California, 342 US 165, 172-174; 72 S Ct 205; 96 L Ed 183 (1952); Spano v New York, 360 US 315, 320-321; 79 S Ct 1202; 3 L Ed 2d 1265 (1959); Blackburn v Alabama, 361 US 199, 206-207; 80 S Ct 274; 4 L Ed 2d 242 (1960). And see Watts v Indiana, 338 US 49, 54-55; 69 S Ct 1347; 69 S Ct 1357; 93 L Ed 1801 (1949).” In determining whether a confession is voluntary, the test is whether the confession was " 'extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.’ ” Bram, supra, pp 542-543. (Emphasis supplied.) This test has been applied by several recent federal and state courts, which have found that confessions induced by promises of leniency are inadmissible. The decision of the court in Gunsby v Wainwright, 596 F2d 654 (CA 5, 1979), cert den 444 US 946; 100 S Ct 307; 62 L Ed 2d 315 (1979), is particularly noteworthy because of the similarity of its factual situation to the case at bar. In Gunsby, in exchange for a maximum sentence of 7-1/2 years and no objection from the state to probation, the defendant agreed to plead guilty and testify against two codefendants. Additionally, pursuant to the plea bargain, the defendant gave a statement incriminating himself and a codefen-dant. However, the plea bargain was set aside after the defendant testified because his testimony tended to exculpate rather than incriminate his codefendant. The confession was admitted into evidence at trial over objection, and the defendant was convicted and sentenced to 20 years in prison. In granting the defendant’s petition for habeas corpus, the Fifth Circuit held that because the statement was given as a result of promises made by the state in the plea bargain, "[t]he district court’s conclusion that the statement was legally involuntary and inadmissible at Gunsby’s state trial was thus compelled under Hutto v Ross, 429 US 28; 97 S Ct 202; 50 L Ed 2d 194 (1976).” "The [Hutto] Court held that the confession was not the result of any direct or implied promise and was voluntarily given. Conversely, a confession given as the result of a direct or implied promise would be legally involuntary.” Gunsby, supra, p 656. In the instant case, the confession was made as part of an agreement. In return for a statement implicating himself in the Hockstad murder and testimony against the others included, Jones would be permitted to plead guilty to manslaughter for the Hockstad murder, and the unrelated federal and state gun charges would be dropped. There is no question but that Jones’s confession was "obtained by” the prosecutor’s promise. The people contend that where an accused initiates the bargaining session with the police and prosecuting authorities, he should not be heard to complain that his statement was involuntary. Several state courts, along with the Michigan Court of Appeals, have held that a confession is not "induced” when a defendant initiates the bargaining. However, the distinction is irrelevant.® The confession is a product of the plea agreement whether the defendant, the prosecutor, or a police officer initiates the bargaining. The fact that the defendant initiates the bargaining does not mean that the defendant is not influenced by the state’s promises. The confession is no more reliable simply because the defendant begins the negotiating. In People v Wolcott, 51 Mich 612, 615; 17 NW 78 (1883), Justice Cooley agreed with the reasoning of many other courts and found that no reliance can be placed on admis sions of guilt obtained by assurances of leniency "for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them.” (Citations omitted.) However, it is no less in the defendant’s interest to accept a plea bargain when he initiates the bargaining than when bargaining is initiated by the state. Therefore, because the defendant is still influenced by the state’s promises of leniency and there is no reason to conclude that a confession pursuant to a plea bargain initiated by the state is any more reliable than the same confession when bargaining is initiated by the defendant, we find no reason to conclude that a confession is voluntary merely because the defendant initiates the bargaining. Similarly, while Miranda warnings and advice of counsel (defendant Jones voluntarily waived his right to counsel) tend to support a conclusion that a plea was a well-advised, intelligent exercise of choice, they do not negate the pressure or inducements of the plea bargain. The Court of Appeals held that the issue of the applicability of MRE 410 was not properly subject to review because the defendant did not raise the issue at trial. MRE 410 is not the basis of our decision today, but the rule and its rationale support our decision. Under MRE 410, defendant’s confessional statement could not be used against him:_ "Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo conten-dere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement.” (Emphasis supplied.) MRE 410 is similar to Rule 410 of the Federal Rules of Evidence and Rule 11(e)(6) of the Federal Rules of Criminal Procedure. The purpose of these rules is to promote the disposition of criminal cases by compromise and to permit the unrestrained candor which produces effective plea discussions. The plea-bargaining process is an asserted component of the administration of criminal justice. It has become an accepted fact of life. Chief Justice Burger expressed the need and desirability of the plea-bargaining process in Santobello v New York, 404 US 257, 260-261; 92 S Ct 495; 30 L Ed 2d 427 (1971): "The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities. "Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v United States, 397 US 742, 751-752 [90 S Ct 1463; 25 L Ed 2d 747] (1970).” For plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him. In excluding a defendant’s plea-related statements, Judge Coleman of the Fifth Circuit Court of Appeals wrote: "If, as the Supreme Court said in Santobello, plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt. Moreover, it is inherently unfair for the government to engage in such an activity, only to use it as a weapon against the defendant when negotiations fail.” United States v Ross, 493 F2d 771, 775 (CA 5, 1974). See United States v Herman, 544 F2d 791 (CA 5, 1977). This decision is consistent with prior Michigan law holding inadmissible at a subsequent trial a plea of guilty which was later withdrawn. People v Street, 288 Mich 406; 284 NW 926 (1939); People v Trombley, 67 Mich App 88; 240 NW2d 279 (1976). In People v George, 69 Mich App 403; 245 NW2d 65 (1976), the Court held that statements made in connection with withdrawn guilty pleas are likewise inadmissible at the defendant’s subsequent trial. It follows that when the defendant merely offers or agrees to plead guilty, the offer and statements made in connection therewith should also be inadmissible at the defendant’s subsequent trial. To hold otherwise would put the defendant who merely offers or agrees to plead guilty in a worse position than the defendant who actually pleads guilty and later withdraws his plea. The people are not prejudiced by our decision today. In the words of Circuit Judge Goldberg: "the government’s inability to introduce the statements made in a bargaining session does not place it in a worse position than it would occupy if an accused chose not to engage in plea bargaining at all.” Herman, supra, p 797. The government must fulfill its obligation of independently assembling and proving its case against the defendant. Williams and Levin, JJ., concurred with Kav-anagh, J. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). People v Jones, unpublished opinion per curiam of the Court of Appeals decided April 25, 1980 (Docket No. 78-3255). Gunsby v Wainwright, 596 F2d 654 (CA 5, 1979), cert den 444 US 946; 100 S Ct 307; 62 L Ed 2d 315 (1979); McLallen v Wyrick, 498 F Supp 137, 139 (WD Mo, 1980) ("A confession can never be received in evidence where the prisoner has been influenced by any threat or promise.”); United States v Harris, 301 F Supp 996, 999 (ED Wis, 1969) ("Having found that the defendant confessed in return for what he believed to be the promise of the law enforcement officials to secure certain reciprocal treatment, I hold that his confession * * * was not voluntary and hence is inadmissible.”); People v Quinn, 61 Cal 2d 551, 554; 393 P2d 705, 707; 39 Cal Rptr 393, 395 (1964) (Traynor, J.) ("A confession or admission induced by promises of leniency or by threats is involuntary and therefore inadmissible.”); Bradley v State, 356 So 2d 849, 850 (Fla App, 1978) ("[A]n accused may not be improperly urged by direct or implied promises to make a statement, in violation of the basic tenet of law that a confessing defendant should be entirely free from the influence of hope or fear.”); People v Overturf, 67 Ill App 3d 741; 385 NE2d 166 (1979); State v Tardiff 374 A2d 598, 600 (Me, 1977) ("That a confession which has been extracted from a defendant as the result of assurances or promises of leniency is inadmissible, is well established.”); Common wealth v Meehan, 377 Mass 552, —; 387 NE2d 527, 534 (1979), cert dis as improvidently granted 445 US 39; 100 S Ct 1092; 63 L Ed 2d 185 (1980) ("An officer may suggest broadly that it would be 'better’ for a suspect to tell the truth, may indicate that the person’s cooperation would be brought to the attention of the public officials or others involved, or may state in general terms that cooperation has been considered favorably by the courts in the past. What is prohibited, if a confession is to stand, is an assurance, express or implied, that it will aid the defense or result in a lesser sentence.”) (Footnotes omitted.) State v Harwick, 220 Kan 572; 552 P2d 987 (1976), State v Jordan, 114 Ariz 452; 561 P2d 1224 (1976), Taylor v Commonwealth, 461 SW2d 920 (Ky App, 1970), and State v Hutson, 537 SW2d 809 (Mo App, 1976). People v Jones, fn 2 supra, and People v Langford, 76 Mich App 197, 199; 256 NW2d 578 (1977). The fact that the defendant initiated the bargaining was apparently of no significance to the court in United States v Harris, supra, fn 3. In Harris, the defendant indicated that he would be willing to provide information if he would receive certain considerations, and then proceeded to name three conditions. The court found that the defendant’s confession was involuntary without discussion of the fact that the defendant defined the terms of the bargain. See, e.g., People v Overturf, 67 Ill App 3d 741, 744; 385 NE2d 166, 168 (1979) ("It is a well settled rule that even where constitutional rights have been waived, promises of leniency which induce defendant to make a statement or confession may well render such statement or confession involuntary.”) State v Tardiff, 374 A2d 598, 601 (Me, 1977) ("The fact that the defendant was informed of his Miranda rights prior to making his confession does not cure the improper inducement which led to it.”) Rule 11(e)(6) of the Federal Rules of Criminal Procedure which supplanted Rule 410 of the Federal Rules of Evidence was amended April 30,1979, to read: "(6) Inadmissibility of Pleas, Plea Discussions, and Related Statements, Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: "(A) a plea of guilty which was later withdrawn; "(B) a plea of nolo contendere; "(C) any statement made in the course of any proceedings under this rule regarding either of the foregoing pleas; or "(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. "However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.” FRE 410, Advisory Committee’s Notes. F R Crim P 11, Notes of Advisory Committee on Rules.

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Fitzgerald, C.J., Kavanagh, J., and Levin, J. This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own. We are faced with the seizure, detention, and transportation of a person in a police car at a time when the officers were without probable cause to believe that a crime had been committed and without probable cause to believe that the person had committed a crime. We hold that under the facts of this case, a person may not be seized, detained, and questioned, and then transported in a police car from one place to another in the absence of probable cause to arrest. US Const, Am IV; Const 1963, art 1, § 11. Furthermore, after examining and balancing the character of the intrusion on the personal security of the person detained with the law enforcement interest allegedly justifying such an intrusion, we hold that the detention in this case violated the defendant’s constitutional right to be secure against an unreasonable seizure of his person. US Const, Am IV; Const 1963, art 1, § 11. I On August 6, 1978, at approximately 4:50 a.m., an Inkster police officer on routine patrol observed the defendant pull out of the supply yard of the Ernst Fuel and Supply Company. According to the officer, the company was closed at that time. The officer, who was alone, called a second officer on the radio when he first observed the defendant. The officer’s suspicions were aroused, and he stopped defendant’s car to investigate what the driver was doing on the company’s property at that time. There is no indication in the record that the defendant had committed a traffic offense, that the property was posted against trespassing, that the property was enclosed by a fence, or that there had been any reports of criminal activity in the area. When the defendant stopped his car, he jumped out and ran back to the officer’s patrol car. He presented the officer with his wallet when asked for his license. The officer checked his license and asked him to have a seat in defendant’s automobile. The officer requested this action because it had "been my experience when people jump out of the car and run back to meet you, especially late at night, there is something they don’t want you to see in their car”. Defendant was asked what he was doing and where he was coming from. He responded that he was changing a tire on the company’s property. The officer checked the tires and noted that they were all uniformly covered with dust and dirt and that none of them appeared to have been changed. The officer noted that the defendant was extremely nervous and perspiring. At this time the officer looked into defendant’s car and observed a pair of white cotton gloves, a flashlight, and a screwdriver in the front area of the automobile, and a pry bar and three somewhat transparent plastic bags con taining magazines and boxes of "x-rated movies” on the rear seat. A second officer arrived at the scene in response to the radio call. Defendant was advised of his constitutional rights. After defendant indicated that he understood these rights, he was asked where all the movies came from. He declined to give a substantive answer. The defendant was then placed in the back of the first officer’s patrol car. The bags of magazines and books, along with the other items, were also placed in the police car. The defendant’s car was locked and left where it had been stopped. The defendant was taken in the patrol car to a business establishment that sells "x-rated books”, the Book Shack, to see "if that place had been broken into”. On the way to the Book Shack the officer asked the police dispatcher "to call ADT and see how the alarm was” at the Book Shack. The defendant was detained three or four minutes in the patrol car at the Book Shack while the building was checked to see if there were signs of a break-in. There had been no break-in. Defendant was then driven to the Melody The-atre. The testifying officer stated that theater showed exclusively "x-rated films”. It was testified that the theater is located on the same side of the street as Ernst Fuel and Supply and there were no other businesses between these two places. Initially, the officers did not find any evidence of a break-in at the theater. The defendant was questioned "if he could help us out and tell us where he broke in”. The defendant refused. The officers continued to investigate and discovered that two outside doors had been removed from their hinges. The two officers entered the building and found a display case to be almost empty. The dispatcher was asked to call the manager who arrived at the theater and confirmed that property was missing. The defendant was advised that he was under arrest for breaking and entering and driven to the police station. He was charged with breaking and entering. MCL .750.110; MSA 28.305. At the preliminary examination, the defendant argued that the arrest and seizure of property were improper. Defendant was bound over for trial in Wayne Circuit Court. His motion to suppress evidence and to quash the information asserted that he was illegally stopped and that evidence was illegally seized. His challenges were based on the Fourth and Fourteenth Amendments to the United States Constitution as well as the Michigan Constitution, art 1, § ll. The motion was denied._ The Court of Appeals granted defendant’s application for leave to appeal. That Court reversed the denial of his motion. People v Bloyd, 96 Mich App 264; 292 NW2d 546 (1980). The Court of Appeals held that the initial stop of the defendant’s automobile for questioning was proper. However, it held that the evidence was improperly seized, because there was no probable cause to seize the evidence. Nor was the evidence seized incident to a lawful arrest since the defendant had been improperly arrested, i.e., without probable cause at the time of the seizure, and the items seized as a result of the illegal arrest must be excluded. "At the time of defendant’s arrest, there was no probable cause to link either defendant or the seized items to any particular crime.” 96 Mich App 269. This Court granted the prosecutor’s application for leave to appeal which argued that detaining the defendant during the investigation by the officers was proper. 409 Mich 897 (1980). II The principal issue before the Court is the permissible scope of a detention based on less than probable cause. The detention in the police car, argues plaintiff, was within the scope of an investigative stop under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and even if the detention falls outside of the scope of Terry, a standard of reasonableness, less than probable cause, is the proper test. We assume for the purposes of decision of this appeal that the initial stop of defendant’s automobile and the on-the-scene questioning and observations which immediately followed the Terry stop were constitutionally permissible. The subsequent detention, seizure, and transportation of defendant is in issue. We also note that the prosecutor does not contend that the defendant was not seized. Thus, the detention involved must comply with the constitutional protection from unreasonable seizures. It is also significant that the prosecutor does not assert that the officers had probable cause to seize or arrest the defendant or that the officers had probable cause to seize the items in the defendant’s car prior to the discovery of the break-in at the Melody Theatre. The prosecutor argues that the detention of the defendant beyond the initial stop for questioning need not be based on probable cause, but on a standard of reasonableness. Our analysis of the instant case involves an assessment of two recent United States Supreme Court cases and an application to the instant facts of the constitutional principles analyzed in those cases. In Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979), the Court held that a detention for custodial interrogation, a procedure that was indistinguishable from a traditional arrest, must be supported by probable cause. And in Michigan v Summers, 452 US 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981), a search warrant for narcotics was found to implicitly carry with it the authority to detain occupants of a dwelling, including requiring them to return to the premises if found leaving the dwelling, while the search pursuant to the warrant is conducted. Dunaway The Rochester, New York, police seized Mr. Dunaway, drove him to police headquarters in a police car and placed him in an interrogation room. He was questioned by officers and ultimately made statements after waiving his right to counsel. After reviewing Terry v Ohio, supra, and its progeny, the Court concluded that the detention could not be constitutionally permitted on the basis of a standard of "reasonable suspicion”, nor would the Court adopt a multifactor balancing test which weighed the reasonableness of the particular law enforcement conduct for all cases involving seizures which are not technical arrests. Of primary importance to the Dunaway decision was the purpose of the detention — custodial interrogation. Although the questioning, which occurred in custody, happened prior to the development of probable cause, there can be no doubt that the investigation had reached the accusatory stage and focused upon Mr. Dunaway. It is conceded by the prosecutor in the instant case that the defendant was seized. He was not free to leave and was transported to two different places, albeit one was very near. Furthermore, the defendant was subjected to "custodial interrogation” as that term was used in Dunaway. In both Dunaway and the instant case, the defendant was not questioned briefly where he was found. In Dunaway, the defendant was taken in a police car to the police station where he was questioned after receiving Miranda warnings. In the case at bar, the defendant was seized, given Miranda warnings, questioned, placed in the police car, and driven to two locations and questioned again while in the police car. Although questioning in a police car away from the scene of the initial stop may not be as "coercive” as questioning in a stationhouse interrogation room, the concerns about the coercive atmosphere and interrogation techniques which prompted the Miranda decision require the conclusion that the investigation and questioning occurred while defendant was in custody — deprived of freedom of action in a "significant way”. Accord, People v Gilbert, 21 Mich App 442; 175 NW2d 547 (1970). See Anno: Custodial Interrogation — Miranda Rule, 31 ALR3d 565, § 14. As the facts indicate, a purpose of defendant’s seizure and detention was to engage in custodial interrogation. Defendant was asked questions on two occasions after he declined to speak to the officers. Furthermore, although the questioning played a smaller part in the instant investigation than in Dunaway, there was an important fact present in Dunaway but not here. It was clear that a crime had been committed in the Dunaway case. In the instant case, the officers had no knowledge of any crime, only an assumed "reasonable suspicion” during the time of detention at issue. The law enforcement interest in solving a brutal slaying is not present in the instant case. Cf. Dunaway. Under the circumstances of the instant case, the detention was "in important respects indistinguishable from a traditional arrest”. Dunaway, p 212. Cf. United States v Chamberlin, 644 F2d 1262, 1267 (CA 9, 1980), cert den 453 US 914 (1981) (20-minute detention in the back of a patrol car was an unjustifiable detention for custodial interrogation). The defendant was transported from one place to another in search of a crime, detained for custodial interrogation, and subjected to more than a brief stop for on-the-scene questioning and investigation without probable cause for arrest. Summers Even if Dunaway does not clearly foreshadow the inappropriate nature of the instant detention, the detention is not supported by an ultimate standard of reasonableness which is less than probable cause but greater than reasonable suspicion. See Michigan v Summers, supra. Summers noted and restated the general rule applied in Dunaway "that an official seizure of the person must be supported by probable cause, even if no formal arrest is made”. 452 US 696. The Summers Court then reviewed Terry v Ohio and its progeny and concluded that: "[S]ome seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity”. 452 US 699. The Summers Court stated that limited intrusions on personal security are not confined to momentary on-the-street detentions accompanied by a frisk for weapons. Nor need the Terry-type stop be limited to the brief time period of Terry. 452 US 700, fn 12. In that footnote, the Summers Court quoted the views of one commentator, also quoted in plaintiff’s brief in the case at bar: "It is clear that there are several investigative techniques which may be utilized effectively in the course of a Terry-type stop. The most common is interrogation, which may include both a request for identification and inquiry concerning the suspicious conduct of the person detained. Sometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered or to confirm the identification or determine whether a person of that identity is otherwise wanted. Or, the suspect may be detained while it is determined if in fact an offense has occurred in the area, a process which might involve checking certain premises, locating and examining objects abandoned by the suspect, or talking with other people. If it is known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime. There is no reason to conclude that any investigative methods of the type just listed are inherently objectionable; they might cast doubt upon the reasonableness of the detention, however, if their use makes the period of detention unduly long or involves moving the suspect to another locale.” 3 LaFave, Search and Seizure, § 9.2, 36-37. (Footnotes omitted.) In the most recent supplement to his treatise, Professor LaFave also notes that transportation of a suspect a short distance (almost always for viewing by witnesses) does not, standing alone, make a detention an arrest. LaFave, supra, § 9.2, p 10, fn 93.3 (1982 Supp). Yet, as he suggests in this material, transportation for viewing by witnesses should be dependent upon knowledge that a crime has been committed. Our law must be more protective of liberty if there has not been any report of a crime. See People v Lippert, 89 Ill 2d 171, 186-187; 59 Ill Dec 819; 432 NE2d 605 (1982). The facts in the instant case show that there had been no reports of any crime in the area. This was not a transportation for a show-up. The analysis in Summers focused on examining "both the character of the official intrusion [on a person’s liberty] and its justification”. 452 US 701. Of prime importance in assessing the intrusion is that in Summers the police had obtained a warrant to search the respondent’s house for contraband. The warrant is the linchpin to the holding in Summers. However, the Summers decision did not preclude the possibility of justifying similar police conduct without a warrant if the warrant requirement is excused by exigent circumstances. 452 US 702, fn 17. Upon close analysis, whether a warrant is required or not, it seems that the requirement of probable cause to believe that a crime has been committed at the place to be searched must remain. The instant case does not present a level of cause equal to the probable cause requirement concerning the existence of a crime. The official intrusion in Summers was a limited and incremental intrusion on personal liberty, according to the Court’s analysis, because (1) a warrant had been obtained, (2) the detention was less intrusive than the search of the occupant-detainee’s home, (3) the information sought by the officers would normally be obtained through the search and not by exploiting the detention, (4) the detention was in the accused’s own residence, presented only an incremental addition to its public stigma separate from the search, and did not involve the indignity and inconvenience related to a compelled visit to a stationhouse, and (5) the detention was not designed to provide an opportunity for interrogation and did not have coercive aspects similar to those in Dunaway. Reviewing these factors in light of the instant case indicates that the detention in a "roving” police car is significantly more intrusive than the Summers-type detention. No warrant was issued, nor could a warrant be issued since there was no probable cause to believe that a crime had been committed. There was no search based upon probable cause. Thus, the detention cannot be said to be less intrusive than a search. The detention, seizure, and transportation of the defendant in the instant case presents a significant intrusion. We are not faced with a detention that merely continued during a "probable-cause search” of defendant’s automobile or other property interests. There was no intrusion affecting property which required or which would indicate a desire by defendant to be present. Given the questioning of the defendant, it can not be concluded that the information sought would not be obtained through the detention. Furthermore, unlike Summers, the other information sought, whether a crime had been committed, would not be made more discoverable as a result of the defendant’s presence. The public stigma associated with a detention in a police car is greater than the stigma associated with detention in one’s home. Unlike the home, the police-car type of detention is a public detention. It could occur in open view of friends, neighbors, or business associates. Again, unlike Summers, there was no independent intrusion such as the warrant search which resulted in some stigma. It is certainly more inconvenient, in general, to be detained in a police car than in one’s home. This is certainly more likely if the detention in the car also involves transportation elsewhere. The transportation of the defendant, seeking out a potential break-in, as opposed to holding him at the scene, the prosecutor argues, is constitutionally irrelevant. We cannot agree. Even assuming that it might have been proper to detain defendant at the place of the stop, the transportation in this case did not involve a de minimis intrusion. Being told to stand outside a car as opposed to sitting in the car may be a permissible de minimis intrusion, Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977); being driven around is not. Not only is the citizen’s travel interrupted, but he is no longer proceeding along the same route. In fact, the citizen’s mobility has been totally usurped and directed elsewhere. Furthermore, unlike the Mimms case, the instant case does not involve an intrusion justified by concern for an officer’s safety. The facts in this case reflect more than just a brief investigatory detention at the scene. Finally, for two reasons, the instant detention is closer to a compelled visit to a police station with the related opportunity for interrogation. First, as explained above, a detention in a "roving” police car has coercive aspects. The instant case involved a detention which included interrogation as a purpose. Second, a formal arrest involves transportation of the suspect. A seizure accompanied by transportation of the person is thus closer in description and action to a formal arrest requiring full probable cause. Accordingly, we conclude that the intrusion is of a different nature and is more substantial than the intrusion in Summers. We are not unmindful, however, that our balancing analysis must also assess the governmental justification for the intrusion. A stronger justification than was present in Summers could tip the scale to the Summers level, although the intrusion is greater than the Summers type. As the Summers Court noted, it is important to focus upon the law enforcement interest and the nature of "articulable facts” supporting the particular detention when assessing the justification for an intrusion. These law enforcement interests include (1) preventing flight, (2) minimizing the risk of harm to an officer, and (3) facilitating an orderly completion of a search. Although a close analysis might reveal some differences, we may assume that the first two interests are present in many, if not most, criminal investigations and detentions. Here the officers were in full control of the movement of the sus pect. Furthermore, he was clearly identified and his address known. The third interest is obviously not present in the instant situation; nor is any similar interest. The investigation of businesses in the area to determine if a crime had been committed was not aided or hindered by the presence of the defendant. The factors in Summers concerning "the nature of the articulable and individual suspicion” justifying detention are (1) an incremental intrusion in addition to the search authorized by a magistrate who found probable cause, (2) the warrant itself, which indicates a neutral assessment of probable cause by the magistrate, and (3) the connection of the occupant to the place being searched, in Summers his home. It appears that when these suspicion-related factors are present the Supreme Court has concluded that the officer on the street does not have to evaluate the level of cause requirement or the effect of the intrusion that is necessary as a result of the seizure. Summers, p 705, fn 19. Cf. Duna-way, p 213 (disapproving a view that would require police officers to engage in balancing and evaluating the "multifarious circumstances presented by different cases”). These factors are not present in the case at bar. Detention and transportation of the suspect from place to place amounted to the intrusion. There was no warrant or probable cause determination or even reasonable cause determination made by anyone other than the officer on the street. _ Accordingly, we conclude that, even when applying the Summers-type balancing approach, the police conduct present in the instant case resulted in a violation of the defendant’s federal and state constitutional rights. The intrusion in the instant case was greater than a Summers-type intrusion. In addition, the justification for the intrusion was not as strong in this case. The scale is tipped in favor of the citizen’s right to be free from unreasonable seizure. If authorities, acting without probable cause, can seize a person, transport the person from place to place in search of a crime, and keep him available for arrest in case probable cause is later developed, the requirement of probable cause for arrest has been turned upside down. Finally, although we have centered our analysis with respect to the facts of this case on the contours of the federal Dunaway and Summers decisions, we apply this rationale pursuant to Const 1963, art 1, § 11. We hold that defendant was deprived in an unreasonable manner of his state, as well as federal, constitutional rights. See, e.g., People v Beavers, 393 Mich 554; 227 NW2d 511 (1975). III. Seizure of Property As noted, the prosecutor does not assert that the police had an independent basis for seizing the property found in the defendant’s automobile. At oral argument, the prosecutor contended that the propriety of the seizure of the property depended upon the propriety of the seizure-detention of the person. Although noting that the items were seized prior to defendant’s formal arrest, the prosecutor argued that "if the detention is not unconstitutional, the items should be admitted because they were found properly, or would have been taken from his care properly. The timing shouldn’t be the thing that is key”. The obvious corollary of this view is that if the detention was improper so was the seizure. The detention and transportation of the defendant while seeking out evidence of a burglary was improper. Thus the seizure of the property was not justified since no other justification is advanced supporting this warrantless seizure without probable cause. Finally, the prosecutor argues that the exclusionary rule should not apply to the instant case. He argues for a "good-faith exception” to that rule. We agree with the views in Justice Marshall’s majority opinion in Taylor v Alabama, 457 US 687, 693; 102 S Ct 2664; 73 L Ed 2d 314, 321 (1982): "To date we have not recognized such an exception, and we decline to do so here.” For the reasons herein set forth, the detention of the defendant was an unreasonable seizure under federal and state constitutional principles. Accordingly, the judgment of the Court of Appeals is affirmed. Fitzgerald, C.J., and Kavanagh and Levin, JJ., concurred. Defendant was given the warnings required by Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). The record does not indicate if the two police officers were in the same car with the defendant or if each officer drove his own patrol car to the various stops. The second officer did not testify at the preliminary examination. There was no testimony taken from any witnesses at the hearing on the motion to suppress. Cf. People v Talley, 410 Mich 378; 301 NW2d 809 (1981) (need for an evidentiary hearing on a motion to suppress). The Fourth Amendment, applicable to the states through the Fourteenth Amendment, Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Const 1963, art 1, § 11 provides in relevant part: "The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported' by oath or affirmation.” "The parties are directed to include among the issues to be briefed whether under the circumstances of this case the police officer’s conduct of stopping the defendant, seizing evidence, and detaining the defendant while he investigated two nearby businesses for evidence of a burglary was unconstitutional.” Our conclusions are based on our interpretations of both the federal and state constitutional provisions at issue here. In analyzing the state constitutional question we have looked to federal case authority. People v Secrest, 413 Mich 521, 525; 321 NW2d 368 (1982). Compare People v Ridley, 396 Mich 603; 242 NW2d 402 (1976) (general on-the-scene questioning did not focus upon defendant) and Miranda v Arizona, supra, pp 477-478 (general on-the-scene'questioning exception to Miranda’s requirements) with People v Reed, 393 Mich 342; 224 NW2d 867, cert den 422 US 1044 (1975). Miranda v Arizona, supra, p 477. The prosecutor argues that a Dunaway-type analysis would preclude retaining a suspect for a prompt on-the-scene identification. We are not faced with that type of police investigation technique and we express no opinion as to whether such a "show-up” may be conducted on less than probable cause. The Summers decision does not help in clearing up Fourth Amendment doctrine. The Court does not identify the specific level of cause necessary for the Summers-type detention. It does use a reasonableness approach, yet focuses on the intrusiveness of the seizure rather than the level of cause. The opinion does not define the level of "intrusiveness” necessary to trigger a balancing test between the freedom from an intrusive seizure and the asserted law enforcement interests. We recognize that not every citizen who sits in a moving or stationary police car is detained. Nor is every person who is asked to sit in a police car necessarily subject to a significant intrusion. The case at bar goes substantially beyond a momentary intrusion at the scene or a person filling out an auto accident report or a similar situation. Some commentators have suggested a sliding scale or middle-tier approach — one between reasonable suspicion and probable cause. See, e.g., Grano, Criminal Procedure, 1976 Annual Survey of Michigan Law, 23 Wayne L Rev 517, 529-533 (1977). However, we decline to adopt this approach. If our courts and law enforcement officers are to have manageable and workable standards, the Terry balancing of personal and governmental interests "must in large part be done on a categori cal basis — not in an ad hoc, case-by-case fashion by individual police officers”. Dunaway, supra, 442 US 219-220 (White, J., concurring). Furthermore, the sliding scale or middle-tier approach risks confusion by converting "the fourth amendment into one immense Rorschach blot”. The sliding-scale test is likely to "produce more slide than scale.” Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 393, 394 (1974).

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Rehearing denied. Reported at 416 Mich 581.

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Kavanagh, J. This case concerns the admissibility of evidence of a defendant’s criminal record as a basis for expert opinion on the defendant’s sanity. We hold that such evidence is admissible subject to the trial court’s discretion. James Robinson, Jr., was charged with second-degree criminal sexual conduct. MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). At the jury trial, the defendant entered a defense of not guilty by reason of insanity. Dr. William Canty, a psychologist, testified on behalf of the defendant that in his opinion the defendant had been mentally ill for many years and could not have formed the requisite intent to commit the crime charged. In rebuttal, the prosecutor called Dr. Harley Stock, also a psychologist. Dr. Stock testified that in his opinion the defendant was neither mentally ill nor legally insane on the day of the alleged crime. Dr. Stock said that he based his opinion in part on the defendant’s prior criminal record. Over defendant’s objection, the court allowed Dr. Stock to read the defendant’s criminal record into evidence for the limited purpose of apprising the jury of the background material on which the doctor based his expert opinion. The jury returned a verdict of guilty, but mentally ill, of second-degree criminal sexual conduct. The Court of Appeals affirmed in an unpublished per curiam opinion, decided on September 19, 1980. The issue before us is whether the trial court erred in permitting the prosecutor to elicit evidence of defendant’s prior criminal conduct from the expert witness. The people argue that the evidence in question should be admitted solely to inform the jury of the facts on which the expert relied in forming his opinion. In White v Bailey, 10 Mich 155 (1862), a civil case concerning testamentary capacity, Justice Campbell explained in his concurring opinion the importance of showing the circumstances and facts upon which a witness’s opinion is based: ’’First, it is necessary, in order to enable other experts to determine whether the opinions expressed by the witness are correct, and to enable the parties to contradict them, if wrong: Second, it is necessary in order that, if an opinion is given on a mistaken or perverted statement of facts, the truth may be elicited from others to destroy the foundation of the conclusions. And a third reason might be mentioned, which is that the court and jury may know, from his opportunities, what means the witness had of forming any opinion at all.” 10 Mich 162. In the instant case, Dr. Stock, the people’s expert, testified that he based his opinion of the defendant’s sanity in part on the defendant’s record of prior criminal conduct. This evidence, the people conclude, was therefore relevant for the limited purpose of evaluating the credibility of Dr. Stock’s conclusion. The Michigan Rules of Evidence provide for admission of such evidence under appropriate circumstances: "Rule 703. Bases of Opinion Testimony by Experts. "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence.” (Emphasis supplied.) "Rule 705. Disclosure of Facts or Data Underlying Expert Opinion. "The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” (Emphasis supplied.) Determination of relevancy, however, does not alone determine admissibility. MRE 403 provides: "Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis supplied.) In Michigan, evidence of other crimes is generally inadmissible because "whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence”. People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). "This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.” People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969). There has developed a limited number of statutory and judicial exceptions to this rule of exclusion of evidence of other bad acts, but these exceptions are narrowly construed and the trial court must always determine whether the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence sought to be introduced before admitting such evidence. In the case before us, the trial court allowed the prosecution’s expert witness to read the defendant’s criminal record to the jury. The record began in 1940 and continued up to September 1977 and included 32 offenses, many taking the form of criminal sexual conduct with minor children. We are convinced that this evidence had a devastating effect on the defendant’s right to a fair trial. We agree with the defendant that it "is simply incredible that anyone would hear all of those prior acts of criminal conduct and then remove them from their mind based upon an instruction by the court when they are then to consider the guilt or innocence of the accused. The prejudicial impact of all those past anti-social acts cannot be effectively removed from the jury’s mind by a curative instruction.” We are satisfied that the trial court committed error which requires reversal in admitting defendant’s criminal record into evidence. The rule of People v Woody, 380 Mich 332; 157 NW2d 201 (1968), and MRE 703 and 705 must be read together with the trial court’s historic responsibility to evaluate the prejudicial impact of evidence against its probative value. See MRE 403. We reverse the decision of the Court of Appeals, and remand for a new trial. Williams, C.J., and Levin, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred with Kav-ANAGH, J. People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982); People v Hughes, 411 Mich 517; 309 NW2d 525 (1981); People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978), rev’d on other grounds 408 Mich 69; 288 NW2d 583 (1980). The trial court instructed the jury twice concerning the evidence of defendant’s prior criminal record, "Now, there’s evidence that the defendant had a prior criminal conviction. This evidence must not be considered by you as evidence of his guilt of this crime, nor should it be considered by you as increasing the probability of having committed this crime. It was only admitted — only admitted under one theory, for one reason, and that is to give some — to indicate to you the background material upon which the psychiatrist based his — psychologist, rather, based his expert opinion. The principle is that if someone is going to give you the benefit of his expert opinion, then you’re entitled to know the premise upon which he based that opinion, and that’s the only basis upon which that testimony was admitted.” "Now, you have heard testimony from .Dr. Stock of a prior criminal record. You are instructed that this testimony is not proof that the defendant actually committed the offense or offenses. In a criminal trial where sanity is asserted as a defense, the expert witness for the prosecution is allowed to base his opinion on allegations, prior arrests, convictions assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of the accused of the offense charged.”

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Rehearing granted. Reported at 415 Mich 1.

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Per Curiam. This case concerns the residuary clause of a will and requires us to determine whether an ambiguity exists as to the identity of one of the charities named as beneficiaries. The Court of Appeals held that the designation "Michigan Cancer Society” is not ambiguous. In light of the particular facts of this case, we disagree. I John W. Kremlick died November 12, 1976, leaving a three-page will dated some 18 months earlier. Among other things, the document made various bequests and named Para Lee Sutton executrix of the estate of approximately $125,000. The focus of this case is on the residuary clause of the will, in which the testator provided that after specified and necessary distributions, whatever remained of his estate was to be divided equally between the Michigan Cancer Society and the Salvation Army: "I give, devise and bequeath all the rest, residue and remainder of my estate to the Michigan Cancer Society and the Salvation Army, share and share alike.” The will was admitted to probate, with the executrix filing a final account in February, 1980. An order entered June 9, 1980, allowing the final accounting and assigning the residue. The present controversy apparently surfaced when the executrix contacted the American Cancer Society, Michigan Division, about the proceedings. Subsequently, on June 16, 1980, that organization petitioned the probate court for a rehearing, contending that the order issued a week earlier should be set aside because the wrong cancer society had benefited. The provision of the residuary clause was ambiguous, appellants asserted, because two organizations commonly were referred to as the "Michigan Cancer Society” and there was substantial evidence that Mr. Kremlick had meant to benefit the American Cancer Society, Michigan Division. The probate court denied appellants’ petition in late July, 1980. The court held that there was no ambiguity in the designation "Michigan Cancer Society”. The Court of Appeals affirmed in an unpublished per curiam opinion dated August 12, 1981, and denied a motion for rehearing. Appellants applied to this Court for leave to appeal. II A fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible. As with other legal documents, the "intent” is to be gleaned from the will itself unless an ambiguity is present. The law is loath to supplement the language of such documents with extrinsic information. This is especially so in the case of testamentary documents because the maker is not available to provide additional facts or insight. However, presence of an ambiguity requires a court to look outside the four corners of a will in order to carry out the testator’s intent. Accordingly, if a will evinces a patent or latent ambiguity, a court may establish intent by considering two outside sources: (1) surrounding circumstances, and (2) rules of construction. In re Butterfield Estate, 405 Mich 702, 711; 275 NW2d 262 (1979). A patent ambiguity exists if the uncertainty as to meaning "appears on the face of the instrument, and arises from the defective, obscure, or insensible language used”. A latent ambiguity, on the other hand, arises "where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates” the possibility of more than one meaning. Id. We agree with the Court of Appeals that the designation "Michigan Cancer Society” is not a patent ambiguity. Determining the presence of a latent ambiguity, however, is more difficult. This Court has held that in interpreting contracts where an ambiguity may exist, extrinsic evidence is admissible: (1) to prove the existence of ambiguity; (2) to indicate the actual intent of the parties; and (3) to indicate the actual intent of the parties as an aid in construction. Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 209-210; 220 NW2d 664 (1974). These rules are equally applicable to interpreting wills. Thus, not only may extrinsic evidence be used to clarify the meaning of a latent ambiguity, but it may be used to demonstrate that an ambiguity exists in the first place and to establish intent. In this case, appellants produced an affidavit from the executrix of Mr. Kremlick’s estate in which she asserted that the intended beneficiary was the American Cancer Society, Michigan Division, instead of the Michigan Cancer Society, an affiliate of the Michigan Cancer Foundation. The executrix stated that she had discussed the provisions of Mr. Kremlick’s will with him on many occasions, and that he frequently had mentioned that the American Cancer Society was to be a beneficiary. Appellants also sought to establish that Mr. Kremlick previously had made substantial direct contributions to the American Cancer Society, that the society had helped his wife when she was dying of cancer, and that at the time of her death he requested memorials to the American Cancer Society. This is the very kind of information that may be used both to establish an ambiguity and to help resolve it. Appellants should have been given the opportunity to do that. Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the decision of the Court of Appeals and remand the matter to the Oakland County Probate Court for proceedings not inconsistent with this opinion. Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Cavanagh, JJ., concurred.

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Rehearing denied. Reported at 414 Mich 686.

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Cavanagh, J. In this case, we are asked to revisit the definitions of work-related incurable insanity and imbecility set forth in Redfern v Sparks-Withington Co, 403 Mich. 63; 268 NW2d 28 (1978). I Plaintiff began working for defendant General Motors Corporation in 1955. On December 29, 1961, she suffered a work-related injury when an automobile door fell on her right hand. After the injury, she returned to work, but her condition worsened. She worked intermittently, and weekly general disability benefits were paid when she did not. Finally, on September 12, 1966, GMC placed plaintiff on total disability and paid her general disability benefits through February 27, 1972, the date on which 500 weeks of benefits had been paid for the 1961 injury. On March 22, 1972, plaintiff petitioned for total and permanent disability benefits, alleging both incurable insanity and the loss of industrial use of her right arm and right leg. After a hearing, the hearing referee found, inter alia, "that plaintiff became totally and permanently disabled as defined pursuant to the test as set forth in Sprute v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971) in MCL 418.361(2)(f); MSA 17.237(361)(2)(f) on 9-12-66 as a result of the injury of 12-29-61 aggravated by the further work that she did until 3-6-66 and 9-12-66”. GMC was ordered to "pay compensation * * * until further order of the bureau, 'but not in excess of 800 weeks from 9-12-66’ ”, while defendant Second Injury Fund was ordered to pay differential benefits from September 12, 1966. A five-member Workers’ Compensation Appeal Board panel affirmed the hearing referee’s decision, finding that "[t]he proofs in this cause show plaintiff to be totally and permanently disabled by mental illness and as a result unemployable”. By order issued December 5, 1975, the Court of Appeals denied defendants’ applications for leave to appeal. Thereafter, on March 24, 1976, this Court ordered that defendants’ applications for leave to appeal be held in abeyance, pending disposition of Redfern and other cases requiring an examination of incurable insanity or imbecility under the Worker’s Disability Compensation Act. Redfern was decided on July 17, 1978, and, by order of this Court issued January 8, 1979, the present case was remanded to the WCAB for reconsideration in light of Redfern. On remand, the WCAB, by a 3 to 2 decision, set aside the previous award for total and permanent disability, finding, inter alia, that: "This record establishes neurological or orthopedic disability on a functional basis. The organic basis that the disability might well have is not demonstrated. That disability on a functional basis is not incurable insanity has been established once and for all, at last, by the following comprehensive test set forth at 403 Mich 63, 85: " 'We conclude that a worker’s mental illness is "insanity” if he suffers severe social dysfunction and that a worker’s intellectual impairment is "imbecility” if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is "severe” if it affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored.’ "To circumvent these words by a finding that a two-member functionally-based loss (falling short of industrial loss of use as measured by the standards of Burke [v Ontonagon Road Comm, 391 Mich 103; 214 NW2d 797 (1974)], and DeGeer [v DeGeer Farm Equipment Co, 391 Mich 96; 214 NW2d 794 (1974)]), is indeed equal to the loss of the two members referred to in Redfern, supra, is a contradiction on its face. It would, moreover, welcome the reappearance of Sprufe-attendant inequities listed hereinbefore. "The facts of the instant case are not unlike those of Redfern, supra, as set forth in 403 Mich 63, 71, fn 2. See 1978 WCABO 3149. The Redfern Court refers, not to somatic disability with functional basis, but to 'the employee’s mental capacity’ 403 Mich 63, 78; 'mental illness’, id. at 81; and 'loss of mental function’ ibid. "Plaintiffs 'mental capacity’ remains much the same that it was before work-related injury. Indeed, it was that mental predisposition with which defendant accepted plaintiff, which turned a hand, injury into a constellation of neurological and orthopedic complaints. While there is some reciprocal effect of worsening symptoms on mental condition, it is minimal. Plaintiff has no mental illness resulting in severe social dysfunction affecting the quality of her personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes. "Plaintiff would still be working had not the machinations attendant upon her various maladies become too much for defendant to cope with. There is nothing to indicate that, with the exception of her relationship with one young foreman, plaintiffs ability to get along with both fellow workers and superiors was not the best. "While plaintiff has physical difficulties, she is no recluse. * * * "Plaintiff’s relations with her neighbors are good. "What is most important is plaintiffs excellent relationship with her sons and with their wives. * * * "Plaintiff is conversant with her financial situation[.] "It thus appears that plaintiff has efficiently organized her life, to accommodate her physical problems. Even with these, she enjoys a certain amount of independence and can count on a great deal of family support as needed for a physical, not a mental, condition. * * * * * "That the resulting condition is work-related is estab lished. That it is incurable insanity (as opposed to general disability on a functional basis) is not. * * * "[P]laintiff is not incurably insane as a matter of fact according to the legal standards set forth in Redfern, supra.” 1979 WCABO 3051, 3056-3061. The Court of Appeals granted plaintiff leave to appeal, and affirmed the WCAB. In pertinent part, the Court of Appeals stated: "If the Redfern definition of incurable insanity is interpreted as focusing only on the mental aspects of a disability — a claimant’s grasp on reality and ability to interact with his or her environment in a healthy manner — plaintiff is not incurably insane. On the other hand, if the Redfern definition of incurable insanity is interpreted as being applicable to a claimant whose 'insanity’ is substantially manifested in a panoply of physically disabling symptoms, there is support for the dissenting board members’ claim that plaintiff is incurably insane. "We believe that the majority was correct in adopting the first of these interpretations and, thereby, finding that plaintiff was not incurably insane for purposes of receiving total and permanent disability benefits under MCL 418.361(3X0; MSA 17.237(361X3X0. "The record in the instant case does not establish severe social dysfunction such as to satisfy the Redfern standard. Plaintiff appears to be very capable of meeting her daily needs, arranging for her future, dealing with her physical maladies, and communicating with her neighbors, friends, and relatives.” Modreski v General Motors Corp, 119 Mich App 198, 205; 326 NW2d 386 (1981). We granted leave to appeal on August 6, 1982. II Prior to appellate judicial comment on the subject, the WCAB determined that a worker is "insane” when his injury "affects or destroys his mental capacity to the degree that he is deranged and unfit to be employed because of the unreliability of his behavior with concomitant danger to himself and others”. Borg v Fisher Body Division of General Motors Corp, 1969 WCABO 1246, 1258. However, in Redfern, supra, p 84, we stated that the foregoing test was "too restrictive for the purposes of the act to require evidence that the mental illness poses a risk of physical harm.” Subsequent to the decision in Borg, the Court of Appeals, in Sprute v Herlihy Mid-Continent Co, 32 Mich App 574, 579; 189 NW2d 89 (1971), lv den 385 Mich 784 (1971), held that: "An employee is incurably insane under MCL 412.10(b)(6); MSA 17.160(b)(6) if the occupationally related mental or emotional illness which impairs the employee’s mental processes is of totally disabling proportions and is likely to be of long and indefinite duration, thus making gainful employment impossible.” (Footnotes omitted.) As noted by this Court, "Sprute says, in effect, that a worker can recover total and permanent disability benefits for incurable insanity if "(1) he has a mental or emotional illness, "(2) the illness is work related, "(3) the impairment of his mental processes is of totally disabling proportions, "(4) it is likely to be of long and indefinite duration, and "(5) gainful employment is impossible. "We accept criteria 1, 2 and 4; the incapacity must be attributable to work-related mental illness expected to be of long duration. We do not accept criteria 3 and 5, requiring that the impairment of mental processes be totally disabling precluding gainful employment.” (Footnote omitted.) Redfern, supra, p 79. Accordingly, we shifted the focus of the test from the ability to work to the ability to function outside the work setting. "We conclude that a worker’s mental illness is 'insanity’ if he suffers severe social dysfunction and that a worker’s intellectual impairment is 'imbecility’ if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is 'severe’ if it affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored. The question whether the mental illness or intellectual impairment is work-related is to be decided in accordance with Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978).” Redfern, supra, p 85. Ill Plaintiff would have us declare that functional disability which results from mental illness can serve as a basis for finding a person incurably insane. Specifically, plaintiff claims: (1) that she has lost the functional use of both her legs and of her right arm as a result of her mental illness, and (2) that such loss has affected the quality of her nonvocational life so as to amount to a severe social dysfunction. Although we stated in Redfern "that it is better that further definition evolve in the administrative and judicial decision of individual cases” and implied "that an organic disorder affecting the brain or nervous system and resulting in physical manifestations * * * [might] constitute 'mental illness’ or give rise to 'social dysfunction’ ”, we believe that the WCAB and the Court of Appeals properly applied the Redfern test in this case. The Redfern test analogy to physical manifestations "comparabl[e] to the loss of two members or sight of both eyes” was just that — an analogy. It was not meant to imply that physical manifestations which cause functional disabilities and which result from mental illness or from intellectual impairment necessarily constitute a basis for a finding of incurable insanity or imbecility. Indeed, unless the physical manifestations themselves cause functional disabilities which qualify as total and permanent disability, the requirements of the WDCA are circumvented, i.e., something less than totally and permanently disabling physical consequences of a work-related injury serve as the basis for a finding of totally and permanently disabling incurable insanity or imbecility. Obviously, that is an anomaly not intended by the workers’ disability compensation scheme. Thus, we must reaffirm the requirement that severe social or cognitive dysfunction is that which "affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes”. Redfern, supra, p 85. IV Although plaintiff failed to demonstrate that she is incurably insane within the meaning of the WDCA, we must order remand to the WCAB so that her claim for total and permanent disability benefits based on the alleged loss of industrial use of her right arm and right leg can be adjudicated. Contrary to the opinions of the WCAB and the Court of Appeals and to defendants’ contention, plaintiff did not abandon that claim. Indeed, the hearing referee, resting solely on a finding of incurable insanity, never addressed that claim. Thus, plaintiff had no obligation to cross-appeal to preserve the issue because it was not adjudicated adversely to her. Likewise, in its first opinion in this matter, the WCAB did not address the issue, instead affirming the hearing referee in toto. Further, this Court’s remand order for reconsideration in light of Red-fern did not limit the claims which could be addressed, i.e., if plaintiff was found not to be incurably insane, consideration of her claim of loss of industrial use was not precluded. In other words, her claim of loss of industrial use was not outside the scope of the remand order. See, generally, The Vogue v Shopping Centers, Inc (After Remand), 402 Mich 546, 552-553; 266 NW2d 148 (1978); Howard v Detroit, 377 Mich 102, 110-111; 139 NW2d 677 (1966); Bernstein v Shifman, 355 Mich 398, 402-403; 94 NW2d 821 (1959); Kleynenberg v Highlands Realty Corp, 340 Mich 339, 342-343; 65 NW2d 769 (1954); Vogue Cleaners & Dyers, Inc v Berkowitz, 296 Mich 565; 296 NW 680 (1941); Schneyder v Cadillac Motor Car Co, 280 Mich 127; 273 NW 418 (1937). Indeed, since the WCAB reversed its first decision, thereby denying plaintiff benefits, fairness dictates that it then should have addressed her other claim which had not previously been considered. Affirmed in part, reversed in part, and remanded to the WCAB for consideration on the merits of plaintiffs claim for total and permanent disability benefits based on the alleged loss of industrial use of her right arm and right leg. Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Boyle, JJ., concurred with Cav-ANAGH, J. Costs awarded sub nom Legut v Detroit Window Cleaning Co, 406 Mich 1124 (1979). MCL 418.361(2); MSA 17.237(361X2), then in effect, read as follows: "Total and permanent disability, compensation for which is provided in section 351 means: "(a) Total and permanent loss of sight of both eyes. "(b) Loss of both legs or both feet at or above the ankle. "(c) Loss of both arms or both hands at or above the wrist. "(d) Loss of any 2 of the members or faculties enumerated in (a), (b) or (c). “(e) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm. "(f) Incurable insanity or imbecility. "(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.” See MCL 418.361(3); MSA 17.237(361X3) for the current version of this subsection. MCL 418.101 et seq.; MSA 17.237(101) et seq. 404 Mich 823 (1979). We note, as did the WCAB and the Court of Appeals, that, as a result of her 1961 injury, plaintiff was entitled to general disability benefits for the period between September 12, 1966, and February 27, 1972. However, contrary to any implications of the WCAB and the Court of Appeals, plaintiff was not awarded general disability benefits by the hearing referee as a result of her 1966 injury, although the rates of payment between September 12, 1966, and February 27, 1972, were adjusted. Indeed, plaintiff did not seek such benefits as a result of her 1966 injury. Instead, she sought scheduled benefits for specific medical losses based on two allegedly total and permanent disabilities, i.e., incurable insanity and the loss of industrial use of her right arm and right leg. See Redfern, supra, pp 79-83, and the authorities cited therein, for further explanation of the distinction between scheduled benefits and general disability benefits. 414 Mich 866 (1982). Redfern, supra, p 83. Redfern, supra, p 85, fn 20. Perhaps also implicit was that a psychotic disorder resulting in physical manifestations might constitute mental illness or give rise to social dysfunction. Of course, if the physical manifestations cause functional disabilities which qualify as total and permanent disability, or even as partial disability, the worker is entitled to recover benefits under the WDCA. Likewise, physical manifestations causing functional disabilities which do not amount to total and permanent disability might still qualify a person for general disability benefits. See, generally, Red-fern, supra, pp 80-83.

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Rehearing denied. Reported at 414 Mich 624. Cavanagh, J., not participating.

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Rehearing denied. Reported at 415 Mich 483. Cavanagh, J., not participating.

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Per Curiam. This defendant has been convicted of second-degree murder following the death of a woman whom he shot in the arm. At trial, he interposed the defense that her death was caused by grossly erroneous medical treatment. The issue before us is whether the trial court properly excluded certain expert testimony offered by the defendant. We hold that the trial court erred in excluding the proffered evidence, and we reverse. I The defendant shot the victim on November 5, 1978. The victim’s attending physicians tried first to save her arm, but the limb was amputated on November 11, 1978. The victim died on December 14, 1978. At the time of her death, she had an advanced case of pneumonia, and infection had spread throughout her body. The defendant’s position was that the failure of the victim’s treating physicians to amputate the arm earlier constituted grossly erroneous treatment. To support this view, the defendant called to the stand the Oakland County medical examiner. The witness testified that the arm should have been amputated immediately and that, had the arm been removed promptly, the victim would not have died. He said that the death had been caused by infection and pneumonia and that proper medical treatment would have consisted of a prompt amputation. Defense counsel sought to ask the witness whether the victim had received grossly erroneous medical treatment, but the trial court repeatedly refused to allow such a statement, saying that such testimony would be "a legal conclusion” and thus improper. The Court of Appeals affirmed. People v Robinson, 107 Mich App 417; 309 NW2d 624 (1981). On May 24, 1982, we ordered the prosecutor to show cause "why the defendant’s conviction should not be reversed because defendant’s medical expert, although qualified to do so, was not permitted to testify that failure to immediately amputate the arm of the victim was grossly negligent medical treatment”. The prosecutor has answered this order and the defendant has responded. II The trial court erred in excluding this testimony. MRE 704 provides that "[testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact”. The Court of Appeals acknowledged that rule, but drew from People v Drossart, 99 Mich App 66; 297 NW2d 863 (1980), an analysis that led to the conclusion that the trial court properly excluded the medical examiner’s expert opinion: "This Court recently addressed the issue in terms of whether an expert could render his opinion that a defendant was or was not 'mentally ill’ or 'insane’ at the time of the alleged offense. In People v Drossart, 99 Mich App 66, 82; 297 NW2d 863 (1980), the Court stated that süch testimony did not invade 'the provinces of the judge and jury’. As stated by McCormick [Evidence (2d ed), § 12], supra, 'invasion of the province of the jury’ (or judge) is little more than rhetoric, and the real fears are that the jury will subordinate its own analysis to the opinion of the expert, or, as stated by Judge Allen in Drossart, the legal standard of the expert may be incorrect, incorrectly understood by the jury, or conflict with the trial court’s instruction. Drossart, pp 76-77. The Drossart opinion goes on to state that the latter dangers would not be present 'if, in expressing his ideas and opinion on the matter, the witness refers to legal standards properly explained by the trial court or examining attorney’. Drossart, p 77. "The following statements in Drossart are pertinent to the issue presented in the present case: " 'Accordingly, a witness is not permitted to tell the jury how to decide the case. Thus, a witness is prohibited from opining on the issue of a party’s negligence or nonnegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or his guilt or innocence.* * * " '* * * However, where the expert’s particular training and experience in a special field of activity — such as the study of mental diseases — is largely unfamiliar to the jury, his opinion can be submitted for the jury’s consideration.’ Drossart, pp 79-80. (Citations omitted.) "Thus, according to this Court’s decision in Drossart, it would appear that while a psychiatrist may testify that in his opinion a defendant was 'insane’ at the time of an alleged offense, an expert may not opine on the degree of negligence in a medical malpractice case where a jury is as capable as anyone else of reaching such a conclusion on certain facts.” Robinson, 107 Mich App 421-422. Even if one fully accepts the principles stated in Drossart, the testimony proffered by this defendant was admissible. The Oakland County medical examiner did not propose to opine as to guilt or innocence. Rather he proposed to opine as to the nature of medical care received by the victim. A characterization of medical treatment as "grossly erroneous” is entirely proper if received from a qualified expert. The admissibility of such expert opinion is not subject to challenge on the ground that the ultimate determination of guilt or innocence may well turn on whether that expert opinion is believed or disbelieved. Ill The Court of Appeals employed a second ground for concluding that the trial court had properly rejected the medical examiner’s expert opinion that the treatment was grossly erroneous. The Court of Appeals concluded that the defendant had failed to qualify the witness: "[W]e are of the opinion that because of defendant’s failure to demonstrate that [the medical examiner] had knowledge of the standard of practice for surgeons the trial court could have properly excluded his opinion of the degree of alleged malpractice on this basis.” Robinson, 107 Mich App 423. This conclusion was error. The medical examiner did have knowledge of the standard of practice for surgeons: "Q. Are you, — well, would you say you would be qualified to testify as to the standard of practice of a surgeon in this community? "A. Yes, sir. "Q. And why would that be, doctor? "A. Because I see all of the results of their surgery and I have been involved in determinations as a member of committees of staffs as to whether surgeons are qualified to perform surgery and what surgery they are qualified to perform since I have served on credentials committees of many staffs. "Q. That is always after the fact? "A. No, sir. That is before the fact. That is when they apply for privileges.” IV The Oakland County medical examiner was qualified to render an opinion on the question of whether the treatment received by the victim had been grossly erroneous. Such an opinion is properly received in a case of this sort. Accordingly, in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the Recorder’s Court for the City of Detroit, and we remand this case to the Recorder’s Court for the City of Detroit for a new trial. GCR 1963, 853.2(4). Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Cavanagh, JJ., concurred. This defense was drawn from People v Flenon, 42 Mich App 457; 202 NW2d 471 (1972).

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Ryan, J. This is an action against a bank for wrongfully honoring checks drawn upon the appellant’s account by a drawer not authorized to do so. Riverview Cooperative, Inc., is a nonprofit corporation established to provide low- and moderate-income housing in the Kalamazoo area. In 1973, its board of directors retained the services of Consumers System, Inc., hereinafter Consumers, a real-estate management firm, to oversee the day-to-day operations of Riverview. Consumers established bank accounts on Riverview’s behalf with the appellee bank in October, 1973. In 1974, Consumers was succeeded in appellant’s service by ELM Associates, Inc., hereinafter ELM, which was owned and operated by Elaine DiBiasio. Although DiBiasio was a former employee of Consumers, she had never been authorized by corporate resolution or otherwise to sign checks for the withdrawal of funds from the Riverview account. Despite that fact, DiBiasio wrote and negotiated checks for the withdrawal of more than $20,000 from the River-view account upon her sole signature and allegedly with the bank’s knowledge that she was not authorized to do so. On August 16, 1977, Riverview filed suit against ELM and DiBiasio, alleging conversion, fraud, and breach of fiduciary duty, claiming damages in the amount of $18,000. Approximately a week later, Riverview filed suit against the bank, alleging breach of contract and possibly alleging conversion in wrongfully honoring checks drawn upon the Riverview account by DiBiasio. On September 29, 1977, a default was taken against ELM and DiBiasio, and judgment was entered against them for $18,000 plus costs. The bank then moved for accelerated judgment under GCR 1963, 116, alleging the defense of election of remedies. The trial court ruled on December 28, 1979, that Riverview’s claim against appellee was barred by the doctrine of election of remedies. The Court of Appeals affirmed in an unpublished per curiam opinion, Riverview Cooperative, Inc v First National Bank & Trust Co of Michigan, decided April 27, 1981 (Docket No. 49402), declaring itself bound by this Court’s decision in Ielmini v Bessemer National Bank, 298 Mich 59; 298 NW 404 (1941). We granted leave to appeal in order to determine whether the doctrine of election of remedies precludes Riverview from proceeding against appellee in this case, since Riverview has already obtained judgment, although unsatisfied, against the third-party converters, ELM and DiBiasio. I The doctrine of election of remedies has been much criticized as harsh and inequitable. Much scholarly writing has addressed the alleged inequities of the doctrine, and the case has been repeatedly advanced in the literature for restricting the application of the doctrine and even suggesting its abolition. We are not required to evaluate the validity of the doctrine in this case, however, because we conclude that the doctrine is inapplicable in the sense that it does not preclude Riverview from proceeding against the bank. In order to appreciate why the doctrine of election of remedies is not a bar to Riverview’s action against the bank, it is necessary to appreciate the nature of the doctrine and the requirements for its application. While scholarly definitions of the doctrine of election of remedies abound, it suffices to say that, in the context of this case, the doctrine is merely a procedural rule which precludes one to whom there are available two inconsistent remedies from pursuing both. United States v Oregon Lumber Co, 260 US 290, 304; 43 S Ct 100; 67 L Ed 261 (1922) (Brandéis and Holmes, JJ., and Taft, C.J., dissenting), citing Hine, Election of Remedies, A Criticism, 26 Harv L Rev 707, Griffith, Election Be tween Alternative Remedies, 16 L Q Rev 160, and Galbraith, Election Between Alternative Remedies, 16 L Q Rev 269; Bernstein v United States, 256 F2d 697 (CA 10, 1958), cert dis 358 US 924 (1959); Ray v Beneficial Finance Co, 92 NJ Super 519; 224 A2d 143 (1966); Montgomery v Cook, 76 NM 199; 413 P2d 477 (1966). Its purpose is not to prevent recourse to alternate remedies, but to prevent double redress for a single injury. Dobbs, Remedies, § 1.5, p 15; St Paul Fire & Marine Ins Co v Michigan National Bank of Detroit, 660 F2d 196 (CA 6, 1981); Bank of Commerce v Paine, Webber, Jackson & Curtis, 39 Wis 2d 30; 158 NW2d 350 (1968); Cashen v Owens, 225 Minn 25; 29 NW2d 440 (1947). See Roberts v Sears, Roebuck & Co, 617 F2d 460 (CA 7, 1980), cert den 449 US 975 (1980). In order that the election of remedies doctrine apply in any context, three prerequisites must be met. They were identified by this Court in Ielmini, supra, quoting 18 Am Jur, Election of Remedies, § 9, pp 132-133: " 'It is apparent from the definition and character of the doctrine of election of remedies already given that certain well recognized conditions must exist before the election becomes operative. These may be termed the "elements of election,” and their presence is essential in every instance in which the doctrine is to be successfully invoked. Since election presupposes a choice, it is obvious that a first inquiry in all cases where it is sought to charge a litigant with the consequences of having elected a remedy must be directed to the question whether at the time of the election there were two or more remedies available to him. If it is found that alternate remedies existed, their character must then be looked into in order to ascertain whether they are consistent and cumulative or inconsistent, for, as will be seen, the doctrine of election of remedies has application only where the remedies are of the latter charac ter. Available and inconsistent remedies being disclosed, it must further appear that the party has actually chosen and pursued the one to the exclusion of the other or others. Stated briefly, the essential conditions or elements of election of remedies are: (1) The existence of two or more remedies; (2) the inconsistency between such remedies; and (3) a choice of one of them. If any one of these elements is absent, the result of preclusion does not follow.’ ” Ielmini, 298 Mich 66-67 (emphasis supplied). Whether the doctrine bars prosecution of River-view’s claim in this case depends therefore upon a determination whether, at the time the cause of action against the bank accrued, the three conditions for application of the doctrine obtained. Clearly the first condition was met: two remedies existed, one against the converters of the funds, ELM and DiBiasio, and one against the bank for wrongful payment of the funds. The third requirement, a choice between available remedies, was likewise met because Riverview elected to proceed initially against ELM and DiBiasio and, in fact, obtained a judgment, although it remains unsatisfied. There remains the question whether the second of the necessary requirements for application of the doctrine obtained: inconsistency of the remedies. The Court of Appeals found the requisite inconsistency, relying upon the analysis employed by this Court in the factually comparable Ielmini case. Certainly, it is indisputable that Ielmini is a statement of the majority rule in this country concerning the doctrine of election of remedies in the context of separate lawsuits by a depositor against a third-party converter and a bank for unauthorized payment to the converter of sums on deposit in the bank, and, if the reasoning of Iel mini is sound, it controls the issue before us and precludes Riverview’s action against the bank. In Ielmini, Mr. Negri, who was treasurer of a local lodge of a voluntary fraternal association, was ordered by the supreme lodge to liquidate the affairs of the local organization. In doing so, Negri withdrew $1,137 on deposit in a savings account at the defendant bank. The bank received a written indemnity from Negri holding it harmless for this withdrawal. A lawsuit was later initiated by the local lodge against Negri and the supreme lodge for restitution of the funds withdrawn, and the plaintiffs ultimately prevailed. Unable to satisfy the judgment, the plaintiffs then sued the defendant bank for conversion. Although the bank raised the affirmative defense of election of remedies, the plaintiffs again prevailed. This Court reversed, concluding that the two remedies pursued by the plaintiffs were inconsistent. In reaching its decision, this Court first discussed the doctrine of election of remedies and then concluded: "In the chancery suit [against the converters] the trial court determined that the Supreme Grove [lodge] and Frank Negri wrongfully appropriated the moneys belonging to plaintiffs. Such a determination was the basis for the decree entered. See Koontz v Bay Circuit Judge, 224 Mich 463; 194 NW 1018 (1923). It was also determined that defendants wrongfully possessed money belonging to plaintiffs rather than money belonging to the bank. Otherwise, plaintiffs could not have been defrauded or had a decree entered in their favor. The chancery action was a ratification by plaintiffs of the action of the bank in paying the money to Negri as treasurer of the local lodge. The present action against defendant bank is based upon the theory that the bank has in its possession or should have in its possession certain moneys belonging to plaintiffs. The positions taken by plaintiffs in the chancery and law cases are inconsistent. "It is our opinion that when plaintiffs elected to pursue and charge Negri and the Supreme Grove for money had and received from the bank, plaintiffs elected to affirm the payment made by the bank to Negri.” 298 Mich 68. On the foregoing reasoning, the doctrine of election of remedies was held to bar the second suit. Acknowledging that Ielmini is an expression of the majority view on election of remedies in the context of wrongful bank withdrawals, Riverview argues that it is a poorly reasoned decision and should be overruled and stand as no objection to Riverview’s action against appellee in this case because the two remedies pursued by Riverview are not, upon a correct analysis, inconsistent. Appellee asserts, on the other hand, that the Ielmini rule is sound and controls this litigation. We turn then to examine the rationale of Ielmini. The keystone of this Court’s reasoning in Ielmini is the theory that when a depositor’s funds in an ordinary checking account are wrongfully paid by the bank to a person not authorized to withdraw them, the depositor, by electing to sue the third-party converter, impliedly asserts that the money paid to the converter by the bank was the depositor’s money and that the depositor is therefore entitled to its return from the converter. The essence of the analysis is the legal fiction that the funds paid by a bank from a depositor’s checking account to an unauthorized third party are either the funds of the depositor or the bank’s funds depending not upon any objective criteria such as a contract of bailment of the funds, but Upon the fortuitous choice of the injured depositor to proceed against the third party first or against the bank first, for recovery of the funds. The fiction is that if the depositor chooses to proceed first against the third-party converter for recovery of the funds, he has, by that choice, taken the position that the third party possesses his money and has asserted, by necessary implication, that it was the depositor’s money and not the bank’s money which the bank paid to the third-party converter. Consequently, the theory goes, the depositor cannot later sue the bank to recover his funds because in first suing the converter he has "ratified” or "affirmed” the fact that the bank no longer has his funds, having paid them to the converter. It is argued that an injured depositor cannot have it both ways and, thus, having chosen to proceed either against the converter or against the bank, has elected one remedy to the preclusion of the other. This analysis, first adopted by this Court in Ielmini, now seems to be well ensconced in the jurisprudence of this state. See Weaver v Detroit Bank, 330 Mich 366; 47 NW2d 650 (1951). In keeping with this theory, the appellee asserts, and the Court of Appeals held, that when River-view sought recovery initially against ELM and DiBiasio, it implicitly "affirmed” or "ratified” the fact that the converters were in possession of Riverview’s funds, albeit wrongfully, and that the bank no longer had the funds and cannot therefore be later held obligated to pay them to River-view when the judgment against the converters could not be satisfied. We think that analysis, which indeed underlies the doctrine of election of remedies in the context of this kind of case, is seriously flawed because it rests upon an erroneous premise: the fiction that monies on deposit in a bank in an ordinary checking account and later paid out upon the demand of an unauthorized withdrawer are not the bank’s funds because, in proceeding against the converter, the depositor has impliedly asserted that they are not. The theory that they are the funds of the depositor or the funds of the bank depending upon the injured depositor’s decision to proceed first against the converter or first against the bank is a fiction unsupportable in logic or fairness. We think the sounder approach is to recognize that the relationship between a depositor and a bank in a case such as this is one of debtor and creditor. Owosso Masonic Temple Ass’n v State Savings Bank, 273 Mich 682, 689-691; 263 NW 771 (1935); Wettlaufer Mfg Corp v Detroit Bank, 324 Mich 684, 692; 37 NW2d 674 (1949); Benge v Michigan National Bank, 341 Mich 441, 445; 67 NW2d 721 (1954); Hindman v Community National Bank of Pontiac, 14 Mich App 746, 748; 165 NW2d 894 (1968); In re Peoples State Bank of Auburn, 51 Mich App 421, 444; 215 NW2d 722 (1974); Hennesy Equipment Sales Co v Valley National Bank, 25 Ariz App 285, 287; 543 P2d 123 (1979). When funds are deposited in an ordinary checking account, they become the bank’s funds for such use as the bank deems appropriate, sub ject only to the bank’s duty to repay to the creditor-depositor an amount equal to the sums deposited upon the call of the depositor or his authorized representative. The money, once deposited, becomes the bank’s money, the depositor having only an entitlement to recoupment of an equivalent sum upon demand, having loaned the bank the amount deposited. Such funds become a fungible part of the bank’s general assets and retain no separate identity. Similarly unpersuasive is the related theory of Ielmini that the depositor, by suing the converter first, "ratifies” or "affirms” "the payment made by the bank to [the converter].” 298 Mich 68. Although this "ratification” or "affirmance” concept was essential to the Ielmini Court’s decision, it is difficult for us to conceive how Riverview, by suing ELM or DiBiasio, ratified or affirmed the action of First National Bank in wrongfully paying out the money. Riverview sought redress from ELM and DiBiasio without regard to or comment upon the bank’s liability or nonliability. River-view’s decision to proceed against ELM and DiBiasio cannot be considered an election by River-view to treat the act of First National Bank as authorized, nor was Riverview’s cause of action valid only if it had affirmed First National Bank’s action. See 1 Restatement Agency, 2d, §§ 82, 83, pp 210-213; David v Serges, 373 Mich 442, 444; 129 NW2d 882 (1964). Riverview’s action against ELM and DiBiasio was not a ratification or an affirmance of First National Bank’s action in wrongfully honoring checks drawn upon Riverview’s account by a drawer not authorized to do so. In Hennesy Equipment Sales Co v Valley National Bank, 25 Ariz App 285, 287-288; 543 P2d 123 (1979), the Arizona Court of Appeals, on facts comparable to those before us today, analyzed and rejected the Ielmini analysis and the majority view, recognizing in the process, as we do, that the prevailing view misconceives the relationship between a depositor and a bank in an ordinary commercial transaction: "The relationship between the bank and its checking account depositor is that of debtor and creditor, the deposit being a loan to the bank without interest, and the money so deposited belongs to the bank. Valley National Bank v Witter, 58 Ariz 491; 121 P2d 414 (1942); Davies & Vincent v Bank of Commerce, 27 Ariz 276; 232 P 880 (1925). It is therefore somewhat fallacious to speak in terms of the bank paying its money or the depositor’s money, all the money as such belongs to the bank and the bank is merely discharging its debt to the depositor, pro tanto, by payment of the depositor’s checks. V H Juerling & Sons, Inc v First National Bank, 143 Ind App 671; 242 NE2d 111 (1968). Implied in this debtor-creditor relationship is the contractual undertaking on the part of the bank that it will only discharge its obligation to the depositor upon the authorized signature of the depositor. Neal v First National Bank, 26 Ind App 503; 60 NE 164 (1901). "Upon analysis then, the depositor’s cause of action against the bank for payment of a forged check is based upon a breach of the bank’s contractual obligation to satisfy its debt only upon the authorized signature of the depositor — in essence, to re-establish the credit balance enjoyed by the depositor prior to the debit to that balance of the forged instrument. "Looking to the liability of the forger, the basis of the bank’s cause of action against the forger is clear — either conversion of the bank’s money; money had and received, or fraud. On the other hand, the basis of the depositor’s cause of action against the forger is not that clear. The traditional view is that it is based upon conversion of the depositor’s money or money had and received. In order, however, to make the money received by the forger the depositor’s money, a legal fiction has to be created; that is, saying the forger now has the depositor’s money by the depositor ratifying the bank’s wrongful act of honoring the check. That it is a legal fiction is obvious from our previous discussion— the actual money received from the bank is always the bank’s money, merely the bank’s debt is satisfied by the payment. Moreover, acts giving rise to an implied ratification usually denote a benefit being bestowed on the ratifier. What benefit, other than the right to maintain the action, is bestowed on the depositor by the forger’s wrongful act? There simply is none. Also, the very act of bringing suit against the forger by the depositor is not a ratification of the payment of money, but a disavowal of the forger’s act and the statement by the depositor that the forger is a wrongdoer. "What then is the harm suffered by the depositor at the hands of the forger that really is the basis of the cause of action? It appears to us that the forger’s wrongful act causes two harms — one to the bank for fraudulently inducing it to relinquish its money and one to the depositor by wrongfully causing his bank account to be debited. "Aside from dictates of public policy which should subject a forger to as many legal actions as the law could devise, it would appear that the only harm caused the depositor is the wrongful interference with its contractual debtor-creditor relationship with the bank —a tort. When viewed in this light, we see no inconsistency in substantive rights by pursuing one party (the bank) who breaches its contractual obligation and also pursuing another party (the forger) who wrongfully interferes with that contractual relationship.” We think, as the Hennesy Court did, that the rationale of the Ielmini rule is unsound and that its application leads inexorably to unwarranted and often unfair results. We conclude, therefore, that Ielmini should be overruled. II How, then, should the facts of this case be tested for application of the doctrine of election of remedies? Our answer is that in determining whether the lawsuits filed against ELM and DiBiasio on the one hand, and the bank on the other, are inconsistent for purposes of the election of remedies doctrine, the focus should be upon the nature of the wrongs done to the innocent depositor by the converters and the bank, and not upon the legal fiction concerning the ownership of the deposited funds as determined by the fortuitous decision of the depositor to proceed against one wrongdoer before the other. Assuming the truth of Riverview’s factual allegations for purposes of reviewing the correctness of the accelerated judgment in this case, it is clear that Riverview is the victim of separate and distinct wrongs at the hands of the converters and the bank. Riverview’s cause of action against ELM and DiBiasio is for fraud, conversion, and breach of fiduciary duty. Regardless of the semantics, the essence of the cause of action against the converters is grounded in tort — be it fraud, conversion, or breach of fiduciary duty. The converters intentionally interfered with the appellants’ contractual relationship with the bank. Riverview’s cause of action against the bank is for breach of its contractual obligation to Riverview by paying a third party sums drawn upon Riverview’s account without its authority, and wrongfully debiting the account. They are separate and distinct wrongs committed by different parties, calling for different remedies. The remedies, while concurrent, are consistent. There is nothing in the appellant’s effort to seek redress against the converters for the wrong done by them which is inconsistent with a subsequent effort to seek redress from the bank for its failure to honor its contractual obligations. While the converters and the bank are each, on the facts alleged, guilty of separate and distinct wrongdoing, Riverview suifered but a single injury. Consequently, Riverview may have but one satisfaction for that injury and may not have double redress. The remedies sought do not proceed from opposite and irreconcilable claims of right and are not inconsistent in the sense that a party may not logically pursue one remedy without renouncing the other. Since the wrongs for which Riverview seeks redress are separate and consistent, as opposed to inconsistent, the doctrine of election of remedies does not bar the appellant’s cause of action in this case. To the extent that Ielmini is inconsistent with what is said here, it is overruled. The judgment of the Court of Appeals is reversed. Williams, C.J., and Kavanagh, Levin, Brickley, and Boyle, JJ., concurred with Ryan, J. Cavanagh, J., took no part in the decision of this case. 414 Mich 864 (1982). See, e.g., Hine, Election of Remedies, A Criticism, 26 Harv L Rev 707; Note, Election of Remedies: A Delusion?, 38 Colum L Rev 292; Fraser, Election of Remedies: An Anachronism, 29 Okla L Rev 1. See Walraven v Martin, 123 Mich App 342; 333 NW2d 569 (1983). Cf. Gruskin v Fisher, 405 Mich 51; 273 NW2d 893 (1979) (election of remedies in the context of land contract defaults). This rationale, which we have said is the majority view on the issue in this country, is succinctly articulated in 9 CJS, Banks and Banking, § 356, p 752: "Election of remedies. A plaintiff who sues a drawee bank on a check paid by it on a forged indorsement takes the position that the bank still has his money, that the money paid out by the bank was the bank’s money, and that such payment was not binding on plaintiff; and, where he sues another who has indorsed such check over to the drawee bank, he necessarily takes the position that the money paid by the drawee bank was wrongfully paid and, therefore, wrongfully detained. Such positions are mutually contradictory, and in choosing his remedies plaintiff cannot adopt both positions.” While the cited authority describes the rule in the context of a forged instrument, and the withdrawals in this case were upon authentic but unauthorized signatures, the rule applies in both situations.

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Levin, J. Robert Reid Crawford was charged with forgery, uttering and publishing, and with being a fourth-felony offender. Pursuant to a plea bargain, the uttering and publishing charge was dismissed, the supplemental information was amended to charge only one prior felony, and Crawford pled nolo contendere to the charge of forgery and guilty of being a second offender. Crawford appealed, claiming that the plea bargain was illusory because the particular conviction charged in the amended supplemental information was subject to attack on the ground that it was obtained pursuant to a plea of guilty which was defective in that he was not advised of two of the constitutional rights identified in People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). The Court of Appeals affirmed, stating "that only those prior guilty-plea convictions where the defendant was not represented by counsel should be excised from one’s prior conviction record for purposes of the habitual offender statute”. The Court of Appeals continued that "assuming arguendo that defendant’s contention is correct, we cannot say that prejudicial error has occurred in the sentence of the trial court.” We affirm, but do so on a different analysis. A By pleading guilty to the supplemental information charging forgery as a second offense, Crawford enlarged the judge’s sentencing authority. The maximum punishment for forgery is 14 years, which could have been increased to 21 years as a result of Crawford’s plea of guilty to the amended supplemental information. Crawford was actually sentenced to serve a term of 6 to 14 years, a sentence which could have been imposed upon conviction of forgery as a first offense had he not pled guilty to the amended supplemental information charging it as a second offense. Accordingly, Crawford did not suffer any prejudice in respect to the sentence imposed as a result of the inclusion in the amended supplemental information of the prior conviction which he now asserts is defective under Jaworski. B Crawford asserts that he was nevertheless prejudiced because if he had not been originally charged in a supplemental information as an habitual offender, fourth offense, which, upon conviction, subjects the offender to a sentence of life or a lesser term, he might not or would not have pled guilty or might have been able to work out a more advantageous plea bargain than the one which he was able to negotiate. Crawford did not, before pleading nolo contendere and guilty, move to quash the supplemental information on the ground that the June 13, 1969, conviction was defective. Crawford’s claim that a prior conviction is defective is based on facts which would not appear in a printout of his prior convic tion record. Under the decisions of this Court, a prosecutor has a limited time in which to file a supplemental information. He cannot be expected to order the trial court record in every prior case in which a defendant was convicted and scrutinize it for error before filing a supplemental information. No claim is made that the prosecutor included in the supplemental information a conviction which, under established principles, he could not properly include. Nor is it claimed that the prosecutor was on notice that a prior conviction was deficient or subject to challenge. Crawford not having moved to set aside the prior conviction of which he now complains or to quash the supplemental information, and it not appearing that the prosecutor was on notice that the prior conviction may have been deficient or subject to challenge, Crawford cannot properly complain that he might not or would not have pled guilty or might have worked out a better plea bargain if the facts had been developed and his legal position had been sustained. C A conviction defective under Jaworski can be challenged by a timely motion by the defendant to quash the supplemental information or to strike from the supplemental information .the defective conviction. To be timely, such a motion must be made before a defendant’s plea of guilty or nolo contendere is accepted. Affirmed. Williams, C.J., and Kavanagh and Cavanagh, JJ., concurred with Levin, J. MCL 750.248; MSA 28.445. MCL 750.249; MSA 28.446. MCL 769.12; MSA 28.1084. Crawford asserted at the plea-taking proceeding that by reason of intoxication he had no independent recollection of having committed the offense. Crawford argues that charging him as a fourth offender "was a coercive misrepresentation of the prosecutor’s charging authority” and that his plea was made "pursuant to an illusory bargain”. The three prior felony convictions alleged in the supplemental information occurred on August 14, 1964, in Berrien County, of uttering and publishing, on March 7, 1969, in Ingham County, of uttering and publishing, and on June 13, 1969, in Ingham County, of attempted uttering and publishing. The instant charge was for forgery and uttering and publishing in Jackson County. The first two prior felony convictions alleged in the supplemental information were eliminated as a result of the plea bargain. The prosecutor relied on the June 13, 1969, attempted uttering and publishing conviction as Crawford’s one prior felony conviction in the amended supplemental information. At the June 13, 1969, plea proceeding, Crawford was advised of his right to a jury trial, but was not advised of his rights to confront his accusers and not to be compelled to incriminate himself, two of the Boykin-Jaworski rights. Boykin was decided on June 2, 1969, 11 days before Crawford pled guilty on June 13, 1969. In People v McMillan, 389 Mich 114; 204 NW2d 682 (1973), this Court stated that, with a limited exception there noted, the Boykin-Jaworski requirements do not apply to pleas of guilty taken before June 2, 1969. The two prior convictions which were dropped as part of the plea bargain, the convictions on August 14, 1964, and March 7, 1969, were obtained prior to the decision in Boykin. The March 7, 1969, conviction followed a jury trial. Crawford asserts, alternatively, that his second and third prior convictions, on March 7, 1969, and June 13, 1969, were of crimes which occurred only one day apart — on March 29 and March 30, 1968. He contends that for two convictions to count as two distinct, successive convictions for purposes of the habitual offender statute, the conviction of the first offense must occur before the commission of the second offense. This claim, like his principal claim based on Jaworski, depends on facts not of record at the plea taking, and, again, this claim was not advanced before the plea was offered and accepted. We see no need to consider it further or to decide the question Crawford has raised alternatively. Jaworski was based on Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969). People v Crawford, 98 Mich App 309, 312; 296 NW2d 244 (1980). The Court of Appeals went on to say: "The defendant was charged with two distinct felonies. Beyond that, he was guilty of violating the habitual offender statute as at least a third-felony offender. "Considering that defendant’s total sentence was only 6 to 14 years, it can hardly be said that defendant did not receive all that justice allows. Common sense and logic compels us to the inescapable conclusion that the defendant was neither prejudiced nor harmed by the inclusion of the contentious fourth-felony conviction, which was as a result of a plea taken only 11 days after the Boykin [v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969)] opinion was released from Washington”. See fn 1. The habitual offender statute provides that the maximum term of imprisonment which may be imposed upon conviction as a second offender is not more than 1-1/2 times the longest term prescribed for a first conviction, MCL 769.10; MSA 28.1082, and, upon conviction as a third offender, twice the longest term prescribed, MCL 769.11; MSA 28.1083, and, upon conviction as a fourth offender, life imprisonment (see fn 3). See fn 3. Crawford makes no claim that two of his prior convictions were defective, and hence he may have been convicted as a third offender. He may, therefore, not have been prejudiced by the inclusion in the supplemental information of a conviction which was defective under Jaworski. We do not, however, posit affirmance of his conviction on that basis. A prosecutor may not have all the facts regarding prior convictions when they are included in a supplemental information. Under this Court’s decisions, People v Shelton, 412 Mich 565; 315 NW2d 537 (1982), and People v Fountain, 407 Mich 96, 97; 282 NW2d 168 (1979), a prosecutor may not delay his decision whether to charge a defendant as an habitual offender until he receives a transcript of underlying proceedings and has the opportunity to search for error. The United States Supreme Court has held that a conviction obtained without the advice of counsel in violation of Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), may not be used to charge the accused as an habitual offender, Burgett v Texas, 389 US 109; 88 S Ct 258; 19 L Ed 2d 319 (1967), or in imposing sentence for a subsequent offense, United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), or for impeachment in subsequent trial, Loper v Beto, 405 US 473; 92 S Ct 1014; 31 L Ed 2d 374 (1972). This Court applied the principle set forth in Tucker in People v Moore, 391 Mich 426; 216 NW2d 770 (1974). While the denial of the right to counsel has been given special importance in evaluating the effect of previous convictions on subsequent proceedings, this Court has assigned pre-eminent importance to the Boykin-Jaworski rights in guilty-plea procedures. See Guilty Plea Cases, 395 Mich 96, 120-122; 235 NW2d 132 (1975), holding that the failure to advise of those rights mandates reversal. The Supreme Court of Washington has extended the concept that a defective conviction cannot be used in subsequent proceedings to include a plea-based conviction obtained on an inadequate recital of defendant’s rights. See State v Chervenell, 99 Wash 2d 309; 662 P2d 836 (1983). United States v Timmreck, 441 US 780; 99 S Ct 2085; 60 L Ed 2d 634 (1979), relied on in the concurring opinion, is distinguishable. In Timmreck, the trial judge failed to advise the defendant of a mandatory special parole term required by the court rule. The United States Supreme Court held that since the failure to provide the advice was not of constitutional magnitude, the conviction was not subject to collateral attack. This Court has held, however, that the Boykin-Jaworski rights are of such importance that the failure to advise of such rights requires that a guilty plea be set aside. See People v Jaworski, supra; Guilty Plea Cases, supra. Further, the question here is not whether the conviction is subject to collateral attack as an alternative to direct appeal, the issue dealt with in Timmreck, but whether the defective conviction may be used in supplemental proceedings when the repercussions to the defendant of his failure to appeal may yet be felt. A defendant placed on probation might not appeal a defective conviction. We are persuaded that a plea-based conviction, violative of Boykin-Jaworski, cannot be used to supplement a charge in habitual offender proceedings.

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Leave to appeal denied.

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Rehearing granted. Reported at 415 Mich 328.

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Leave to appeal denied.

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Per Curiam;. Defendant appeals as on leave granted by order of the Supreme Court, 419 Mich 941; 355 NW2d 113 (1984), from the Workers’ Compensation Appeal Board’s decision requiring defendant to pay 12% interest on plaintiffs workers’ compensation award and ordering defendant to reimburse plaintiff for the cost of plaintiffs copies of the transcript of proceedings before the hearing officer. We affirm. Plaintiff suffered a progressive work-related back injury while employed by defendant, Chrysler Corporation. Except for a day or two, he did not work after April 14, 1978, because of back pain. Plaintiff petitioned for workers’ compensation benefits, and also applied for and received sickness and accident (S&A) benefits from April 14, 1978, to August 1, 1978, at $170 per week from Aetna Life and Casualty Insurance Company, defendant’s group insurer. Defendant was self-insured for workers’ compensation. The S&A policy covered only non-work-related injuries and plaintiffs application for benefits under the policy contained a clause wherein plaintiff agreed to assign to Aetna any workers’ compensation benefits awarded to him. From August, 1978, to the date of the workers’ compensation hearing, plaintiff received extended disability benefits from Aetna at a rate of $680 per month. Plaintiffs application for extended disability benefits also contained an assignment provision to take effect in the event of a workers’ compensation recovery. After a hearing on plaintiff’s petition for workers’ compensation benefits, the hearing officer issued a decision on March 18, 1980, awarding benefits to plaintiff for a closed period, April 14, 1978, to November 27, 1979. Compensation was set at $142 per week with interest at 5% per annum from the date each payment was due, until paid. The hearing officer also found that the assignment agreement with Aetna satisfied the requirements of MCL 418.821; MSA 17.237(821) and ordered reimbursement to Aetna. Both parties filed a claim for review with the board, plaintiff filing first, from the decision of the hearing officer. The board affirmed the decision of the hearing officer, but increased interest on the award to 12% per annum. In addition, the board ordered defendant to reimburse plaintiff for the cost of plaintiffs copies of the transcript from the hearing before the hearing officer. Defendant contends on appeal that plaintiff is not entitled to interest on the award for the period of time that he was furnished with alternative disability benefits from Aetna and that any interest due assignee Aetna should be paid by plaintiff. MCL 418.801(5); MSA 17.237(801)(5) provides that weekly compensation paid pursuant to a workers’ compensation award carries interest at the rate of 12% per annum from the date each payment was due, until paid. Interest is imposed upon past due workers’ compensation benefits not as a penalty, but because the employee had to do without the use of the funds to which he was entitled and the employer benefited from the use of the money while the employee’s claim was pending. McCaslin v General Motors Corp, 133 Mich App 782, 787-788; 349 NW2d 544 (1984), lv den 419 Mich 945 (1984). Relying on McCaslin, supra, defendant contends that it should not pay interest on the workers’ compensation award since plaintiff was provided with alternative benefits during the period in question. In McCaslin, the board affirmed an injured employee’s award of interest on her workers’ compensation award, even though her employer had paid her a disability allowance equal to the subsequent award while she pursued her workers’ compensation claim. On appeal to this Court, the employer’s position was that the employee’s benefits had been paid and, therefore, no interest was due on the subsequent award. 133 Mich App 789. This Court found that, since plaintiff was not deprived of the use of the money and defendant did not have the use of the money while the employee’s compensation claim was pending, the board’s award of interest should be vacated. In the instant case, plaintiff was paid S&A benefits in excess of his eventual workers’ compensation recovery and, as in McCaslin, supra, was not denied the use of the money while pursuing his compensation claim. However, McCaslin can be distinguished from the case at bar because Mc-Caslin involved alternative funds advanced directly by the employer from a special fund for employees pursuing workers’ compensation benefits, rather than funds provided by a separate group insurer assignee. Although plaintiff in the instant case was not denied the use of funds, defendant enjoyed the use of the unpaid compensation benefits and Aetna was deprived of the use of the funds it advanced to plaintiff in lieu of the compensation benefits. Under circumstances such as in McCaslin, supra, wherein an employer advances funds to the employee while the employee’s compensation claim is pending, interest on a workers’ compensation award is not warranted since the employer has, in essence, paid the employee compensation benefits, the employee has not been disadvantaged by the delayed payment of the claim, and the employer has not gained any advantage by delaying the claim. However, allowing an employer to avoid paying interest on a workers’ compensation award whenever any type of alternative benefits are paid to an employee while the employee pursues a workers’ compensation claim would provide little incentive for the employer to promptly pay compensation claims and would allow the employer to reap benefits by delaying and keeping the funds for its own use. Such a problem is readily apparent in a situation where an employee receives benefits from a source totally unconnected with his employer, such as an employee’s independent insurance policy. In such a case, if the em ployer need not pay interest on the assigned funds recovered on the workers’ compensation claim, the employer has no incentive to promptly pay the workers’ compensation claim since it can enjoy the use of the money while the claim is pending. However, a situation involving a S&A group insurer assignee, where the S&A policy premiums are paid in whole or in part by the employer, may contain hidden incentives for the employer to avoid delaying paying a workers’ compensation claim even if the employer is not required to pay interest on the assigned funds. The S&A group insurer assignee may increase the employer’s premiums based on the number of workers’ compensation claims the employer delays in paying while the group insurer provides alternative benefits. Thus the employer would be indirectly encouraged to promptly pay workers’ compensation claims since the S&A insurer would pass on the costs of providing alternative benefits which should have been paid as workers’ compensation benefits. On the other hand, requiring interest to be paid by the employer on a workers’ compensation claim assigned to a group S&A insurer would directly encourage the employer to promptly pay compensation claims as well as reimburse the insurer for the use of its funds. In any event, defendant in the case at bar argues that if any interest is due on the award, only Aetna, the group insurer, has standing to assert a claim for interest and that Aetna did not assert this claim in the workers’ compensation proceeding. See Remo v Ford Motor Co, 1978 WCABO, No. 221, p 1065. Defendant, however, neglects to point out that Aetna did not involve itself in the workers’ compensation proceedings for one very good reason: defendant did not raise the instant interest issue in the proceedings below. The only issue involving interest raised by defendant was whether the award should bear 5% or 12% interest, an issue which has since been decided by the Supreme Court holding that the award should bear interest at the rate of 12%. Selk v Detroit Plastic Products, 419 Mich 1; 345 NW2d 184, on resubmission 419 Mich 32; 348 NW2d 652 (1984). Although the issue of whether a workers’ compensation award assigned to a group insurer who has paid alternative benefits should bear interest is one of continuing importance, we cannot allow defendant to raise it at this late date to the possible detriment of the insurer who has not had an opportunity to respond to defendant’s arguments either before the board or this Court. Thus we find that defendant failed to preserve this issue for appeal and decline to decide it on its merits. Defendant next argues that the board erred in holding that defendant was required to pay the cost of plaintiiFs copies of the transcript of the proceedings before the hearing officer. The board held that once an employer files a claim for review, be it filed first or second, it must provide or bear the expense of providing copies of the transcript to the employee and ordered defendant to reimburse plaintiif for the cost of his copies of the transcripts. MCL 418.859; MSA 12.237(859) provides in pertinent part: "* * * If the employer or carrier files a claim for review to the board, or appeals to the court of appeals, or the supreme court, a copy of the testimony, depositions and other documents necessary for the appeal shall be furnished by the employer or carrier to the employee or the employee’s attorney.” Administrative Code 1979, R 408.49 provides in part: "Rule 19. (1) If a claim for review from an award of the administrative law judge is filed, the party making such claim for review shall, at his expense, file with the appeal board a complete transcript of all the testimony taken and the proceedings had before the administrative law judge within 30 days from the date the claim for review is filed. In all cases where the employer files a claim for review, a copy of the testimony, depositions, and other documents necessary for such appeal shall be furnished by the employer to the employee or his attorney.” These provisions make clear that in all cases where an employer fíles a claim for review, the employer must provide a copy of the transcript to the employee. Thus the board was correct in finding that the defendant was required to furnish or pay the cost of a copy of the transcript to plaintiff. However, what is really at issue on appeal is who bears the cost of obtaining the transcript, i.e., transcription, and filing it with the board. A party filing a claim for review must file with the board, at his expense, a transcript of the proceedings before the hearing officer. Administrative Code 1979, R 408.49; see Wing v Refiners Transportation & Terminal Corp, 316 Mich 365, 371; 25 NW2d 561 (1947). Thus if only one party files a claim for review, that party must bear the cost of obtaining the transcript and filing a copy with the board. If the employer is the sole party filing a claim for review, the employer must also furnish the employee with a copy of the transcript. When both parties file a claim for review, and the employer files first, the employer will initially bear the cost of obtaining the transcript and furnishing the board and the employee with a copy. When the employee subsequently files a claim for review, the employee already has or will receive a copy of the transcript and obviously will not need to bear the cost of ordering the transcript. Furthermore, apparently the employee need not file another copy with the board because, despite the administrative provision requiring that any party making a claim for review file a transcript with the board, the board does not require the filing of a second copy when the employer has already filed the transcript. The problem, as in this case, is a situation where the employee files first, bears the cost of obtaining the transcript and filing a copy with the board, after which the employer files a claim for review to preserve additional issues for review. A technical reading of the statute and rule would appear to require that the employer, who does not receive a copy from the employee, must again bear the burden of obtaining a transcript and submitting copies to the board and the employee. However, requiring both parties to obtain and file transcripts with the board at their expense, and, in addition, having the employer bear the expense of submitting a second copy to the employee who presumably has retained a copy of the transcript is a waste of resources. A less technical, more common sense reading of the transcript requirements which complies with the obvious intent of the statute and rule to ease the employee’s burden in appealing a workers’ compensation determination is that in all cases where the employer files a claim for review the employer must bear the cost of obtaining the transcript and furnishing the employee with a copy. Since the board does not require a redundant filing of copies of the transcript from both parties, requiring the employer, rather than the employee, to also file a copy of the transcript with the board once it files a claim for review would also be in keeping with the spirit of the statute and rule. We recognize that our decision places the employer in the unenviable position of always bearing the burden of transcript costs when both parties file a claim for review, even when the employer files only in response to the employee’s filing in order to preserve additional issues for review. See, Nelson v General Motors Corp, 122 Mich App 499, 504; 332 NW2d 514 (1983), lv den 417 Mich 1098 (1983). However, the legislative intent in requiring the employer to furnish copies of the transcript to the employee in all cases where the employer files a claim for review is clearly to put the burden on the employer who is presumably in a better financial position than the employee. Dissatisfaction with this scheme should be brought to the attention of the Legislature which can revise the statutory requirement, whereas this Court cannot. Affirmed. MCL 418.821(2); MSA 17.237(821X2), permits the assignment of workers’ compensation benefits to an insurance company making advance payments to an employee under a group disability or hospitalization policy. The purpose of this section is to allow and encourage insurance companies carrying sickness and accident policies to pay immediate benefits to injured employees pursuing workers’ compensation claims while the employee waits for a determination by the compensation bureau. Aetna Life Ins Co v Roose, 413 Mich 85, 93-94; 318 NW2d 468 (1982). The board’s current practice of requiring the employer to bear these costs whenever the employer files a claim for review conforms with our interpretation of the statute and rule.

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R. B. Burns, J. Judge Moore of the Oakland County Probate Court ruled that he had jurisdiction to remove two trustees of the Americana Foundation. The reason for the removal was that the two trustees had a conflict between their personal pecuniary interests and the interests of the Americana Foundation. The only issue on appeal is whether or not the probate court had jurisdiction. The trustees assert that the Americana Foundation is a corporation and, therefore, jurisdiction is in circuit court. MCL 600.3605; MSA 27A.3605 grants the circuit courts power over corporations. The probate court asserted jurisdiction under § 21 of the Revised Probate Code which states: "The [probate] court has exclusive jurisdiction of all the following: "(a) Matters relating to the settlement of the estate of a deceased person, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled without the state leaving an estate within the county to be administered. "(b) Trusts and trustees in the execution of will and administration of estates of deceased persons. "(c) Proceedings concerning the internal affairs of trusts including proceedings concerning the administration and distribution of trusts and the declaration of rights or the determination of other matters involving trustees and beneficiaries of trusts, including proceedings to: "(i) Appoint or remove a trustee. "(ii) Review the fees of a trustee. "(iii) Review and settle interim or final accounts. "(iv) Ascertain beneficiaries._ "(v) Determine any questions arising in the administration or distribution of any trust, including questions of construction of wills and trusts; instruct trustees, and determine relative thereto the existence or nonexistence of an immunity, power, privilege, duty, or right. "(vi) Release registration of a trust. "(d) Appointment of a guardian, limited guardian, or conservator in cases prescribed by law, resolution of any contested matter in respect to the estate or ward, and settlement of the estate.” MCL 700.21; MSA 27.5021. In order to have jurisdiction over the Americana Foundation as a trust, it would have to have been established that the Americana Foundation was a trust. Section 11 of the Revised Probate Code defines the word "trust” for the purposes of the probate code: " 'Trust’ means an express trust, private or charitable, with additions thereto, where created and whether created by will or other than by will. It includes a trust created by judgment or decree under which the trust is to be administered in the manner of an express trust. Trust excludes other constructive trusts, and it excludes resulting trusts, business trusts providing for certificates to be issued to beneficiaries, investment trusts, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts created for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.” MCL 700.11(2); MSA 27.5011(2). The Revised Probate Code does not define "express trust, private or charitable”. "Express trust” has been defined by our Supreme Court in Scarney v Clarke, 282 Mich 56, 63; 275 NW 765 (1937): "In 65 C.J. p. 231, it is said: " 'To constitute an express trust there must be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.’ ” The Court, in Equitable Trust Co v Milton Realty Co, 261 Mich 571, 577; 246 NW 500 (1933), defined "trusts” as follows: "To create a trust, there must be an assignment of designated property to a trustee with the intention of passing title thereto, to hold for the benefit of others. There must be a separation of the legal estate from the beneficial enjoyments * * *.” Scarney v Clarke also defines charitable trusts: "In 2 Restatement of the Law of Trusts, p. 1096, § 349, it is said: " 'Á charitable trust may be created by (a) a declaration by the owner of property that he holds it upon a charitable trust; or (b) a transfer inter vivos by the owner of property to another person to hold it upon a charitable trust.’ "In charitable trusts the public is the beneficiary. A distinguishing characteristic of such a trust is that the prospective beneficiary is undetermined and unknown, and while such a trust need not be for the benefit of the entire public, yet it must be public in nature and for unascertained beneficiaries.” 282 Mich 63-64. Section 2(b) of the Supervision of Trustees for Charitable Purposes Act also defines "charitable trust”: " 'Charitable trust’ means the relationship where a trustee holds property for a charitable purpose.” MCL 14.252(b); MSA 26.1200(2)(b). The only document of record which could estab lish that an express trust was created is the articles of incorporation of the Americana Foundation. The articles of incorporation contain no explicit declaration of a trust. However, the articles of incorporation do show beyond reasonable doubt that a trust was intended to be created. First, under Article 111(b), there was an assignment of designated property: "Cash and securities having a value of $473,544”. Second, the assignment was to a "trustee”. Under MCL 14.252(a); MSA 26.1200(2)(a) of the Supervision of Trustees for Charitable Purposes Act: " 'Trustee’ means any individual, group of individuals, association, foundation, trustee corporation, corporation, or other legal entity holding property for any charitable purpose.” (Emphasis added.) The trustee in the case at bar is the Americana Foundation, which the parties admit is a nonprofit corporation. The trustees of the Americana Foundation cannot be regarded as the trustees of the trust because the property was not assigned to them. Rather, it was assigned to the corporation for which they were the "directors (or trustees)”. In order to find the "directors (or trustees)” of the corporation to be the trustees of the trust, there would have to be grounds for "piercing the corporate veil”. Third, there is an intention to pass title to the corporation expressed by the declaration that the "cash and securities having a value of $473,544” were assets of the corporation, and that they were received as "contributions from individuals, trusts, and corporations”. Fourth, clearly the intent, as expressed in the articles of incorporation, was for the benefit of others in that the property was to be devoted and applied "exclusively for charitable, religious, scientific, literary or educational purposes * * Fifth, the legal estate was separated from the beneficial enjoyment. The Americana Foundation held the legal estate whereas the public received the benefit and enjoyment. Finally, the articles of incorporation clearly establish a charitable purpose. Therefore, the incorporation of the Americana Foundation created an "express trust, charitable or private” to be administered by the Americana Foundation through its trustees. The Americana Foundation is a nonprofit corporation created to administer a trust. The respondents-appellants argue that as a corporation the circuit court should have jurisdiction over the Americana Foundation. The appellee’s argument, properly stated, would be that since the Americana Foundation is the trustee of a trust, the probate courts have jurisdiction over the Americana Foundation. A conflict of jurisdiction would appear from MCL 600.3605; MSA 27A.3605 and MCL 700.21; MSA 27.5021. MCL 700.21 has been quoted previously. MCL 600.3605(1) states: "Circuit courts have the power, and actions may be brought in the circuit courts: "(a) to compel persons to account for their conduct in the management and dispostion of the corporate funds and corporate property committed to their charge; "(b) to compel persons to pay to the corporation which they represent, and to its creditors, all sums of money and the value of all property which they have acquired to themselves or transferred to others or have lost or wasted by any violation of their duties as directors, managers, trustees, or other officers; "(c) to suspend any corporate trustee or other officer from exercising his office whenever it appears that he has abused his trust; "(d) to remove any corporate trustee or officer from his office upon proof or conviction of gross misconduct; "(e) to direct new elections to be held by the corporation or board duly authorized to hold elections to supply any vacancy created by any removal; "(f) in case there is no board, or all the members of the board are removed, then to report this to the governor, who is authorized to fill theses vacancies with the consent of the senate; "(g) to set aside all alienations of property made by the trustees or other officers of any corporation contrary to the provisions of law or for purposes foreign to the lawful business and objects of the corporation, in cases where the persons receiving the alienated property knew the purposes for which the alienation was made; and "(h) to restrain and prevent any alienation of corporate property in cases where it is threatened or there is good reason to apprehend that it is intended to be made.” It is a general rule of statutory construction that a statute adopted later in time is given preference over an earlier statute. Capps v Dep’t of Social Services, 115 Mich App 10, 14-15; 320 NW2d 272 (1982). Under this principle, the Revised Probate Code of 1979 would take precedence over the Revised Judicature Act of 1961. The probate court has exclusive jurisdiction over the internal affairs of corporations created to administer trusts. Affirmed.

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Per Curiam. On August 7, 1984, pursuant to a plea bargain, defendant pled nolo contendere to two counts of assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279. Sentenced to a term of from six to ten years incarceration, he appealed as of right. We affirm. The charges against defendant arose out of an incident which occurred on November 18, 1983. At that time defendant, a 56-year-old business man, was apparently experiencing financial difficulties. In addition to owning a business, defendant was also involved in the fur business. On November 18, defendant visited a fur dealer. Later that evening, he returned to the dealer’s barn and took several furs. Shortly thereafter, two sheriff’s deputies out on routine patrol attempted to make a traffic stop. When defendant’s vehicle stopped, an officer started to approach the vehicle and observed defendant exit from his car with a shotgun in his hands. According to appellate counsel, defendant’s actions were an "attempt at self-destruction”. He fired three shots from the gun, striking the police car. The two officers returned fire but did not strike the defendant. His vehicle then sped off pursued by these officers and members of other police departments as well. Defendant was finally apprehended in a field after he abandoned his vehicle. Charged with breaking and entering as a result of the theft of the furs, defendant pled nolo contendere to the misdemeanor offense of larceny under $100. As a result of the second incident, defendant was charged with two counts of assault with intent to commit murder and two counts of felony-firearm. Defendant was examined by various psychologists and their reports were made available to the sentencing judge. One report, compiled by the psychiatrist from the Center for Forensic Psychiatry, indicated that the examiner felt that defendant would not present further dangerous behavior and, if placed on a strictly supervised program of probation, would be unlikely to engage in illegal or antisocial conduct. In addition to those reports, the sentencing judge also received letters from various members of the community, including a bank president, a former probate judge, and a county sheriff, concerning defendant’s case and the sentence which the judge would ultimately impose. Defendant first claims that the sentencing court abused its discretion by imposing a sentence double that of the recommended minimum sentence under the Michigan Sentencing Manual. The abuse of discretion is further illustrated, claims defendant, by the fact that the court stated that the potential for defendant’s reformation was great. Also, reports of the psychological examiners concluded that defendant was not likely to pose a threat of danger to others, thus evidencing the propriety of a lesser sentence. Application of the guideline factors to the circumstances of this case results in a recommended minimum sentence range of from 12 to 36 months. The actual minimum sentence imposed, 72 months, does exceed the recommended range. However, such departures are expected and, as long as the trial court articulates permissible reasons in support of that decision, unless our appellate conscience is shocked, we do not afford relief. See, e.g., People v Purzycki, 143 Mich App 108; 371 NW2d 490 (1985); People v Ridley, 142 Mich App 129; 369 NW2d 274 (1985). After reviewing the record, we find no abuse of discretion. The sentencing judge specifically stated that he considered the four factors enumerated in People v Snow, 386 Mich 586; 194 NW2d 314 (1972), and did specifically state that there appeared to be some potential for defendant’s reformation. However, in consideration of the fact that defendant had fired three shots from a 12-gauge shotgun at a police car during an attempted traffic stop, the judge determined that the need to punish the defendant and to protect society warranted the imposition of the stated term. Sentencing is a discretionary matter and great confidence is placed in the ability of the sentencing judge to determine an individualized sentence appropriate for both the offender and the offense committed. People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973); People v Coles, 417 Mich 523; 339 NW2d 440 (1983). The sentencing judge was aware of defendant’s financial difficulties and the stress and pressure of those problems. He also had access to the letters from members of the community written on defendant’s behalf and the reports of the various psychologists. He also was familiar with the facts surrounding this offense and placed emphasis upon the gravity of the conduct involved. Although neither police officer was injured, the three shots fired by the defendant did strike the police vehicle. Defendant then returned to his car and fled with the officers in pursuit. Such conduct not only constituted a danger to the officers but also posed a threat to the public in general. Here, after consideration of the positive aspects of defendant’s background, the court concluded that defendant’s intolerable conduct required imposition of the six-to ten-year prison term. The judge stated his reason for departing from the guidelines and such justification represents a reasoned exercise of his judicial sentencing discretion. We cannot say that the reasons given for the departure are improper, insufficient or unsupportable. Therefore, we affirm the sentence. Defendant argues that the trial court abused its discretion by allowing a 30-year-old conviction to be included in the presentence report and by considering that conviction in imposing sentence. We disagree. While evidence of convictions of a certain age are inadmissible for impeachment purposes at trial, MRE 609(b), or excluded from computation of the Prior Record Variable of the Michigan Sentencing Guidelines Manual, Tab 3 H, there is no bar to the consideration of such convictions at sentencing. MCL 771.14; MSA 28.1144 provides that, in all felony cases, a presentence report shall be prepared and the probation agent "shall inquire into the antecedents, character, and circumstances of the person”. The purpose of the statute is to provide the court with information about the offender so that the court may make an informed and just determination of the appropriate disposition. People v Potrafka, 140 Mich App 749; 366 NW2d 35 (1985). The scope of the information presented is broad and rules of evidence do not apply. People v Books, 95 Mich App 500; 291 NW2d 94 (1980). In this case, although defendant does not dispute that he had two convictions in 1947 (one for larceny and one for escape), he claims that information concerning any conviction over 10 years old is not accurate and relevant information. We disagree. We see no valid reason why convictions over 10 years old, or 30 years in this case, may not be considered by the trial court in determining the proper sentence. It is axiomatic that, in order to individualize a sentence to meet the circumstances of the offender, more information, as opposed to less information, is desirable. In this case, defendant does not contest the fact of the convictions or argue that the information supplied to the court is inaccurate or incorrect. Were defendant to argue that for some reason those convictions were constitutionally defective or that the information included in the report was inaccurate, the court would have had the obligation to respond to those claims. See, United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v Edenburn, 133 Mich App 255; 349 NW2d 151 (1983). Instead, when defendant objected to the inclusion and consideration of those prior convictions because of their age, the court responded: "But for the record, I find nothing that would preclude the convictions that are included here from being included as part of the Defendant’s background. Certainly the weight that would be placed on these convictions would have to be given its proper perspective taking into consideration the lapse of time from the conviction to the present date. But that does not alter the fact of the conviction as part of the antecedent’s background and character of the individual before the court.” We agree with the assessment of the trial court. Nothing precludes the convictions from being included in the report and the weight to be afforded those convictions, as with other evidence pertaining to the offender and the offense, is a matter of balancing for the court. Affirmed.

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Per Curiam. Defendant was charged with open murder. He claimed that the killing was accidental and that he was acting in self-defense. A jury convicted him of involuntary manslaughter, MCL 750.321; MSA 28.553, and he then pled guilty to being a third-time habitual offender, MCL 769.11; MSA 28.1083. Sentenced to a prison term of from 29 to 30 years, defendant appeals as of right. We affirm the conviction but modify defendant’s sentence to from 20 to 30 years. I Defendant contends that the court erred in allowing the prosecutor to recall him to the stand and impeach him with evidence of a prior conviction for armed robbery. MRE 609 permits impeachment by evidence of a prior conviction under certain circumstances. Defendant asserts that MRE 609 is inconsistent with MRE 102 and urges adoption of a rule prohibiting impeachment by evidence of a prior conviction unless defendant has introduced evidence of good character. Cf. MRE 404. Defendant’s claim is one of judicial policy that should be addressed to our Supreme Court. However, defendant also claims that the present rule was erroneously applied in this case. First, defendant contends that the similarity of a prior conviction to the offense being tried weighs against admissibility. We agree, but the balancing is committed to the trial court’s discretion and, here, we find no abuse. People v Ward, 133 Mich App 344, 355-356; 351 NW2d 208 (1984), lv pending. Second, defendant contends that allowing the prosecutor to recall him to the stand to impeach him ensured that the prejudical impact of the admission of evidence of the conviction outweighed its probative value. While we disapprove of the prosecutor’s tactic, we note that defense counsel advised the jury of the conviction during voir dire and opening statement. On these facts, the court’s ruling was not an abuse of discretion. People v Barnard, 93 Mich App 590; 286 NW2d 870 (1979). II Defendant next challenges the admission of a note addressed to "Fred, K-blk”, which stated: "Fred, You were warned now you are dead, sucker. In the County Jail or the Joint, the word is out on you snitch! I told you not to go to court! You are dead!” Fred Conner testified that the note was dropped in his cell in K-block at the Bay County Jail, that he was the only Fred in K-block, that he had testified against defendant at the preliminary examination in this matter, that defendant had previously warned him orally not to testify, and that no one else had given warnings to him. On this testimony, the circuit court admitted the note over defendant’s objection that it was not properly authenticated. We find no error on that basis. MRE 901. Defendant also argues that the note was irrelevant. This objection was not raised in the court below and, therefore, not properly preserved for appeal. In any event, we believe the note tends to show consciousness of guilt and was relevant. III Defendant challenges two jury instructions given by the court. Instead of giving CJI 4:2:02, on mixed direct and circumstantial evidence, the court gave the following instruction over defendant’s objection: "It is not necessary that every fact be proven directly by a witness or an exhibit. A fact may be proven indirectly by other facts or circumstances from which it usually and reasonably follows according to the common experience and observations of mankind. This indirect evidence is sometimes called circumstantial evidence which you are to consider with other evidence in the case. There is no inherent difference in the quality of direct and indirect evidence. Indirect evidence can be and often is more compelling than direct evidence. "When evidence is offered of a fact or a group of facts for the purpose of proving an element of the offense, you’re being asked to apply your reasoning abilities and to draw reasonable inferences from those facts. Since the elements of a criminal offense must be proven beyond a reasonable doubt, that standard must be kept in mind when examining the evidence whether the evidence is direct or indirect.” Defendant contends that this instruction was insufficient to convey to the jury the prosecutor’s burden to disprove any reasonable theory of innocence under People v Foley, 64 Mich 148; 31 NW 94 (1887), and People v Dellabonda, 265 Mich 486; 251 NW 594 (1933), and as set forth in paragraph (7) of the standard criminal jury instruction. The commentary to the standard instruction indicates that paragraph (7) is "a restatement of fundamental burden of proof and presumption of innocence principles”. We believe that the court adequately instructed the jury on those principles and that a failure to restate them per paragraph (7) was not error requiring reversal. Instead of giving then CJI 3:1:12, the court gave the following instruction: "If there is a conflict in the testimony of witnesses it is your responsibility, as jurors, to determine, if you can, what testimony you believe to be true. Consider the extent to which conflicting testimony is supported by other evidence and whether the conflict involves a matter of importance or merely some detail.” Defendant urges that elimination of paragraph (3) of the standard instruction was error, citing People v Crofoot, 254 Mich 167; 235 NW 883 (1931). However, we find no such error in light of other instructions on the burden of proof and presumption of innocence. People v Larco, 331 Mich 420; 49 NW2d 358 (1951); People v Stewart, 126 Mich App 374; 337 NW2d 68 (1983). IV Defendant argues that the court’s comments and examination of witnesses deprived him of a fair trial. Defendant points particularly to the court’s examination of Fred Conner and the giving of defendant’s theory of the case before the prosecutor’s theory. We are not persuaded that defendant did not receive a fair trial. We are impressed with defense counsel’s able representation and zealous protection of defendant’s rights. When the court tended to become too actively involved in the trial process, defense counsel was quick and persistent in opposing the court’s real or preceived interference. Indeed, counsel’s quickness at times drew legitimate reprimands from the court for interrupting. Nevertheless, we are left with the impression that the court risked invading the role of counsel and we would urge further self-restraint. We note that defense counsel relied on People v Smith, 363 Mich 157; 108 NW2d 751 (1961), as supporting her position that the court should limit its questioning of witnesses. The court distinguished Smith as preceding MRE 614, which authorizes the court to interrogate witnesses. We conclude that Smith is still viable and applicable precedent; its principles are the same as those underlying the 1978 Rules of Evidence. As stated in People v Roby, 38 Mich App 387, 389; 196 NW2d 346 (1972), a case involving this same defendant in an earlier matter, the court has great power and wide discretion in matters of trial conduct and has the power to participate properly in the questioning of witnesses. That power is not unlimited, though, and should not be used to pierce "the veil of judicial impartiality”. When the court engages in extensive interrogation of witnesses, the probability of asking questions improper in form or scope increases; yet, the attorneys are almost certainly more reluctant to object to the court’s improper questions than to an adversary’s. The court’s interrogation of Fred Conner in this case is a good example of going beyond the needed clarification of testimony and entering potentially prejudicial ground. A factor relevant to the authenticity of the death threat discussed in Issue II, supra, was whether Fred had received the note after he had ignored an oral warning by defendant and testified at defendant’s preliminary examination. After counsel had finished their examinations of Fred, the following dialogue occurred between the court and the witness: "BY THE COURT: "Q I’m not sure whether you testified in the presence of the jury about the time when this — when you received this note. Would you repeat that for me? "A Which — this one? "Q Yeah. "A It was in the morning time. "Q I mean, the — the dates. "A After I testified in District Court. "Q And did — were you able to pin it down to a particular week? "A The — I think it was the second week of July if I’m not mistaken. "Q And was— "MS. KLIMASZEWSKI: Your Honor, I’m sorry. I can’t hear the witness. "THE COURT: Second week of July if I’m not mistaken is what he said. "BY THE COURT: "Q And were you about to be testifying in — in a — I don’t— "A No. "Q I don’t want to know what, but were you scheduled to testify in court in a matter involving Mr. Roby— "A Oh, yeah, In Saginaw. ""Q All right. And it was during that week that you were scheduled to testify that you received the note? "A Yes, Sir.” ' Clearly, eliciting the fact that the note was received after giving testimony in district court (the preliminary examination in this case) was proper. The court then proceeded to the apparently harmless question of which week the note was received. Fred’s answer was unnecessary to an understanding of the evidence as it had been presented by the parties, so we are left to wonder what was the court’s purpose. Furthermore, the court opened the door for impeachment or bolstering of Fred’s testimony through introduction from the court file of the actual date of the preliminary examination. The court then continued on to ask if the note was received the same week as Fred was scheduled to testify in a matter concerning defendant. In fact, the matter was another criminal proceeding involving possession of a sawed-off shotgun. The court thus came very close to introducing evidence quite prejudicial to defendant and, as it was, left the jury to speculate what the proceeding in Saginaw might have been. However, since Fred had already testifed without objection that defendant was in possession of a sawed-off shotgun at the time of his arrest for the instant offense, we do not perceive undue prejudice resulting from the court’s question. Turning now to the matter of the theories of the parties, we find no undue prejudice in the court’s reading defendant’s theory first. The court stated that the order was not intentional, but occurred as it did merely because defendant’s theory was on top of the prosecutor’s in the pile of instructions. We accept the court’s explanation. However, we believe comment on the form of the prosecutor’s theory is in order. The theory was given as submitted, over defense objection that the theory was argumentative. The court did, however, instruct the jury not to regard the theories as telling what the evidence is. We find that the prosecution’s theory was not set forth in a short, factual statement as recommended by the criminal jury instructions, p 3-33. By giving the original theory, the court did not give "equal stress to the positions of each party”. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 562. While a cautionary instruction is of some value, we think the better practice in dealing with a prosecution theory which is lengthy and argumentative is to alter the theory pursuant to MCR 2.516(A)(5). V Defendant contends that the court erred in refusing to allow his collateral attack on the supplemental information. We find that, while stating that the attack was brought in the incorrect forum, the court did consider and rejected the attack on the merits. We find no error. People v Crawford, 417 Mich 607; 339 NW2d 630 (1983); People v Bradley, 117 Mich App 776; 324 NW2d 499 (1982). VI Defendant lastly challenges his sentence as being violative of the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). We agree and modify the minimum sentence to 20 years. The Tanner rule applies to habitual offenders. People v Stevens, 138 Mich App 438, 442-443; 360 NW2d 216 (1984). We find no additional ground for relief pursuant to People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Convictions affirmed; sentence modified to from 20 to 30 years. "(7) If the direct and circumstantial evidence, taken together, is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence.” "(3) However, if you have a reasonable doubt as to which testimony you believe, it is your duty to accept the testimony favorable to the defendant.” CJI 3:1:12 was deleted by committee on July 13, 1984, and its provisions moved into more general instructions. Paragraph (3) appears in proposed CJI 3:1:03(3).

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Allen, J. Petitioner Shirley Gersbacher appeals as of right from a judgment entered by Ingham County Circuit Court Judge Carolyn Stell on May 30, 1984, affirming a May 6, 1982, decision of the State Employees’ Retirement Board denying petitioner duty disability retirement. Petitioner began working for the State of Michigan in November of 1970. She worked for the Mental Health Department at the Coldwater State Home. On or about June 27, 1980, petitioner filed an application for retirement with the State Employees’ Retirement System because of duty disability. On December 11, 1980, a hearing was held before Hearing Officer Neil A. McLean. Petitioner testified that she was first injured in 1971 when she either fell or was pushed to the floor while attempting to move an unruly resident to a quiet area at the State Home. As a result of the fall, petitioner felt pain in her neck and did not work for about three and one-half months. In 1972, she fell on ice in the employees’ parking lot while going into the building. She landed in a sitting position, just as she had done during the prior fall. She tried to work that day, but when she bent over she could not straighten back up. Her back problems gradually worsened. Petitioner was hospitalized for one month and did not work for about 13 months. In December, 1976, petitioner fell for a third time on a "slick” floor in the building in which she worked. Petitioner was being treated by Dr. Meier, who retired and whose practice was taken over by Dr. A. M. Manohar. Petitioner did not work for approximately six weeks after the third accident. She returned to work as a general clerk and was shortly thereafter transferred to the medical records building. Petitioner’s condition gradually worsened. In March, 1979, her back was so bad that Dr. Manohar had another physician, Dr. Chen, give her epidural injections in her spine. The last time that petitioner worked was in September, 1979. Dr. Manohar’s statement of duty disability was admitted into evidence along with the medical report of Dr. Chen. In his statement Manohar indicated that the patient would not be permanently disabled but when asked whether the patient’s condition was such that she would be able to resume any part of her former work or secure other part-time employment, the response was "No”. Also admitted was a memorandum from the State Employees’ Retirement System to Dr. J. K. Altland, the State Medical Advisor. Dr. Altland had returned the memorandum with his handwritten statements on the face of it, indicating that he rejected the duty disability claim and that he did so after considering the report of Dr. Sherman Andrews, to whom petitioner had been referred by the Bureau of Worker’s Disability Compensation. Dr. Andrews’s medical report, also admitted into evidence, indicated that petitioner was five feet, three inches tall, and weighted 226-1/2 pounds. At the end of this report, Andrews concluded: "DIAGNOSIS "1. Obesity. "2. Pes planis, second degree, bilateral. "3. Cystocele, small, asymptomatic. "DISCUSSION "From my physical examination and x-ray studies failed to demonstrate any pathology to account for her complaint of low back pain. There was no evidence of arthritis or of injury. "I can see no reason why this patient should be wearing a backbrace, however I would urge her to lose weight. "I do not consider her to be disabled from her occupation of a general ward clerk at the Coldwater Regional Center.” On January 26, 1981, Hearing Officer Neil A. McLean submitted his proposed decision and recommendation that duty disability retirement status be denied petitioner. The matter was eventually appealed to circuit court. On November 19, 1981, Ingham County Circuit Court Judge Ray C. Hotchkiss ordered the case remanded to the State Employees’ Retirement Board for the purpose of re-opening hearings and taking adequate medical evidence. On remand a second hearing was held before Hearing Officer McLean. Petitioner testified that she could do no housework and that a chore provider was required to do everything for her except prepare her meals and do her "personal needs”. A seven-page report prepared by Dr. W. O. Badgley was admitted into evidence. The report concluded with a diagnosis of "cervical dorsal lumbar sprain, gross obesity”. In addition, Dr. Badgley’s depostition was admitted. In his deposition, Dr. Badgley stated that, if he were to be asked the appropriate questions, his answers would correspond, in essence, to those which were contained in his seven-page report. Dr. Badgley also gave his opinion of petitioner’s ability to return to effective employment. Badgley stated: "In view of fact it’s been six years, and. complicated by her excess weight, I don’t think she’s going to be able to get back to that work. I have had other patients from the same facilitys [sic] and I guess it gets kind of rough at times with the patient [sic] and there’s no way that she could handle anything but the most sedentary work, and that would depend on how far she had to ride to get there and over what kinds of roads, how far she’d have to walk from the parking lot and all those things. The prognosis, in my opinion, is very grim. She is making an effort now at reducing her weight and according to her history she has taken off 32 pounds, but she still is at 200 or over and five feet three.” Badgley considered her condition to be essentially a permanent one. In a letter of March 8, 1982, Dr. Manohar stated: "Shirley Gersbacher has been under my care for low mechanical back strain with some patchy hypoesthesia in both legs, right worse than the left. Recently she has been treated by me for coccydynia with a coccygectomy. "She is disabled at this stage. However her disability basically from her back point of view is not being able to do a job involving recurrent bending, stooping and lifting, and these restrictions which I have placed on her will probably be permanent. These are prophylactic restrictions and are meant to protect the patient.” The attorney general agreed to submit Dr. Manohar’s letter to Dr. Altland, the State Medical Advisor, along with the deposition of Dr. Badgley. The cover letter submitting the information to the medical advisor was apparently returned to the hearing officer. Dr. Altland wrote his conclusion on the face of that letter. His handwritten conclusion reads: "Review of the submitted additional material including the W. O. Badgley M.D. deposition has not provided any new information. The evaluation indicates sedentary work is a possibility soon though with some restrictions. There is not total disability. Recommendation remains unchanged — rejected.” On April 27, 1982, Hearing Officer McLean issued his second proposed decision and recommendation, which recommended that duty disability retirement status continue to be denied petitioner. As a conclusion of law, McLean stated: "Dr. Manohar in his letter of March 8, 1982 indicates Petitioner is not able to do a job involving recurrent bending, stooping and lifting. The deposition of Dr. Badgley indicates that she can handle only the most sedentary work. Michigan Compiled Laws Annotated Section 38.21 provides that for an individual to be eligible for duty disability retirement the Medical Advisor must certify in writing that the member is mentally or physically totally incapacitated for the further performance of duty in the service of the State and that such incapacity will probably be permanent, and that said member should be retired. Then the Retirement Board must concur in this recommendation of the Medical Advisor. Neither the letter of Dr. Manohar or the deposition of Dr. Badgley indicate that the Petitioner is totally incapacitated for the further performance of duty in the service of the State and that such incapacity will probably be permanent. While the Petitioner certainly has physical problems that limit her activities the statute is clear and unless the appropriate medical information is submitted upon which the Medical Advisor can make a determination that the Petitioner is totally incapacitated and her incapacity is likely to be permanent the statutory requirement is not met.” On May 6, 1982, the State Employees’ Retirement Board adopted McLean’s recommendation and order, denying petitioner’s request for retirement. On July 6, 1982, petitioner filed a petition for review of administrative action in the Ingham County Circuit Court. At oral argument before Judge Carolyn Stell on April 26, 1984, petitioner contended that the hearing officer construed the statute to give him no discretion if the medical advisor did not approve a retirement claim. Petitioner also argued that a review of the facts indicated a lack of substantial, credible evidence to support the determination that petitioner should not be retired. Respondents agreed that the hearing officer was not bound by the decision of the medical advisor. Repsondents argued, however, that the record indicated that the hearing officer actually made his own independent conclusion and that he agreed with the medical advisor that petitioner was not totally disabled. Judge Stell found that while the hearing officer made reference to the requirement that the medical advisor make a determination of total incapacity to perform duties in the service of the state he went on to make an independent finding of fact and conclusion of law that the testimony presented by letter and by deposition did not support a finding that petitioner met the statutory requirement of being totally incapacitated for duty. Judge Stell found that the decision of the hearing officer, as adopted by the State Employees’ Retirement Board, was supported by competent, material and substantial evidence on the record and on May 30, 1984, entered an order affirming the decision of the retirement board. On appeal petitioner raises three issues. (1) Does a medical advisor’s decision that a claimant is not physically, totally, and permanently incapacitated for further performance of duty in the service of the state preclude the State Employees’ Retirement Board from retiring the individual? (2) If the answer to the first question is "No”, did the retirement board made an independent determination? (3) Did the circuit court err in finding that such determination was supported by competent, material, and substantial evidence on the whole record? The first question raised presents a question of first impression. MCL 38.21; MSA 3.981(21) states: "Sec 21. Subject to the provisions of sections 33 and 34, upon the application of a member, or his department head, or the state personnel director, a member who becomes totally incapacitated for duty in the service of the state of Michigan without willful negligence on his part, by reason of a personal injury or disease, which the retirement board finds to have occurred as the natural and proximate result of the said member’s actual performance of duty in the service of the state, shall be retired: Provided, the medical advisor after a medical examination of said member shall certify in writing that said member is mentally or physically totally incapacitated for the further performance of duty in the service of the state, and that such incapacity will probably be permanent, and that said member should be retired: And provided further, That the retirement board concurs in the recommendation of the medical advisor.” (Emphasis supplied.) Petitioner construes the statute too narrowly. While the term "provided” suggests that certification of total, permanent, physical incapacitation is a prerequisite, other language indicates that this is not true. The term "medical advisor” suggests action only in an advisory capacity. Further, the statute provides that the retirement board is to concur in the "recommendation” of the medical advisor. Read as a whole, we are of the opinion that the Legislature intended that the retirement board have the ability to override the decision of the medical advisor and to retire an individual even without the medical advisor’s certificate. In issue two petitioner argues that the hearing officer (and the retirement board through its carte blanche adoption of the hearing officer’s recommendation) did not make an independent determination that petitioner was not totally and permanently incapacitated. We disagree. The hearing officer’s conclusions of law were as follows: "Dr. Manohar in his letter of March 8, 1982 indicates Petitioner is not able to do a job involving recurrent bending, stooping and lifting. The deposition of Dr. Badgley indicates that she can handle only the most sedentary work. Michign Compiled Laws Annotated Section 38.21 provides that for an individual to be eligible for duty disability retirement the Medical Advisor must certify in writing that the member is mentally or physically totally incapacitated for the further performance of duty in the service of the State and that such incapacity will probably be permanent, and that said member should be retired. Then the Retirement Board must concur in this recommendation of the Medical Advisor. Neither the letter of Dr. Manohar or the deposition of Dr. Badgley indicate that the Petitioner is totally incapacitated for the further performance of duty in the service of the State and that such incapacity will probably be permanent. While the Petitioner certainly has physical problems that limit her activities the statute is clear and unless the appropriate medical information is submitted upon which the Medical Advisor can make a determination that the Petitioner is totally incapacitated and her incapacity is likely to be permanent the statutory requirement is not met.” (Emphasis supplied.) Had the hearing officer concluded that "unless the medical advisor certifies” or "in the absence of the requisite certificate of incapacitation” he could not find a member to be totally incapacitated,-we would agree with petitioner. But that is not what the hearing officer concluded. Instead, he found a total absence of medical information upon which he could conclude that petitioner was totally incapacitated from further state service. While the hearing officer could have made a more detailed explanation of why he arrived at his conclusion, it is clear to us that he reached his own conclusions and did so on the basis that petitioner’s own doctors waffled on the question of petitioner’s total and permanent disability. Having decided that the hearing officer reached an independent conclusion, we next consider whether that decision is supported by competent, material and substantial evidence on the entire record. Const 1963, art 6, § 28; MCL 24.306; MSA 3.560(206); Russo v Dep’t of Licensing & Regulation, 119 Mich App 624, 630-631; 326 NW2d 583 (1982); Stoneburg v State Employees Retirement System, 139 Mich App 794; 362 NW2d 878 (1984). "Substantial evidence” has been defined as evidence which a reasoning mind would accept as sufficient to support a conclusion. While it consists of more than a mere scintilla of evidence, it may be substantially less than a preponderance of the evidence. Russo, supra, p 631; Stoneburg, supra. We have carefully reviewed the testimony and medical records. Having done so, we fully agree with Judge Stell that the retirement board’s denial of retirement is supported by competent, material and substantial evidence on the entire record. While petitioner’s own testimony seems to indicate that she could do nothing but perform very minor activities, the medical reports admitted into evidence at both hearings indicate only that her activities should be limited. Affirmed. No costs. M. J. Talbot, J., concurred.

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Per Curiam. Following a hearing on June 14, 1984, the Secretary of State suspended Dorian Griffin’s driver’s license for the one-year period from June 20, 1984, to June 20, 1985, pursuant to MCL 257.625f; MSA 9.2325(6). Griffin then petitioned in circuit court for reinstatement of limited driving privileges. The court noted that this was Griffin’s second license suspension for refusing to take a Breathalyzer test (the first suspension being from May 3, 1983, to August 3, 1983), and denied the petition. Griffin moved for reconsideration on the ground that this was his first petition for a restricted license. The circuit court granted reconsideration and entered an order reinstating limited driving privileges upon learning that Griffin had submitted to a "road” Breathalyzer test but refused to take a second test at the police station, believing he did not have to comply. The Secretary of State appeals as of right. The Secretary argues that the circuit court exceeded its authority, because MCL 257.323c(2); MSA 9.2023(3)(2) prohibits issuing a restricted license where "the person’s license has been suspended pursuant to section 625f within the immediately preceding 7-year period”. Griffin responds that this Court should not apply the statute because the Secretary did not raise the issue in the court below and because Griffin did not have a hearing when his license was suspended in 1983. We think this is a case where the issue is appropriate for our review, notwithstanding the Secretary’s failure to raise it below. Szidik v Podsiadlo, 109 Mich App 446, 451-452; 311 NW2d 386 (1981). We find no merit in Griffin’s claim that lack of a hearing under MCL 257.625e; MSA 9.2325(5) is significant. The statute provides that a hearing will be granted upon request. Griffin does not argue either that he requested the hearing or that he did not receive the requisite notice. He thus raises no basis for not considering the 1983 suspension. Accordingly, we accept the Secretary’s argument and grant the requested relief. We reverse and vacate the court’s order reinstating limited driving privileges. Reversed.

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Per Curiam. Plaintiff, a state employee, sued defendants for damages for wrongfully denying him employment with the state police, pursuant to 42 USC 1983 and the Michigan Constitution. The Court of Claims granted plaintiff summary judgment against the Department of State Police and the Director of State Police on the basis of his 42 USC 1983 claim. The Department of State Police and its director (hereinafter defendants) appeal as of right, raising issues of jurisdiction, liability, and damages. Defendants’ motion to affirm in plaintiff’s cross-appeal was granted. FACTS Plaintiff has been a state employee since 1969. He began at level 7 in the Department of State, and was reclassified to level 9. He was then transferred to a level 10 position at the Department of Social Services, and then to a level 11 position as an administrative analyst, an entry supervisory position. In the latter half of 1973, plaintiff sought opportunities to advance to data systems analyst 11, and one of these opportunities arose with the state police. Although plaintiff was ranked number two on the promotional register and the number one candidate withdrew, plaintiff was not hired by the state police that summer. He subsequently obtained a data systems analyst 11 position with the Highway Department in November, 1973. Unbeknownst to plaintiff, when the defendant department ran a security check on plaintiff, information about plaintiff’s student activist brother, Charles, was released. Charles’ file contained the notation, "Subject’s brother Ray Eugene DOB 2-27-44 made application for employment with MSP. Personnel advised 8-9-73.” Plaintiff did not learn of this until 1977, when legislation providing for maintenance of the so-called "red squad” files, 1950 (Ex Sess) PA 38, 39, and 40, was declared unconstitutional and Charles obtained his file and showed it to his brother, plaintiff. Plaintiff sought a hearing with the Civil Service Commission, but his grievance was dismissed as untimely. Plaintiff appealed to circuit court, which ordered that plaintiff be granted a hearing. The hearing officer ruled that "partisan considerations” were a substantial factor in plaintiff’s being denied employment with the state police, in violation of Const 1963, art 11, §5 and Civil Services Rules 1.1 and 1.2. Plaintiff was therefore awarded $201.60, the pay difference between administrative analyst 11 and data systems analyst 11 for the period from the date on which the state police hired another candidate for the data systems analyst position, September 23, 1973, to the date on which plaintiff obtained the comparable position with the Highway Department, November 4, 1973. Plaintiff then began this action in the Court of Claims, seeking damages under 42 USC 1983 and the Michigan Constitution. Accelerated judgment was granted to all defendants on the count pertaining to the Michigan Constitution, as plaintiff had not exhausted his administrative remedies. Based on the grievance decision, summary judgment as to liability was granted in favor of plaintiff and against the Department of State Police and the Director of State Police; and the Department of Civil Service and State Personnel Director were dismissed from the action. After a hearing on damages, the court awarded plaintiff $584.64 for lost wages, $40,544 for career loss, $56,052 for emotional distress, and $56,052 in exemplary damages. ISSUE AND DECISION May the State of Michigan, its agencies, or their directors be sued for damages in the Court of Claims under the Fourteenth Amendment and 42 USC 1983? This panel holds that the Court of Claims has jurisdiction over 42 USC 1983 actions against the state, its agencies, and their directors, but such actions cannot be maintained against the state or its agencies because Congress has not abrogated states’ sovereign immunity from § 1983 suits, and the state has not waived its immunity. In addition, liability of a director of a state agency is available only in certain cases and has not been established in this case. A. Court of Claims Jurisdiction over a 42 USC 1983 Action Defendants argue that the Court of Claims has no jurisdiction over an action brought against the state based on the Fourteenth Amendment. We hold that, while the Court of Claims has jurisdiction over federally created causes of action such as those enacted to enforce the Fourteenth Amendment, the state and its agencies cannot be sued under 42 USC 1983. The Court of Claims was created, and its jurisdiction defined, in 1939 by the following provision, which has remained intact to the present: "The court has power and jurisdiction: "(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies.” MCL 600.6419(1); MSA 27A.6419(1). This jurisdiction is exclusive, "except as provided in section 6440”. MCL 600.6440; MSA 27A.6440 provides: "No claimant may be permitted to file claim in said court against the state nor any department, commission, board, institution, arm or agency thereof who has an adequate remedy upon his claim in the federal courts * * *.” The Eleventh Amendment to the U. S. Constitution bars suits by private citizens against the State of Michigan in federal court. Brown Brothers Equipment Co v Michigan, 266 F Supp 506 (WD Mich, 1967). The Court of Claims Act does not provide consent for such suits. Id. Thus, suits against the State of Michigan by citizens of this state may be brought only in the Court of Claims. By virtue of the supremacy clause of US Const, art VI, §2, state courts must give cognizance to federal statutes. Testa v Katt, 330 US 386; 67 S Ct 810; 91 L Ed 967 (1947); Dudley v Genesee County Sheriff, 50 Mich App 678, 680; 213 NW2d 805 (1973). Although the U. S. Supreme Court has expressly reserved the question whether state courts are obligated to entertain § 1983 actions, Maine v Thiboutot, 448 US 1, 3, fn 1; 100 S Ct 2502; 65 L Ed 2d 535 (1980); Martinez v California, 444 US 277, 283, fn 7; 100 S Ct 553; 62 L Ed 2d 481 (1980), Michigan courts have permitted such actions without questioning their right to refuse them, cf. Chamberlain v Brown, 442 SW2d 248 (Tenn, 1969). Since the Court of Claims has exclusive jurisdiction over all actions against the state, it must have subject-matter jurisdiction over actions against the state brought pursuant to a federal statute such as 42 USC 1983. It was proper for the Court of Claims to assume jurisdiction over this case. As to the questions of the jurisdiction of the Court of Claims over the state officials, it must be noted that plaintiff did not sue the state officials in their individual capacities, so a suit against them in federal court for damages would be barred by the Eleventh Amendment because the state would be the party in fact. Scheuer v Rhodes, 416 US 232, 238; 94 S Ct 1683; 40 L Ed 2d 90 (1974); Edelman v Jordan, 415 US 651; 94 S Ct 1347; 39 L Ed 2d 662 (1974). Although the Court of Claims statute does not specifically mention state officials, this Court has interpreted the statute to grant jurisdiction over claims against state officials. Hamilton v Reynolds, 129 Mich App 375, 378; 341 NW2d 152 (1984), and cases cited therein. B. 42 USC 1983 Action Against a State Agency The Federal Civil Rights Act provides in 42 USC 1983: "Every person who, under color of any statute * * * of any state * * * subjects * * * any citizen * * * to the deprivation of any rights * * * secured by the Constitution and laws, shall be liable to the party injured * * Whether a state or any of its agencies is a "person” under this statute has been the subject of ongoing debate in both federal and state courts. As previously mentioned, it is well established that states cannot be sued in federal court because of the Eleventh Amendment. Stefaniak v Michigan, 564 F Supp 1194, 1198 (WD Mich, 1983). However, federal courts have dismissed state agencies as defendants, not on Eleventh Amendment grounds, but because they are not "persons” under § 1983. Laje v RE Thomason General Hospital, 665 F2d 724, 727 (CA 5, 1982); Ruiz v Estelle, 679 F2d 1115 (CA 5, 1982); Reynolds v Richmond Sheriff, 574 F Supp 90, 91 (ED Va, 1983); Mattas v Supreme Court of Pennsylvania, 576 F Supp 1178, 1182 (WD Pa, 1983); Richards v New York State Dep’t of Correctional Services, 572 F Supp 1168, 1172 (SD NY, 1983); Wrenn v Kansas, 561 F Supp 1216, 1220 (D Kan, 1983); Stanislaus Food Products Co v Public Utilities Comm, 560 F Supp 114 (ND Cal, 1982); Clark v Michigan, 498 F Supp 159, 161 (ED Mich, 1980). The lower federal courts often rely on other lower federal courts because the United States Supreme Court has taken varying stands on this issue. In Monroe v Pape, 365 US 167; 81 S Ct 473; 5 L Ed 2d 492 (1961), the Supreme Court ruled that municipalities were not "persons” under 42 USC 1983. The Michigan Supreme Court expanded that ruling to hold that neither the state nor the State Fair Commission could be sued under § 1983. Hirych v State Fair Comm, 376 Mich 384, 392; 136 NW2d 910 (1965). But in Monell v New York City Dep’t of Social Services, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978), the Supreme Court specifically overruled in part Monroe, casting the Hirych holding into doubt. In Quern v Jordan, 440 US 332; 99 S Ct 1139; 59 L Ed 2d 358 (1979), Justice Rehnquist, writing for the seven-member majority, and Justice Brennan, concurring separately, engaged in vigorous debate over whether the Congress which passed the Civil Rights Act of 1871 intended to include states when it used the word "person”. Justice Brennan quoted from a variety of sources indicating states were to be included, but Justice Rehnquist considered this all to be "slender 'evidence’ that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States”. 440 US 341. The United States Supreme Court has not directly addressed this issue since Quern. This Court in Smith v Michigan, 122 Mich App 340; 333 NW2d 50 (1983), lv pending, while acknowledging that other courts have ruled that states are not "persons” based on the majority holding in Quern, held that Quern had not decided whether a state is a person, and ruled that the State of Michigan may be sued in its courts for § 1983 actions. Since application for leave to appeal this decision to the Supreme Court was timely filed, Smith is of no precedential value. People v Phillips, 416 Mich 63, 74; 330 NW2d 366 (1982). This Court recently agreed with Smith that Quern did not decide whether a state was a § 1983 "person”, Karchefske v Dep’t of Mental Health, 143 Mich App 1; 371 NW2d 876 (1985). State courts which have considered this question have not taken this position. In addition to cases cited in Smith, supra, pp 348-349, see also Rains v Washington, 100 Wash 2d 660; 674 P2d 165 (1983); Mezey v California, 208 Cal Rptr 40; 161 Cal App 3d 1060 (1984); Shaw v St Louis, 664 SW2d 572, 576 (Mo App, 1983). Our research disclosed only two state courts which permitted § 1983 actions against state agencies based on Monell; neither discussed Quern. Stanton v Godfrey, 415 NE2d 103 (Ind App, 1981) (state Department of Public Welfare is a "person” under § 1983, citing Monell), but see Indiana v Hall, 411 NE2d 366, 369 (Ind App, 1980) ("Sec 1983 does not apply to states”); Brown v Wood, 592 P2d 1250 (Alas, 1979) (state university can be sued under § 1983 in light of Monell, reversing earlier decision denying action based on Monroe). To the extent that Smith and Karchefske hold that a state is a person, we cannot agree. The Karchefske panel nevertheless held that a § 1983 action against the state was precluded on what it considered to be the separate ground of sovereign immunity; but Quern and other cases have deter mined that a state must not be a "person” precisely because Congress has never exhibited any intent in § 1983 to abolish the doctrine of sovereign immunity. We agree with Quern that, if a federal statute is to abrogate states’ sovereign immunity, so that states too are "persons” under § 1983, there should be "explicit and clear language indicating on its face an intent to sweep away the immunity of the States”. Quern, 440 US 345. There being no such language in the statute, the traditional notion of sovereign immunity precludes a conclusion that states are included in the § 1983 rubric "person”. Further, the State of Michigan, through its own statutes, has not voluntarily relinquished its sovereign immunity, except in certain areas not applicable here. Karchefske, supra. Therefore, since § 1983 actions may not be brought against states or their agencies, the judgment against the Department of State Police is vacated. C. 42 USC 1983 Actions Against State Officials Individuals are, of course, persons within the meaning of 42 USC 1983. Ruiz v Estelle, supra. State officers who abuse their positions while acting under color of state authority are proper defendants in a 42 USC 1983 civil rights suit. Drollinger v Milligan, 552 F2d 1220, 1226 (CA 7, 1977); Monroe v Pape, 364 US 172. To establish a § 1983 claim against a state official, plaintiff must show more than mere authority by the defendant over others who have violated plaintiffs rights; plaintiff must prove at least one specific act or omission which was a causative factor in depriving plaintiff of his federal civil rights. Clark v Michigan, supra, p 161. Moreover, in a § 1983 action for money damages, public officials have qualified immunity if they acted in good faith. Baker v Detroit, 458 F Supp 379, 383 (ED Mich, 1978). In attempting to refine the scope of government officials’ immunity, our Supreme Court recently observed that an individual should not be held liable merely because it is later determined that he acted under an unconstitutional statute. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633, fn 41; 363 NW2d 641 (1984). Since in this case defendants’ liability was based solely on the hearing examiner’s determination that "partisan considerations” were a substantial factor in denial of plaintiffs promotion, no inquiry was made by the Court of Claims as to the possibility that defendant Director of State Police might be immune from this § 1983 action for damages, nor have either of the parties raised the issue in their briefs. However, in light of the aforementioned law on this issue, we think it critical in this case that the extent of the director’s possible liability be explored. While we would not normally reverse a trial court’s decision that a person’s due process rights were violated based on arguments not raised by either party, in this case the finding of liability could potentially affect all taxpayers in this state, if the state has agreed to indemnify officials such as this. We therefore remand for further proceedings consistent with the points we have made in this regard. D. Damages Even if defendant director is still determined to be liable to plaintiff for damages in this case, we find some of the damages awards excessive or insupportable. The Court of Claims awarded plaintiff $56,052 in exemplary damages. "[T]he basic purpose of a section 1983 damages award should be to compen sate persons for injuries caused by the deprivation of constitutional rights * * *.” Carey v Piphus, 435 US 247, 254; 98 S Ct 1042; 55 L Ed 2d 252 (1978). However, where the common law has historically permitted punitive or exemplary damages, such damages may be allowed in a § 1983 action. Newport v Facts Concerts, Inc, 453 US 247, 258-259; 101 S Ct 2748; 69 L Ed 2d 616 (1981). Plaintiff relies on the general rule that bad faith, malicious action or outrageous conduct in gross disregard of plaintiffs constitutional rights can support an award for punitive damages. There is no evidence, however, that the state police or its director acted in bad faith, maliciously, or outrageously. There is no evidence of an intent to cover up use of the "red-squad” file, cf. Webster v Houston, 689 F2d 1220 (CA 5, 1982), where, despite a showing that police attempted to mask the killing of a teenager, the court refused to award punitive damages. Here, it was defendants who moved for a hearing for plaintiff. The trial judge found no bad faith or malice, but merely that the police were carrying out orders, though without standards. He concluded that "no one can blame the state police”. Exemplary damages were clearly erroneous in this case. The back pay award of $584.64 also appears suspect. How this figure was arrived at does not appear in the record. Plaintiff was interviewed on August 6, 1973. At the time the information from his file was released, August 9, 1973, no promotional register existed, so the earliest that plaintiff could have been hired was August 29, 1973, when the register took effect. Plaintiffs employment with the Highway Department commenced on November 4, 1973. His back pay award should cover only the period from August 29 through November 4. The court instead measured the time period beginning from August 6, the date on which plaintiff was interviewed. This was erroneous. Damages for emotional and mental distress are proper in § 1983 cases where plaintiff offers competent evidence to support their award. Carey v Piphus, supra; Nekolny v Painter, 653 F2d 1164 (CA 7, 1981), cert den 455 US 1021; 102 S Ct 1719; 72 L Ed 2d 139 (1982). In this case, both plaintiff and his wife offered testimony that plaintiff began losing sleep, became paranoid about the police, and was alienated from his fellow workers. Although few cases have yielded such high awards for injuries such as these, the award in this case was supported by competent evidence and was not improper. Damages of $40,544 for career loss were also calculated from an improper starting date. The only clear evidence of long-term injury by not being hired in August, 1973, by the state police was that in 1981 plaintiff was "bumped” from a level 13 to a level 12 position by another employee with just a few more weeks’ seniority than plaintiff. Damages for career loss should be computed from 1981, not from 1973. Plaintiff estimated that cost him about $2,000 per year. CONCLUSION The judgment against the Department of State Police is vacated. As to the liability of the Director of the State Police, and appropriate damages if liability is found, we remand for further proceedings in light of this opinion.

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Per Curiam. Frank C. Crossman died intestate with no known heirs on December 31, 1982. A petition to commence proceedings for administration of the estate was filed in Livingston County Probate Court and named Crossman’s stepdaughters, petitioners/appellants herein, as interested parties. Petitioners sought a determination that they and their deceased brother, John E. Erickson, who was survived by two children, were Cross-man’s heirs under the doctrine of ’’equitable adop tion”. At the close of the petitioners’ proofs, the Attorney General moved for a directed verdict, which was granted. Petitioners appeal as of right. On September 10, 1984, this Court sua sponte ordered the parties to brief the matter of this Court’s jurisdiction. Petitioners argue that this Court has jurisdiction pursuant to MCL 600.861; MSA 27A.861 and PCR 801.2(c)(ll), because they are interested parties, the lower court order was final as to them, and the order determined their rights as heirs. Petitioners acknowledge that an equitable adoption would only give them property rights and not make them heirs, but they contend that the technical difference should not be construed to lead to an unjust result. The Attorney General notes that equitable adoption sounds in contract and that this Court could take jurisdiction because the order was one denying specific performance. PCR 801.2(c)(14). See now MCR 5.801(B)(3)(1). We accept jurisdiction under the latter court rule and believe it would be improper to decline jurisdiction merely because petitioners may have argued the wrong basis in their brief. We therefore turn to the merits. Citing 2 Am Jur 2d, Adoption, § 16, Ballentine’s Law Dictionary (3d ed), p 409, defines "equitable adoption” as follows: "The principle that a contract or agreement to adopt a child, clear and complete in its terms, and entered into by persons capable of contracting, which has been fully and faithfully performed on the part of the child so that relief for him is required as a matter of justice and equity, will be enforced in equity to the extent of decreeing that the child occupy in equity the status of an adopted child, and be entitled to the same rights of inheritance in intestate property of the promisor to which he would have otherwise been entitled had the intended adoption proceedings been legally consummated.” In Michigan, this doctrine has been "used to create a right of intestate succession in children where there was an effort to adopt which was ineffective due to a failure to meet statutory requirements or where there was an agreement to adopt which the parent failed to perform”. The Travelers Ins Co v Young; 580 F Supp 421, 423 (ED Mich, 1984). Whether there was an agreement to adopt must be decided on all the facts and circumstances of the case and an agreement may be inferred even in the absence of direct proof. Perry v Boyce, 323 Mich 95,100-101; 34 NW2d 570 (1948). In the instant case the court below ruled that there was no equitable adoption because "[tjhere was no testimony to indicate that adoption was ever discussed, and nothing was done by the parties to show an equitable adoption by the decedent”. Lois Boyes testifed that, while she had performed services for decedent, she did not expect to be rewarded, paid or adopted. She never discussed with decedent the disposition of his property upon his death. Virginia Erickson also testified that she had not discussed adoption or making a will with decedent. The court noted that decedent had made Lois and Virginia beneficiaries on his insurance policies, so it appeared that decedent knew how to make them recipients of his property and had failed to do so. Our own review of the record reveals the following additional facts. The decedent married the petitioners’ mother in 1950. At that time, Gwendolyn was 20 years of age, Virginia was 18 and Lois was 16. Gwendolyn was not living at home but often visited on weekends. Virginia and Lois remained at home approximately two years after the marriage. During that time, they provided some services to decedent, helping with the housecleaning, ironing shirts, fixing meals and washing the car. Decedent referred to petitioners as his children and treated them as such. However, petitioners did not take on the name Crossman. In 1953, Gwendolyn’s wedding invitation listed her as the daughter of decedent. The two always exchanged presents and cards on holidays, birthdays and Father’s Day. Decedent guaranteed a loan that Gwendolyn used to finance a trip to Alaska to seek employment there. The relationship between decedent and Virginia was also like that of father and daughter. They frequently went fishing together and once went bow hunting. Decedent often assisted Virginia financially and helped her move on several occasions. They also exchanged cards and gifts, and Virginia planned and gave a surprise 25th wedding anniversary party for decedent and her mother. Virginia took care of the funeral arrangements when her stepfather died. Lois had a similar relationship with decedent. Shortly after her marriage, he built her a new garage for her and her husband. He and her mother would babysit her children for extended periods of time. In 1980, he gave her daughter, Sandra, a 1966 automobile. The evidence is sufficient, assuming an agreement to adopt, to prove a valid consideration flowing from the stepdaughters through their faithful love and affection for the decedent. Blair v Califano, 650 F2d 840 (CA 6, 1981). However, we agree with the court below that the evidence fails to prove an agreement or attempt to adopt. We sympathize with petitioners and agree that the decedent intended to leave his property to them. The court below recognized as much, nothing that decedent had stated on one occasion that he wanted to get things straightened out so that his stepdaughters would get everything. Unfortunately, the decedent did not act upon his expressed intent. Petitioners assign error to the court’s exclusion of testimony by Virginia regarding the decedent’s further expression of intended disposition of his property. However, no offer of proof or separate record was made, so that, even assuming error, we cannot conclude that prejudice resulted requiring reversal. MRE 103(a). Furthermore, even if there had been more specific proof of the decedent’s intention to give his property to the petitioners, that would not be sufficient to show an intent or an attempt to adopt. At most it would show an intent to make a will, an intent that was never acted upon. Cf. Perry, supra, p 99. Affirmed. In Albring v Ward, 137 Mich 352, 355; 100 NW 609 (1904), the Court required proof of a contract giving a specific interest in property. Void articles of adoption were considered no evidence themselves of such a contract. The Court appears to have shifted grounds, however, in Roberts v Sutton, 317 Mich 458; 27 NW2d 54 (1947), where it required only proof of an agreement to adopt; the Court seems to have assumed that an interest in property would naturally follow. It stated on page 468: "We do not hold that plaintiff was adopted, but, rather, that, under the agreement, she ought to have been adopted and that, therefore, with full performance of the agreement on her part, consisting of years of faithful service and filial devotion, she has acquired an equitable interest in the estate of Doctor Carr.” For a discussion of the theories underlying the equitable interests in the decedent’s estate, see Comment, 47 Mich L Rev 962 (1949).

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Per Curiam:. Defendant was convicted of two counts of armed robbery, MCL 750.529; MSA 28.797, after a jury trial in Novembver, 1983. He was sentenced to two concurrent prison terms of from 20 to 40 years. Defendant appeals his convictions to this Court as of right. A robbery was committed at the Orchard Park Food Market in Leroy Township in Calhoun County, Michigan, on December 12, 1982. At about 8:30 p.m., three or four masked persons entered the market. At least one person was armed, carrying a shotgun. One robber ordered the cashier to open the cash register. The cashier and several customers were then ordered to lie down on the floor. The office manager, Marilyn Ylioff, testified that two of the robbers forced their way into the market’s office. They took $15,000 from the safe, YliofFs purse, and two rings she was wearing. Ylioff and several other witnesses testified that one shot was fired, followed by an expletive uttered emphatically by one of the robbers. A great deal of blood was found near the front door. Harry Zimmerman, an evidence technician, took blood samples from the pool of blood for analysis. He also recovered YliofFs purse from the scene. A police report, admitted into evidence by stipulation, indicated that defendant sought treatment for a gunshot wound to the right hand on December 13, 1982, at 11:46 a.m. at Henry Ford Hospital in Detroit, Michigan. Defendant left the hospital, against medical advice, after being treated. Timothy Lindquist, M.D., testified that he treated defendant at Leila Hospital in Battle Creek on December 14, 1982, for a gunshot wound to the right hand. He testified that the wound appeared to be two or three days old at that time. The wound showed signs of prior treatment. Frank Schehr, a supervisor at the Michigan State Police crime laboratory, testified that he compared blood samples found at the scene to blood samples taken from defendant under the authority of a court order. Schehr testified that defendant’s blood type was shared by .02 percent of the black population in Michigan. Defendant testified on his own behalf. He claimed that he was robbed and shot while visiting a nightclub in Detroit. His testimony was supported, without much detail, by Shannon Brown, defendant’s purported date that evening. The jury found defendant guilty as charged. Defendant’s first claim is that Dr. Lindquist’s testimony was privileged and not admissible at trial. The issue was preserved by a specific timely objection. The physician-patient privilege is created by statute. MCL 600.2157; MSA 27A.2157. Defendant claims that Dr. Lindquist’s observations of defendant’s gunshot wound during his treatment of defendant was information subject to the privilege. The issue presented is whether the privilege must give way to MCL 750.411; MSA 28.643, which requires that any wound inflicted by a deadly weapon must be reported to the local police authorities. A reading of the two statutes indicates that the privilege in MCL 600.2157; MSA 27A.2157 is qualified by MCL 750.411; MSA 28.643. This qualification is limited to the matters which a physician is required to report under MCL 750.411; MSA 28.643. When a general statute, such as the one creating . the privilege, conflicts with a specific statute, such as the reporting statute, the specific statute is considered to be an exception to the general statute. First Bank of Cadillac v Miller, 131 Mich App 764; 347 NW2d 715 (1984). Furthermore, it will not be presumed that the Legislature intended a conflict when it reenacted the privilege statute as 1961 PA 236, §2157, effective January 1, 1963, while the reporting statute was still in existence. Reed v Secretary of State, 327 Mich 108; 41 NW2d 491 (1950). We cannot presume the privilege statute repealed the reporting statute by implication; implied repeal is generally not presumed. People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984). Our conclusion is that the privilege is qualified by the reporting statute. Dr. Lindquist could testify about the matters he was required to report by the reporting statute. Defendant’s next claim is that the blood-type evidence was inadmissible. We disagree. The blood-type evidence was relevant under MRE 401 because it tended to prove (or disprove) a connection between the defendant and the robbery. The question of whether the blood on the market floor was defendant’s was a fact of consequence to the determination of the case. The evidence was not admitted in a void; there was other evidence linking defendant to the crime. The manager’s general description matched that of the defendant in height, weight, race and age. Defendant was driving an automobile matching a description of an automobile which was observed by a witness at the scene. Furthermore, the report from Henry Ford Hospital showed that defendant was treated for a gunshot wound on the morning following the robbery which occurred near Battle Creek. Finally, there was no unfair prejudice. There is no indication that the probative value was artificially inflated by the prestige of the witnesses. People v Goree, 132 Mich App 693, 703; 349 NW2d 220 (1983). The trial court did not abuse its discretion. The evidence was properly admitted. Goree, supra; People v Thorin, 126 Mich App 293; 336 NW2d 913 (1983). Defendant’s final claim is that the trial court erred by not giving CJI 4:2:01 on pure circumstantial evidence. The issue was preserved by a timely objection. There was no error. The trial court instructed the jury on direct and circumstantial evidence, including the cautionary instruction on the use of circumstantial evidence contained in CJI 4:2:02. When the instructions are read in their entirety, it is clear that the jury was properly instructed on the proper uses of the evidence produced at trial. People v Fordham, 132 Mich 70, 76; 346 NW2d 899 (1984), rev’d on other grounds 419 Mich 874 (1984). Affirmed.

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Per Curiam. Defendant was convicted of first-degree criminal sexual conduct, MCL 750.250b(l)(b)(i); MSA 28.788(2)(l)(b)(i). He was sentenced to from 30 to 100 years in prison. His appeal as of right raises a myriad of issues, none of which require reversal._ The complainant in this case was defendant’s 13-year-old stepdaughter. At trial, she testified that on December 25, 1981, she and the defendant had sexual intercourse. Approximately a month later, she told her mother about the incident and prosecution resulted. Defendant admitted having sexual intercourse with his stepdaughter. While he knew it was against the laws of the State of Michigan and the laws of man, he believed that, according to the laws of God, incest is the key to the kingdom of heaven. Dr. George F. Evseeff, a psychiatrist, testified on defendant’s behalf and it was his opinion that defendant was legally insane on the date of the offense. Dr. Charles Clark, a psychologist with the forensic center, was called as a rebuttal witness by the prosecution. He felt that defendant was not legally insane on the date of the offense. The first issue on appeal is whether reversible error occurred when evidence of the defendant’s prior sexual acts with the complainant and other members of his household was admitted. The question of whether evidence of prior sexual acts between the complainant and the defendant, when they are members of the same household, is admissible was answered in People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). Recognizing that the credibility of the alleged victim is generally a principal issue in a criminal sexual conduct case, the Court held that "the probative value outweighs the disadvantage where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense”. 390 Mich 413. The Court also pointed out that prior sexual intimacy between the parties is not always admissible; the trial judge has the discretion to exclude relevant evidence if its probative value is outweighed by the risk of unfair prejudice, confusion of the issues, or misleading the jury. While in this case the credibility of the complainant was not at issue because defendant admitted he had sexual intercourse with her, defendant failed to object or ask the trial court to exercise its discretion to disallow the testimony. Absent manifest injustice, failure to object to evidence at trial will preclude appellate review. People v Woods, 416 Mich 581, 610; 331 NW2d 707 (1982). We. find that no manifest injustice occurred. In the same vein, defendant also complains of testimony by the prosecutor’s expert witness, Dr. Clark, about four other charges of criminal sexual conduct against defendant relating to sexual activity with other children. The DerMartzex exception has not been extended to prior sexual acts between the defendant and persons in the same household other than the alleged victim. People v Jones, 417 Mich 285, 286; 335 NW2d 465 (1983). The Court reasoned. that "[pjrior sexual acts between the defendant and persons other than the complainant are not part of the principal transaction”. 417 Mich 289-290. In this case, the prosecutor and defense counsel entered into a stipulation that there would be no reference to other sexual acts by the defendant with the brother and sisters of the victim. As a matter of policy, this Court should carefully review and enforce agreements entered into by the prosecutor in order to protect the integrity of the judicial system. However, we note that the court fashioned an exception to the stipulation: "And there is an exception to that stipulation and that is with the exception of possibly the defendant’s expert. The prosecution’s questioning only relating to these other facts as a basis for an opinion. "That exception is to be reconsidered by the Court if defense counsel requests before the expert takes the stand.” Defendant did not object to Dr. Clark’s testimony. Absent objection, appellate review is precluded unless there is manifest injustice. Woods, supra. A review of the trial transcript indicates that the prosecutor’s expert, Dr. Clark, referred to certain statements made by defendant during Dr. Clark’s examination of him. The statements by defendant referred to the effects of his sexual abuse upon "the children”. There was no other testimony regarding any specific sexual acts between defendant and the other children. Because the only contested issue at trial was the defendant’s mental state at the time of the offense and Dr. Clark’s brief references about defendant’s sexual acts with other children were made in order to help him explain how he formulated his opinion as to defendant’s sanity, we find no manifest injustice. Dr. Clark was only given the same opportunity to explain the basis for his opinion that the court gave to defendant’s expert. The second issue on appeal is whether the prosecutor improperly impeached defendant’s expert witness regarding the witness’s propensity to testify on behalf of criminal defendants on the issue of insanity. MRE 611(b) provides that a "witness may be cross-examined on any matter relevant to any issue in the case, including credibility”. The scope of cross-examination rests in the sound discretion of the trial court and an appellate court will not reverse absent a clear showing of abuse. People v Johnston, 76 Mich App 332, 336; 256 NW2d 782 (1977); People v Richmond, 35 Mich App 115, 121; 192 NW2d 372 (1971). MRE 611(b) confers "broad discretion on the trial judge to decide the proper scope of cross-examination. Where no request to exercise its discretion is made, no error can be committed.” People v Goodard, 135 Mich App 128, 140; 352 NW2d 367 (1984). Absent manifest injustice, defendant’s failure to object at trial to testimony elicited by the prosecutor precludes appellate review. People v Cleveland Wells, 103 Mich App 455, 463; 303 NW2d 226 (1981). We find no manifest injustice. The testimony was admissible as it pertained to the credibility and bias of the witness. We note that it was only after defense counsel, on redirect, elicited testimony from Dr. Evseeff that he sometimes found defendants to be legally sane and had, on previous occasions, testified on behalf of the prosecution, that the prosecutor questioned Dr. Evseeff about the percentage of times he had testified that a criminal defendant was insane. Thus, defendant opened the door to the line of questioning and no error resulted when the prosecutor followed up with additional questions on the same issue. Defendant next argues that he was denied his right to a speedy trial because he was incarcerated for approximately 16 months prior to trial. Our Supreme Court has adopted a balancing test of four factors, originally expounded in Barker v Wingo, 407 US 514, 531; 92 S Ct 2182; 33 L Ed 2d 101 (1972), as a test for determining whether there has been a violation of the right to a speedy trial. People v Grimmett, 388 Mich 590, 601-606; 202 NW2d 278 (1972). The factors to be balanced are: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. Id. A delay of six months is necessary to trigger investigation into a claim that a defendant has been denied his right to a speedy trial. People v Lowenstein, 118 Mich App 475, 487; 325 NW2d 462 (1982). Where the delay is 18 months or greater, the burden shifts to the prosecutor to prove that defendant has not been prejudiced. 118 Mich App 487. In this case, the delay between arrest and trial was 15 months and 12 days, long enough to trigger investigation into defendant’s claim, but not long enough to shift the burden of proving lack of prejudice to the prosecution. The reasons for delay are examined by this Court and each period of delay is assigned to either the prosecutor or the defendant. See People v Chism, 390 Mich 104, 112-113; 211 NW2d 193 (1973). Where a delay is unexplained, it is charged to the prosecution. People v Carner, 117 Mich App 560, 577; 324 NW2d 78 (1982). Although the lower court record does not make entirely clear the reasons behind the numerous delays and adjournments, we can infer from the record that approximately 9-1/2 months of the delay was attributable to the prosecution and the remaining 6 months was due to the defendant and was usually caused by preparation for his insanity defense. Defendant first asserted his right to a speedy trial on May 19, 1983, when he moved for a firm trial date, asking that he be guaranteed his right to a speedy trial. On June 6, 1983, defendant moved to dismiss the charge alleging that he had been denied his right to a speedy trial. Thus, defendant did not assert his right to a speedy trial until 14 months after his arrest and less than 1 month prior to his trial. Failure to promptly assert the right does not preclude a speedy trial claim, but it is one of the factors to be balanced. People v Farmer, 127 Mich App 472, 479; 339 NW2d 218 (1983). We next examine whether defendant was prejudiced by the delay. There are two types of prejudice that may result: prejudice to a defendant’s person and prejudice to his defense. People v Collins, 388 Mich 680, 694; 202 NW2d 769 (1972). Defendant did suffer personal prejudice in that he was incarcerated for 15-1/2 months prior to trial. However, a review of the record does not indicate that defendant suffered any prejudice in preparing or presenting his defense. The only witnesses called by the defendant were Dr. Evseeff and defendant himself, and the only issue was insanity. We find that defendant was not denied his constitutional right to a speedy trial. Much of the delay was attributable to defendant and he suffered no prejudice in preparing or presenting his defense. In addition, defendant did not assert his right to a speedy trial until 14 months after his arrest. We next turn to defendant’s allegation that the evidence was insufficient to show that he was sane beyond a reasonable doubt. In determining whether there is sufficient evidence to support a conviction, we view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). Statutorily defined, "[a] person is legally insane if, as a result of mental illness * * * or as a result of mental retardation * * * that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law”. MCL 768.21a; MSA 28.1044(1). This statute incorporates by reference the Mentál Health Code’s definition of mental illness as a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life”. MCL 330.1400a; MSA 14.800(400a). A defendant is presumed sane. Once any evidence of insanity is introduced, the prosecution then bears the burden of proving defendant’s sanity beyond a reasonable doubt. People v Murphy, 416 Mich 453, 463-464; 331 NW2d 152 (1982). In this case, defendant and Dr. Evseeff testified in support of defendant’s claim of insanity. Dr. Evseeff felt that defendant was legally insane in that he was unable to appreciate the wrongfulness of his acts or to conform his behavior to the requirements of the law. On the other hand, Dr. Clark felt that defendant was able to appreciate the wrongfulness of his conduct and could conform his conduct to the law. Defendant himself testified that he knew his act of sexual intercourse with his stepdaughter violated the laws of the State of Michigan and was contrary to the laws of man. Defendant also testified that his act was not uncontrollable. With experts offering conflicting opinions as to defendant’s sanity, the decision as to which expert was more credible was left up to the jury. Dr. Clark’s testimony coupled with defendant’s own testimony enabled the jury to conclude that the prosecutor established defendant’s sanity beyond a reasonable doubt. The defendant also claims that the verdict was against the great weight of the evidence. A claim that the verdict is against the great weight of the evidence can only be raised by a motion for new trial. People v Powers, 272 Mich 303, 310; 261 NW 543 (1935); People v Jackson, 125 Mich App 251, 258; 335 NW2d 673 (1983). An appellate court will reverse on this issue only where there has been an abuse of discretion in denying the motion for a new trial. People v McCumby, 130 Mich App 710, 717; 344 NW2d 338 (1983). An abuse of discretion will be found only where the trial court’s denial of the motion was manifestly against the clear weight of the evidence. 130 Mich 717; People v Matthews, 53 Mich App 232, 235; 218 NW2d 838 (1974). Defendant did move for a new trial on several grounds, including that the verdict was against the great weight of the evidence. The motion was denied. We find that the evidence adduced at trial supports the trial court’s decision that the verdict was not against the great weight of the evidence. Accordingly, we find no abuse of discretion. Defendant’s next two issues merit little discussion. He alleges that the prosecutor engaged in misconduct such that defendant was denied a fair and impartial trial. We disagree. Defendant’s allegations about prosecutorial misconduct concerning the victim’s testimony and the impeachment of Dr. Evseeff have already been discussed and we find that no misconduct occurred. The prosecutor’s closing arguments about the two experts who testified as to defendant’s sanity or lack thereof constituted fair comment on the testimony and the credibility of the two witnesses. People v Flanagan, 129 Mich App 786, 796; 342 NW2d 609 (1983). In a supplemental brief, defendant has raised the issue of ineffective assistance of counsel. Briefly, defendant alleges that his trial counsel, in closing argument, made certain remarks which constituted an admission of defendant’s guilt. Because defendant admitted having sexual intercourse with his stepdaughter and stated that it was required by his religious beliefs, defense counsel argued that defendant should be found not guilty by reason of insanity. Attempting to get the jury to accept defendant’s defense is a matter of trial strategy about which this Court is reluctant to substitute its judgment. People v Peery, 119 Mich App 207, 216; 326 NW2d 451 (1982). Using the two-part test of People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), we do not find that defendant’s trial counsel was ineffective. The last issue we consider on appeal is whether the sentence meted out by the trial court shocks our conscience. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). In reviewing a sentence for abuse of discretion, this Court has looked to the lower court record, the presentence report, the sentence limits imposed by statute, and the evidence supplied by the trial court in sentencing the defendant. See People v Gistover, 131 Mich App 313; 345 NW2d 703 (1984). An "excessively severe sentence is one which far exceeds what all reasonable persons would perceive to be an appropriate social response to the crime committed and the criminal who committed it”. Coles, supra, pp 542-543. Sentencing requires consideration of a number of factors: (1) severity of the crime; (2) the nature of the crime; (3) circumstances surrounding the criminal behavior; (4) defendant’s attitude toward his criminal behavior; (5) defendant’s criminal history; (6) defendant’s social and personal history; and (7) statutory sentencing limits. See Coles, supra, p 548, fn 29. These factors should then be balanced with the objectives of imposing sentence: discipline of the wrongdoer, protection of society, reformation of the offender, and deterrence of others. See Coles, supra, p 550; People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). The result should be a sentence "tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential”. People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973). In the instant case, defendant was sentenced to serve a prison term of from 30 to 100 years after being found guilty of first-degree criminal sexual conduct. A panel of this Court remanded the case to the trial court for an explanation of the lower court’s reasons for imposing this sentence. On January 14, 1985, a remand hearing was held wherein the trial court stated its reasons for imposing sentence. A review of the court’s explanation for the sentence indicates that the trial court took the proper factors into consideration, along with the objectives of sentencing announced in Coles, supra, and Snow, supra. Specifically, the court found that defendant readily admitted to sexual intercourse with his stepdaughter and was not remorseful. The trial court believed there was little hope of rehabilitation due to defendant’s peculiar religious beliefs. The trial court found it necessary for the protection of society to keep defendant in prison for as long as possible. We are of the opinion that the trial court did not abuse its discretion such that it can be said that the sentence shocks the conscience of this Court. Affirmed.

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Per Curiam:. Defendant was convicted by a jury in the 47th District Court of driving under the influence of alcohol in violation of the City of Farmington Hills Code. He was given a suspended sentence of 90 days in jail, placed on probation for one year, and ordered to attend Alcoholics Anonymous meetings and to pay $480 in fines, costs, and fees. The circuit court affirmed defendant’s conviction. This Court denied defendant’s application for leave to appeal. The validity of defendant’s conviction is now before us on remand from the Supreme Court for consideration "as on leave granted”. On January 6, 1977, after the Farmington Hills City Council passed Ordinance No. C-80, which adopted a revision and codification of the city’s ordinances, the text of Ordinance No. C-80 was published in the Farmington Forum, a local newspaper. The adopting ordinance provided that the city was adopting and ordering the printing of the "Farmington Hills City Code”, pursuant to 1909 PA 279. Section 2 of Ordinance No. C-80 provided that all ordinances adopted prior to January 15, 1977, and not contained in the new code of ordinances, were "hereby repealed”. Section 3 of the ordinance indicated that ordinances of the city of a "general and permanent nature” were "amended, repealed, and rearranged” in various parts of the new municipal ordinance code. Reference was made to the title of different subjects and to the parts of the new ordinance code in which those subjects could be found, including the "Traffic Code”, which was located in Part VII of the new ordinance code. Pursuant to MCL 257.951; MSA 9.2651, the Uniform Traffic Code may be adopted by reference. As required in MCL 257.952; MSA 9.2652, § 1 of Ordinance No. C-80 provided that a copy of the ordinance code was on file with the city clerk and available for public use and inspection. Reference to Part VII, article 1 of the new code revealed that the "Uniform Traffic Code” as promulgated by the Commissioner of State Police "is hereby adopted by reference”. Part VII, article 1 also set forth the text of the various sections of the Uniform Traffic Code as adopted by the city. Moreover, the city published a notice of adopting the Uniform Traffic Code in the Farmington Forum. The notice provided that on March 1, 1977, the Uniform Traffic Code was "adopted by reference” by the city council in Chapter 70 (Part VII) of the City Ordinance Code, and noted the purpose of the Uniform Traffic Code. See MCL 257.952; MSA 9.2652. Finally, the notice further provided that complete copies of the Uniform Traffic Code were available at the city clerk’s office for inspection and for distribution to the public. Defendant contends that there must be strict compliance with MCL 257.952; MSA 9.2652, but that such was lacking here inasmuch as that provision requires that any code adopted by reference be "clearly identified”, relying upon People v Poyma, 91 Mich App 238; 283 NW2d 707 (1979). Defendant maintains that the reference in § 3 to the "Traffic Code” (rather than "Uniform Traffic Code”) was fatal to the ordinance’s proper publica tion. In Poyma, however, there was no publication at all. In the instant case, we believe that the Uniform Traffic Code was "clearly identified”. Section 3 specifically references Part VII of the city code which, in turn, makes specific reference to the Uniform Traffic Code. This is a far cry from Poyma where the ordinance was not published, but, rather, only supplemental notice of the purpose of the code and the existence of copies thereof was given. Here, the nature of the ordinance, in conjunction with the reference to the appropriate sections of the city code, "clearly” apprised interested persons that the "Traffic Code” in § 3 of Ordinance No. C-80 meant the "Uniform Traffic Code”. Affirmed.

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T. M. Burns, J. Plaintiff, Kay C. Rutter, appeals as of right from the circuit court’s order granting summary judgment to defendants Troy Mortgage Servicing Co. (Troy) and Dollar Watchers, Inc. (Dollar Watchers), pursuant to GCR 1963, 117.2. A final judgment was entered as to those defendants in accordance with GCR 1963, 518.2. In the Fall of 1980, plaintiff, Kay Rutter, responded to a television advertisement for defendant Salem Mortgage Company (Salem). Mrs. Rut ter was unemployed, had missed two or three mortgage payments, owed on various bills, and needed a car, so she indicated that she wanted to borrow some money. After several telephone conversations with individuals who apparently represented Salem, Mrs. Rutter was told that a loan could be arranged. Salem sent a representative to plaintiffs home with application materials. On January 14, 1981, plaintiff went to Salem’s office in Southfield to complete the loan. Plaintiff was actually dealing with Mutual Mortgage Company (Mutual). An assistant secretary employed by Salem Mortgage is the president of Mutual Mortgage. To receive the loan, Mutual Mortgage insisted that plaintiff incorporate since the interest on the loan was beyond the legal limit that a person could be charge. Mutual provided the services of Goldwyn Robinson, an attorney employed by Salem who was also an officer of Mutual Mortgage, to form the corporation. Mr. Robinson received $90 for forming the corporation and $5,000 for arranging the loan. According to Mr. Robinson, this money went to Salem and he only received his regular salary. Although plaintiff believed that she was dealing with Salem, the mortgage note and mortgage papers signed by plaintiff indicated that she was dealing with Mutual. The mortgage which plaintiff signed is commonly known as a "wraparound mortgage”. The mortgage and mortgage note pro vided that "Kay C. Rutter Company” agreed to repay Mutual $21,000 at 17% interest. The following amounts were withheld from the loan: $9,623.94 for payments on plaintiffs original mortgage with Bronx Citizens Bank; $5,000 for payment of the brokerage fee; $421.85 for taxes and insurance; $260 for closing costs; and $118.92 for prepaid interest. Plaintiff was left with $5,997.14 in cash. She was given a disclosure statement indicating the amount of miscellaneous closing costs, the interest rate, finance charges and the total amount of payments. Originally Mrs. Rutter was instructed to pay Mutual, but soon after the loan deal was closed she was told to make payments to defendant Troy Mortgage, an assignee of Mutual. Sometime later, the mortgage was assigned to Dollar Watchers and that company was added as a defendant in this action on October 28, 1983. As of February 25, 1983, the mortgage has been completely satisfied. Plaintiff brought this action on behalf of a class of similarly situated persons. Her claims were based upon the federal Consumer Credit Protec tion Act and Truth in Lending Act, 15 USC 1601 et seq., and Truth in Lending Regulations (Regulation Z), 15 USC 1700 et seq.; 12 CFR 226.1 et seq.; the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., and usury prohibitions of state law, MCL 438.31; MSA 19.15(1). She demanded that the action be allowed to proceed as a class action, that she be awarded twice the finance charge or $1,000 plus reasonable attorney fees, pursuant to 15 USC 1640(a), that defendants be directed to return the attorney fee and interest for each plaintiff plus reasonable attorney fees, pursuant to MCL 445.911; MSA 19.418(11), that defendants be directed to refund interest, exessive fees and attorney fees charged, pursuant to MCL 438.31; MSA 19.15(1), that defendants be directed to bear the cost of notice to the class members, pursuant to MCL 445.911; MSA 19.418(11), that the court declare defendants’ practices to be unlawful and enjoin those practices, and that exemplary damages be awarded, pursuant to GCR 1963, 111.1(3). We find that plaintiff sufficiently pled a cause of action based on the federal Truth in Lending Act against Troy Mortgage. Since the alleged violation of the Truth in Lending Act occurred before October 1, 1982, the applicable statute is 15 USC 1640(d). Marcano v Northwestern Chrysler-Plymouth Sales, Inc, 550 F Supp 595, 599, fn 3 (ND ILL, 1982). That statute reads: "Any action which may be brought under this section against the original creditor in any credit transaction involving a security interest in real property may be maintained against any subsequent assignee of the original creditor where the assignee, its subsidiaries, or affiliates were in a continuing business relationship with the original creditor either at the time the credit was extended or at the time of the assignment, unless the assignment was involuntary, or the asignee shows by a preponderance of evidence that it did not have reasonable grounds to believe that the original creditor was engaged in violations of this part, and that it maintained procedures reasonably adapted to apprise it of the existence of any such violations.” Since defendants did not file affidavits with their motion for summary judgment, we decline to consider the motion under then GCR 1963, 117.2(3) and consider it as brought under GCR 1963, 117.2(1). Peck v Auto-Owners Ins Co. 112 Mich App 329, 335-336; 315 NW2d 586 (1982). Pursuant to GCR 1963, 117.2(1) the trial court should have limited its discretion to determinging whether plaintiff had sufficiently pled a cause of action. Plaintiff sufficiently alleged a continuing business relationship and defendants never denied being assignees. Plaintiff averred in the original complaint against defendants Mutual Mortgage and Troy that "defendant Mutual Mortgage also acted as an agent for Troy Mortgage Company* * *” and that it assigned the mortgage to Troy. With respect to Dollar Watchers, plaintiff averred that the mortgage was assigned to them and that they had knowledge of the defenses raised by plaintiff. There was further an averment that other similar contracts had been entered into under similar circumstances. We find, pursuant to 15 USC 1640(d), that this suffices to allege a continuing business relationship. Defendants, therefore, have the burden of showing by a preponderance of the evidence that they did not have reasonable grounds to believe that Salem and Mutual engaged in violations of the federal Truth in Lending Act and that they maintained procedures reasonably adapted to apprise them of the existence of any such violations. Although defendants claimed as an affirmative defense that they had no knowledge of any violations, this is not enough to make plaintiff’s pleadings subject to summary judgment. The questions of knowledge presents a genuine dispute as to a material fact. The trial court therefore clearly erred in granting summary judgment in favor of Troy Mortgage on plaintiff’s claim based on the Truth in Lending Act. While Dollar Watchers, Inc., may also be in a continuing business relationship with Mutual Mortgage, for the reasons already stated and the fact that the president of Dollar Watchers is also an officer of Troy Mortgage, we find that the period of limitation has run against Dollar Watchers. 15 USC 1640(e). Plaintiff’s relation-back argument is without merit. Browder v International Fidelity Ins Co, 98 Mich App 358, 361; 296 NW2d 60 (1980). Summary judgment was, therefore, properly granted in favor of Dollar Watchers, Inc., on plaintiff’s truth in lending claim. We also find that the trial court properly granted summary judgment against plaintiff on her claim that she was entitled to recover the interest paid on the loan because it was set at an usurious rate. Usury is in the nature of a defense and, therefore, plaintiff cannot maintain an independent action based on the claim of usury to recover the interest she paid on the loan. Michigan Mobile Homeowners Ass’n v Bank of the Commonwealth, 56 Mich App 206, 216; 223 NW2d 725 (1974), lv den 393 Mich 809 (1975). Finally, we find that plaintiff has sufficiently pled a cause of action based on the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., against both Troy Mortgage and Dollar Watchers. The Michigan Consumer Protection Act defines unfair, unconscionable, or deceptive methods, acts, or practices in the con duct of trade or commerce which are deemed to be unlawful. MCL 445.903; MSA 19.418(3); Allan v M&S Mortgage Co, 138 Mich App 28, 43; 359 NW2d 238 (1984). Plaintiffs pleadings sufficiently allege conduct on the part of Salem and Mutual which, if proven, would be in violation of the Michigan Consumer Protection Act. Allan, supra, pp 43-44. We believe that plaintiff’s pleadings also allege a sufficient connection between appellees, Troy Mortgage and Dollar Watchers, and Salem and Mutual Mortgage. Allan, supra, p 43. The trial court, therefore, erred in granting summary judgment in favor of appellees on plaintiff’s claims brought under the Michigan Consumer Protection Act. Reversed in part and affirmed in part and remanded for proceedings consistent with this opinion. No costs are awarded as no party has prevailed in full. MCL 450.1275; MSA 21.200(275) provides: "A domestic or foreign corporation, whether or not formed at the request of a lender, may by agreement in writing, and not otherwise, agree to pay a rate of interest in excess of the legal rate and in such case the defense of usury is prohibited.” A wraparound mortgage is a junior mortgage which secures a promissory note with a face amount equal to the sum of the principal balance of an existing mortgage note plus any additional funds advanced by the wraparound lender. Wraparound mortgages may be used in several forms, depending upon the status of the lender and the borrower in relationship to the property encumbered. Typically, however, wraparounds are either purchase-money mortgages, where the wraparound lender is either the real estate seller or a third party, or refinancing or non-purchase-money mortgages, where the lender is either the same lender that holds the first mortgage or a third party. See, Comment, The Wrap-Around Deed of Trust: An Answer to the Allegation of Usury. 10 Pac LJ 923 (1979), for a discussion of various types of wraparound mortgages. Mitchell v Trustees of United States Mutual Real Estate Investment Trust, 144 Mich App 802; 375 NW2d 424 (1985). As in Mitchell, this case involves a third party, non-purchase-money type of wraparound transaction. "In such transactions, the borrower’s payment under the second, wraparound note covers the debt service on both the first indebtedness and the additional loan advance. While not assuming the original mortgage note obligation, the wraparound lender undertakes to make the payments on the original, 'wrapped’ mortgage note as it receives wraparound payments from the borrower.” Mitchell, supra, p 309. We note that appellees argue that they are holders in due course. MCL 440.3302; MSA 19.3302. If defendants had knowledge of a defense or claim on the instrument, holder-in-due-course status is defeated and they are subject to all defenses and claims, even those of which they had no knowledge. Bird Finance Corp v Lamerson, 303 Mich 422, 443; 6 NW2d 732 (1942). Since there is a material factual issue as to whether appellees accepted the assignments with knowledge of the alleged violations of the Truth in Lending Act and the Michigan Consumer Protection Act, the order granting summary judgment cannot be affirmed on this basis.

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V. J. Brennan, P. J. Defendant, City of Highland Park, (defendant City) appeals as of right from the judgment entered on the jury’s verdict awarding plaintiffs $60,000 in damages for defendant City’s violation of plaintiff’s civil rights under 42 USC 1983. The case arose out of events which occurred on October 14, 1976, when plaintiff Michael Napier was shot by a fellow Highland Park police officer, Jeffrey Jacobs, who was off duty at the time. Plaintiffs brought suit alleging state law causes of action against Jacobs and two other police officers (Red Maruszewski, who was also off duty, and William Chidester, who was Jacobs’s partner), both of whom witnessed the shooting. Defendant City and the three individual officers were also sued under 42 USC 1983. A verdict was returned against Jacobs in the amount of $50,000 for the state claims and $25,000 for the 42 USC 1983 deprivation of civil rights claim. Verdicts of no cause of action were returned in favor of Chidester and Maruszewski. Jacobs is not a party to this appeal. Testimony established that on October 14, 1976, Napier, a black rookie police officer, was partnered with defendant Chidester, who was white. They were working the midnight shift, which had begun at 11:00 p.m. on October 13. Chidester, as the senior officer, drove their patrol car. While on patrol, Chidester stopped the car to talk with two other officers who informed Napier and Chidester that they had put some Communist Workers’ Party bumper stickers on the cars of two white off-duty police officers, Jacobs and Maruszewski, who were in a local bar at the time. Chidester parked the patrol car across the street from the bar to observe Jacobs’s and Maruszewski’s reaction to the bumper stickers. Later that evening, while Chides ter and Napier patrolled, Chidester observed Maruszewski’s car parked illegally in front of a taxicab dispatch office on Pasadena. Napier and Chidester went up to the office and found Jacobs and Maruszewski inside. Jacobs, who drove a taxicab part-time, testified that he went to the dispatch office to inquire about getting a bond plate to carry passengers in the City of Detroit. Chidester made a comment to Jacobs to the effect that "I didn’t know you were a liberal”, apparently referring to the bumper stickers. Jacobs suggestively grabbed his groin and then called Chidester a "cocksucker”. Chidester pulled his service revolver, suggesting that Jacobs "suck on this”. Jacobs retorted with "here’s yours” and then drew his pistol. Maruszewski also drew his gun. The focus then turned to Napier, the only officer who had not drawn his gun. Jacobs pointed his gun at Napier, saying "I think I’ll shoot an ahbed”. Ahbed is Syrian slang terminology for blacks. Napier testified that Jacobs approached him and said he was going to "blow his guts out”, to which Napier replied "go ahead, I’m wearing a flak vest. I need it tested anyway.” Jacobs then said he would blow Napier’s brains out and he pointed the gun in the direction of Napier’s head. Napier replied, "If I had any brains I would not be here”. According to Napier, Maruszewski commented that a bullet would just bounce off Napier’s head since what was in there were rocks. Napier testified that Jacobs then turned away, saying something like "stupid nigger”. Napier then retorted "mighty funny you didn’t tell anybody I was your long lost brother”. Jacobs then turned around toward Napier and the gun discharged into Napier’s abdomen. The first issue for our consideration is whether there was insufficient evidence as a matter of law to support a jury verdict on defendant City’s liability under 42 USC 1983. First, we point out that, contrary to plaintiffs’ assertions, a sufficiency of the evidence claim is reviewable on appeal although a motion for a new trial has not been made. Arnsteen v U S Equipment Co, 390 Mich 776, 777 (1973). A motion for new trial must be made in order to preserve the issue of a verdict’s being against the great weight of the evidence. Watson v Dax, 334 Mich 320; 54 NW2d 674 (1952), Burnett v Mackworth G Rees, Inc, 109 Mich App 547; 311 NW2d 417 (1981), lv den 417 Mich 929 (1983). A motion for a directed verdict under former GCR 1963, 515.2 was a prerequisite to a motion for a judgment notwithstanding the verdict. See Watson, supra. Under MCR 2.610, a motion for a directed verdict is not necessary in order for a party to move for a judgment notwithstanding the verdict. In the instant case, defendant City neither moved for a new trial nor for a judgment notwithstanding the verdict. A motion for a directed verdict was made, however, but the motion did not concern the question of whether there was sufficient evidence to go to the jury on the issue of the City’s liability. Nonetheless, although procedure via the court rules was not properly followed here, to prevent a miscarriage of justice we will review the evidentiary issue presented by defendant as one that was raised in the directed verdict motion, and we will apply the standards for a review of a motion for judgment notwithstanding the verdict. We believe that review of a sufficiency of the evidence claim in a civil case as presented here would be almost, if not entirely, comparable to the standard of review for the grant or denial of a judgment notwithstanding the verdict. "A judgment notwithstanding the verdict on defendants’ motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for plaintiff. Basic Food Industries, Inc v Grant, 107 Mich App 685, 695; 310 NW2d 26 (1981). In reaching a decision, the trial court must view the evidence in the light most favorable to the plaintiff and give the plaintiff the benefit of every reasonable inference that could be drawn from the evidence. Isom v Farrugia, 63 Mich App 351, 354-355; 234 NW2d 520 (1975). If after viewing the evidence in this manner reasonable men could differ, the question is one for the jury and judgment notwithstanding the verdict is improper. Id.” Drummey v Henry, 115 Mich App 107, 110-111; 320 NW2d 309 (1982), lv den 417 Mich 895 (1983). As explained in Killen v Benton, 1 Mich App 294, 298; 136 NW2d 29 (1965), a " 'judgment notwithstanding the verdict may be allowed only if there is insufficient evidence, as a matter of law, to make an issue for the jury’ ”. 42 USC 1983 provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress * * *.” The plaintiffs alleged and sought to prove at trial that defendant Jacobs acted under color of law as an off-duty police officer and, while so acting, deprived Napier of his right to due process of law under the 14th Amendment. US Const, Am XIV. According to plaintiffs, Napier had the constitutional right to be free from physical harm, violence, and injury. The § 1983 claim against defendant City included allegations that the City, by and through the acts and/or omissions of the police department supervisory personnel, violated Napier’s due process rights by adopting a policy of tolerating firearm abuse and the use of racially derogatory language and that the policy proximately caused Jacobs’s reckless use of his firearm in the assault on Napier. The plaintiffs also attempted to prove as an alternative theory of liability that the defendant City had a policy of failing to properly supervise, train, and retrain its officers in the use of firearms. To establish a right to relief under 42 USC 1983, a plaintiff must plead and prove that: (1) the defendant deprived the plaintiff of a right secured by the constitution and laws of the United States; and (2) the defendant deprived the plaintiff of this right while acting under color of state law. Moore v Detroit, 128 Mich App 491, 499; 340 NW2d 640 (1983); Rushing v Wayne County, 138 Mich App 121; 358 NW2d 904 (1984), citing Parratt v Taylor, 451 US 527; 101 S Ct 1908; 63 L Ed 2d 420 (1981), and Paul v Davis, 424 US 693; 96 S Ct 1155; 47 L Ed 2d 405 (1976). Municipalities (local governments) such as defendant City can be sued under 42 USC 1983. Monell v Dep’t of Social Services of City of New York, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978); Owen v City of Independence, 445 US 622; 100 S Ct 1398; 63 L Ed 2d 673 (1980); Polk County v Dodson, 454 US 312; 102 S Ct 445; 70 L Ed 2d 509 (1981). See also City of Oklahoma City v Tuttle, 471 US —; 105 S Ct 2427; 85 L Ed 2d 791 (1985). Under Monell, supra, a municipality is a person. However, a "municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory”. Monell, 436 US 691. As stated by the Monell Court: "We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 US 694. Under Polk, supra, 454 US 326, the United States Supreme Court indicated that a local government’s liability under 42 USC 1983 must be based on an unconstitutional official policy or custom. (Was the deprivation caused by any constitutionally forbidden rule or procedure?) Furthermore, "official policy must be 'the moving force of the constitutional violation’ in order to establish the liability of a government”. Polk, 454 US 326, citing Monell, supra. See also City of Oklahoma City v Tuttle, supra, part III, plurality opinion written by Justice Reinquist, joined by Chief Justice Burger and Justices White and O’Conner: "[T]he Monell Court held that only deprivations visited pursuant to municipal 'custom’ or 'policy’ could lead to municipal liability. This language tracks the language of the statute; it also provides a fault-based analysis for imposing municipal liability.” 105 S Ct 2433-2434; 85 L Ed 2d 801. (Footnote omitted.) In City of Oklahoma City v Tuttle, supra, an officer on Oklahoma City’s police force shot and killed Rose Marie Tuttle’s husband outside a bar in which a robbery had been reported in progress. Mrs. Tuttle brought suit against the officer and the city under 42 USC 1983 alleging that their actions had deprived her husband of his federal constitutional rights under the Fourteenth and "presumably” under the Fourth Amendments (due process of law and the "right to be free from the use of excessive force in his apprehension”). 105 S Ct 2433; 85 L Ed 2d 800. The theory of municipal liability advanced at trial was that the officer’s act arose from inadequate police training. A jury verdict was returned in favor of the police officer but against the defendant City in the amount of $1,500,000. The verdict was affirmed on appeal to the Tenth Circuit. 728 F2d 456 (1984). The United States Supreme Court granted certiorari because the Tenth Circuit’s holding that proof of a single incident of unconstitutional activity by a police officer could suffice to establish municipal liability conflicted with other Circuit Court of Appeals decisions. At trial, Mrs. Tuttle did not claim that the defendant city had a "custom” or "policy” of authorizing its officers "to use excessive force in the apprehension of suspected criminals, and the jury was not instructed on that theory of municipal liability”. 105 S Ct 2434; 85 L Ed 2d 802. The theory of liability advanced at trial "was that the 'policy’ in question was the city’s policy of training and supervising police officers, and that this 'policy’ resulted in inadequate training, and the constitutional violations alleged”. The trial court’s instruction allowed the jury to "’infer,’ from 'a single, unusually excessive use of force * * * that it was attributable to inadequate training or supervision amounting to "deliberate indifference” or "gross negligence” on the part of the officials in charge’”. 105 S Ct 2434, 2435; 85 L Ed 2d 802. (Citation omitted.) Justice Reinquist wrote: "We think this inference unwarranted; first, in its assumption that the act at issue arose from inadequate training, and second, in its further assumption concerning the state of mind of the municipal policymakers. But more importantly, the inference allows a § 1983 plaintiff to establish municipal liability without submitting proof of a single action taken by a municipal policymaker. The foregoing discussion of the origins of Monell’s 'policy or custom’ requirement should make clear that, at the least, that requiremtn was intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers. Presumably, here the jury could draw the stated inference even in the face of uncontradicted evidence that the municipality scrutinized each police applicant and met the highest training standards imaginable. To impose liability under those circumstances would be to impose it simply because the municipality hired one 'bad apple.’ "The fact that in this case respondent introduced independent evidence of inadequate training makes no difference, because the instruction allowed the jury to impose liability even if it did not believe respondent’s expert at all. Nor can we read this charge 'as a whole’ to avoid the difficulty. There is nothing elsewhere in this charge that would detract from the jury’s perception that it could impose liability based solely on this single incident.” 105 S Ct 2435; 85 L Ed 2d 802-803. When explaining the difference between the policy in Monell, and that in the Tuttle case, Justice Reinquist wrote: "The 'policy’ of the New York Department of Social Services that was challenged in Monell was a policy that by its terms compelled pregnant employees to take mandatory leaves of absence before such leaves were required for medical reasons; this policy in and of itself violated the constitutional rights of pregnant employees by reason of our decision in Cleveland Board of Education v LaFleur, 414 US 632, 94 S Ct 791, 39 L Ed 2d 52 (1974). Obviously, it requires only one application of a policy such as this to satisfy fully Monell’s requirement that a municipal corporation be held liable only for constitutional violations resulting from the municipality’s official policy. "Here, however, the 'policy’ that respondent seeks to rely upon is far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell. To establish the constitutional violation in Monell no evidence was needed other than a statemnt of the policy by the municipal corporation, and its exercise; but the type of 'policy’ upon which respondent relies, and its causal relation to the alleged constitutional violation, are not susceptible to such easy proof. In the first place, the word 'policy’ generally implies a course of action consciously chosen from among various alternatives; it is therefore difficult in one sense even to accept the submission that someone pursues a 'policy’ of 'inadequate training’, unless evidence be adduced which proves that the inadequacies resulted from conscious choice — that is, proof that the policymakers deliberately chose a training program which would prove inadequate. And in the second place, some limitation must be placed on establishing municipal liability through policies that are not themselves unconstitutional, or the test set out in Monell will become a dead letter. Obviously, if one retreats far enough from a constitutional violation some municipal 'policy’ can be identified behind almost any such harm inflicted by a municipal official; for example, Rotramel would never have killed Tuttle if Oklahoma City did not have a 'policy’ of establishing a police force. But Monell must be taken to require proof of a city policy different in kind from this latter example before a claim can be sent to a jury on the theory that a particular violation was 'caused’ by the municipal 'policy.’ At the very least there must be an affirmative link between the policy and particular constitutional violation alleged. "Here the instructions allowed the jury to infer a thoroughly nebulous 'policy’ of 'inadequate training’ on the part of the municipal corporation from the single incident described earlier in this opinion, and at the same time sanctioned the inference that the 'policy’ was the cause of the incident. Such an approach provides a means for circumventing Monell’s limitations altogether. Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality and the causal connection between the 'policy’ and the constitutional deprivation.” (Emphasis added, footnotes omitted.) 105 S Ct 2435-2436; 85 L Ed 2d 803-804. Concurring in part and concurring in the judgment reversing the Tenth Circuit, Justice Brennan, joined by Justices Marshall and Blackmun, wrote that the plurality opinion complicated the task of defining the full contours of municipal liability and he suggested a simpler explanation. Justice Brennan concluded that allowing the jury to infer the existence of a city policy from a single incident of police misconduct of one low level officer not authorized to make city policy and to hold the City liable on the basis of that policy would amount to permitting liability based upon the theory of respondeat superior which was rejected by the Monell Court: "A single police officer may grossly, outrageously, and recklessly misbehave in the course of a single incident. Such misbehavior may in a given case be fairly attributable to various municipal policies or customs, either those that authorized the police officer so to act or those that did not authorize but nonetheless were the 'moving force,’ Polk County v Dodson, 454 US 312, 326; 102 S Ct 445, 454; 70 L Ed 2d 509 (1981), or cause of the violation. In such a case, the city would be at fault for the constitutional violation. Yet it is equally likely that the misbehavior was attributable to numerous other factors for which the city may not be responsible; the police officer’s own unbalanced mental state is the most obvious example. Cf. Brandon v Holt, 469 US —, —; 105 S Ct 873; 85 L Ed 2d 878 (1985). In such a case, the city itself may well not bear any part of the fault for the incident; there may have been nothing that the city could have done to avoid it. Thus, without some evidence of municipal policy or custom independent of the police officer’s misconduct, there is no way of knowing whether the city is at fault.” 105 S Ct 2440; 85 L Ed 2d 809. The plaintiffs herein first attempted to show that the City adopted a policy, custom or practice of tolerating firearm abuse or misuse and verbal horseplay of a racial nature which proximately caused the shooting. "[T]he plaintiff must show an affirmative link between the misconduct and the adoption of any plan or policy, showing defendant’s authorization or approval of such conduct.” Moore, supra, p 499; Rushing, supra. The alleged misconduct here was the reckless shooting of Napier (due process violation) by an off-duty police officer. We first point out that the alleged custom, plan, or policy of toleration of firearm misuse or abuse and racially derogatory language which plaintiffs claimed to have proximately caused the shooting, if the policy existed, is not an unconstitutional policy in and of itself. By comparison, a policy of tolerating illegal searches and seizures would be unconstitutional under the Fourteenth and Fourth Amendments. The United States Constitution does not prohibit the use of racial epithets, although such use is objectionable. Nor does the Constitution prohibit the misuse of firearms, such as quick draw practicing by police officers in front of mir rors. Under Polk, supra, we believe that the evidence presented at trial did not establish a policy, custom, or plan that was unconstitutional, nor a moving force of the constitutional violation alleged by plaintiffs (deprivation of Napier’s right to due process). In fact, our review of the evidence at trial reveals that, at most, the evidence established a custom of tolerating racially derogatory language or verbal horseplay between police officers. We do point out that the plurality opinion in City of Oklahoma City v Tuttle does not limit liability under § 1983 to "unconstitutional policies”. A municipality may still be held liable for a "constitutional” policy, but more than proof of a single incident is necessary. See 105 S Ct 2436; 85 L Ed 2d 804. The evidence presented came first from Napier, who testified that officers and supervisors alike called each other racially or ethnically derogatory names. Other officers testified that they had heard such language used in the presence of supervisors and that Chief Kertuu was aware of it. None of the officers, however, testified that they felt any personal offense at the use of the language. Under Monell and its progeny, it is our opinion that such evidence did not at all establish an affirmative link between the shooting of Napier and the policy or custom of encouraging verbal horseplay of a racial nature. There was no causal relationship or connection between the incident which occurred and the defendant City’s policy or custom. See 105 S Ct 2436; 85 L Ed 2d 804. Although the policy or custom relied upon by plaintiffs was not in itself unconstitutional, under the circumstances presented in this case the proofs failed to establsih the requisite fault on the part of defendant City. Evidence of an affirmative link between Jacobs’s unconstitutional conduct and the defendant City’s policy was insufficient as a matter of law. We also find that there was insufficient evidence as a matter of law on an alleged policy or custom established by supervisory indifference, toleration or acquiescense in the misuse of firearms. "Official policy may be established by the omissions of supervisory officials as well as from their affirmative acts.” Avery v Burke County, 660 F2d 111, 114 (CA 4, 1981). Absent evidence of supervisory indifference such as acquiescing in a prior pattern of conduct, isolated incidents or a single incident are normally insufficient to establish inaction by supervisors for purposes of § 1983 liability. Inaction can take the form of failure to promulage rules and regulations. Turpin v Mailet, 619 F2d 196 (CA 2, 1980), cert den, 449 US 1016; 101 S Ct 577; 66 L Ed 2d 475 (1980); Woodhous v Virginia, 487 F2d 889 (CA 4, 1973); Avery, supra. The police chief testified that the official policy regarding the use of firearms is that an officer is not to use fatal force except when the officer’s or another person’s life is in jeopardy. Further, departmental rules prohibit officers from unholstering their guns inside the station except for inspections or cleaning. All of the defendant officers admitted that they violated departmental rules and regulations by unholstering their weapons on the night of the shooting. Napier testified, however, that the rules were routinely violated. He testified to incidents where officers allegedly practiced drawing their guns in front of mirrors in the station. Jacobs testified at his civil service hearing that gunplay was common and that supervisors, as well as officers, engaged in it. Other officers also testified to having either seen or engaged in gunplay in violation of the rules. Napier did not report the incidents he had ob served to any supervisors because of the unwritten rule against reporting fellow officers’ misconduct. He further testified to having observed a supervisor stop another officer from engaging in gunplay. Chief Kertuu testified to being unaware of any firearm abuse. The only other evidence presented on supervisory knowledge of gunplay was Napier’s testimony that a specific lieutenant quick-drew his gun once and this occurred after Napier’s shooting. For the most part, the testimony at trial did establish that when guns were used improperly, the incident was investigated, officers were disciplined and one officer was forced to retire. Most of the incidents involving discharges of guns were totally unrelated to horseplay or rule violations. We believe that the evidence presented at trial was insufficient as a matter of law to establish an official policy of toleration of firearm abuse via supervisory inaction, knowledge, or a failure to make rules. It is also our opinion that the evidence presented at trial was insufficient as a matter of law to establish a policy or custom of inadequate police training and supervision in the use of firearms, or retraining in the use of firearms. Proof of a single incident of misconduct, as was shown here, is not enough. See City of Oklahoma City v Tuttle, supra, plurality and concurring opinions. Furthermore, under the "deliberate indifference” standard used by our courts to evaluate claims of municipal liability based upon allegations of inadequate training in the use of weapons and supervision of police officers, see Zmija v Baron, 119 Mich App 524; 326 NW2d 908 (1982); Cook v Detroit, 125 Mich App 724; 337 NW2d 277 (1983); and Moore, supra, plaintiffs’ proofs were equally as deficient. The evidence did not establish that the training and supervision of the Highland Park police offi cers was so inadequate that the resulting misconduct was probable. No amount of training or retraining would have made a significant difference at all in the predictability of Jacobs’s behavior. Furthermore, there was no evidence of any persistent failure to discipline officers for misconduct prior to the incident. See Taylor v Canton, Ohio Police Dep't 544 F Supp 783, 792 (ND Ohio, 1982). We note that, because of the result reached, it is unnecessary for us to address the evidentiary claim raised by defendant City with respect to Jacobs’s liability. Jacobs is not a party to this appeal, and as defendant correctly asserts, municipal liability cannot be based upon a respondeat superior theory. We have also reviewed defendant’s remaining claims and find them to be without merit. The exclusive remedy provision of the Worker’s Disability Compenstation Act, MCL 418.131; MSA 17.237(131), did not bar plaintiffs’ claim. Civil rights claims under our state’s statutes are not barred by that provision. See Beauregard v Clarke-Gravely Corp, 131 Mich App 559; 346 NW2d 48 (1982). Michigan Handicappers Civil Rights Act, MCL 37 1101 et seq., MSA 3.550(101) et seq.; Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.; See also Boscaglia v Michigan Bell Telephone Co, 420 Mich 308; 362 NW2d 642 (1984). Similarly, state courts may not discriminate against federal causes of action and the defense of the exclusivity provision would nullify the right to proceed with a federal remedy for alleged constitutional rights violations. Reversed an remanded for entry of judgment for defendant City. We retain no further jurisdiction.

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W. J. Giovan, J. Defendant appeals from a judgment of divorce entered September 24, 1982, and from the trial court’s subsequent denial of her motion for a new trial, which the circuit judge treated as a motion for modification of the divorce decree._ Plaintiff and defendant were married September 27, 1958, and had five children. Plaintiff joined the army in October, 1958, received an officer’s commission in 1965, and retired as a major on July 1, 1979. Defendant claims on appeal that the property settlement of the divorce judgment was erroneously fashioned because the trial court did not consider plaintiff’s nondisability military retirement pay as a marital asset. The defendant also claims error in the refusal of the trial court to continue her as a beneficiary under plaintiff’s survivor benefit plan, in the court’s valuation of the property awarded to her, in the amount of attorney fees awarded to her, and in the failure of the trial court to modify the judment of divorce in order to render the defendant eligible for certain medical, commissary and exchange privileges available to former spouses of service personnel under federal law. We first address the question whether the Uniformed Services Former Spouses; Protection Act, Pub L No. 97-252, § 1002(a), 96 Stat 730 (1982) (codified at 10 USC 1401 et seq.), (hereafter USFSPA), should be given retroactive effect so as to include nondisability retirement pay as a marital asset in the instant case. The law applicable to the disposition of military pensions has undergone many changes in recent years. In Chisnell v Chisnell, 82 Mich App 699, 706; 267 NW2d 155 (1978), lv den 403 Mich 844 (1978), cert den 442 US 940; 99 S Ct 2881; 61 L Ed 2d 310 (1979), this Court held that a military pension, viewed as deferred compensation for services rendered prior to retirement, was properly considered a marital asset by virtue of the spouse’s contributions to the marriage. In McCarty v McCarty, 453 US 210; 101 S Ct 2728; 69 L Ed 2d 589 (1981), decided June 26, 1981, the United States Supreme Court held that federal law precludes a state court from awarding a nonmilitary spouse a portion of the military spouse’s government pension. The Court pointed out that "the plight of an ex-spouse of a retired service member is often a serious one”, 453 US 235, but stated that it was up to Congress to devise a remedy. Subsequently, in Grotelueschen v Grotelueschen, 113 Mich App 395 (1982); 318 NW2d 227 (1982), lv den 417 Mich 940 (1983), this Court held that as a result of McCarty, supra, military pension benefits could no longer be treated as a marital asset. Congress then passed the USFSPA, which was signed into law on September 8, 1982, and which became effective February 1, 1983. The act provides, in part: "Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 USC 1408(c)(1). The legislative history reveals: "The provisions of [the USFSPA] reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modiñed in light of this legislation.” (Emphasis supplied). S Rep No. 97-502, July 22, 1982, reprinted in 1982 US Code Cong & Ad News 1596, 1599-1600. Courts in other jurisdictions have held that § 1408(c) (1) of USFSPA is retroactively effective to June 26, 1981. See, e.g., Koppenhaver v Koppenhaver, 101 NM 105; 678 P2d 1180 (NM App, 1984), cert den 101 NM 11; 677 P2d 624 (1984), Castiglioni v Castiglioni, 192 NJ Super 594; 471 A2d 809 (1984); Menard v Menard, 460 So 2d 751 (La App, 1984); Harrell v Harrell, 684 SW2d 118 (Tex App, 1984); Faught v Faught, 67 NC App 37; 312 SE2d 504 (1984), rev den 311 NC 304; 317 SE2d 680 (1984); Coates v Coates, 650 SW2d 307, 311 (Mo App, 1983), and Smith v Smith, 458 A2d 711 (Del Family Ct, 1983). The trial court’s findings of fact and determinations as to property division, alimony and attorney fees were contained in a written opinion dated August 18, 1982, and a judgment of divorce in conformity with the opinion was entered on September 24, 1982. On April 21, 1983, the trial court, in its opinion on defendant’s motion for modification of the divorce judgment, held that § 1408(c)(1) of the act was not retroactively effective to June 26, 1981. We disagree. The object of the USFSPA was to retroactively subject the disposition of military pensions in divorce actions to state law as it existed prior to that date. Because the law in this jurisdiction prior to June 26, 1981, was that military retirement pay should be considered a marital asset and may be divided as part of a property settlement in a divorce, Chisnell, supra, plaintiff’s pension in the instant case should have been considered a marital asset pursuant to the defendant’s post-judgment motion. Accordingly, the trial court on remand should reassess its distribution to the parties in the light of the eligibility of the pension to be divided as a marital asset. In so providing we do not intimate, however, that the trial judge must necessarily modify the overall distribution contained in the judgment. First, of course, the fact that a military pension is susceptible of being divided does not mean that it must be divided in any given case. The trial judge’s opinion suggests, moreover, that he awarded alimony to the defendant in recognition of the value of the plaintiffs pension benefits: "This Court realizes that it cannot skirt the mandates of McCarty and Grotelueschen, supra, in order to achieve justice in this case. However, the Court finds that the financial position of the parties would justify an alimony award. The amount of the alimony cannot be based on a flat percentage of the military pension, but there is some authority for the proposition that military pension benefits along with other income may be considered as one factor in awarding alimony, namely ability to pay.” Nevertheless, to insure that the discretion of the circuit court in awarding marital assets has been or will be exercised to its fullest legitimate extent, we remand this action to the trial court to determine whether any adjustment of the overall distribution to the parties is appropriate in the light of the status of plaintiff’s pension as a marital asset. The defendant claims that the trial court erred in declining to order that she be continued as the beneficiary under the plaintiffs survivor benefit plan. The plan, provided for under 10 USC 1447-1455, would award an annuity to a named beneficiary on plaintiff’s death. During the marriage the plaintiff designated the defendant as beneficiary, and a sum was deducted yearly from his military retirement pay as premiums for the plan. At trial the plaintiff testified that he intended to name his daughter as beneficiary of the plan. 10 USC 1450(f)(4) provides: "Nothing in this chapter authorizes any court to order any person to elect under section 1448(b) of this title to provide an annuity to a former spouse unless such person has voluntarily agreed in writing to make such elction.” We find no merit in defendant’s claim that the plaintiff’s original election to name her as beneficiary is irrevocable. The plain language of the statute withholds the authority of a court to order the plaintiff to provide an annuity to his former spouse unless he agrees in writing to do so, and he has not so elected. Courts in other jurisdictions which have addressed the issue, moreover, have unanimously held that a person who was the beneficiary as spouse of a retired service person at the time the plan vested is not entitled to a divorce decree requiring that person to be continued as a beneficiary of the plan following divorce, absent voluntary election by the service person. In re Marriage of Williams, 39 Wash App 224; 692 P2d 885 (1984); Barros v Barros, 34 Wash App 266; 660 P2d 770 (1983), rev den 100 Wash 2d 1022 (1983); Brown v Brown, 279 SC 116; 302 SE2d 860 (1983). The trial court did not err in refusing to designate defendant as a beneficiary under plaintiff’s survivor benefit plan. Defendant claims the trial court erred in valuing certain assets of the marital estate and in including or failing to include certain amounts of money in the marital estate. A trial court’s decision concerning the assets of a marital estate will not be disturbed unless such finding constitutes an abuse of discretion. Levison v Levison, 13 Mich App 243, 244; 163 NW2d 834 (1968). A trial judge’s valuation of the marital property will not be upset on appeal unless that valuation is clearly erroneous. Cantor v Cantor, 87 Mich App 485; 274 NW2d 825 (1978); Levison v Levison, supra. We find the trial court’s findings were adequately supported in the record. Defendant contends that the trial court awarded insufficient attorney fees to the defendant. Attorney fees may be awarded as necessary to enable a party to carry on or defend a divorce action. MCR 3.206(A); Gove v Gove, 71 Mich App 431; 248 NW2d 573 (1976). The award of attorney fees is within the sound discretion of the trial court. Chisnell v Chisnell, supra, p 707. The defendant made no showing that she was unable to pay her attorney fees in excess of the trial court’s award and, in any event, has failed to demonstrate an abuse of discretion in the award of fees. Finally, the defendant complains of the trial court’s failure to amend the judgment of divorce to render her eligible for certain benefits available under federal law. Under various provisions of the USFSPA, medical benefits and commissary and exchange privileges are avilable to former spouses of service personnel under certain conditions. Under that legislation, however, the benefits are available only if provided for in a final decree of divorce entered after February 1, 1983. Pub L No. 97-252, § 1006(d), 96 Stat 730, 737-738 (1982). Since the judgment in this action has not yet become final, and since the plaintiff has no objection to the inclusion of provisions in the judgment that would render the defendant eligible for the benefits, we see no reason why such provisions should not be included in the judgment on remand. Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. "The purpose of this provision is to place the courts in the same position that they were on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. * * * Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution.” 1982 US Code Cong & Ad News 1611. Alimony is an appropriate vehicle in proper cases to put a just division of pension benefits in the hands of the nonpension-holding spouse. Perry v Perry, 133 Mich App 453, 460; 350 NW2d 275 (1984).

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M. J. Kelly, J. Plaintiff appeals as of right from an order of summary judgment under GCR 1963, 117.2(1), dismissing her action against the defendants on grounds of governmental immunity. We affirm. According to the complaint, plaintiff and her minor children are recipients of Aid to Dependent Children (ADC) benefits, 42 USC 601 et seq., administered in this state by the Department of Social Services. MCL 400.56; MSA 16.456. In 1977, plaintiff purchased a home in Detroit subject to a monthly mortgage payment of $188. Plaintiff notified the department of the purchase and applied for excess shelter allowance since, at that time, she was receiving the county maximum of $120 per month. Under the rules and regulations promulgated by the department, certain ADC recipients could qualify for up to $220 a month in excess shelter payments. The department improperly denied plaintiff’s application for excess shelter benefits and also improperly denied her application for other benefits. As a result, plaintiff defaulted on her mortgage and foreclosure proceedings were commenced. Plaintiff timely petitioned for an administrative hearing, which was held in March of 1978. The hearing officer made findings of fact and rendered the following order: "1. That the claimant had 10% equity in her home as of the purchase of said home. "2. That the department had proof of the purchase and of the 10% equity as of September of 1977. "3. That the claimant did not receive an excess shelter allowance. "4. That claimant’s home has presently been sold in foreclosure proceedings. "5. Claimant has $600 saved from monthly shelter allowance, the rest having been spent on food due to the nonreceipt of food stamps. "The department in this case is therefore ordered to grant the claimant a supplementation for the nonreceipt of an excess shelter allowance. The amount of the supplementation is to be computed as the difference between what the cost was to claimant and the amount she did receive. The $280 shall be added on and not considered by the department as not payable, in that the claimant does not have this money due to a food stamp error. It is further ordered that the department’s finding of excess property prior to possession by the claimant of her home is invalid and therefore shall not be a bar to the performance of this order. It is further ordered that there should be a service referral made in this case so that the department can — by whatever appropriate methods they find — help to reinstate the claimant’s mortgage.” The department, however, violated its own administrative order by failing to pay the back excess shelter payments and by failing to cooperate with plaintiff and the mortgagee on redemption. When the redemption period expired on Septem ber 23, 1978, plaintiff lost the home and all equity in it. Plaintiff filed this action in the Court of Claims on September 24, 1979, against the State of Michigan and the department, seeking (1) monetary damages to repurchase the home, (2) lost past equity and expected present equity and appreciation, and (3) consequential damages. Defendants moved for accelerated judgment on October 15, 1979, alleging that the Court of Claims lacked jurisdiction because plaintiff sought review of an administrative order and that plaintiff’s claim was barred by an accord and satisfaction. In support of the accord and satisfaction defense, the department claimed that it had issued plaintiff a check for the back benefits prior to the expiration of the redemption period and that the department had been instructed by plaintiff’s attorney not to take any action on the reinstatement of plaintiff’s mortgage. Plaintiff denied these allegations. On March 28, 1980, the Court of Claims granted accelerated judgment on the ground that it lacked subject-matter jurisdiction. The viability of the accord and satisfaction defense was not reached. In an unpublished opinion by this Court released May 27, 1981, we held that plaintiff was not seeking review of an administrative order but was instead suing for monetary and consequential damages resulting from tortious conduct. We found that the Court of Claims had subject-matter jurisdiction, and we reversed and remanded for further proceedings. On November 15, 1982, defendants renewed their motion for accelerated judgment on the ground of accord and satisfaction. Simultaneously, defendants filed a motion for summary judgment under both OCR 1963, 117.2(1) and (3), claiming that plaintiff had failed to state a claim for relief since defendants were entitled to governmental immunity. On March 26, 1984, the Court of Claims issued an opinion and order granting summary judgment pursuant to GCR 1963, 117.2(1), and holding that Elliott v Dep’t of Social Services, 124 Mich App 124; 333 NW2d 603 (1983), was dispositive as to defendants’ immunity from suit. Inasmuch as the summary judgment order was dispositive, no ruling was made on defendants’ motion for accelerated judgment. During the pendency of this appeal, the Supreme Court decided and released Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), construing the legislatively created doctrine of governmental immunity. MCL 691.1407; MSA 3.996(107). We conclude that under Ross, plaintiffs claims in this case aginst the State of Michigan and the Department of Social Services must be dismissed. MCL 691.1407; MSA 3.996(107) provides in relevant part: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” The majority in Ross opted for a broad interpretation of "governmental function” and held: TAJ governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. .When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in § 13) [MCL 691.1413; MSA 3.996(113)] or falls within one of the other statutory exceptions to the governmental act. Whenever a governmental agency engages in an activity which is not expressly or impliedly mandated or authorized by consitutution, statute, or other law (i.e., an ultra vires activity), it is not engaging in the exercise or discharge of a governmental function. The agency is therefore liable for any injuries or damages incurred as a result of its tortious conduct.” Ross, supra, p 620 (emphasis added). Inasmuch as the department is authorized to evaluate requests for ADC benefits and determine elegibility under the Social Welfare Act, MCL 400.1 et seq.; MSA 16.401 et seq., there can be no doubt that the department was engaged in a governmental function when it processed and decided plaintiffs initial application for benefits. The department is thus immune from tort liability relating to its denial of plaintiffs application for excess shelter allowance and other benefits. Elliott, supra. More troublesome is the department’s failure to comply with its own administrative order requiring payment of back benefits and assistance in plaintiff’s redemption efforts. The Legislature did not intend, under the guise of governmental immunity, to protect state employees who blatantly refuse to comply with the administrative orders. Following careful consideration of the applicable principles of law, however, we conclude that plaintiff’s cause of action is against the individual employees involved rather than against the state or the department. Since plaintiff has failed to name the proper defendants in her complaint, the trial court’s order of dismissal must be affirmed. MCL 400.9; MSA 16.409 requires the department to conduct a fair administrative hearing in response to a proper complaint from an aggrieved claimant. That section of the Social Welfare Act further provides that: "The hearing authority shall be vested with the powers and duties of the director to hold and decide hearings. The decisions in these cases shall be binding upon each county or district department of social services involved and shall be complied with by that department.” (emphasis added.) Accordingly, once the hearing officer issued his order in this case, Wayne County employees had no choice but to enforce that order as issued. For reasons not developed below because of the procedural posture of this case, the officials or employees of the Wayne County office simply failed to comply with the order. It appears that any claim is against the individual employees of the Wayne County office for negligent failure to perform the ministerial task of complying with the administrative order. Alternatively, plaintiff’s claim is against the employees for acting outside the scope of their authority in refusing to comply with the order. Had plaintiff named these individual employees in the complaint, her action against the state and the department would have been dismissed but her action against the employees would have survived even under Ross. 420 Mich 592. See Bandfield v Wood, 421 Mich 774; 364 NW2d 280 (1985). We have considered the equities both for and against an order of remand to allow plaintiff the opportunity to name the individual employees involved. MCR 7.216(A)(2). Admittedly, the law of governmental immunity has been in a state of some confusion during the years plaintiff’s suit has been pending in both the trial and appellate courts. However, the appellate courts have been fairly consistent in upholding claims against indi vidual governmental employees for negligent performance of ministerial duties and for the performance of acts outside the scope of employment. See Layton v Quinn, 120 Mich App 708, 714-721; 328 NW2d 95 (1982), remanded 422 Mich 898 (1985), for a history of this area of the law. Because plaintiff had ample notice of the viability of a claim against the individual employees, we conclude that it would be inappropriate to allow her to introduce there parties into the lawsuit at this late date, especially as there is no assurance that these individuals are still with the Department of Social Services. Finally, plaintiff’s claim for damages against the agency is not saved under either the intentional tort or ultra vires exceptions to the doctrine of governmental immunity. Plaintiff has simply failed to plead facts which would support an action against the agency under either of these two theories. Essentially, plaintiff alleges that the department failed to make full shelter payments as required under departmental policy and subsequently failed to comply with its administrative order. There is nothing in this record to suggest that the department’s omissions reflected a policy, directive or procedure of the agency rather than a mistake on the part of some unidentified employee. We subscribe to the view that "negligence is not transformed into an intentional tort by merely alleging that defendant’s [negligent] activity was intentional, wilful and in conscious disregard of the consequences”. Elliott v Dep’t of Social Services, supra, p 129. See also Shunk v Michigan (after Remand), 132 Mich App 632, 636; 347 NW2d 767 (1984), and the dissenting opinions in Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985), and in Sanford v Detroit, 143 Mich App 194; 371 NW2d 904 (1985). Affirmed.

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Per Curiam. Plaintiff, Donald Stabley, appeals as of right from an order granting accelerated judgment to defendants pursuant to GCR 1963, 116.1(2) [now MCR 2.116(C)(4)], on the ground that the general rule that administrative remedies must be exhausted before judicial relief is sought is inapplicable in this case. Plaintiff filed a complaint for superintending control in the Macomb County Circuit Court on July 18, 1983. Plaintiff alleged that the oral portion of the civil service examination administered to plaintiff on June 16, 1983, for promotion from police sergeant to lieutenant, was not "unbiased and non-partisan” as required by statute. MCL 38.512; MSA 5.3362. The oral portion of the examination was designed by Shelby Township Civil Service Commissioners, defendants Byron Kuxhaus, Helen Popkey and Leland Schubring. Plaintiff asserted that the commissioners were biased against plaintiff for the reason that plaintiffs brother, Gerald Stabley, was a political rival Of defendant Kuxhaus. It was also alleged that Kuxhaus had actively tried to influence the examiners by taking them to dinner. As a result of the allegedly arbitrary, capricious, and biased test administered to plaintiff, plaintiff claimed that he received a low test score which prevented him from being promoted to the position of lieutenant for the Shelby Township police force. On the basis of the complaint, the circuit court entered a temporary restraining order on July 18, 1983, enjoining defendants from promoting to lieutenant any persons in the Shelby Township police department. A preliminary injunction was later entered restraining defendants from promoting any applicants to the position of lieutenant until further order of the court. Defendants’ joint motion for accelerated judgment was subsequently granted on April 27, 1984. The issue we address is whether the trial court erred in granting defendants’ motion for accelerated judgment. Plaintiff argues that the trial court erred in granting defendants’ accelerated judgment motion because an action for superintending control could properly be maintained on the basis that there was no other plain, speedy or alternative remedy. GCR 1963, 711.4 [now MCR 3.302(D)] empowered the circuit court to issue an order of superintending control. Such an order "enforces the superintending control power of a court over lower courts or tribunals”. GCR 1963, 711.1 [now MCR 3.302(A)]. The superintending control power of a circuit court extends to administrative tribunals of a judicial or quasi-judicial nature. Beer v City of Fraser Civil Service Comm, 127 Mich App 239, 243; 338 NW2d 197 (1983). A civil service commission acts in a quasi-judicial capacity when it renders a decision on an appeal by an employee. 127 Mich App 243; see also In re Fredericks, 285 Mich 262; 280 NW 464 (1938). Although the circuit court may exercise superintending control over an administrative agency acting in a quasi-judicial capacity, an order of superintending control is an extraordinary remedy and is not available where there is a plain, speedy and alternative remedy. In re Bay County Prosecutor, 102 Mich App 543, 547; 302 NW2d 225 (1980), lv den 411 Mich 1002 (1981); GCR 1963, 711.2 [now MCR 3.302(B)]. Here, plaintiff requested and was afforded a hearing before the Shelby Township Civil Service Commission (commission). He even appeared at the time and place of the hearing, but refused to participate or present evidence. Plaintiffs contention that there was no plain, speedy or alternative remedy available to him is therefore without merit. Plaintiff cites and relies on Turner v Lansing Twp, 108 Mich App 103; 310 NW2d 287 (1981), lv den 413 Mich 871 (1982), and further contends, however, that he was not required to participate in a hearing before the commission because it would have been futile. In Turner this Court discussed the. exceptions to the doctrine of exhaustion of administrative remedies and stated: "Where it is clear that appeal to an administrative body is an exercise in futility arid nothing more than a formal step on the way to the courthouse, resort to the administrative body is not required.” 108 Mich App 108. This Court also noted, however, that there is a presumption that the administrative agency, "if given a chance to pass upon the matter, will decide correctly and will not fail in the performance of its duty”. 108 Mich App 110. In the instant case, the commission held a hearing to consider plaintiffs grievances. Plaintiff, as stated earlier, refused to participate in or present evidence at the hearing. Defendant Kuxhaus abstained from voting on plaintiffs charges and the other two commission members, defendants Pop-key and Schubring, found that plaintiff’s allegations were without foundation. Plaintiff has not made any claim that defendants Popkey and Schubring were biased against him for political or other reasons. We conclude that plaintiff has failed to establish that a hearing before the commission would be futile. Plaintiff’s nonparticipation in the commission’s hearing resulted in no record being developed which supports plaintiffs contention that there was misconduct at the civil service examination. The absence of an administrative record in this case also procluded the circuit court from exercising superintending control over the commission. Lepofsky v Lincoln Park, 48 Mich App 347, 357; 210 NW2d 517 (1973). The absence of a supporting administrative record also precludes the determination that plaintiff was denied any due process rights or that defendant Kuxhaus unlawfully engaged in campaign activities while serving on the commission. Thus, it is unnecessary for us to review plaintiffs claim that these allegations, if true, would exempt plaintiff from having to pursue his administrative remedies. Affirmed.

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Beasely, J. In this action for breach of an oral contract, quantum meruit, and intentional interference with contractual relations, defendants’ motion for summary judgment under GCR 1963, 117.2(3) was denied. After the trial court entered an order to that effect and certified a concise statement of facts and proceedings that was approved as to form by both sides, defendants appeal by leave granted. Plaintiff Cardillo & Associates, Inc., is a Michigan corporation wholly owned by plaintiff Jerry E. Cardillo. Defendant Canusa Extrusion Engineering, Inc. (Canusa), is a Michigan corporation owned principally by defendant Jack Stott Group, Ltd. (Limited), a Canadian corporation. Defendant Jack Stott was president of both Canusa and Limited. In the fall of 1978, plaintiffs entered into an oral agreement with defendant Canusa to find a buyer for the assets of Canusa. The terms of the oral agreement were that if plaintiffs found a buyer and the purchase transaction closed, they would receive a fee of 8% of the first $1 million of the sale price and 5% of the balance of the purchase price which exceeded $1 million. Neither Jerry Cardillo nor Cardillo & Associates, Inc., had a real estate brokers licnese. Beginning in the fall of 1978, plaintiffs expended time and money in an effort to find a buyer for the assets of Canusa. Defendants Canusa and its officers were aware of plaintiffs’ efforts and never asked them to cease their efforts or to stop expending time and money in an effort to find a buyer. In March, 1979, plaintiffs brought a prospective buyer, Sifco Industries, Inc. (Sifco), to Canusa. In October, 1979, Canusa and Sifco Consummated a purchase and sale transaction for the assets of Canusa, pursuant to which Sifco agreed to purchase the nonrealty assets of Canusa for $850,000 and to lease Canusa’s building for three years at $50,000 per year. Claiming to have performed their obligations under the oral agreement, plaintiffs demanded that Canusa pay them a fee of $80,000 and/or compensate them for the reasonable value of their services on a quantum meruit basis. When defendants did not pay and negotiations broke down, plaintiffs started this suit. Defendants filed a motion for summary judgment pursuant to GCR 1963, 117.2(3). They argued that plaintiffs were precluded from recovering a brokerage commission because they were not li censed under the real estate brokers licensing act, and that plaintiffs’ claims were barred by the provisions of the statute of frauds. The trial court decided that a person who does nothing more than find a buyer does not fall within the definition of a "real estate broker” contained in the statute. Finding that plaintiffs were not real estate brokers and not finding any Michigan cases holding that a mere finder cannot recover for services rendered, the trial judge concluded that plaintiffs had stated a cause of action for breach of contract or, in the alternative, for quantum meruit on a traditional common counts bases. Next, the trial court found that once one party fully carries out an oral agreement by performance, the agreement ceases to be void under the statute of frauds and is, therefore, enforceable. Consequently, defendants’ motions for summary and accelerated judgment were denied, and the case was set down for trial on the merits. On appeal, defendants argue that even if plaintiffs were acting as a "finder”, they are precluded by the brokers licensing act from collecting a commission for finding a buyer because they were not licensed as required by the statute. Under Michigan law, a party who brings suit to recover a brokerage fee must allege that he is a licensed real estate broker. Thus, if plaintiffs come within the statutory definition of real estate broker, they cannot recover the commission or finder’s fee they sought in the trial court._ The legislative history shows that in 1919, the Legislature enacted the brokers licensing act, 1919 PA 306, which was titled "AN ACT to define, regulate, and license real estate brokers, real estate salesmen and business chance brokers and to provide a penalty for a violation of the provisions [of the act]”. Section 2 of that act provided in pertinent part: "A business chance broker within the meaning of this act is any person, firm, partnership association, copartnership or corporation, who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of a business, business opportunity, or the good will of an existing business for others as a whole or partial vocation.” In 1937, the following provision was added to section 3 of the act: "The commission of a single act prohibited under the Michigan statutes defining, regulating and licensing real estate brokers and salesmen shall constutite a violation thereof.” 1937 PA 188. Thus, a party cannot circumvent the act by claiming that he only engaged in an isolated transaction. In 1943, the separate definition of business chance brokers was dropped, and the definition of real estate broker was expanded to include: "A real estate broker within the meaning of this act is any person, firm, partnership association, copartnership or corporation, who with intent to collect or receive a fee, compensation or valuable consideration, sells or offers for sale, buys or offers to buy, appraises or offers to appraise, lists or offers or attempts to list, or negotiates the purchase or sale or exchange or mortgage of real estate, or negotiates for the construction of buildings thereon, or who leases or offers to lease or rents or offers for rent any real estate or the improvements thereon for others, as a whole or partial vocation, or who sells or offers for sale, buys or offers to buy, leases or offers to lease, or negotiates the purchase or sale or exchange of a business, business opportunity, or the good will of sin existing business for others, or who, as owner or otherwise, engages in the sale of real estate as a principal vocation.” 1943 PA 57. This definition was broader than the earlier definition of business chance brokers because it no longer required that an individual engage in the activity as a "whole or partial vocation” to come within the purview of the statute. This change in the statutory definition was consistent with the 1937 amendment to the statute, which imposed liability even for isolated transactions. In 1979, when this transaction took place, the definition of real estate broker had not been changed significantly. Consequently, we will look to the above quoted 1943 definition in this case. In 1980, after the transaction at issue here took place, 1919 PA 360 was repealed by 1980 PA 299. The current licensing provisions for real estate brokers can be found at MCL 339.2501 et seq.; MSA 18.425(2501) et seq. We note that our decision would be the same under the statutory provisions now in effect. At the outset, we must decide whether plaintiffs are precluded from collecting an agreed upon sales commission by failure to comply with the above quoted brokers licensing act. For our purposes, the pertinent language in the statute relating to its coverage is: " 'Real estate broker’ means an individual * * * who with intent to collect * * * compensation * * * sells or offers for sale, buys or offers to buy, * * * leases or offers to lease or negotiates the purchase or sale or exchange of a business, business opportunity, or the good-will of an existing business for others”. In interpreting this statute, the trial court concluded that a mere finder or middleman is not included in the definition of a broker. We do not agree. In application of the licensing provisions to a particular fact situation, we look to both the nature of the activities performed and the character of the property involved. One important part of a broker’s function is to find a purchaser. To negotiate a purchase or sale connotes a wider, different function than merely to find a purchaser or seller. The statutes contemplate that normally brokers will engage in various activites. But, the statute uses the word "or”, not the word "and”. Thus, in general, it is unnecessary that in a particular transaction a person perform all functions that are the usual business of a broker. Sometimes, performing one of the usual functions, such as finding a purchaser, will be enough to subject a person to the broker licensing requirement. In Smith v Starke, the Supreme Court remarked that procuring a purchaser of another’s property is of the very essence of brokerage services. To find a purchaser of a business for a commission is within the statutory definition of a broker. Regarding the character of the property covered by the statutory licensing requirement, it is clear that the statute is not limited to real estate, but extends also to businesses, which are essentially in the nature of personal property. In this connection, it should be noted that while, in the within case, leases of real estate were included in the transaction, we need not and do not rest our decision on that fact. Applied to the within case, we are satisfied that included within the words "business, business opportunity or the good will of an existing business”, as used in the statute, is the sale of the assets. We believe that sale of the assets of this engineering company, which included machinery and equipment, is squarely within the statutory meaning of a "business”. In Krause v Boraks, the plaintiff, an attorney relying upon an oral agreement to split a real estate commission with a licensed broker, persuaded two of his clients to buy a vendor’s interest in a land contract. The Supreme Court said that the plaintiffs service was only to sell the vendor’s interest for compensation and, as such, was subject to the brokers licensing law and that, lacking a license, the plaintiff was not entitled to recover as the agreement was void. Specifically, the Supreme Court said: "Neither niceties of language nor fanciful designations can change the substance or the transaction. There can be no doubt about the proposition that the procurement for another, for compensation, of the sale of a vendor’s interest in a land contract is controlled by the so-called brokers’ licensing act * * *. "But an attorney engaging solely in the function of obtaining a prospective purchaser for an interest in realty, in conjunction with a broker, is clearly invading another scope of activity which, in the absence of being licensed so to do, is prohibited by statute. That an attorney is well qualified to engage in such endeavor cannot be denied. * * * Plaintiffs services were not within the exemption provision of the statute hereinbefore quoted. [ ] In Curry v West Point Hills, Inc, we held that the plaintiff was not entitled to recover under a written agreement for a commission for obtaining mortgage commitments for the defendant because he lacked a broker’s license. We held: "The trial court found that plaintiff was acting as a real estate broker within the meaning of the statutes, supra, and that his complaint did not allege that he was a licensed real estate broker and that it did not appear from the complaint why plaintiff should not be licensed * * * * * * "The contract on which plaintiff relies for recovery is void and unenforceable as in violation of public policy.’[ ] In Jaenicke v Davidson, the Supreme Court said: " 'It is a well-settled principle of law that all contracts which are founded on an act prohibited by a statute under a penalty are void, although not expressly declared to be so.’ In re Reidy’s Estate, 164 Mich 167. "Neither law nor equity will enforce a contract made in violation of such a statute or one that is in violation of public policy.” In 1980, giving effect to what appeared to be settled law, the Legialature provided: "A person engaged in the business of, or acting in the capacity of, a person required to be licensed under this article, shall not maintain an action in a court of this state for the collection of compensation for the performance of an act or contract for which a license is required by this article without alleging and proving that the person was licensed under this article at the time of the performance of the act or contract.” MCL 339.2512a; MSA 18.425(2512a). Under this analysis, we would hold that in finding a purchaser for defendants’ assets under a commission agreement, plaintiffs were subject to the real estate brokers licensing statute and, lacking such a license, plaintiffs’ suit for compensation must fail. We believe this represents both the correct interpretation of the Michigan real estate brokers licensing statute and the majority view concerning this issue. In so holding, we recognize the existence of a minority view, but are not persuaded it should be adopted in Michigan. In the within case, perhaps more important is the fact that plaintiffs and defendants voluntarily made an oral agreement whereby defendants agreed to pay a commission if plaintiffs found a purchaser for them. Plaintiffs performed their promise, although there was perhaps a misunderstanding regarding the price Canusa was expecting. Nevertheless, defendants stood by and watched plaintiffs’ efforts and then reaped the benefits. Based on these facts, plaintiffs also seek recovery in quantum medruit, in its present form, as a successor to the traditional common count employed in cases arising out of breach of contract. Unfortunately for plaintiffs, established law does not permit recovery under quantum meruit in these circumstances. The Supreme Court has held that, if a contract is void under the statute requiring brokers to be licensed, no recovery may be had in quantum meruit for services rendered. Consequently, plaintiffs may not recover on their claim for quantum meruit, and the trial court’s order denying summary judgment must be reversed. Since our resolution of this case under the brokers licensing act prohibits plaintiffs from recovering a commission for their services, it is unnecessary for us to consider defendants’ alternate theory that the oral contract was void under the statute of frauds. Reversed. GCR 1963, 806.3(2). In their concise statement, the parties say that, while not admitting the facts, they are to be assumed to be true for purposes of summary judgment. MCL 451.201 et seq.; MSA 19.791 et seq., now MCL 339.2501 et seq.; MSA 18.425(2501) et seq. MCL 566.132; MSA 26.922. Krause v Boraks, 341 Mich 149; 67 NW2d 202 (1954); Jaenicke v Davidson, 290 Mich 298; 287 NW 472 (1939); Curry v West Point Hills, Inc, 30 Mich App 114; 185 NW2d 907 (1971); MCL 339.2512a; MSA 18.425(2512a). Curry, supra; Krause, supra. See 1975 PA 224, §2. For an interesting analysis of this question, see Weiner, Broker/ Finder: Can You Collect?, 59 Mich SBJ 330 (1980). 196 Mich 311, 314; 162 NW 998 (1917), which case is cited with full approval in Krause, supra. Krause, supra. Krause, 341 Mich 153, 155. Curry, supra. Curry, 30 Mich App 115-116. Jaenicke, supra, p 304. See Alford v Raschiatore, 163 Pa Super 635; 63 A2d 366 (1949). See Bottomley v Coffin, 121 RI 399; 399 A2d 485 (1979). Krause, supra, p 157; Smith v Starke, supra, pp 313-314; Mead v Rehm, 256 Mich 488, 490; 239 NW 858 (1932).

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Per Curiam. Respondent, the personal representative of decedent’s estate, appeals from a probate court order awarding petitioner, decedent’s surviving spouse, a homestead allowance and family allowance. The decedent, William F. Burton, died on March 29, 1981, and was survived by his wife, Lillian E. Burton (petitioner). His will, dated July 14, 1978, was admitted to probate, and in it he left all of his tangible personal property to his wife. He left the remainder of his estate in trust for the support, comfort, and maintenance of his wife for her life time, with the remainder on her death to various relatives. The decedent and petitioner owned their residence as tenants by the entireties and, consequently, upon the death of the decedent, petitioner became the sole owner. Petitioner has been in a nursing home since 1977 and is presently under a guardianship and conservatorship. Her sole income consists of social security payments in the amount of $424 per month and a pension in the amount of $255 per month. Petitioner’s bills for nursing home care and medicine amount to approximately $1,100 per month. She contributes approximately $610 per month toward the nursing home bill, and spends approximately $90 on personal needs. Medicaid pays the balance of her nursing home bill. Dolores L. Cox, as the conservator of the estate of petitioner, filed a petition with the probate court for an order allowing petitioner a homestead allowance, exempt property, and a family allowance. The personal representative of the estate objected to the petition and filed a brief arguing that the homestead allowance should be charged against the home owned by petitioner as the survivor of the tenancy by the entireties and, also, that petitioner was not entitled to a family allowance. The probate court found that petitioner was entitled to a $3,500 cash allowance and that she was also entitled to a homestead allowance and a family allowance of $610 per month, retroactive to May, 1982. Respondent first argues that the probate court improperly awarded petitioner a homestead allowance. At the time of the probate court order, § 285 of the Revised Probate Code provided in pertinent part: "(1) The surviving spouse of a decedent who was domiciled in this state is entitled to a homestead allowance of $10,000.00 * * *. "(2) The homestead allowance is exempt from and has priority against the estate as provided in section 192. The homestead allowance is charged against any benefít or share passing to the surviving spouse or minor child by the will of the decedent, by intestate succession, or otherwise, but the allowance shall not be diminished if it is greater than the benefit or share.” MCL 700.285; MSA 27.5285. (Emphasis added.) Appellant argues that a surviving spouse’s homestead allowance may be charged against will substitutes as well as benefits or shares passing by testate or intestate succession based on the phrase "or otherwise” contained in subsection (2). The probate court considered the meaning of the phrase "or otherwise” and determined that it should not include property passing to a surviving spouse by joint rights of survivorship. The recent legislative amendment of § 285, 1984 PA 377, effective March 29, 1985, obviates the need to define "or otherwise”. We are further of the opinion that the probate court properly determined that, under the prior version of § 285, "or otherwise” does not include property which passes by will substitute. Property acquired by a right of survivorship in a joint tenancy is received by the contract of joint tenancy and is not a share or benefit passing from an estate. See Boehm, New Questions Under New Probate Code, 2 Mich Probate Review, (1982). Consequently, we find that the probate court properly granted the homestead allowance. Appellant also argues that the probate court improperly found petitioner entitled to a family allowance of $610 per month. Under § 287(1) of the Revised Probate Code, a surviving spouse and minor children of a decedent whom the decedent is legally obligated to support are entitled to a reasonable family allowance out of the estate for their maintenance "according to their circumstances”. MCL 700.287(1); MSA 27.5287(1). Appellant argues that in the present case petitioner has no needs and there are other resources from which to provide for her care and support. We disagree. The determination of the amount of a surviving spouse’s allowance is left to the sound discretion of the probate court. Freeman v The Washtenaw Probate Judge, 79 Mich 390; 44 NW 856 (1890). Under the circumstances presented in the present case, we find no abuse of discretion. Affirmed. The amended version defines the phrase "or otherwise” as referring to several sections of the Revised Probate Code, none of which include property passing by will substitute. See MCL 700.285(2); MSA 27.5285(2).

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R. L. Tahvonen, J. Defendant, Todd Alan Cannon, pled no contest to a charge of breaking and entering an occupied building with intent to commit the crime of larceny, MCL 750.110; MSA 28.305. The plea was offered as part of an agreement which incorporated a recommendation by the prosecutor to the trial judge that sentencing be delayed and that the case be dismissed if the defendant abided by any terms or conditions imposed by the court. In addition, the agreement incorporated an understanding that no additional charges would be brought against the defendant on the basis of information provided by an accomplice. The trial court accepted the plea and told the defendant that if the court could not follow the prosecutor’s recommendation the defendant would be given an opportunity to withdraw his plea. The trial court further advised the defendant that a delayed sentence could encompass, as a condition, time in the county jail. On the date set for sentencing, the defendant moved to withdraw the plea. Defense counsel stated to the court that he had advised his client that under the appropriate statutes a delayed sentence could not include county jail time as a condition or requirement. Counsel indicated that defendant also wished to assert his innocence. The trial judge denied the motion to withdraw the plea and delayed sentencing for one year subject to the five conditions: the defendant not violate the laws of this state, the defendant pay assessed court costs, the defendant not associate with his accomplice or any other known felon, the defendant pay restitution following a formal restitution hearing to be scheduled by the prosecutor, and the defendant serve 45 days in the county jail. The dispositive issue before us is whether the trial judge erred in denying the defendant’s presentence motion to withdraw his plea of no contest. We find the trial court did so err and, therefore, vacate the delayed sentence order, reverse the defendant’s conviction and remand for trial. A presentence motion to withdraw a plea of guilty, when not obviously frivolous and accompanied by an assertion of innocence, should be considered with great liberality. People v Paulus, 121 Mich App 445, 450; 328 NW2d 659 (1982), vacated on other grounds 417 Mich 1100.15 (1983). In the present case, defendant’s motion was made prior to sentencing and was accompanied by an assertion of innocence. The motion was based upon defense counsel’s unrebutted representation that he had advised the defendant that jail time could not be a condition of a delayed sentence. Defense counsel’s offer to place the defendant on the stand to support that assertion was denied by the trial court. The record clearly shows that the trial court accepted the truth of defense counsel’s representation and yet denied the motion to withdraw the plea. Since we are persuaded that jail time cannot be imposed as a condition of a delayed sentence, the defendant’s reason for wishing to withdraw his plea was not obviously frivolous. The statute that authorizes the imposition of a delayed sentence is MCL 771.1(2); MSA 28.1131(2), which provides: "|T]n an action in which the court may place the defendant on probation, the court may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order stating the reason for the delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period.” The purpose of a delayed sentence is to give the defendant an opportunity to satisfy the trial court that he or she can fairly be placed on probation instead of sentenced to prison. In People v Clyne, 36 Mich App 152, 155; 193 NW2d 399 (1971), this Court held that a delayed sentence could be conditioned upon requirements which "were reasonably well designed to assist the court in determining whether or not [a defendant] would be eligible for probation when the [delayed sentence term] ended”. In determining whether or not a defen dant can successfully complete a term of probation, the trial court may quite properly impose conditions for a delayed sentence that would be similar in most respects to those associated with the probationary term itself. Therefore, in the present case, the trial court could reasonably require that as a condition of the delayed sentence the defendant not violate any further laws, pay court costs, not associate with known felons and pay restitution. Compliance with each of those conditions of the delayed sentence would increase the likelihood that the defendant would comply with similar or additional conditions as part of probation. However, the court also required that the defendant spend 45 days in jail. There is nothing about the ability to remain in jail for 45 days that is of assistance to a trial judge in determining whether or not a defendant should be placed on probation. That is so because spending time in jail does not reflect upon either the willingness or the ability of the defendant to voluntarily comply with terms of a probation order. A defendant in jail simply has no choice and his or her "success” at serving a term in jail is not related in any fashion to his or her ability to comply with the requirements of an order of probation. Therefore, simple incarceration in a county jail cannot be a valid condition of a delayed sentence. We are quick to distinguish such incarceration from involuntary participation in an in-patient substance abuse program. Obviously, a trial court could delay a sentence and require as a condition that the defendant participate in a resident substance abuse program since success in such a program could be directly related to success on probation. Cf. People v Stange, 91 Mich App 596; 283 NW2d 806 (1979). We also recognize that in the present case the trial court had advised the defendant at the plea-taking that jail time was a possible condition of a delayed sentence. We are of the opinion that such a statement does not expand the authority of the trial judge and does not authorize the imposition of conditions that are otherwise not permitted by the appropriate statue. The defendant’s conviction is reversed, the order delaying sentence is vacated, and this case is remanded to the trial court for trial.

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N. J. Lambros, J. In this action on a promissory note secured by a mortgage, the circuit court granted summary judgment for plaintiff pursuant to GCR 1963, 117.2(3), holding that there was no genuine issue as to any material fact and that plaintiff was entitled to prevail as a matter of law. Defendants’ countermotion for summary judgment was denied, and defendants appeal as of right. The affidavits and other evidence before the circuit court showed that on June 28, 1978, plaintiff loaned defendant Ren-Cen Indoor Tennis & Racquet Club $1.1 million and received a promissory note for that amount secured by a first mort gage on property located at 37101 East Lafayette Street in Detroit. Defendant Brown was the Guarantor of that note. On August 4, 1980, plaintiff loaned defendant club an additional $500,000 and received a promissory note for that amount secured by a second mortgage on the same property. Defendant club defaulted on both loans. Plaintiff foreclosed its second mortgage on the property at 37101 East Lafayette Street by advertisement pursuant to MCL 600.3201 et seq.; MSA 27A.3201 et seq., and purchased the property itself at the foreclosure sale on August 31, 1982, for the amount owed on the second note. Plaintiff took possession of the property after expiration of the redemption period and commenced this action to recover the amount owed on the first note. Defendants submitted an affidavit, uncontradicted by any affidavit or other evidence submitted by plaintiff, indicating that the fair market value of the property was more than $3 million on August 31, 1982. MCL 600.3280; MSA 27A.3280 provides in part: "When, in the foreclosure of a mortgage by advertisement, any sale of real property has been made after February 11, 1933, or shall be hereafter made by a mortgagee, trustee, or other person authorized to make the same pursuant to the power of sale contained therein, at which the mortgagee, payee or other holder of the obligation thereby secured has become or becomes the purchaser, or takes or has taken title thereto at such sale either directly or indirectly, and thereafter such mortgagee, payee or other holder of the secured obligation, as aforesaid, shall sue for and undertake to recover a deficiency judgment against the mortgagor, trustor or other maker of any such obligation, or any other person liable thereon, it shall be competent and lawful for the defendant against whom such deficiency judgment is sought to allege and show as matter of defense and set-off to the extent only of the amount of the plaintiffs claim, that the property sold was fairly worth the amount of the debt secured by it at the time and place of sale or that the amount bid was substantially less than its true value, and such showing shall constitute a defense to such action and shall defeat the deficiency judgment against him, either in whole or in part to such extent.” Pursuant to this section and the undisputed evidence as to the fair market value of the property, an action against defendants for a deficiency judgment could not have been successfully maintained if there had been one note and one mortgage here rather than two. Plaintiff was able to avoid this defense here, because there were two mortgages and two notes. Defendants argue, however, that the first promissory note, secured by the first mortgage, was discharged when plaintiff purchased the mortgaged property at the foreclosure sale on the second mortgage. In Blackwood v Sakwinski, 221 Mich 464; 191 NW 207 (1922), the assignee of two mortgages on the same property foreclosed the first mortgage and purchased the mortgaged property at the resulting sale. The assignee then brought suit on the second mortgage note, but the circuit court held that the second mortgage had been destroyed by merger when the assignee acquired the mortgaged property and that the assignee was therefore estopped from obtaining a personal judgment on the note. The Supreme Court rejected the circuit court’s reasoning, explaining: "The doctrine of merger in satisfaction of the debt does not apply to this case. The purchaser at the foreclosure sale under his first mortgage did not assume payment of the second mortgage. He could no longer look to the security but he could look to the mortgagors on their note. The note and mortgage did not make the land primarily liable for the debt, and plaintiff nowhere along the line has placed himself in a position to be held to look to the land alone for his money.” 221 Mich 469. A crucial distinction between Blackwood and this case is that in Blackwood the mortgaged property was purchased by the holder of both mortgages at a foreclosure sale on the first mortgage, while here the purchase was at a foreclosure sale on the second mortgage. A purchaser at a foreclosure sale of a second mortgage takes the property subject to the first mortgage. MCL 600.3236; MSA 27A.3236. The contrary is not true. The distinction was explained on Osborne, Mortgages (2d ed), § 274, p 553: "The general rule is that the purchase of mortgaged property by the holder of a junior mortgage at a sale on foreclosure of the senior mortgage, does not extinguish the debt secured by the junior mortgage. And the same is true even though the foreclosed first mortgage also was owned by the purchasing second mortgagee. However, if the holder of both a junior and senior mortgage forecloses the junior and buys it in on foreclosure sale it is generally held that, in the absence of an agreement to the contrary, the mortgagor’s personal liability for the debt secured by the first mortgage is extinguished. The reason given is that on foreclosure sale under a junior mortgage the purchase is subject to the payment of the prior lien with the result that 'the mortgagor has an equitable right to have the land pay the mortgage before his personal liability is called upon’ and the purchaser, if he owns or acquires the mortgage, will not be permitted to enforce it against the mortgagor personally.” (Footnotes omitted.) See also Anno: Union of title to mortgage and fee in same person as affecting right to personal judgment for mortgage debt, 95 ALR 89, 103-104: "(b) Foreclosure of senior mortgage. "The general rule is that the purchase of mortgaged property by the holder of a junior mortgage, at a sale on foreclosure of the senior mortgage, does not extinguish the debt secured by the junior mortgage. ♦ * * "(c) Foreclosure of junior mortgage. "On the ground that a sale on foreclosure of a junior mortgage is deemed to be subject to prior liens and liens in the hands of the purchaser, and that the purchaser is presumed to have made allowance for prior liens in making his bid, it is generally held that a purchase of the mortgaged property by the holder of junior and senior mortgages, on foreclosure of the junior mortgage held by him, extinguishes the mortgagor’s personal liability for the debt secured by the first mortgage in the absence of an agreement to the contrary.” In Belleville Savings Bank v Reis, 136 Ill 242, 248-249; 26 NE 646 (1891), the Court explained: "When one who is absolutely entitled in his own right to a charge or incumbrance upon land becomes the owner in fee of the same land, with no intervening interest or lien, the charge will at law merge in the ownership and cease to exist. Under like circumstances a merger will take place in equity where no intention to prevent it has been expressed, and none is implied from the circumstances and the interests of the party. "The premises, in such case, become the primary fund for the payment of the mortgage, and whoever acquires that fund and the mortgage also must be regarded as having applied the fund to the payment of the mortgage. "The indebtedness will be presumed to have been discharged so soon as the holder of it becomes invested with the title to the land upon which it is charged, 'on the principle that a party may not sue himself at law or in equity.’ The purchaser is presumed to have bought the land at its value, less the amount of indebtedness secured thereon, and equity will not permit him to hold the land and still collect the debt from the mortgagor.” (Citations omitted.) The economic basis for the rule was clarified in Wright v Anderson, 62 SD 444, 449-450; 253 NW 484; 95 ALR 81 (1935): "When a purchaser buys land subject to a mortgage (without assuming it), he does not become personally liable thereon, but nevertheless an equitable relation arises between himself and the original mortgagor. By virtue of having purchased subject to the mortgage, the land becomes the primary fund for the payment of the mortgage debt. * * * In theory, as between the purchaser and the original mortgagor, the mortgagor has already advanced to the purchaser the amount of the mortgage debt by receiving that much less than the market value of his land at the time of the sale. In other words, it is presumed that the purchaser of land subject to a mortgage deducted the amount of the incombrance from the market value of the land when he bought. The mortgagor therefore has an equitable right to have the land pay the mortgage before his personal liability is called upon and the purchaser will not be permitted to retain the land, go out and acquire the mortgage, and enforce the same against the mortgagor personally. The doctrine has application whenever land is purchased subject to a mortgage, whether the purchase be by private treaty or at foreclosure or execution sale. In any such case the only thing that can be sold, and the thing that is sold and purchased, is an equity of redemption; and a purchaser who was willing to pay money for the equity of redemption will not be heard to say, as against the persons liable on the prior incumbrance, that the land (the primary fund for the discharge of the prior incumbrance) is not worth the amount thereof. It follows therefore that when the purchaser, retaining the land, acquires the prior debt, although he is not personally liable thereon, he is the owner of the res which ought to discharge the debt as between himself and the mortgagor and he will not be permitted to retain the res and at the same time to say it is insufficient to satisfy the debt. Consequently there is, in essence, a coincidence of the capacities of debtor and creditor and, as between the purchaser and the original mortgagor, the debt is extinguished, notwithstanding the fact that there may be no merger and notwithstanding the fact that the purchaser may maintain the validity of the lien upon the land as between himself and an intervening subsequent incombrancer who was a stranger to his purchase.” See also McDonald v Magirl, 97 Iowa 677; 66 NW 904 (1896), Sletten v First National Bank of Carrington, 37 ND 47; 163 NW 534 (1917), and Baxter v Redevco, Inc, 279 Or 117; 566 P2d 501 (1977). Michigan follows the general rule about mergers mentioned in Belleville Savings Bank v Reis. At law, whenever a greater and lesser estate or a legal and equitable estate coincide in the same person, the lesser or equitable estate is destroyed by merger. Equity, however, will generally prevent a merger if the parties did not intend a merger, and an intent to avoid a merger will ordinarily be inferred where it is in the interest of the person holding the various estates to keep them separate. Quick v Raymond, 116 Mich 15, 18-19; 74 NW2d 189 (1898). Plaintiff must look to equity here to prevent the merger which would be automatic at law. As Belleville Savings Bank v Reis, Wright v Anderson, and similar cases show, equity is of no assistance to plaintiff under the circumstances presented here, because plaintiff seeks to avoid a merger to enable it to obtain, in effect, a double recovery. The price at a foreclosure sale on a second mortgage is depressed to reflect the outstanding first mortgage. A third party who purchases the property at the foreclosure sale on the second mortgage would have to satisfy the debt secured by the first mortgage in order to prevent the mortgagee of the first mortgage from asserting a superior claim to the property. Because plaintiff itself is the mortgagee of the first mortgage, plaintiff need not concern itself with the possibility that the mortgagee of the first mortgage would assert a superior claim. Plaintiff wants to obtain the price advantage of purchasing at a second mortgage sale without the disadvantage of having to satisfy the debt secured by the first mortgage in order to obtain uninterrupted enjoyment of the property. Equity will not assist plaintiff to achieve such a result. Instead, the debt secured by the first mortgage was discharged when plaintiff acquired the mortgaged property at the foreclosure sale on the second mortgage. The circuit court erred by granting plaintiff’s motion for summary judgment and by denying defendants’ motion for summary judgment. Reversed.

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Hood, J. This is a class action involving the rates of electricity charged by defendants for common areas of multiple-family dwellings. It is the position of plaintiffs that they are denied the equal protection of the law by being charged commercial rates rather than residential rates. On March 22, 1984, the trial court issued its opinion setting forth its findings of fact and conclusions of law. On April 9, 1984, the trial court issued two judgments, one in favor of defendant Board of Water and Light and one in favor of the remaining defendants. Both judgments found against the named plaintiffs and the class on the issue of liability, and further awarded taxable costs to the defendants. Plaintiffs filed a motion for new trial which was denied by the trial court in an order dated June 26, 1984. Plaintiffs appeal as of right from the trial court’s decision. Plaintiffs are the owners of multiple-family dwellings of three or more units which purchase electricity from defendant Board of Water and Light. The remaining defendants are the Michigan Municipal Electric Association and 13 of its member municipalities involved in the generation and transmission of electric power for retail sale to customers. Plaintiffs receive electricity from the Board of Water and Light for the lighting, and in some instances, heating, of "common areas” in and adjacent to their multiple-family dwellings. "Common areas” in multiple-family dwelling are areas which are appurtenant to the individual dwelling units, such as entrances, hallways, basements, laundry rooms, storage rooms, community areas, parking lots, and other similar areas in and adjacent to the multiple-family dwellings. The electricity provided by the Board of Water and Light for common area use is metered through one or more central or "house” meters. The Board of Water and Light provides electricity to plaintiffs for use in common areas at commercial, rather than residential, rates. Most of the remaining municipal defendants also provide electricity to their customers for use in common areas at commercial, rather than residential, rates. The root of plaintiffs’ problem is that the residential electric rates are less expensive than the commercial electric rates. In 1978, a number of the plaintiffs filed a complaint with the Board of Water and Light alleging that billing for separately metered common rates in multiple-family dwellings at the commercial rate while billing for similar electric use in single-family homes and duplexes at residential rates constituted a denial of equal protection. The Board of Water and Light declined to alter its billing practices. Plaintiffs consequently brought this action in Ingham County Circuit Court alleging that the decision to deny residential rate treatment for electricity for common area use in multiple-family dwellings was arbitrary, capricious, unreasonable, discriminatory, and a denial of equal protection. The Michigan Municipal Electric Association asked leave of the trial court to intervene as a defendant. The plaintiffs originally opposed the intervention motion but the trial court eventually entered a stipulated order adding the Association and the 13 named municipalities as defendants which would be bound by the judgment of the court in this action. The trial court also certified this action as a true class action. The court defined the class as the owners of multiple-family dwellings receiving electricity from any of the defendants for common area use billed through a central meter at a commercial, rather than a residential, rate since March 24, 1972. The court also approved plaintiffs’ proposed notice to members of the class and ordered defendants to mail notice to the class members. Service by mailing and by publication was made and a report was subsequently filed with the trial court. By stipulation of the parties the trial was bifurcated. The trial court first heard testimony on the issue of liability and reserved the issues of the existence and amount of damages to a later time if liability was found. Testimony on the issue of liability was heard by the trial court on 15 days during 1982 and 1983. A voluminous record was compiled, which the trial court considered before entering the judgments resulting in this appeal. Plaintiffs argue that the trial court clearly erred in finding that the rate classification complained of did not violate the equal protection guarantees of the United States and Michigan Constitutions. They first claim that the trial court erred in applying the traditional "rational basis” test of equal protection in its analysis, rather than the stricter "means scrutiny” test. We disagree with plaintiffs’ conclusion that the trial court erroneously relied solely on the rational basis test. The trial court’s opinion clearly shows that while the trial court thought that the traditional test was more appropriate in this case, it specifically held that the classification in question was constitutional under either the means scrutiny test or the rational basis test. In deciding the present case, we find the precedent of Alexander v Detroit, 392 Mich 30; 219 NW2d 41 (1974), instructive. In that case there was a constitutional attack on a Detroit refuse collection ordinance which was no longer in effect. Plaintiffs brought suit to recover money spent for refuse collection during the effective period of the ordinance. The single dispositive constitutional issue was whether Detroit ordinance 442-G was violative of equal protection in that waste from certain apartment buildings with more than four units was improperly classed as "commercial” and subject to charges for refuse services provided free to others in a like class. The Supreme Court held that the ordinance was unconstitutional, but specifically wrote that in reaching this conclusion, "we are heavily influenced by the careful findings of fact of the able trial judge, George Martin, in this cause. Findings of fact will not be set aside by appellate courts unless found to be clearly erroneous. GCR 1963, 517. Analysis of the lengthy trial record strongly supports the accuracy of Judge Martin’s factual conclusions.” Alexander, supra, p 36. Regarding the appropriate tests to guide judicial scrutiny of suspect enactments, the Alexander Court said: "(1) Are the enactment’s classifications based on natural distinguishing characteristics and do they bear a reasonable relationship to the object of the legislation? Fox v Employment Security Commission, 379 Mich 579, 588; 153 NW2d 644, 647 (1967); Beauty Built Construction Corp v City of Warren, 375 Mich 229, 235; 134 NW2d 214, 218 (1965); Palmer Park Theatre Co v Highland Park, 362 Mich 326, 346; 106 NW2d 845, 855-856 (1961). "(2) Are all persons of the same class included and affected alike or are immunities or privileges extended to an arbitrary or unreasonable class while denied to others of like kind? Fox v Employment Security Commission, 379 Mich 579, 589; 153 NW2d 644, 647-648 (1967); Beauty Built Construction Corp v City of Warren, 375 Mich 229, 236; 134 NW2d 214, 218 (1965); Palmer Park Theatre Co v Highland Park, 362 Mich 326, 347-348; 106 NW2d 845, 855-856 (1961). "Applied to the instant factual situation, we hold that inclusion of multiple dwellings with more than four units in the fee-paying 'commercial waste’ category while multiple dwellings with four or less units and condominiums and cooperatives were excluded, was a constitutionally improper classification violative of the state and Federal guarantees of equal protection. Const 1963, art 1, § 1; US Const, art XIV, § 1.” Alexander, supra, pp 35-36. In applying those tests, the Alexander Court arguably did what the trial court did in this case, which was to apply both of them, except that in the Alexander case the Court wrote: "No 'natural distinguishing characteristic’ was adduced at trial bearing a 'reasonable relationship to the object of the legislation’. The City of Detroit, for example, in claiming the object of securing refuse collection fees only from profit-making properties, failed to show that excluded properties, e.g., multiple dwellings with four or less units and condominiums, were not profit-making. As well, no demonstration was made by the city of the 'natural distinguishing characteristic’ of increased expense for collection of refuse at properties included in the fee-generating portion of the ordinance as compared to the like class of excluded properties. "Thus the class of multiple dwellings with any number of rental units and the class of profit-making properties, including condominiums and cooperatives, were not treated similarly under 442-G. The privilege of immunity from the sizeable collection fees involved under this ordinance was granted to one subclass of properties while the plaintiffs’ subclass was arbitrarily denied such benefit.” Alexander, supra, pp 38-39. Also instructive is Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975), in which the Court had before it an act of the Legislature providing that the owner of an automobile driven by another with permission was subject to liability if it was negligently driven and caused damages to property or injury or death to a person, and further provided that neither the owner nor a driver was liable for injury or death caused to a guest passenger by negligent driving. The Supreme Court held that the act was unconstitu tional on equal protection grounds. In doing so, the Court discussed at some length the traditional and means scrutiny equal protection tests, and then opined, p 671: "Whatever label is attached to the analysis — whether traditional equal protection, Dandridge [v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970)] test, Reed [v Reed, 404 US 71; 92 S Ct 251; 30 L Ed 2d 225 (1971)] test, means scrutiny or 'a complete and realistic balancing of interests’ — 'the governing rule is one of reason: The Equal Protection Clause, like the Due Process Clause, is a guaranty that controls the reasonableness of governmental action’. The classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation. "What is reasonable is in each instance a matter of judgment. In the final analysis, it is a value judgment and should be recognized as such. 'Whether the court upholds or invalidates a statute, the court is making policy, making value judgments.’ (Emphasis supplied.) "So, too, is the choice of test a matter of judgment. In my judgment, at least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.” (Emphasis added.) (Footnotes omitted.) In the present case, the trial court quoted the equal protection tests from both the Alexander and the Manistee Bank & Trust Co cases, supra, but stated that there was some question as to which equal protection test should be applied in this case. The trial court cited and relied on McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977), and Smith v Employment Security Comm, 410 Mich 231; 301 NW2d 285 (1981), and concluded that the traditional rational basis test was more appropriate because the interest of plaintiffs was pecuniary in nature and was not based on either a fundamental constitutional right or on a classification which has been perceived precedentially as a suspect classification, such as in the case of gender-based discrimination. The McAvoy case involved consideration of what was commonly referred to as the "70% statute”, which provided that a claim for review filed by a self-insured employer or a carrier from a workers’ compensation award entered by a hearing referee should not operate as a stay of payment to the claimant of 70% of the weekly benefit. The Supreme Court held this statute to be constitutional. After quoting from both the Alexander and the Manistee Bank & Trust Co cases, supra, with approval, it noted: "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. The appellants fail to meet their burden.” 401 Mich 453-454. In Smith v Employment Security Comm, supra, the employer had locked out its employees upon the expiration of their collective bargaining agreement after negotiations to arrive at a new agreement had been unsuccessful. The Michigan Supreme Court granted leave to appeal to decide whether the employees were entitled to unemployment compensation when they were locked out in spite of their willingness to continue working during contract negotiations. In sustaining the constitutionality of the statutory classification as not violative of the equal protection clause, the Michigan Supreme Court said: "In Michigan, the standard of review in scrutinizing legislation which is primarily social and economic against a claimed violation of equal protection is also the rational basis test. Appellees must show that the classification is arbitrary and wholly unrelated in a rational way to the objective of the statute. In re Kasuba Estate, 401 Mich 560, 568-569; 258 NW2d 731 (1977); McAvoy v H B Sherman Co, 401 Mich 419, 453-454; 258 NW2d 414 (1977). "We find that there exists a rational basis for the Legislature’s treatment of lockouts in relation to unemployment benefits. The Legislature could have chosen to distinguish between claimants who are laid off and claimants who are unemployed due to a strike or lockout in order to preserve the state’s neutrality in labor disputes. The policy of the ESA is not only to provide relief from involunatry unemployment, but also includes the subsidiary policy of maintaining the state’s neutrality in labor disputes. Lawrence Baking Co v Unemployment Compensation Comm [308 Mich 198; 13 NW2d 260 (1944)], supra; Linski v Employment Security Comm, 358 Mich 239; 99 NW2d 582 (1959); Noblit v The Marmon Group [386 Mich 652; 194 NW2d 324 (1972)], supra. The Legislature may have determined that the payment of benefits to locked-out employees would weaken the effectiveness of the lockout as a bargaining tactic and may have chosen to leave intact the lockout as the employer’s counterpart to the strike. "The Legislature also could have rationally distinguished between an employee locked out at his own place of work and an employee who is unemployed due to a lockout at a functionally integrated establishment. It is apparent from the 1963 amendments to §29(8), which included the addition of the functionally integrated clause, that the Legislature was concerned with eliminating the weapon which employees previously had in being able to strike a key plant, thereby forcing an employer to pay benefits to laid-off employees at functionally integrated plants. It is not unreasonable to conclude that the Legislature intended to eliminate the corresponding weapon of employers in utilizing a lockout to avoid paying unemployment benefits to employees laid off at functionally integrated plants. This goal furthers both aforementioned policies of the ESA. "Whether or not we agree with the wisdom of the lines the Legislature has drawn, we cannot say that they lack a rational basis. Thus, we conclude that the Legislature’s treatment of lockouts in § 29(8) does not violate equal protection.” 410 Mich 271-272. We find that the trial court erred in relying on the McAvoy and Smith cases as supporting the rational basis test in this case. Those cases are readily distinguishable on the basis that they involve social legislation, which the present case does not. This case is factually more like the Alexander and Manistee Bank & Trust Co cases and should be decided under the tests approved therein. That is, the classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation, or in this case, a reasonable and lawful object of the Board of Water and Light. Manistee Bank & Trust Co, supra, p 671. It does not follow, however, that the trial judge also erred in his findings of fact or ultimate conclusion since he specifically found that under either the means scrutiny test or the rational basis test the classification in question was constitutional. It is vital that we examine those findings of fact since the Alexander case, supra, the one most like this case factually, specifically stated that the court’s conclusion was "heavily influenced by the careful findings of fact by the able trial judge”. 392 Mich 36. In this case we too are heavily influenced by the careful findings of fact by the able trial judge, Ingham Circuit Judge Thomas Brown. He found, in part: "There is evidence that Plaintiffs, who are in the business of renting apartments within their multiple-family dwellings, are billed for electrical services utilized in the common areas at commercial rates, while the residents in Plaintiffs’ multiple-family dwellings, residents of single family homes and duplexes purchase electricity at the lower residential rates. Common areas include: hallways, exterior lighting, parking areas, recreational areas with kitchen facilities, meeting rooms, coin-operated laundries, club houses with or without indoor swimming pools, community buildings, as well as offices used by the owners and/or managers of the apartment building. "Defendant, BWL, did not conduct a cost of service study prior to 1976 and the current load study does not specifically address the question of load in common areas. Nonetheless, there is evidence that Defendant classifies its customers on: 1) the size of the customer based on the amount of kilowatt hours consumed in a given period or, 2) the maximum demand which the customer puts on the system, or, 3) both, and 4) the purpose to which the device is devoted. It is also Defendant’s policy to classify persons engaged in business under the general service or the commercial service rate. "Plaintiffs contend that the exclusion of common areas which are centrally metered from residential class bear no relationship to a determination of the cost of providing service. Defendant concedes there is little distinction between costs of service for general service or residential rates in furnishing electrical service.” (Emphasis added.) An important factual distinction between this case and the Alexander case, supra, is that in the present case all residential units are classified at residential rates. It is only the common areas in multiple-family dwellings exceeding two units which are charged the commercial rate. By contrast, the garbage ordinance in the Alexander case distinguished between refuse produced by residents of multiple dwellings with more than four units and refuse produced by residents of dwellings with four or less units. That is, there was a classification with regard to rates as between the residents in the units themselves. Such a distinction is not present in the electrical classifications involved in this case. The Alexander ordinance also had other classifications within it not present in this case. For example, it amended the existing garbage collection ordinance by adding waste produced by multiple dwellings of more than four units to the classification "commercial waste”, but specifically exempted from this new commercial waste category "condominiums and cooperatives”. It left unchanged the existing collection fee applicable only to commercial waste in excess of 20 bushels per month, and further provided for the discretionary reduction or waiver of fees by the Detroit Common Council "upon petition by any non-profit or limited dividend federally subsidized housing development for low to moderate income families, or by a bonafide non-profit, charitable or eleemosynary organization * * *.” 392 Mich 34. Under these factual circumstances, it is not necessarily controlling in this case, and Judge Brown correctly so found. The trial court’s opinion in this case goes on to state: "The classification of electric rates between commercial and residential users based on practical and functional difference between the two classes of users does not deny equal protection. Plaintiffs are engaged in the business of renting apartments. The electric service in common areas metered by an individual meter is paid for by the owner of the apartment building. Common areas, such as clubhouses, laundry rooms and community buildings, are provided by the landlords as part of a commercial enterprise to make the apartment complex more attractive to potential renters. Additionally, there is evidence that Plaintiffs receive income in addition to residential rents for the use of certain common areas, such as laundry and recreation equipment. Plaintiffs also use common areas to provide business quarters to promote its business in renting the units in the complex. Such use of the common areas is in the nature of a business enterprise. Therefore, Plaintiffs are more similar to the general service customer than to the residential customers. "The evidence establishes that the common areas in multiple family dwellings have a greater level of electric consumption and the types and reasons for that consumption greatly differ from comparable areas of single family homes and duplexes. An argument could be made that the ability to bear the burden is better met by a commercial user than by a residential user. However, Defendant’s expert witness, Patrick S. Hurley, indicated that ability to pay was not a factor in classifying customers. There is evidence that the electric service for common areas in multiple-family dwellings is not billed under the commercial rate on the basis of whether a proñt is made, but because energy is used to operate a business or to compete with other businesses. The electric bills paid by Plaintiffs for the common areas may be taken as a business expense deduction on its income tax returns. This tax treatment is not available to the single family residential homeowner. There is evidence that even if a business purpose is involved in single-family homes, there is an option to wire separately for that service and it will also be charged at a general service or commercial rate. "Based on the foregoing, there is a reasonable relationship between classifying the electric service used in common areas of multiple-family dwellings served by a single meter at a commercial rather than a residential rate. Defendant is charged by the City Charter to fix just and reasonable rates. As testified by Plaintiffs’ expert witness, Jack R. Lundberg, it is proper to have a higher rate of return for general service or commercial than residential rates. It is not unjust discrimination to classify and establish rates on the basis of commercial users and residential users of electric service. "By not charging general service or commercial rates for electric service in common areas of duplexes with a single meter, Defendants are discriminating between customers in the same class of business. A rational basis for this is shown by the proofs. It is administratively impossible for Defendant to determine which houses were converted into duplexes and, further, the electric use in the common areas of such apartments is very minimal. Therefore, Defendant has as policy to charge at the residential rate for electric service in commercial areas of duplexes. "It is concluded that Defendant’s classification has a reasonable basis and does not offend the equal protection clause of the Federal and State Constitutions merely because it is not made with mathematical nicety or because it results in some inequity. See Land v Grandville, 2 Mich App 681; 141 NW2d 370 (1966); Oakland County v Detroit, 81 Mich App 308, 311; 265 NW2d 130 (1978).” (Emphasis added.) The trial court’s opinion adequately sets forth findings of fact and evidence which shows a marked distinction between this case and the Alexander case, supra, as discussed above. Further, the opinion supports the findings that the Board of Water and Light’s classification with regard to common areas of multiple family dwellings of more than two units has a reasonable basis and does not offend the equal protection clauses of the federal and state constitutions merely because it is not made with mathematical nicety or because it results in some inequity. The classification does bear a real relationship to the perceived purpose, i.e., a "fair-and-substantial-relationship-to” its object. Manistee Bank, supra, p 670. We find, therefore, that the trial court’s judgment should be affirmed._ Plaintiffs also argue that the trial court’s award of costs to the defendants was contrary to law and an abuse of discretion. We disagree. Plaintiffs misconstrue the import of GCR 1963, 526.1 (MCR 2.625[A]) completely. That rule does not require that the trial court justify the award of costs to the prevailing party. On the contrary, the rule is quite specific in providing that in any action or proceeding, costs shall be allowed as of course to the prevailing party, except when express provision therefor is made in a statute or in a court rule or unless the court otherwise directs, for reasons stated in writing and filed in the cause. In other words, the trial court does not have to justify the awarding of costs, but rather the failure to do so. We are not at all impressed by plaintiffs’ argument that costs should always be denied in "public question” cases. While we do frequently refuse to award costs in cases involving public questions, this is hardly a "rule of law” such that failure to adhere to it constitutes an abuse of discretion. Taxpayers & Citizens in the Public Interest v Dep’t of State Highways, 70 Mich App 385, 389; 245 NW2d 761 (1976). In addition, this is not a traditional public question case, since plaintiffs have a substantial monetary interest in the cause which they were pursuing. Affirmed. By stipulation of the parties on February 27, 1985, the trial court dismissed the action as to all defendants except defendant Board of Water and Light because they had settled their disputes with plaintiffs. Therefore, we deal in this opinion only with the case of plaintiffs versus the Board of Water and Light. Plaintiffs alleged that the rate classification utilized by defendants "is a denial of equal protection under section 1 of the 14th Amendment of the United States Constitution and section 2 of Article 1 of the Michigan Constitution of 1963.” The "rational basis” test places the burden upon the person challenging the classification to show that it is without reasonable justification, and the classification will not be set aside if any state of facts reasonably may be conceived to justify it. Under this standard, "a classification will stand unless it is shown to be 'essentially arbitrary’ ”. Manistee Bank v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). The "means scrutiny” test is a phrase adopted by Professor Gunther in Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harvard L Rev 1 (1972). Under this test, the court will analyze the classification to determine whether the classification bears a real relationship to the perceived purpose. This approach is also referred to as the "fair-and-substantial-relation-to-the-object-of-the-legislation” test. Manistee Bank, supra, p 670. We note that the Supreme Court has granted leave to appeal in two recent decision of this Court concerning the proper standard. Rouge Parkway Associates v City of Wayne, 131 Mich App 631; 346 NW2d 849 (1984), lv gtd, 419 Mich 923 (1984), and State Treasurer v Wilson, 132 Mich App 648; 347 NW2d 770 (1984), lv gtd 419 Mich 935 (1984).

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Per Curiam. On July 22, 1983, plaintiff com menced an action for violation of the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., and particularly § 8 thereof. Plaintiff alleged that, at a regular meeting of the Howell Board of Education on February 14, 1983, the board conducted a closed executive session for the stated purpose of discussing real estate and that, in the closed session, the board discussed accepting an option to purchase certain school property by the City of Howell. The approved minutes of the meeting, attached as an appendix to plaintiffs complaint, show that a motion to accept the option carried. Plaintiff alleged that another improper executive session occurred at the June 7, 1983, regular meeting; the minutes indicate that the board again went into executive session to discuss real estate and subsequently voted to authorize an extension of the city’s option until August 15, 1983. Plaintiff further alleged that sale of the property was authorized at the June 27, 1983, regular meeting and transfer was made the same day by warranty deed. On information and belief, plaintiff alleged that the city was going to transfer the property to the United States Postal Service. Without specifying which meetings were implicated, plaintiff alleged a failure to give adequate notice to the public of the agenda items and to provide an opportunity to be heard. Plaintiff requested that the June 27 transfer of property be invalidated. Service of process was accomplished on September 26, 1983, on both defendants. On October 13, 1983, the city answered the complaint and raised as affirmative defenses that the claim was barred by the statute of limitations and by laches, and that plaintiff failed to state a claim because he did not allege any willful or intentional evasion of the Open Meetings Act by the board. The same day, defendants jointly filed a motion for accelerated and/or summary judgment on the grounds that the period of limitation had run, that no violation of the Open Meetings Act had occurred, and that willful or intentional evasion of the act had not been alleged. On November 2, 1983, plaintiff brought a motion for leave to amend his complaint "to include allegations that the asserted failure of the Howell Board of Education to comply with the requirements of Michigan’s Open Meetings Act was detrimental to and impaired the public interest and, further, that such violations were intentional and designed to preclude public discussion of the decision of that body to sell” certain school property to the city. Plaintiffs and defendants’ motions were heard on November 7, 1983. Counsel agreed that defendants’ motion was brought pursuant to GCR 1963, 116.1(5) and 117.2(1). The court then granted accelerated judgment to defendants because the complaint was not filed within either 30 or 60 days of February 14, 1983, which the court viewed as being the date when "the substantive meeting took place”. The court also granted summary judgment to defendants, at least in part because plaintiff did not allege "that the public good was impaired or that the school board willfully or intentionally sought to violate the Act”. The court denied plaintiffs motion to amend because the school building, which plaintiff apparently wanted to preserve, had been torn down during the period between commencement of the action and service of process on defendants; the court concluded that leave to amend would work an injustice. However, the court indicated that it would reconsider the motion to amend if plaintiff alleged facts of "some sort of skullduggery or some sort of misdeed as would be suggested by” Esperance v Chesterfield Twp, 89 Mich App 456; 280 NW2d 559 (1979). The court concluded that the conclusory allegations in plaintiffs motion were insufficient. An order dismissing the complaint was entered November 14, 1983, from which plaintiff has appealed as of right. Plaintiff argues that defendants’ motion was defective as a "hybrid” motion and for failure to cite what court rules it was premised on. This Court has repeatedly criticized the use of hybrid motions for accelerated and/or summary judgment. See Ceplin v Bastian-Blessing Division of Golconda Corp, 90 Mich App 527, 530; 282 NW2d 380 (1979), Knapp v Dearborn, 60 Mich App 16, 26; 230 NW2d 293 (1975). However, those cases dealt with the requests for accelerated and/or summary judgment where there was only a single basis presented for dismissing the complaint and that basis was not clear from the motion. In the instant case, defendants’ request for accelerated and/or summary judgment was proper since defendants presented separate reasons for dismissing the complaint. Specifically, defendants asserted that they were entitled to accelerated judgment because the claim was barred by the statute of limitations and were also entitled to summary judgment because the complaint failed to set forth a claim upon which relief could be granted. Defendants were, therefore, making separate claims and were not combining these requests into a single "hybrid” motion. Defendants’ failure to "identify” the court rules under which they were proceeding did not lead to any confusion which would make the granting of the motions improper. In Partrich v Muscat, 84 Mich App 724, 729; 270 NW2d 506 (1978), this Court admonished trial courts and attorneys for the failure to specify the particular subrule of the summary judgment rule under which summary judgment was requested and granted. This Court stated: "Unless the applicable subrule under which a party is proceeding is identified, the trial court’s job of deciding the motion and our review on appeal become much more difficult. * * * Unless attorneys devote more thought and consideration to the basis upon which such motions are brought, the problem is likely to be further compounded with the consolidation of present rules 116 and 117 in the future. * * * At some point, counsel and trial courts may be subjected to a summary remand to clarify the grounds upon which such a judgment is granted.” In the instant case, defendants failed to specify the court rules on which their motion was based. Defendants, however, stated in their motion for accelerated and/or summary judgment that plaintiffs claim was "barred by the applicable limitation period contained within the Open Meetings Act”, and that plaintiff had failed to meet the "threshold jurisdictional requirement” since plaintiff did not allege "wilful or intentional evasion of the spirit and intent of the Open Meetings Act”. Moreover, the particular court rules were identified at the hearing on November 7, 1983. The parties and trial court agreed that the motion for accelerated judgment was brought under GCR 1963, 116.1(5) and the motion for summary judgment was brought under 117.2(1). Neither attorney expressed any confusion as to which court rules were applicable. Consequently, the court rules under which the motions were granted were adequately indicated in the trial court record and we find ourselves readily able to review the lower court’s order on its merits. Plaintiff argues that accelerated judgment was improper because controlling issues of fact existed. Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981). We disagree, being unable to find any genuine issues of fact relevant to disposition of the issue whether the period of limitation had run. Nevertheless, we vacate the grant of accelerated judgment to defendants because the court below used the incorrect date to start the period running. Section 10 of the Open Meetings Act, MCL 15.270(3); MSA 4.1800(20)(3), provides: "The circuit court shall not have jurisdiction to invalidate a decision of a public body for a violation of this act unless an action is commenced pursuant to this section within the following specified period of time: "(a) Within 60 days after the approved minutes are made available to the public by the public body except as otherwise provided in subdivision (b). "(b) If the decision involves the approval of contracts, the receipt or acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal to the electors, within 30 days after the approved minutes are made available to the public pursuant to that decision.” The circuit court found it unnecessary to decide whether the 30 or 60 day period was applicable; we likewise need not reach that issue. What is important is the meaning of "decision”. MCL 15.262(d); MSA 4.1800(12)(d) gives the following definition for purposes of the act: " 'Decision’ means a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.” We hold that the June 7, 1983, decision of the board to extend the city’s option was a "decision” within the meaning of the act. The minutes of the June 7 meeting were approved, and presumably made available to the public, on June 27, 1983. Since plaintiffs complaint was filed on July 22, 1983, the action was timely commenced regardless of which limitation period is applied. We turn next to the grant of summary judgment to defendants. Plaintiff does not contest the requirement of Esperance, supra, p 464, that the complaint must allege that the public body’s failure to comply with the act impaired the rights of the public. See MCL 15.270(2); MSA 4.1800(20)(2). Rather, plaintiff argues the sufficiency of his allegation that the Howell taxpayers were deprived of due process in that they lacked adequate notice and opportunity for a hearing. We believe that this conclusory allegation stated nothing more than the fact that an open meeting was not held as required by the act. Accordingly, we hold that plaintiff’s complaint failed to state a claim. Plaintiff did, however, seek to conform his complaint to the Esperance requirement by bringing a motion for leave to amend. Leave "shall be freely given when justice so requires”. GCR 1963, 118.1. The decision to grant leave to amend the pleadings is within the trial court’s discretion, but leave should be denied only for particular reasons. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973). In this case, we find no abuse of discretion. Plaintiff states that he sought the amendment to include a "procedurally required allegation” that the board’s actions impaired the rights of the public. We disagree with plaintiff’s characterization of the Esperance requirement that impairment of public rights be alleged. Mere recital of the language of § 10(2) of the act is insufficient where there are no factual allegations to support the conclusion. The trial court recognized this and gave plaintiff the opportunity to submit factual allegations. Plaintiff now contends that he was denied the opportunity to do discovery and develop the facts, but we find nowhere in the record where plaintiff sought to develop factual allegations or to request time to do so. Accordingly, we agree with the court below that to protract the case would have been unjust. Affirmed, but the grant of accelerated judgment is vacated. MCL 15.268; MSA 4.1800(18) provides in relevant part: "A public body may meet in closed session only for the following purposes: (d) To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained.” Plaintiff contends that there is no exception for the sale of real property from the general rule that "[a]ll deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public”, MCL 15.263(3); MSA 4.1800(13)(3). The general rule "implicitly requires that all parts of the meeting (unless specifically excluded by the act) also be open to the public”. Esperance v Chesterfield Twp, 89 Mich App 456, 463; 280 NW2d 559 (1979). Nor does plaintiff cite which statutory provisions he is relying on for his asserted notice requirement for agenda items. Section 4 of the act requires notice of the name, telephone number and address of the public body, while § 5 requires notice only of date, time and place. In Haven v City of Troy, 39 Mich App 219; 197 NW2d 496 (1972), this Court distinguished between a public meeting and a public hearing. Although the public board meetings act of 1968 did not require notice of the contents of a meeting, this Court held that, where a public hearing is held at a meeting, notice of the contents of the hearing must be given. Plaintiff in this case does not say whether sale of school property requires a hearing. MCL 15.270(2); MSA 4.1800(20)(2) provides: "A decision made by a public body may be invalidated if the public body has not complied with the requirements of section 3(1), (2), and (3) in making the decision or if failure to give notice in accordance with section 5 has interfered with substantial compliance with section 3(1), (2), and (3) and the court finds that the noncompliance or failure has impaired the rights of the public under this act.”

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Per Curiam. Petitioner appeals from a decision of the Residential Property and Small Claims Division of the Michigan Tax Tribunal which redetermined respondent’s assessments on petitioner’s property for 1983 and 1984. The property involved is residential, located in Southfield Township, and was assessed at $73,300 for the 1983 tax year and $75,500 for the 1984 tax year. On appeal to the small claims division, petitioner alleged that the assessments failed to reflect the neighborhood’s drastically declining real estate values, failed to take into account various physical aspects of the property, and failed to consider its lack of salability. We address first two issues raised by respondent. Respondent claims that, since petitioner elected to file his petition with the small claims division of the Tax Tribunal, he relinquished his right of appeal to this Court. We have rejected this argument. Gannon v Cohoctah Twp, 92 Mich App 445, 448; 285 NW2d 323 (1979). Next, respondent contends that, because petitioner did not request a rehearing in the Tax Tribunal, his failure to exhaust his administrative remedies precludes review. Section 61 of the Tax Tribunal Act establishes the small claims division and provides that it consist of tribunal members and hearing referees: "A residential property and small claims division of the tribunal is created and consists of 1 or more members of the tribunal appointed and serving pursuant to this act and those hearing referees appointed by the tribunal who shall hear and decide proceedings before this division.” MCL 205.761; MSA 7.650(61) (emphasis added). Section 62, subsection (3) provides; "A person or legal entity entitled to proceed under section 31, and whose proceeding meets the jurisdictional requirements of subsection (1), may elect to proceed before this division of the tribunal. A formal record need not be taken of the division proceedings. Within 20 days after issuance of an order by a hearing referee, a party may request a rehearing by a tribunal member which hearing shall be de novo.” MCL 205.762(3); MSA 7.650(62)(3) (emphasis added). Thus, if an order has been issued by a hearing referee, a party may request a rehearing by a tribunal member. In the present case, a tribunal member conducted the initial hearing in the small claims division. The statute does not require that a party must request a new hearing outside the small claims division after a hearing has been conducted by a tribunal member. Petitioner has exhausted all of the statutory remedies available to him in the tax tribunal. Petitioner argues that the tribunal failed to make adequate findings of fact in accordance with statutory requirements. The Tax Tribunal Act states: "A decision and opinion of the tribunal shall be made within a reasonable period, shall be in writing or stated in the record, and shall include a concise statement of facts and conclusions of law, stated separately and, upon order of the tribunal, shall be officially reported and published.” MCL 205.751(1); MSA 7.650(51X1) (emphasis added). Merely stating that the tribunal has reviewed the evidence and finds it to be insufficient as a basis for relief is not adequate as a "concise statement of facts” and violates MCL 205.751(1); MSA 7.650(51)(1). Plymouth Twp v Wayne County Bd of Comm’rs, 137 Mich App 738, 756; 359 NW2d 547 (1984). Only if the decisions of the tribunal contain the factual and legal basis of the determination will appellate review be meaningful. Almira Twp v Benzie County Tax Allocation Bd, 80 Mich App 755, 761; 265 NW2d 39 (1978). Adequate findings of fact are particularly important in proceedings before the small claims division since review is hindered by the informal record maintained in those proceedings. In this case, the decision rendered provides no underlying reasons or findings for the final determination of true cash value. The petition challenged the assessment on several grounds. The findings of fact do not address any of the issues raised by petitioner. Moreover, there is no indication of which method of valuation the Tax Tribunal used or whether the principles were properly applied. In our opinion, the tribunal erred in failing to make more explicit findings of fact. On this basis we remand. Because we remand, we do not address the issue of whether the Tax Tribunal’s decision was supported by the record. Remanded.

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Allen, J. Plaintiffs appeal as of right from the May 3, 1984, order which granted defendants’ motion for accelerated judgment and dismissed plaintiffs’ complaint for foreclosure. We reverse. Plaintiffs sold to defendants a parcel of real estate by land contract on February 15, 1979. The purchase price was $20,000 with no down pay- merit, and defendants were to make monthly payments of $150. The land contract contained the follwoing standard clauses: "Right to Forfeit "3(f) If the Purchaser shall fail to perform this contract or any part thereof, the Seller immediately after such default shall have the right to declare the same forfeited and void, and retain whatever may have been paid hereon, and all improvements that may have been made upon the premises, together with additions and accretions thereto, and consider and treat the Purchaser as his tenant holding over without permission and may take immediate possession of the premises, and the Purchaser and each and every other occupant removed and put out. In all cases where a notice of forfeiture is relied upon by the Seller to terminate rights hereunder, such notice shall specify all unpaid moneys and other breaches of this contract and shall declare forfeiture of this contract effective in fifteen days after service unless such money is paid and any other breaches of this contract are cured within that time. "Acceleration Clause "3(g) If default is made by the Purchaser and such default continues for a period of forty-five days or more, and the Seller desires to foreclose this contract in equity, then the Seller shall have at his option the right to declare the entire unpaid balance hereunder to be due and payable forthwith, notwithstanding anything herein contained to the contrary.” It is undisputed that defendants failed timely to make the five monthly payments due between September 1, 1983, and January 1, 1984. On January 26, 1984, plaintiffs filed a complaint for foreclosure of the land contract. Apparently, sometime before the complaint was filed, defendants informed plaintiffs that they were unable to make the payments and would be attempting to sell their interest in the land contract. On January 17, 1984, defendants conveyed their interest to a third party and tendered $750, representing the five overdue payments, to plaintiffs’ attorney. That tender was refused and the complaint for foreclosure was filed. Plaintiffs averred that the filing of the complaint constituted an exercise of their option to accelerate the entire unpaid balance of the land contract. On April 19, 1984, defendants filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(5) (now MCR 2.116[C][7]) on the ground that the plaintiffs’ complaint for foreclosure was barred because they had failed to give defendants notice of foreclosure before they tendered payment on January 17, 1984. On April 16, 1984, plaintiffs moved for summary judgment pursuant to GCR 1963, 117.2(3) (now MCR 2.116[C][10]) claiming that defendants did not have a valid defense because the land contract did not require notice of intent to foreclose. After hearing argument on both motions, the trial court held: "All right, I’m inclined to construe the contract as to read paragraph F and G in a manner which allows them both to operate. I don’t see them as being mutually exclusive. It seems to me that what their purpose is to give the seller the right under paragraph F to proceed by summary proceeding and require first that we give a notice of forfeiture so that the vendee may pay up within the 15 day period and avoid being ousted. I see paragraph G has a prerequisite to equitable action by the seller vendor whereby among other things the equity of redemption can be foreclosed and the seller can get a judgment for any deficiency among other things, greater remedies than under the summary proceedings but I read paragraph G as being the default which is specified in paragraph F, that is that a notice to terminate right would have to be given and the notice would specify the monies and other breaches and there would be a 15-day period after service for the purchaser to bring the contract current and avoid either a forfeiture or an equitable action to foreclose. I realize that the paragraph G can be read in the fashion that the vendor would have us read here but it seems to me that is unduly harsh and it would seem stange that the greater penalty, that is, the foreclosure in equity would be predicated upon no notice whereas the lesser remedy of a mere forfeiture without foreclosure of equity would be taken only if notice were given so I will deny the Motion For a Summary Judgment. Interesting question.” The trial court erred in reading paragraphs (f) and (g) in conjunction and in holding that the procedure set forth in the forfeiture provision, requiring notice and establishing a 15-day period in which the vendee may bring the payments to date, applied to the acceleration/foreclosure clause. The remedies of forfeiture and foreclosure are separate and distinct. SeeMinchella v Fredericks, 138 Mich App 462; 360 NW2d 896 (1984). Here, plaintiffs exercised their option to foreclose the contract by proceeding under paragraph (g), the acceleration clause, of the land contract. While plaintiffs could have proceeded under the forfeiture provision, they were not obligated to do so and nothing required them to satisfy the notice requirement necessary for a forfeiture action prior to instituting a foreclosure action in circuit court. Even defendants concede in their appellate brief that plaintiffs "can statutorily foreclose without advance notice even where the land contract fails to provide for foreclosure”. We find that, under prevailing authority and under the parties’ contract, plaintiffs were not required to give notice of their intent to foreclose. See, Minchella, supra; Dumas v Helm, 15 Mich App 148; 166 NW2d 306 (1968). As stated in Bishop v Brown, 118 Mich App 819, 829; 325 NW2d 594 (1982): "Under MCL 600.3101; MSA 27A.3101, circuit courts have jurisdiction to foreclose land contracts. Acceleration clauses in land contracts are valid and enforceable. Larson v Pittmen, 3 Mich App 348; 142 NW2d 479 (1966). The institution of foreclosure proceedings is sufficient notice that the seller has elected to exercise the right to accelerate. No prior notice of the intent to foreclose is necessary, Dumas v Helm. 15 Mich App 148, 151; 166 NW2d 306 (1968).” (Emphasis added.) We also reject defendants’ claim that plaintiffs were required under paragraph 3(k) of the land contract to provide them with a declaration or notice of acceleration by mail. Defendants claim that, in order for plaintiffs to have declared the contract accelerated, they must have performed some unequivocal act, such as filing a complaint for foreclosure or mailing them a formal notice of acceleration, prior to their tender of the past due payments. Reliance on 3(k) is unwarranted. That provision merely provides that properly addressed and posted notices, declarations or other papers are conclusively presumed to be served upon the purchaser once the seller deposits them in a United States Post Office box. It does not set forth a contractural obligation to provide written notice of a declaration of foreclosure. The acceleration clause contained in the land contract allowed plaintiffs to declare the entire unpaid balance of the contract due and payable in the event that defendants were in default for a period of 45 days or more. Although defendants asserted that they had tendered the amount of the overdue payments to plaintiffs on January 17, they did not dispute that the five monthly payments were not paid on their due dates. Thus, it is clear that at least four of the five payments were overdue by at least 45 days at the time or the tender and before the filing of the complaint. Given these undisputed facts, plaintiffs were well within their contractural rights in initiating the foreclosure action based on the default of defendants. Nor do we find that plaintiffs were precluded from exercising their option to foreclose and accelerate the contract due to their rejection of the tender of the five overdue payments. In Cooper v Jefferson Investment Co, 70 Mich App 597; 246 NW2d 311 (1976), rev’d on other grounds 402 Mich 294 (1978), under similar facts, this Court held that the tender of the payment prior to notice of the intent to foreclose was no defense to the foreclosure action. We agree. Here, the default by defendants occurred when they failed to make their monthly payments in a timely fashion. Plaintiffs could have asserted their contractural right to foreclose 45 days after the September, 1983, payment remained unpaid. By delaying the assertion of their contractual right, plaintiffs were not required to accept the tendered payments and they were not estopped from initiating foreclosure proceedings. Defendants’ argument ignores the uncontroverted fact that they did not make the five payments in accordance with the terms of the contract. Paragraph 3(g) does not require plaintiffs to immediately exercise their option to foreclose once 45 days has elapsed. That option remained available. By refusing the tender and by filing the complaint for foreclosure, plaintiffs clearly expressed their desire to foreclose. No other form or type of notice is required. Dumas, supra. The trial court erroneously granted accelerated judgement to defendants by misconstruing the forfeiture and foreclosure provisions of the land contract. Under the acceleration clause, plaintiffs were not required to provide defendants with no tice or to allow them a period of time in which to bring their payments current. Plaintiffs were under no obligation to accept the tender by defendants and they are therefore not barred from maintaining this foreclosure action. We reverse and remand to the trial* court for further proceedings on plaintiffs’ complaint. Reversed and remanded.

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Per Curiam. Plaintiffs appeal from the trial court’s grant of summary judgment in favor of defendant pursuant to GCR 1963, 117.2(3). The court found no material factual dispute as to the extent of the injuries sustained by plaintiff Dana Shortridge in an automobile collision involving defendant. The court further determined that, as a matter of law, these injuries did not constitute a serious impairment of an important body function or a serious permanent disfigurement within the meaning of the no-fault act. MCL 500.3135; MSA 24.13135. We affirm. The primary injuries sustained by plaintiff in the accident were to her teeth. Several days after the accident plaintiff consulted her dentist, Dr. Daniel Hull, D.D.S. He discovered that four lower teeth were loosened as a result of trauma. The left lateral incisor was fractured only to the extent of the enamel, and the only treatment required was the smoothing of this tooth back to a natural shape. The lower center incisor was fractured through the enamel dentin and pulpal tissue. In three separate visits, Dr. Hull performed a root canal and built up this tooth with an etch material to restore its appearance and function. Following this restoration, the tooth has returned to a normal function, has a slightly different appearance and is slightly more fragile than a normal tooth. The accident occurred on Friday, September 18, 1981. Plaintiff returned to school the following Tuesday and resumed playing the trumpet in the school band despite having some discomfort. After the root canal work was completed, by the end of 1981, plaintiff had no eating or speech problems. Because plaintiff failed to establish that her injuries interfered with her ability to lead a normal life, she failed to establish that her injuries constituted serious impairment of an important body function. Plaintiff also claims that the fractures in her left lower central and lateral incisors constitute permanent serious disfigurement because the damage is permanent and her teeth can only temporarily be made to appear normal. Although plaintiff properly argues that the Supreme Court’s holding in Cassidy v McGovern dealt only with the threshold issue of serious impairment of body function, we believe that the Supreme Court’s reasoning and analysis apply equally to the threshold issue of permanent seri ous disfigurement. The goals of limiting overcompensation for minor injuries and reducing excessive litigation in automobile accident cases apply with equal force to cases involving permanent serious disfigurement. In Williams v Payne, 131 Mich App 403, 412; 346 NW2d 564 (1984), this Court held that whether a victim’s injuries constituted permanent serious disfigurement was not an issue for the jury to decide. We do not believe that chipped teeth is the type of injury for which the Legislature intended to allow recovery when it established the threshold of permanent serious disfigurement. Therefore, we hold that the circuit court did not err in granting defendant’s motion for summary judgment. Affirmed. Costs to defendant. "Plaintiff” hereinafter refers only to the injured Dana. Her father’s claims are identical to the injured for purposes of this appeal. 415 Mich 483; 330 NW2d 22 (1982).

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Per Curiam. Plaintiff was unable to start her car and called a tow truck. When the tow truck arrived, she left her car and walked towards it. As plaintiff approached the tow truck, she slipped on a patch of ice and injured herself. Plaintiff then brought this suit seeking recovery of no-fault benefits from her insurer. The trial court denied defendant’s motion for summary judgment and this Court granted leave to appeal. When denying defendant’s motion, the lower court found that plaintiff was an occupant of the motor vehicle and that there was a causal connec tion between her injury and the ownership, operation, maintenance, or use of the motor vehicle. We reverse on the basis that, irrespective of the question of whether plaintiff was "occupying” or "maintaining” a motor vehicle, there has simply been no causal connection established between that activity and the injury sustained. The no-fault act was not designed to compensate all injuries occurring in or around a motor vehicle. Denning v Farm Bureau Ins Co, 130 Mich App 777, 782; 344 NW2d 368 (1983), lv den 419 Mich 877 (1984). The injury sustained in the instant case was unrelated to plaintiffs maintenance, etc., of a motor vehicle, since the injury could "just as well have occurred elsewhere”. 130 Mich App 786, i.e., its connection to a motor vehicle was merely fortuitous. This Court has previously recognized that the typical slip-and-fall injury occasioned by icy conditions where the no-fault claimant is simply going to or from a motor vehicle is "without causal connection with the ownership, maintenance, and use of [a motor vehicle]”. Block v Citizens Ins Co of America, 111 Mich App 106, 109; 314 NW2d 536 (1981). See also, King v Aetna Casualty & Surety Co, 118 Mich App 648, 651; 325 NW2d 528 (1982), lv den 418 Mich 881 (1983); Griffin v Lumbermen's Mutual Casualty Co, 128 Mich App 624, 631; 341 NW2d 163 (1983). Were we to permit coverage here, we would be accepting an extremely attenuated causal connection. Because the facts are not in dispute, we hold that summary judgment should have been granted in favor of defendant. Reversed and remanded for entry of judgment consistent with this opinion.

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Shepherd, P.J. A jury returned a verdict of no cause of action on plaintiffs wrongful death claim arising from the drowning of her eight-year-old son in defendant’s pool. We reverse and remand for a new trail because of the failure of defendant’s attorney to abide by rulings of the trial court on several evidentiary matters. We also conclude that upon retrial plaintiff, as personal representative of her son’s estate, shall not be forced to represent the interests of the boy’s natural father, Lloyd Chambers, if the trial court determines that a conflict exists between the interests of the boy’s mother and father. The decedent was in Chambers’ care when he was found at the bottom of defendant’s pool. At the time of trial, Chambers was in prison in Texas. He did not testify at the trial, by deposition or otherwise. Plaintiffs testimony contained some favorable recollections concerning the relationship between Chambers and the decedent. However, plaintiffs attorney sought exclusion of certain adverse references to Chambers’ character, arguing that Chambers was not his client. The trial court ruled that under the wrongful death statute, MCL 600.2922(2); MSA 27A.2922(2), the personal representative must represent the interests of all those with a potential entitlement to damages, i.e., "that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate”. Id. (prior to amendment by 1985 PA 93). The trial court concluded that, since Chambers was such a person, plaintiff was forced to represent his interests, and evidence of the true nature of his relationship with the deceased was relevant. The court instructed the jury that Chambers was one of the "real parties in interest”. Plaintiff argues, and we agree, that defense counsel’s multiple violations of the trial court’s evidentiary rulings denied her a fair trial. Before trial, the court ruled that plaintiffs marital status and the "illegitimacy” of her two remaining children were irrelevant. Despite the ruling, defense counsel asked plaintiff on cross-examination if it was true that she "[had] never been married”. Plaintiffs attorney objected. With the jury still present, defense counsel responded that he thought the court’s ruling only applied to "the two daughters” (i.e., plaintiffs other children). In our view, the ruling of the trial court was clear and nothing in that ruling justified counsel’s interpretation. In addition, defense counsel repeatedly violated the trial court’s exclusion of evidence that Chambers was a pimp. Also, the trial court had excluded any reference to the fact that Chambers was in a Texas prison at the time of trial. Defendant recalled plaintiff to testify at the close of plaintiff’s proofs, and proceeded as follows: "Miss Roberts, before I ask you any questions, because of the Court [sic] has ruled earlier on several matters of admissible evidence, I want to set the ground rules, all right? "A. (Nodding head) ”Q. Would you answer out loud so the Court Reporter— ’’[PLaintiffs Attorney]: Your Honor, I believe this is supposed to be a question and answer-type thing. I don’t know that [defense counsel] is supposed to set the ground rules. I believe that is for the Court to do, and I believe he is to ask questions and she is to answer. I don’t know that he is supposed to testify and set the ground rules. ’[Defense counsel]: I’m trying to be very careful so as not to elicit testimony this Court has previously said should not be elicited, and what I want to ask Mrs. Roberts is to please listen very carefully to my questions. * * * "I want you to answer only yes or no, because they are yes or no questions, unless you are requested or allowed to provide additional information. Is that satisfactory with you ma’am? "A. Uhhuh. ”Q. Only a yes or no answer. Do you know where Lloyd Chambers is or was— ’’[Plaintiffs attorney]: Objection— ’’[Defense counsel]: —during the week of this trial? ’’[Plaintiffs attorney]: Objection. That is what we talked about. We talked, and the Court has admonished defense counsel about that, and, once more, he is ignoring the Court’s order.” The trial court sustained plaintiff’s objection. Defendant now argues that no explicit reference was made to Chambers’ actual whereabouts. This is true, but defense counsel’s vague reference to matters excluded by the trial court may have left the jurors with the impression that they were receiving less than the full story. We do not believe that an attorney should, in the jury’s presence, "set the ground rules” for cross-examination if, by doing so, he implies that the witness’s answers conceal the full substance of the matter, and that information has been excluded by the trial court. Otherwise, a party may succeed in injecting prejudicial innuendo into the consciousness of the jurors. This alone would not justify reversal but when we consider the other more serious violations we are left with a clear impression that plaintiff was denied a fair trial. The defense attorney succeeded in presenting to the jury information which was, as the trial court had ruled, more prejudicial than probative. MRE 403. His conduct had the effect of distracting the jury’s attention from the relevant issues in the case. Plaintiff objected to most of the acts of misconduct, but we would order a new trial even if no objection had been raised. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 103; 330 NW2d 638 (1982). See, also, Kern v St Luke’s Hospital Ass’n of Saginaw, 404 Mich 339, 352-354; 273 NW2d 75 (1978); Wayne County Bd of Road Comm’rs v GLS LeasCo, Inc, 394 Mich 126; 229 NW2d 797 (1975). Our review of the record leaves us with the firm conclusion that defense counsel acted either with "a studied purpose to inflame or prejudice [the] jury”, Anderson v Harry’s Army Surplus, Inc, 117 Mich App 601, 615; 324 NW2d 96 (1982), lv den 417 Mich 1074 (1983), or with a wanton or careless disregard of the same, inevitable result. Defense counsel argues that these errors were made in good faith. We decline to pass judgment on that issue because of our finding that the errors, what ever their motivation might have been, deprived plaintiff of a fair trial. Plaintiff’s three remaining claims of attorney misconduct are lacking in merit. An argument regarding the location of a room key was harmless, in light of defendant’s admission that there was no pass-key lock on the gate leading to the pool. The motel registration card, containing Chambers’ alias, could have caused no prejudice to plaintiff because the jury was aware of the alias from other testimony. Lastly, the volume of defense counsel’s voice during bench conferences is impossible to discern from the record. Plaintiff objected only once to the defense attorney’s alleged loudness. We conclude no prejudice resulted. Next, plaintiff argues that the trial court erred by forcing her to represent Chambers’ interests. According to plaintiff, this ruling seriously prejudiced her position. It opened the door to inquiry concerning Chambers’ character, the infrequency of his contacts with the decedent, and the impact of these facts on plaintiff’s case. By being forced to represent Chambers’ interests she would have to defend his character and his relationship to the boy when, in fact, she might be better served by arguing to the jury that her damages should be either considered separately or, at least, not reduced by any adverse conclusions the jury might reach on the subject of Chambers’ damages. At the time of trial, the wrongful death statute, MCL 600.2922(2), provided in part as follows: "Every such action shall be brought by, and in the names of, the personal representative of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recov ered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death. The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased. Such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto. * * Defendant correctly observes that Chambers falls within the definition of "next of Kin”, id., adopted by the Supreme Court in Crystal v Hubbar, 414 Mich 297; 324 NW2d 869 (1982). See also, May v City of Grosse Pointe Park, 122 Mich App 295, 298-300; 332 NW2d 411 (1982); Scott v Burger King Corp, 95 Mich App 694; 291 NW2d 174 (1980). Therefore, he was entitled to claim damages in this wrongful death action. However, this does not resolve the issue of whether plaintiff was automatically obligated to assert his interests at trial, even though it might do harm to her cause. We conclude that the Legislature did not intend to force the personal representative to bear weight (in the form of an unsavory, absentee father) which might sink the entire wrongful death action. We do not mean to say that the personal representative has the authority to waive the claims of a "next of kin”. Unless the plaintiff raises a claim of conflict before trial, the court may presume that the plaintiff represents the interests of all those with an entitlement to claim damages. We note that, under the newly-amended statute, the personal representative must serve a copy of the complaint and notice of the right to claim damages upon all of the next of kin. MCL 600.2922(2); MSA 27A.2922(2), as amended by 1985 PA 93. Those failing to respond may be barred from claiming any portion of the proceeds. MCL 600.2922(8); MSA 27A.2922(8). We hold only that, when the plaintiff in a wrongful death action claims that representation of the interests of one or more of the "next of kin” will do harm to the plaintiff’s cause, the trial court must examine the merits of that claim and determine whether plaintiff can adequately represent the interests of both the estate and the other relatives who respond to the notice now statutorily required. If the claim has merit, such "next of kin” must be given an opportunity to intervene in the action. Scott, supra; MCR 1985, 2.105, 2.209. The personal representative will not be obligated to represent the interests of those who do not respond. Those who choose to intervene may be required by the court to proceed with separate counsel if a conflict of interest is found to exist. Thus, the personal representative will not be forced to dilute or destroy the strength of the plaintiff’s case by mandatory representation of every potential intestate heir. Crystal v Hubbar, supra. At the same time, the same potential intestate heir will be given an opportunity to establish a loss under the wrongful death statute, MCL 600.2922. See Crystal v Hubbard, supra, pp 316-317; MacDonald v Quimby, 350 Mich 21, 33; 85 NW2d 157 (1957). The potential conflict to which we refer is one which affects the conduct of the trial. We express no opinion regarding the potential conflicts inherent in the procedure for distribution of the proceeds of the wrongful death action. MCL 600.2922; MSA 27A.2922, MCL 700.222(d); MSA 27.5222(d). Our concern here is only for the fairness of the trial itself, not the proceedings after trial. There may be, however, a relationship between the two conflicts in a given case. Counsel are therefore admonished to call all conflicts to the court’s attention before trial so that the court may make an appropriate order governing the conduct of trial. We can envision a situation where the claims of the heirs are found to be so antagonistic that the interests of justice would require separate trials. See MCR 2.505(B). That would be a matter for the exercise of the sound discretion of the court. Our conclusion is consistent not only with the purposes of the wrongful death statute, but also with the Code of Professional Responsibility. Under DR 5-105, subds (A) and (B), an attorney may not undertake or continue multiple representation if the exercise of his professional judgment "will be or is likely to be adversely affected”. See, GAC Commercial Corp v Mahoney Typographers, Inc, 66 Mich App 186, 190; 238 NW2d 575 (1975); 7 Am Jur 2d, Attorneys at Law, § 184, pp 233-234 (citations omitted). Whether an attorney can adequately protect the interests of the estate and all the next of kin will depend upon analysis of their claims and the facts of the case. In many wrongful death cases, no conflict of interest exists by virture of simultaneous representation of both a personal representative and all of the surviving relatives. Hurt v Superior Court of Arizona, 124 Ariz 45; 601 P2d 1329 (1979). Returning to the present case, plaintiff argues on appeal that her interests conflicted with those of Chambers. However, on direct examination, plaintiff gave testimony which contained favorable references to the relationship between Chambers and his deceased son. We would not order a new trial in these circumstances, since it appears that plaintiff attempted to enhance the possible award of damages by describing Chambers’ relationship with the child in favorable terms. Plaintiff could not have it both ways. The trial court acted properly in this case. Furthermore, counsel for plaintiff never called the conflict to the court’s attention before trial, so that the court could resolve the problem in advance of trial. For this reason also we would not view this as an independent ground for reversal under the circumstances of this case. We have ordered a new trial because of the conduct of defense counsel at trial. On remand, if, after receiving the required notice of the pending action, Chambers does not respond, plaintiff need not represent his interests. If he responds, the trial court shall grant him an opportunity to intervene. The court will then determine whether there is a conflict of interest and whether plaintiff may be required to represent Chambers’ interests. Reversed and remanded for new trial and other proceedings consistent with this opinion. Costs to plaintiff._ The father also qualifies under the definition recently mandated by the Legislature. MCL 600.2922(3); MSA 27A.2922(3) (1985 PA 93). The amendments to the wrongful death statute apply to "matters pending on or filed after [their] effective date”. 1985 PA 93, §2 (emphasis added). The governor approved the legislation on July 10, 1985. The amendments "take immediate effect”.

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Shepherd, P.J. Defendant was convicted in district court of permitting three of its trains to obstruct a street for a period longer than five minutes, MCL 466.23; MSA 22.281(1). Defendant unsuccessfully moved for dismissal on the ground that the statute, MCL 466.23, as applied to the instant matters, violated the Commerce Clause of the United States Constitution, Article I, § 8. The circuit court affirmed. This Court granted leave to appeal. We affirm. The case involves street intersections along a stretch of railroad track known as the "Bottsford Curve” in Kalamazoo, Michigan. Defendant uses this section of track for 90 per cent of its Kalamazoo operations. Due to the 16-degree curve in this area, defendants’ trains cannot move safely in excess of 10 miles per hour. At present, defendant can do nothing to eliminate the curve because it does not own enough of the adjoining real estate. In district court, defendant presented testimony that, based upon an average car length of 75 feet, a maximum of 58 cars can move through the relevant intersection in five minutes at the safe speed of 10 miles per hour. The three trains cited measured 162, 102 and 97 cars, respectively. Thus, to comply with the statute, defendant must reduce the number of cars in each train and, therefore, increase the number of trains. There was testimony that compliance would cause defendant the burden of securing additional locomotives, cabooses and personnel. A defense witness claimed these charges would constitute a "tremendous financial burden”. In addition, use of multiple trains would cause delays in product delivery, because the second or third train would arrive later. The witness stated that the trains would have to be "three to five hours” apart to provide a safe distance. This, as well as the increased overhead, would put defendant at a competitive disadvantage. The same witness opined that an increase in the number of trains would result in an increase of the total time of obstruction of the intersection. The witness explained that, while a 100-car train might occupy the intersection for 10 minutes, additional trains (though shorter) would take longer total time because the crossing protections, including lights and gates, would activate for each individual train. These warnings begin 25 to 30 seconds before a train arrives. The people submitted testimony that delays at railroad crossings can be critical when police officers respond to calls and when officers need assistance to make arrests. In addition, obstruction of intersections may delay the arrival of ambulances to the scene of an injury or illness. Time is a critical factor. An assistant fire chief gave similar views with respect to fire engines and paramedics. A five-minute delay can be fatal to a heart attack victim. The district court found that the prosecution had "shown convincingly that these regulations are necessary and effective in reducing the response time of emergency vehicles”. The court concluded "that the necessity for public safety outweights the interference” with interstate commerce. Significantly, there is no evidence that any other railroad uses the "Bottsford Curve” (indeed, it appears defendant owns the track) or that any other railroad in the state is burdened by the five-minute limitation contained in MCL 466.23. As noted by the Circuit court: "This Court has reviewed all of the facts established on that record. I have reviewed the appropriate law, cited the applicable standards, and I take note of the fact that this statute is not in and of itself directed to the regulation of interstate commerce. It is one concerning health and safety. The ten-mile-an-hour limitation which results in Conrail’s inability to clear the crossings in five minutes, is not a State regulation. It is a self-imposed one because of the nature of the curve. Other railroads do not have this difficulty, but Conrail has. There is a tangential effect on Conrail in their business, but it is not such that it offends the Commerce Clause.” We must decide whether the five-minute limitation on obstruction of intersections unreasonably burdens interstate commerce. States may exercise their police powers over matters of local concern, even though the regulation affects interstate commerce, so long as the free flow of commerce is not impeded. Whether a burden on interstate commerce is unconstitutional depends on "the nature and extent of the burden * * * and the state and national interests at stake”. Indiana & Michigan Power Co v PSQ 405 Mich 400, 416; 275 NW2d 450 (1979). Those who challenge highway safety regulations by reference to the Commerce Clause must overcome a strong presumption of validity. Raymond Motor Transportation, Inc, v Rice, 434 US 429; 98 S Ct 787; 54 L Ed 2d 664 (1978); Bibb v Navajo Freight Lines, 359 US 520, 524; 79 S Ct 962; 3 L Ed 2d 1003 (1959). Unless in the circumstances "the total effect of the law as a safety measure in reducing accidents and casualties[ ] is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it”, the courts should uphold the law. Bibb, 359 US 524; Southern Pacific v Arizona, 325 US 761, 775-776; 65 S Ct 1515; 89 L Ed 1915 (1945). "[T]he inquiry necessarily involves a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce.” Raymond Motor, supra, 434 US 441. Nevertheless, this Court must uphold the statute "unless the burden imposed * * * is clearly excessive in relation to the putative local benefits”. Id., quoting Pike v Bruce Church, Inc, 397 US 137, 142; 90 S Ct 844; 25 L Ed 2d 174 (1970). Defendant advances no evidence or argument that the statute burdens interstate commerce generally. Rather, defendant submits that, as applied to the Kalamazoo operations at the "Bottsford curve”, the statute runs afoul of the Commerce Clause. Defendant cites no cases in which the argument of the party challenging a state statute was based solely on the effect of the regulation on that party’s operations alone (much less only that party’s operations at a single location within the state) and that argument was sustained. Rather, in assessing the burden on interstate commerce, the courts have been concerned with the effect of enactments on the national interest in the free flow of commerce. The United States Supreme Court has always considered the effect of the regulation on the regulated industry as a whole. In Raymond Motor, supra, 434 US 445, the Court noted that Wisconsin’s prohibition of double-trailer trucks imposed a substantial burden on interstate commerce, because all motor carriers engaged in such commerce were forced to haul "doubles” separately, travel around the state’s borders or use single-trailer trucks instead. In Bibb, supra, the Court cited the "increased financial burdens for interstate carriers” which resulted from an Illinois requirement of contour mudguards. 359 US 525. Coupled with a conflicting Arkansas standard, the Illinois statute would require all carriers between the two states to interchange mudguards, "causing a significant delay in an operation where prompt movement [was] of the essence”. 359 US 527. Defendant relies heavily upon Southern Pacific v Arizona, supra, in which the Supreme Court struck down a statute limiting the number of cars in railroad trains. Defendant fails to mention that the Court’s consideration of the burden on inter state commerce was weighted with a concern broader than the interests of the Southern Pacific Company alone: "The findings show that the operation of long trains, that is trains of more than fourteeen passenger and more than seventy freight cars, is standard practice over the main lines of the railroads of the United States, and that, if the length of trains is to be regulated at all, national uniformity in the regulation adopted, such as only Congress can prescribe, is practically indispensable to the operation of an efficient and economical national railway system. On many railroads passenger trains of more than fourteeen cars and freight trains of more than seventy cars are operated, and on some systems freight trains are run ranging from one hundred and twenty-five to one hundred and sixty cars in length. Outside of Arizona, where the length of trains is not restricted, appellant runs a substantial proportion of long trains. In 1939 on its comparable route for through traffic through Utah and Nevada from 66 to 85% of its freight trains were over 70 cars in length and over 43% of its passenger trains included more than fourteen passenger cars. "In Arizona, approximately 93% of the freight traffic and 95% of the passenger traffic is interstate. Because of the Train Limit Law appellant is required to haul over 30% more trains in Arizona than would otherwise have been necessary. The record shows a definite relationship between operating costs and the length of trains, the increase in length resulting in a reduction of operating costs per car. The additional cost of operation of trains complying with the Train Limit Law in Arizona amounts for the two railroads traversing that state to about $1,000,000 a year. The reduction in train lengths also impedes efficient operations. More locomotives and more manpower are required; the necessary conversion and reconversion of train lengths at terminals and the delay caused by breaking up and remaking long trains upon entering and leaving the state in order to comply with the law, delays the traffic and diminishes its volume moved in a given time, especially when traffic is heavy.” 325 US 771-772. (Emphasis added.) This is not to say that a regulation which adversely affects only one carrier or railroad is automatically constitutionally sound. However, defendant’s restriction of its argument and proof to the effect of the application of the statute on its own competitive position, and the complete absence of proof as to an adverse effect on other interestate railroads, is surely relevant to the weight of the actual burden on interstate commerce. We are faced with a statute as applied to a single curve used by a single railroad. We are unconvinced that the Commerce Clause should be applied to such local circumstances, which have little relevance to "the interests of the nation in an adequate, economical and efficient railway transportation service”. Southern Pacific, supra, 325 US 783-784. Defendant’s argument that application of the statute, together with the "Bottsford Curve”, constitutes a de facto limitation on the length of its. trains is not persuasive. Defendant has advanced no evidence that the state is somehow responsible for the curvature of the track. Therefore, this case differs from Kahn v Southern R Co, 202 F2d 875 (CA 4, 1953) (cited by defendant), in which the city had ordinances which limited both the time of obstruction of intersections and the speed of trains. In combination, these ordinances amounted to a governmental limitation on the length of trains, contrary to the holding in Southern Pacific, supra. Moreover, the ordinances applied to all railroad companies and to all intersections within the city. In this case, we have, at most, a de facto limitation on the length of defendant’s trains at but one location, a restriction resulting not from the state’s regulation, but from the curvature of defendant’s own track. The courts of other states have upheld similar limitations, based on evidence that they further the state’s interest in public safety. In People v Indiana Harbor Belt R Co, 102 Ill App 3d 811, 818; 430 NE2d 104 (1981), the Court upheld a ten-minute limitation, noting that "an exception is made for circumstances beyond the control of the railroad”. The Michigan statute has a similar exception for "accident or mechanical failure”. MCL 466.25; MSA 22.281(3). The court also observed that, unlike the statute at issue in Southern Pacific, supra, the Illinois law had a "reasonable basis”, since blockage of thoroughfares "may create very serious safety problems”. 102 Ill App 3d 819. See, also, Commonwealth v New York Central R Co, 350 Mass 724; 216 NE2d 870 (1966); City of Lake Charles v Southern Pacific Transportation Co, 310 So 2d 116 (La App, 1975). In New York Central, the cited train was involved in a switching operation. The court upheld application of the state’s five-minute railroad crossing limitation, stating, "there is presented a local problem without effect on national or interstate uniformity”. 350 Mass 729; 216 NE2d 873. The burden on interstate commerce, relegated solely to the effect on defendant’s operations at one curve in a single city, is so slight that the presumption of validity is enough to sustain the statute. Bibb, supra. For the sake of completeness, we note that it is beyond doubt that the public safety, health and welfare often hinge on the amount of time taken by police officers, firemen and other personnel to arrive at the scene of a crisis. Nor can it be doubted that a train crossing at an intersection may pose an obstacle to such responses. The statute furthers these purposes, despite defendant’s arguments to the contrary. First, defendant urges that the statute forces it to use more trains and that two trains obstruct the street longer than one. This ignores the fact that, as admitted by defendant, the two trains must be three to five hours apart for safety reasons. Obviously, an emergency vehicle will not have to wait as long for either of the two shorter trains as it would for the single, longer train. The people submitted testmony that every minute is critical. "If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective.” Bibb, supra, p 524. Defendant also argues that a larger number of trains increases the risk of mechanical failure and that such failures also cause obstructions of the street. However, defendant submitted no proof as to the chances that a locomotive will become disabled while it blocks this particular street. In fact, there is no evidence that this one crossing (again, the only railroad crossing relevant to the constitutional issue) has ever been occupied by a disabled train. We conclude that defendant has not overcome the presumption of validity attached to the statute or the state’s interest in facilitating timely responses to emergencies. Accordingly, we agree with the result reached by the district and circuit courts. Affirmed. A planned project would alleviate this difficulty, but has not yet been carried out. Or, in the present case, reducing the danger of critical delays of police and other emergency assistance. Of course, the added risk of mechanical failure alleged by defendant adds nothing to the burden on interstate commerce, given the statutory exception contained in MCL 466.25.

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Beasley, P.J. Plaintiff, David Schroeder, appeals as of right from the trial court’s order granting summary judgment to defendants, Canton Township and Canton Township police officers J. Hanna and K. Lazar, on the basis that plaintiff’s action was barred by governmental immunity. Plaintiff alleged that on May 11, 1983, at approximately 12:01 a.m., he was the operator of a motorcycle proceeding east on Michigan Avenue in Wayne County. At approximately 11:30 p.m. on May 10, 1983, two motor vehicles had collided and one of those vehicles remained in the left lane of eastbound Michigan Avenue. At about 12:01 a.m. on May 11, 1983, plaintiff collided with the vehicle that was still in the left lane of eastbound Michigan Avenue and was severely injured. Plaintiff’s complaint included counts of negligence and nuisance. However, at the hearing on defendants’ motion for summary judgment, plaintiff abandoned the negligence claim and agreed with defendants that immunity could only be avoided on a nuisance theory. MCL 691.1407; MSA 3.996(107) provides: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” Prior to its decision in Ross v Consumers Power Co, the Supreme Court held that a properly pleaded claim of nuisance could serve to avoid the immunity provisions of the statute. This Court has concluded that there is an exception to the statute for intentional nuisances and nuisances per se. That exception may survive despite the Supreme Court decision in Ross. Too often, "nuisance” terminology is used to mask what are, in fact, simple negligence claims for the purpose of avoiding some effects of calling it what it is, a negligence claim. Too often this rationale is employed to avoid the legislative decision to impose governmental immunity. The within case gives every indication of being such a case. The alleged failure to act soon enough to put up marker lights or to remove motor vehicles from the highway after a night accident on the highway is a long, long way from traditional nuisance theories. See Justice Fitzgerald’s manful effort to reconcile and resolve "nuisance law” in Rosario v City of Lansing and Dean Prosser’s statement: " 'There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance.” It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.’ Prosser, Torts (4th ed), § 86, p 571.” In the within case, plaintiff’s allegations of nuisance included the following: "14. THAT, when the Defendant Police Officers, J. HANNA AND K. LAZAR, reached the scene of the previous accident which had occurred at or about 11:35, May 10, 1983, they knew or should have known that the unattended and unmarked vehicle left in the left lane of eastbound Michigan Avenue constituted and [sic] obvious danger to traveling motorists and expecially [sic] this Plaintiff and harm was substantially certain to follow. "15. THAT, the near miss collisions of other motorists traveling this highway should have caused the said Defendant Police Officers to act with reasonable speed in removing said vehicle or providing some warning to the general public traveling upon said highway. "16. THAT, the obvious danger associated with said condition of leaving a motor vehicle unmarked and unattended on a public highway at night without warning are well known in fact to each Defendant and, further, that said Defendants failed to correct known and/or obvious danger even though each Defendant had either actual, visible or at least constructive notice of said danger due to the near misses with said vehicle by other motorists upon said highway. "17. THAT, Defendants, and each of them, had actual and/or constructive notice of said known dangér and/or further knew or should have known of said known danger which constituted a hazard and/or unreasonable interference with a right common to the general public. "18. THAT, Defendants, and each of them, negligently or willfully failed and refused to abate said nuisance and/or correct said known hazard in one or more of the following particulars: "(a) Failing to warn oncoming motorists of the abandoned vehicle; "(b) Failing to remove said vehicle from the roadway; "(c) Failing to maintain the highway in a reasonable safe condition. "19. THAT, at all times and in all ways it was feasible to abate said nuisance and the particulars described herein, and that the Defendants, at all times and in all ways referred to and mentioned herein, had sufficient control to do so.” In Young v Robin, the facts were as follows: "Shortly before 7 a.m., two Michigan state troopers observed a vehicle speeding in the southbound lane of I-69. Since the state troopers were in the northbound lane, they attempted to cross the median strip in order to pursue the speeder. The police car, however, got stuck in the median. Shortly thereafter, a truck driver stopped and had a conversation with the state troopers about the best method of extracting the police car. The truck driver ended up parking his vehicle on the left shoulder of the southbound lane, where it extended from two to six feet into the traveled portion of the southbound lane. In other words, although the truck was partly on the road, it was not blocking the road. "Although the police officers called their station to report that their car was stuck, they did not ask for a wrecker. They also did not set out flares by the truck. A number of vehicles passed them without difficulty. However, around 7 a.m., a vehicle containing four passengers and traveling approximately 61 miles an hour smashed into the back of the truck without braking.” 122 Mich App 85-86. We held: "Moreover, we cannot agree with plaintiffs that the alleged failure of the state troopers to police the scene of the disabled vehicle amounts to a nuisance in avoidance of governmental immunity.” 122 Mich App 87. In the within case, relying on Young, the trial court held that plaintiffs allegations did not amount to a nuisance. The facts in this case cannot be distinguished from those in Young. In both cases, police officers allegedly failed to abate a nuisance not created by any affirmative act on their part. In neither case, however, did enough time pass to transform the road condition into an intentional nuisance. Essentially, plaintiffs claim was for negligence and sounded in tort. We agree with the trial court’s conclusion that plaintiff did not plead a nuisance in avoidance of governmental immunity. Affirmed. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). 420 Mich 610-611, fn 27; Christopher v Baynton, 141 Mich App 309, 313; 367 NW2d 378 (1985). Rosario v City of Lansing, 403 Mich 124, 138; 268 NW2d 230 (1978); Gerzeski v Dep’t of State Highways, 403 Mich 149, 153; 268 NW2d 525 (1978), reh den 403 Mich 956 (1978). Moore v City of Pontiac, 143 Mich App 610; 372 NW2d 627 (1985); Jenkins v Detroit, 138 Mich App 800, 805; 360 NW2d 304 (1984); Pate v Dep’t of Transportation, 127 Mich App 130, 135; 339 NW2d 3 (1983). Rosario, supra, p 131. 122 Mich App 84; 329 NW2d 430 (1982). See, e.g., Veeneman v Michigan, 143 Mich App 694; 373 NW2d 193 (1985); Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985); Sanford v Detroit, 143 Mich App 194; 371 NW2d 904 (1985).

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Per Curiam. These consolidated cases arise out of injuries sustained by plaintiff when he dove into the shallow waters of Belle Lake, a private lake located in the Belle Estates Subdivision in Ma-comb County. Suit was brought by plaintiff against more than 200 defendants, including three neighborhood associations and individual subdivision lot owners. In Docket No. 77063, plaintiff appeals as of right from a grant of summary judgment to individual land owner El Camino Homes, Inc. In Docket No. 80284, plaintiff appeals as of right from a grant of summary judgment to the individual land owners who joined in the motion filed by defendants Donald and Virginia Runyon, Ronald and Carol Standlick and Bohdon and Switlana Korduba. On August 24, 1980, plaintiff attended a birthday party at a home located in the Belle Estates subdivision. That evening, plaintiff accompanied several other guests in attendance at the party to nearby Belle Lake for a swim. Upon arriving at the lake, one of the swimmers who was familiar with the lake ran down a hill at the edge of the lake, made a shallow dive, then swam to a raft anchored 50 feet from the shore. Having decided to enter the water, plaintiff took note of several telephone poles which had been laid length-wise along the shore to prevent erosion. Plaintiff ran down the hill and found himself unable to stop before reaching the lake, thus forcing him to step up and over the logs before entering the water. In doing so, plaintiff lost control, and his momentum caused his legs to flip over his head. Plaintiff landed on the back of his neck in 14 inches of water, breaking his neck, resulting in paralysis over the lower two-thirds of his body. Plaintiff filed an initial complaint alleging four counts of negligence which included the failure to provide adequate warning of the water depth, negligent design of the park and lake, and negligent placement and construction of the erosion barrier. Through several amendments, plaintiff added allegations of gross negligence and/or wilful and wanton misconduct in the following respects: "A. In failing to warn the plaintiff that the waterway abutting private park A was not of sufficient depth to allow diving. "B. In failing to place conspicuous warning signs indicating that diving was not allowed off the platform. "C. In failing to maintain the appearance of the waterway abutting private park A in a manner which would dispel the appearance that the depth of said waterway was sufficient for diving. "D. In constructing a platform that gave the appearance of an inviting and appropriate place to dive into the water without any attempt to indicate that it was not safe. "E. In failing to maintain the appearance of the platform in question in such a manner to dispel its apparent appearance as sufficient for use for diving. "F. In failing to use buoys to outline the area of the waterway abutting private park A which were safe for swimming and those that were safe for diving. "G. In failing to have a lifeguard on duty. "H. In failing to have a lifeguard on duty to warn persons such as the plaintiff not to dive off this platform. "I. In failing to have a lifeguard on duty prohibiting persons from diving off the platform in question. "J. In failing to employ barriers and/or fences to prevent diving from the platform in question. "K. In failing to maintain said lake to prevent erosion and decreasing water depth. "L. Maintaining an attractive nuisance in the form of the body of water in question as well as the platform.” We begin by addressing the motion for summary judgment granted in favor of defendant El Camino Homes, Inc. The motion was granted pursuant to GCR 1963, 117.2(3), apparently on the grounds asserted by El Camino, i.e., that it could not be held liable for plaintiffs injuries since it sold its lot in Belle Estates on land contract prior to the date of injury. We find no error. Although El Camino was still the title owner to the property at the time of the injury, the rule in Michigan is that it is the possessor of land, not the title owner, who owes a duty to licensees regarding the condition of the land. As stated in Nezworski v Mazanec, 301 Mich 43; 2 NW2d 912 (1942): "Liability for negligence does not depend upon title; a person is liabile for an injury resulting from his negligence in respect of a place or instrumentality which is in his control and possession, even though he is not the owner thereof.” 301 Mich 56, quoting 45 CJ, Negligence, § 317, p 881. Similarly stated, "[I]t is the unity of possession and control that is disposititve. A 'possessor’ of property must exercise reasonable care in avoiding harm to others on his property from the negligent acts of third persons because he is in possession and control of the premises and in a position to exercise the power of control or expulsion.” Merritt v Nickelson, 407 Mich 544, 553-554; 287 NW2d 178 (1980). (Emphasis in original.) Plaintiff attempts to avoid the effect of the above stated rule by seeking an application of the doctrine of equitable estoppel. In essence, plaintiff argues that, since he mistakenly believed El Camino to be both possessor and owner of title to the land in question, and since the statute of limitations has run as to the true possessor, El Camino should be estopped from denying liability. We cannot accept plaintiff’s argument due to the fact that the doctrine of equitable estoppel has no application to the facts presented. An equitable estoppel may be found where: "(1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts.” Cook v Grand River Hydroelectric Power Co, Inc, 131 Mich App 821, 828; 346 NW2d 881 (1984). Plaintiff has asserted no facts which would support the conclusion that El Camino negligently or intentionally induced him to believe that it had a possessory interest in the land. El Camino’s failure to record the land contract does not constitute such inducement since the recording act affects only subsequent encumbrancers and purchasers. MCL 565.354; MSA 26.674. Nothing in the statute suggests that it was intended to provide plaintiffs in subsequent negligence actions with a means of identifying possessors of land so as to determine potential defendants. The motion for summary judgment in favor of defendant El Camino was properly granted. We next consider the propriety of the order granting summary judgment as to the remaining defendants. This motion was predicated upon GCR 1963, 117.2(1), i.e., failure to state a claim upon which relief can be granted. Defendants argued that under the provisions of the recreational land users act, MCL 300.201; MSA 13.1485, they were entitled to immunity from liability for the ordinary negligence alleged in plaintiffs complaint. In an opinion dated June 22, 1984, the trial court expressed agreement with the defendant’s position that only allegations of gross negligence or wilful and wanton misconduct were sufficient to avoid an application of the immunity granted under the recreational users statute. Since the factual allegations contained in plaintiffs complaint concerned only ordinary negligence, the trial court concluded that no factual development could possibly justify a right to recovery and thus granted defendant’s motion. Plaintiff attacks the trial court’s action on a number of grounds, the first being that the recreational land users act does not apply to land from which the general public is excluded. We disagree. The statute provides as follows: "No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.” MCL 300.201; MSA 13.1485. Through its explicit terms, the statute applies whether or not the injured party received permission to be on the land in question. Thus, the fact that the general public did not have permission to use Belle Lake for recreational purposes or otherwise is entirely irrelevant. Plaintiff’s reliance upon two non-Michigan cases, Georgia Power Co v McGruder, 229 Ga 811; 194 SE2d 440 (1972), and Lacombe v Greathouse, 407 So 2d 1346 (La App, 1981), is misplaced since both cases involved the application of statutes which provide immunity from negligence only where the injured party had permission to use the property of the landowner. The cited cases therefore do not provide any basis for ignoring the explicit and unambiguous language of our own statute. Plaintiff next argues that our recreational users statute was intended to apply only to land located in a rural setting, rather than the populous suburban area of Belle Lake. This argument was raised previously in Syrowik v Detroit, 119 Mich App 343; 326 NW2d 507 (1982), where the Court stated: "Plaintiffs’ argument is without merit. The statute makes no reference to a distinction between urban and rural areas. The imposition of such a distinction by this Court would require the drawing of an arbitrary dividing line between what is urban and what is rural. Furthermore, to give the statute the construction urged by plaintiffs would do violence not only to the wording of the statute but to the intent of the Legislature. This Court has previously held that this statute should be given a liberal construction to carry out the Legislature’s intent to further recreational activities in Michigan by making certain areas available for such purposes while codifying tort law principles limiting the liability of landowners to those who come gratuitously upon their lands. Thomas v Consumers Power Co, 58 Mich App 486; 228 NW2d 786 (1975).” 119 Mich App 346-347. We agree, and thus we affirm the trial court’s reliance upon Syrowik. Plaintiffs final attack on the trial court’s application of the statute concerns the payment of consideration for use of the land. Plaintiff correctly notes that the immunity granted by the statute does not apply where consideration was paid. He also admits that he did not pay to use the lake, but argues that the immunity statute should not apply since his host did pay consideration in the form of annual fees assessed for the maintenance of the lake and through the increased cost of the land due to its proximity to a lake. Even if the maintenance fees and increased land values were the type of consideration intended by the statute, plaintiff has failed to allege that the consideration was paid on his behalf. Further, this Court has stated that, to avoid application of the statute, the consideration must be in the form of "a specific fee for the use of a particular recreational area in question”. Syrowik, supra, p 347. Plaintiff has not alleged that he, nor anyone on his behalf, paid such a fee for his use of Belle Lake for swimming purposes on August 24, 1980. The argument is therefore rejected. Next, plaintiff argues that summary judgment in favor of defendants was inappropriate because his complaint contained factual allegations which were sufficient to support a finding of wilful and wanton misconduct. As set out in Gibbard v Cursan, 225 Mich 311, 322; 196 NW 398 (1923), wilful and wanton misconduct is: "(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.” This test was clarified in Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982), where the Court explained that wilful and wanton misconduct is established only where the conduct alleged shows an intent to harm or such indifference to whether harm will result as to be the equivalent of a willingness that it occur. Burnett, supra, p 455. The twelve specific allegations of wilful and wanton misconduct contained in plaintiff’s second amended complaint were listed previously. We find nothing in these allegations which would support the conclusion the defendants acted with an intent to harm, nor do we believe one could conclude from these allegations that plaintiff’s injury was so probable, expected or likely as to amount to an indifference tantamount to a willingness that it occur. Burnett, supra, p 456. In Burnett, the Court found barely sufficient to comprise wilful and wanton misconduct the plaintiff’s allegations that defendant knew a submerged building in a man-made lake used by the city as a reservoir was creating an unnatural undertow dangerous to swimmers but did nothing to remove it. As noted in Matthews v Detroit, 141 Mich App 712; 367 NW2d 440 (1985), "[a] structure creating an undertow, like exposed guy wires (Thomas v Consumers Power Co, 394 Mich 459; 231 NW2d 653 [1975]) or a precipitous escarpment created by defendant (Lucchessi v Kent County Road Comm, 109 Mich App 254; 312 NW2d 86 [1981]), is inher ently dangerous to anyone coming in contact with it, making the defendant’s refusal to correct the situation akin to an intent to harm”. Matthews, supra, p 719. In contrast, the slippery fountain pool involved in Matthews, like sand dunes used for ORV vehicles (McNeal v Dep’t of Natural Resources, 140 Mich App 625; 364 NW2d 768 [1985]), "presents no threat to most people who come in contact with it, so that even if defendant knows that accidents have occurred in the past, the defendant’s failure to correct the situation does not amount to wilful and wanton misconduct without more facts”. Matthews, supra, p 719. We believe the present case requires the same result as was reached in McNeal and Matthews. The fact that the edge of Belle Lake is too shallow to permit diving presents no threat to most people who come in contact with it; in fact, most people, would presume such a condition to exist near the shoreline of a lake unless investigation proved otherwise. Further, the placement of telephone poles at the shore to prevent erosion simply does not constitute an inducement to dive into the water since there is no logical connection between the two. The plaintiffs complaint therefore fails to allege facts which would support the conclusion that plaintiff’s injury was so probable, expected or likely that the defendants’ failure to place signs, buoys, barriers or provide for a lifeguard evidenced such an indifference to the harm as to amount to a willingness that it occur. Finally, plaintiff complains of the trial court’s refusal to permit plaintiff to file a third amended complaint. Although GCR 1963, 118.1 provides that leave to amend "shall be freely given when justice so requires”, the decision to grant leave is left to the trial court’s discretion and will not be reversed on appeal absent an abuse of discretion. Riddle v Lacey & Jones, 135 Mich App 241; 351 NW2d 916 (1984). Plaintiffs proposed third amended complaint differed from its predecessor only in that plaintiff alleged that on at least one previous occasion a personal injury was sustained as a result of a diving accident in Belle Lake. As noted in Matthews, supra, unless the conditions are inherently dangerous to anyone who comes in contact with them, the defendant’s knowledge of accidents occurring in the past is legally insufficient to establish wilful and wanton misconduct. Matthews, supra, p 719. Therefore, since plaintiff’s proposed amendment would have been futile, the trial court’s denial of his motion for leave to amend was proper. Burgess v Holloway Construction Co, 123 Mich App 505; 332 NW2d 584 (1983). Affirmed.

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Per Curiam:. Teledyne Continental Motors (petitioner) appealed as of right and Muskegon Township (respondent) cross-appealed from the Tax Tribunal’s determination of value of petitioner’s real property located in Muskegon Township. The property is the site of an industrial manufacturing plant operated by petitioner, containing approximately 855,700 square feet and located on approximately 113.680 acres of land. The petitioner contended in the Tax Tribunal that the true cash value of its land and industrial plant was approximately $4,000,000. Respondent contended that the true cash value was $11,000,-000. After considering all the testimony and other evidence, the hearing officer arrived at a true cash value of $7,000,000, considerably above the value offered by petitioner and considerably below that offered by respondent. The Tax Tribunal, in an opinion and judgment dated August 29, 1983, adopted and incorporated the hearing officer’s findings of fact and conclusions of law, with some minor exceptions, and these appeals followed. The questions presented for our determination are whether the Tax Tribunal committed an error of law in determining the true cash value of petitioner’s property and whether the Tax Tribunal’s determination was supported by real evidence. Both parties agreed that the highest and best use for the Teledyne property was for general industrial purposes. Petitioner’s expert as to value, Elden Nedeau, presented an appraisal in which he incorporated three traditional approaches to value: cost, income and market. The tribunal determined that the most appropriate method to arrive at the true cash value of the subject property was the cost approach. This approach reaches value by determining replacement value, minus depreciation, plus land value. Mr. Nedeau determined a replacement cost of $23,212,746, from which he subtracted 84% for depreciation. The 84% depreciation figure consisted of 52.5% for physical deterio ration, 11.5% for functional obsolescence and 20% for economic obsolescence. To this he added a land value, which in his opinion was $198,940, to reach a true cash value of $4,000,000. Respondent’s witnesses adopted a $25,000,000 replacement cost, to which a 58.75% depreciation was applied consisting of 48.75% for physical deterioration and 10% for economic obsolescence. No figure was included for functional obsolescence. Respondent then added a land value of $455,743 to reach its claimed value of $11,000,000. The tribunal adopted petitioner’s replacement cost figures, but disallowed any consideration for functional obsolescence, finding that the use of a replacement cost approach made an adjustment for functional obsolescence improper. This resulted in a depreciation percentage of 72.5%. The tribunal then accepted respondent’s land value figure of $455,743, and added a wiring estimate not included in Nedeau’s appraisal to reach its $7,000,-000 figure. The standard of review of the Tax Tribunal’s determination of value is a limited one. Review of Tax Tribunal determinations, when fraud is not alleged, is limited to the questions of whether the tribunal committed an error of law or adopted a wrong legal principle. Tatham v City of Birmingham, 119 Mich App 583; 326 NW2d 568 (1982); First Federal Savings & Loan Ass’n of Flint v City of Flint, 104 Mich App 609; 305 NW2d 553 (1981), rev’d on other grounds 415 Mich 702; 329 NW2d 755 (1982); Const 1963, art 6, § 28; MCL 205.753; MSA 7.650(53). Thus, on appeal from a ruling of the tribunal, this Court is bound by the factual determinations of the tribunal and may properly consider only questions of law. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229; 276 NW2d 566 (1979). The tribunal is not required to accept the valuation figures or the approach to valuation advanced by either the taxpayer or the assessing unit. It is the duty of the tribunal to adopt that method which is most appropriate to the individual case as the particular facts may indicate. Consumers Power Co v Big Prairie Twp, 81 Mich App 120; 265 NW2d 182 (1978). In the present case, the tribunal rejected the valuation figures offered by the parties and adopted its own method after determining that the replacement cost approach to value was the most appropriate method to reach true cash value in this case. Petitioner first claims that the tribunal erred in ruling that functional obsolescence should not be included as an element of depreciation when the replacement cost approach is used to determine true cash value, i.e., that the tribunal adopted a wrong appraisal principle. Thus, the determination is a legal one and properly before this Court. In rejecting petitioner’s claim for a depreciation deduction for functional obsolescence, the tribunal reasoned as follows: "In using a cost approach to value, the appraiser must consider a reduction in the cost (new) for accrued depreciation due to all causes-physical deterioration, functional obsolescence and economic obsolescence. The distinction between the reproduction cost and replacement cost methods, based upon the above definitions, means to this Hearing Officer that when an appraiser utilizes the replacement cost method he should adjust for accrued depreciation, and the depreciation allowance should not include an amount for functional (utility — either deficient or excess) obsolescence as the replacement cost method has already been adjusted for utility, and use of current materials and design. See footnote* on the bottom of page 262, The Appraisal of Real Estate, supra, 'the dollar difference between repro duction cost and replacement cost usually indicates lack of functional utility.” (Emphasis in the original.) However, the 8th edition of The Appraisal of Real Estate (American Institute of Real Estate Appraisals, 1983) indicates that, while some forms of functional obsolescence are eliminated by the use of the replacement cost approach, this does not eliminate the necessity for measuring other forms of functional obsolescence that may exist in any particular industrial property. The tribunal in this case ruled that all functional obsolescence is eliminated by use of the replacement approach. The tribunal, by not distinguishing between the type of functional obsolescence that is eliminated by use of the replacement cost approach, committed an error of law which requires reversal. The use of the replacement cost approach is one of the accepted methods for determining true cash value. Clark Equipment Co v Leoni Twp, 113 Mich App 778, 781; 318 NW2d 586 (1982). To determine the present value of property, depreciation is subtracted from replacement cost. Depreciation includes physical deterioration, functional obsolescence and economic obsolescence. Fisher-New Center Co v State Tax Comm, 380 Mich 340; 157 NW2d 271 (1968). Functional obsolescence is a loss in value brought about by failure or inability to deliver full service. It includes any loss of value by reason of shortcomings or undesirable features contained within the property itself. Appraisal of Real Estate (8th ed), p 449. Functional obsolescence can be caused by internal property characteristics, such as poor floor plan, inadequate mechanical output, or functional inadequacy or superadequacy due to size or other characteristics. Jd. Clearly, the replacement cost approach does eliminate the need to calculate some types of functional obsolescence. By definition, replacement cost eliminates functional obsolescence due to excess construction or superadequacy. However, a determination of other sources of functional obsolescence, not caused by excess construction, must at least be considered in the replacement cost approach. In the present case, the tribunal ruled that all functional obsolescence is eliminated by use of the replacement cost approach. This amounts to an adoption of the wrong appraisal principle. The tribunal should have specifically determined whether the sources claimed as functional obsolescence by the petitioner are in fact eliminated by use of the replacement cost approach. This is primarily a factual determination, based upon a determination of fairness in each particular case, and we therefore do not presume to suggest a proper result. On remand, the tribunal may well determine that the elements of functional obsolescence claimed by petitioner are not proper factors to be considered in calculating replacement cost. Petitioner also claims that the $455,743 value placed on its land was not supported by competent, material and substantial evidence. We agree. It is an error of law within the meaning of the Michigan Constitution if a decision of the Tax Tribunal is not supported by competent, material and substantial evidence. Kern v Pontiac Twp, 93 Mich App 612, 620; 287 NW2d 603 (1979). The taxpayer has the burden of proof to establish the true cash value of its property. MCL 205.737(3); MSA 7.650(37X3). However, the tribunal cannot merely accept the assessment placed upon the rolls by the assessing authority. Consolidated Aluminum Corp v Richmond Twp, supra, p 232. Petitioner argues that the tribunal’s acceptance of respondent’s valuation of the land was in error because the valuation did not state an independent valuation conclusion but merely relied upon reports and appraisal cards prepared by others. Mr. Wood, Supervisor and Assessor for Muskegon Township, testified for respondent that he obtained his land values from comparable industrial sites in various industrial parks similar in nature to the subject property. He indicated that his comparable land sales were based solely upon appraisal cards that were not prepared by him personally. In addition, because the initial appraisal had been done in 1976, he increased the values based on what seemed fair and reasonable without doing an individual investigation to determine if the values had in fact increased in Muskegon Township during the years 1976 through 1979. Because the township witness did not state an independent valuation conclusion based upon a personal investigation of comparable sales, his conclusion as to land value is not supported by competent, material and substantial evidence. Therefore, the tribunal erred in accepting that valuation in determining true cash value. MCL 211.27; MSA 7.27 requires an assessor in determining the value of property to consider the following: "In determining the value the assessor shall also consider the advantages and disadvantages of location; quality of soil; zoning; existing use; present economic income of structures, including farm structures; present economic income of land if the land is being farmed or otherwise put to income producing use; quantity and value of standing timber; water power and privileges; and mines, minerals, quarries, or other valuable deposits known to be available in the land and their value.” In Consolidated Aluminum Corp v Richmond Twp, supra, this Court reversed a decision of the tribunal where it relied solely on the assessment of the township’s assessor because the assessment did not comply with MCL 211.27; MSA 7.27. The Court concluded that, because the township’s witness merely relied upon figures prepared by others, there was no evidence presented upon which the tribunal could have determined the true cash value of the property in question. Consolidated Aluminum, supra, p 234. The valuation testimony offered by Mr. Wood suffered a similar lack of substantiating evidence. Thus, the tribunal’s determination of land value for the petitioner’s property must be reversed and the case remanded for redetermination of the value of petitioner’s land. Respondent has also raised several claims of error. None merit reversal or remand, but we will discuss them briefly. Respondent’s first claim is that the tribunal should have included landscaping costs in determining replacement cost. It is clear that landscaping costs should have been included in total replacement cost. The petitioner’s expert appraiser testified that he had erroneously omitted landscaping costs from his calculations. However, the failure to include landscaping costs is inconsequential in this case. Landscaping costs only amount to approximately $10,000. In the tribunal’s determination of true cash value it rounded up its valuation figure by some $46,000 to place true cash value at $7,000,000. Thus, any error in failing to include landscaping does not require reversal. Respondent also argues that the tribunal did not add a sufficient amount for buss duct wiring in replacement cost. The testimony regarding the wiring was contradictory. Respondent’s witness said there was 50,000 linear feet of buss duct wiring in the plant. Mr. Nedeau opined that that estimate was overly generous. In determining that there was only 10,860 linear feet the tribunal obviously chose to reject respondent’s figure as unreliable. This is a factual finding which is binding upon this Court. Consolidated Aluminum Corp v Richmond Twp, supra, pp 231-232. For the same reason, we reject respondent’s challenge of the depreciation deduction allowed by the tribunal as being overly generous. Respondent’s argument, in sum, is simply that petitioner’s witness should not have been believed, an attack upon credibility which is beyond review by this Court. Reversed and remanded to the Tax Tribunal for further proceedings consistent with this opinion. We do not retain jurisdiction. The hearing officer relied on the out-of-date 6th edition. The true cash value of land testified to by Mr. Nedeau, the petitioner’s expert, must also be rejected. Mr. Nedeau admitted that his comparable sales were for vacant properties, not ongoing industrial facilities. Thus, the figures offered by Mr. Nedeau as to the value of the land may have understated its value. Thus, on remand the tribunal cannot merely accept the figures as offered by Mr. Nedeau but must take other evidence to establish the true cash value of the real property involved.

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Ryan, J. In this case we are required to decide the validity of the rule that a murder conviction may not be obtained if the victim of the homicide does not die within a year and a day after the assault. We hold that the "year and a day” rule is part of the common law of this state; that the rule is hereby abrogated; and that the abrogation of the rule should not, and will not, be given retroactive effect. On December 15, 1976, defendant Ross Stevenson attempted an armed robbery of the Registrar’s Office of Aquinas College in Grand Rapids, Michigan. It appears that while the robbery was in progress the victim attempted to prevent the crime by jumping on the defendant from behind. A struggle ensued during which two shots were fired, one or both of which struck the victim in the abdomen. The perpetrator escaped without completing the robbery. On December 17, 1976, the defendant was arrested and charged with armed assault with intent to rob and steal, contrary to MCL 750.89; MSA 28.284, as well as assault with intent to murder, contrary to MCL 750.83; MSA 28.278. The prosecuting attorney and the defendant subsequently entered into a plea bargain under which the charge of assault with intent to murder arising out of the shooting would be dismissed in exchange for the defendant’s plea of guilty to the charge of assault with intent to rob. On February 18, 1977, the defendant was convicted upon his plea of guilty of the charge of assault with intent to rob while armed. The charge of assault with intent to murder was dismissed. Although the defendant could have been sentenced to life imprisonment, on April 15, 1977, he was sentenced instead to a prison term of not less than 6, nor more than 15, years, with appropriate credit for time already served. Meanwhile, the shooting victim’s apparent recovery from the gunshot wound proved to be illusory. On December 19, 1977, 369 days after the wound was inflicted, the victim died. An autopsy was performed in which the physician found that the cause of death was infection and hemorrhage resulting from the gunshot wound which had been inflicted over 12 months earlier. On February 1, 1978, a complaint and warrant were issued against the defendant charging him with first-degree felony murder. On March 23, 1978, the district judge granted the defendant’s motion to quash the complaint and warrant for the reason that the prosecution was barred by the common-law "year and a day” rule. The prosecutor appealed this dismissal to the circuit court and, in an order dated July 12, 1979, the circuit judge affirmed. The prosecutor appealed to the Court of Appeals, which affirmed in a published opinion. 101 Mich App 61; 300 NW2d 449 (1980). We granted leave to appeal. 410 Mich 921 (1981). We affirm. I The first argument raised by the prosecutor on appeal is that the Michigan Supreme Court has never "adopted” the year and a day rule. In Chapman v People, 39 Mich 357, 360 (1878), Chief Justice Campbell wrote: "From the earliest history of the common law, all homicides have been regarded as composed of two distinct elements, neither of which has been allowed in theory or in legal practice to merge the other. The injury which causes death is never regarded as constituting the crime of murder or manslaughter. The death of the victim not only within a year and a day, but also within the same jurisdiction was the controlling element which distinguished the guilt of the assailant from a common assault. The time and place of death were always considered as necessary to be averred, and were required to be averred as independent of the averments of assault.” (Emphasis added.) Although the prosecutor correctly characterizes this summary of the common law as obiter dictum, since the holding in Chapman was that a fatal variance existed between an indictment which alleged an assault and immediate death in Meridian Township, Ingham County, and proofs which showed a delayed death in Lansing 15 days later, his argument misses the point. In Michigan, the common law prevails except as abrogated by the Constitution, the Legislature, or this Court. Const 1963, art 3, § 7; People v Aaron, 409 Mich 672, 722-723; 299 NW2d 304 (1980); People v Duffield, 387 Mich 300, 308; 197 NW2d 25 (1972). The prosecutor has failed to cite any provision of the constitution, any statute, or any decision of this Court abrogating the year and a day rule, and our research satisfies us that the rule has not been abrogated in Michigan. Unlike the doctrine of felony murder, which was of "questionable origin” (Aaron, p 689) and may have been part of the common law "only of Sir Edward Coke” (Aaron, p 695), the year and a day rule is well established within the tradition of the common law, dating back as early as 1278. In rejecting the claim that the year and a day rule applied to limit civil liability under the Indiana wrongful death act, the United States Supreme Court noted in Louisville, E & St LR Co v Clarke, 152 US 230, 239; 14 S Ct 579, 581; 38 L Ed 422, 424 (1894): "In cases of murder the rule at common law undoubtedly was that no person should be adjudged 'by any act whatever to kill another who does not die by it within a year and a day thereafter; in computation whereof the whole day on which the hurt was done shall be reckoned first.’ 1 Hawkins, Pleas of the Crown, ch 13; 2 Hawkins, Pleas of the Crown, ch 28, § 88; 4 Blackstone, Commentaries, pp 197, 306. The reason assigned for that rule was that if the person alleged to have been murdered 'die after that time, it cannot be discerned, as the law presumes, whether he died of the stroke or poison, etc., or a natural death; and in case of life, a rule of law ought to be certain.’ 3 Coke, Institutes of the Laws of England, p 53.” We are satisfied that the district judge, the circuit judge, and the Court of Appeals all correctly held that under the existing common law the prosecution of this defendant was barred by the "year and a day” rule. II This Court has often recognized its authority, indeed its duty, to change the common law when change is required. See Aaron, supra; Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979); Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977); Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405; 157 NW2d 213 (1968); Myers v Genesee County Auditor, 375 Mich 1; 133 NW2d 190 (1965). Counsel for defendant argues, however, that this Court lacks the power to change the common law so as to enlarge the scope of criminal liability and cites In the Matter of Lamphere, 61 Mich 105; 27 NW 882 (1886), as authority for that claim. A careful reading of Lamphere discloses, however, that no such proposition can fairly be implied from anything written there. The Court in that case merely held that the defendant’s sentence was too uncertain and indefi nite as to the time of its commencement to stand. The Court then went on in obiter dicta to suggest that the Legislature should consider legislation to resolve the practical difficulties associated with consecutive sentencing. What is more important is that no limitation upon this Court’s authority to "enlarge” common-law criminal liability appears in Const 1963, art 3, § 7, or can be fairly implied from its language: "Sec. 7. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” The suggestion that crimes can only be defined by statute is not well taken, particularly in light of the fact that, in Michigan, murder is defined by the common law and not by statute. Aaron, p 713. If common-law crimes could only be contracted, not expanded, this would tend to slow needed development of the common law, since once the definition of a crime was narrowed, as in Aaron, the Court would lack the power to reverse itself and "expand” liability by readopting, for example, the felony-murder doctrine. Such a "one way” power would unduly and unnecessarily retard the development of the common law in both directions, and we therefore refuse to endorse it. Recognizing that this Court has the authority to abolish the year and a day rule, the question remains whether the rule has outlived its usefulness and should be abolished. The original rationale for the rule was probably tied to the inability of 13th Century medicine to prove the cause of death beyond a reasonable doubt after a prolonged period of time: "If he died after that time, it cannot be discerned, as the law presumes whether he died of the stroke or poison, etc., or a natural death; and in the case of life, the law ought to be certain.” 3 Coke, Institutes of the Laws of England, p 52. Even if expert medical testimony concerning causation had been available at that time it would not have been heard, since in the early English courts the jury reached the verdict upon their own knowledge and not upon the testimony of witnesses having personal knowledge of the facts and expert opinion testimony as is the case today. 65 Dickinson L Rev 166, 170 (1961), citing Thayer, Evidence, p 174 (1898). The advances of modern medical science, by extending life and by providing strong evidence of the cause of death, have undermined the wisdom of the irrebuttable presumption that the death of one who expires more than a year and a day after receiving an injury was not caused by the injury. The availability of modern life-sustaining equipment and procedures, see In re Quinlan, 70 NJ 10; 355 A2d 647 (1976), raises the specter of the choice between terminating life-support systems or allowing the defendant to escape a murder charge. The presumption was wooden and arbitrary from the beginning, since it prevented a murder conviction even in those rare cases when causation could be proved. Now, when medical causation can be proven with much greater frequency and certainty, the old rule is simply too often demonstrably wrong to be upheld. Of course, abolition of the rule would not relieve the prosecution of its duty to prove all of the elements of the crime, including proximate causation, beyond a reasonable doubt. A murder conviction which rests upon uncertain medical specula tion as to the cause of death is not a case which has been proved beyond a reasonable doubt. Fears about murder convictions for death 5, 10, or even 20 years after the injury are therefore unfounded where proximate cause is proven beyond a reasonable doubt. If such proof is available, the conviction is justified. No repose or statute of limitations is available for murder in this state. MCL 767.24; MSA 28.964. Recognizing that the year and a day rule is archaic and should be abandoned, we must decide whether this Court should take such action or whether deference to the Legislature is appropriate. Counsel for defendant argues for deference to the Legislature’s traditional policy of defining crimes by statute and further notes that the choice between the alternatives to the year and a day rule is complex and legislative in nature. As to the first objection, we simply note that murder is a common-law crime and the year and a day rule is a judge-made rule. Under such circumstances, courts are particularly well-suited to act; cf. Pla-cek, supra. As to the second observation, we note that mere multiplicity of choice or a range of options does not make a decision "legislative”. Further, since the Legislature remains free to change the common law, the ultimate decision as to whether to retain the rule or some form of it resides in the Legislature. We hold, in the exercise of our constitutional authority to shape and advance the common law, that the year and a day rule has outlived its usefulness and is therefore abolished. We do so in accord with the growing trend of modern authority. Commonwealth v Ladd, 402 Pa 164; 166 A2d 501 (1960); State v Sandridge, 5 Ohio Op 3d 419; 365 NE2d 898 (1977); State v Young, 77 NJ 245; 390 A2d 556 (1978); Commonwealth v Lewis, 381 Mass 411; 409 NE2d 771 (1980). The only court which has chosen to retain the rule since 1960 was an intermediate appellate court in Maryland. State v Brown, 21 Md App 91; 318 A2d 257 (1974). In Michigan, proof of the proximate cause of death in homicide cases is hereafter to be measured by the same standard whether the victim dies before or after a year and a day; namely, proof beyond a reasonable doubt. Ill The final issue to be decided is whether our abrogation of the year and a day rule can and should be given retroactive effect so as to allow the murder prosecution in this case. The prosecutor argues that the prohibition against ex post facto laws found in US Const, art I, § 9 and Mich Const 1963, art 1, § 10, is not implicated in this case because that bar is directed to the Legislature; that the year and a day rule is one of evidence or procedure, not substance; that the defendant had fair notice that his conduct was criminal; that the defendant did not actually rely upon the year and a day rule; and that adherence to an archaic legal fiction should not free the victim’s killer. We will consider these arguments in the order presented. It is well recognized that while the Ex Post Facto Clause does not apply directly to the judiciary, it is applicable by analogy through the Due Process Clauses of the Fifth Amendment, Marks v United States, 430 US 188; 97 S Ct 990; 51 L Ed 2d 260 (1977), and the Fourteenth Amendment to the United States Constitution. Bouie v Columbia, 378 US 347; 84 S Ct 1697; 12 L Ed 2d 894 (1964). This Court acknowledged the applicability of the Ex Post Facto Clause to the judiciary in its holding in People v Dempster, 396 Mich 700, 714-718; 242 NW2d 381 (1976). While some courts have held that the year and a day rule is merely a rule of evidence or procedure and may therefore be abolished retroactively, we do not find that characterization controlling. One of the abuses which the colonists intended to correct with the Ex Post Facto Clause was acts which "violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony which the courts of justice would not admit”. Calder v Bull, 3 US (3 Dali) 386, 389; 1 L Ed 648, 649 (1798) (opinion of Chase, J.). The key is the importance of the rights concerned and their effect on the defendant, not whether those rights can be characterized as "merely” evidentiary or procedural. Providing fair notice that conduct is criminal is one of the central values of the Ex Post Facto Clause. Dobbert v Florida, 432 US 282; 97 S Ct 2290; 53 L Ed 2d 344 (1977); Bouie v Columbia, supra. But fair notice is not the sole purpose of the clause. As the Court observed in dictum in Bouie, supra, p 353, "An ex post facto law has been defined by this Court as one 'that makes an action done before the passing of the law, and which was innocent when done, criminal; and ptmishes such action,’ or 'that aggravates a crime, or makes it greater than it was, when committed.’ ” (Emphasis in original.) The following definition of an ex post facto law from Calder, supra, was adopted by reference in In re Hoffman, 382 Mich 66, 72, fn 1; 168 NW2d 229 (1969): "1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Calder, p 390. In Weaver v Graham, 450 US 24, 29; 101 S Ct 960; 67 L Ed 2d 17, 23 (1981), the Court defined an ex post facto law as follows: "In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” (Footnotes omitted.) Again, this is consistent with the intent of the framers of both constitutions to prohibit the abuses of the English Parliament, which had "inflicted greater punishment, than the law annexed to the offense”. Calder, supra, p 389. A murderer has fair notice that his conduct is criminal, yet this Court would not approve a retroactive increase in the authorized punishment from life imprisonment to capital punishment, if that penalty were imposable. In this case, abolishing the rule retroactively would permit a possible increase in the maximum authorized punishment from life (assault with intent to rob while armed) to mandatory life without the possibility of parole (first-degree murder). Increasing the authorized penalty after the fact does not deny the defendant fair notice of what conduct is criminal, yet it still violates the rule against ex post facto criminal laws. Abrogating the year and a day rule in this case would apply this opinion to events occurring before it and would clearly disadvantage the defendant unfairly. It is also argued that the defendant did not actually rely upon the year and a day rule at the moment he shot the victim. As dissenting Justice Pashman wrote in State v Young, 77 NJ 245, 264265; 390 A2d 556 (1978), quoting Cooley, Constitu tional Law, 23 U Pitt L Rev 263, 265 (1961), "The defendant in this case could not have so regulated his blows as to ensure that his victim would die a month after the year-and-a-day barrier came into existence, nor should due process afford him a right to try”. Arguably, the defendant could have relied on the year and a day rule, not in expecting that the victim would survive that long, but reasonably expecting that if the victim did in fact survive that long, a murder conviction could not result. However, actual or even fictional reliance is not the sole interest protected by due process. The ex post facto principle also protects against erratic or arbitrary action improper in a lawgiver. Weaver, supra, p 29; Lewis, supra, p 775. It would be nothing if not erratic to declare for the first time today, almost five years after the year and a day rule effectively barred a murder prosecution in this case, that such a prosecution could be maintained. The defendant’s subjective intent or reliance is simply not controlling in this case. Young, supra, pp 254-255. A defendant may not even be aware of various important evidentiary rules or the maximum punishment at the time of the offense, and yet such protections may not be abolished retroactively. See Calder v Bull, supra; Weaver, supra. The weight of modern authority supports the proposition that the year and a day rule cannot be abolished retroactively. Only two courts have abolished the rule with full retroactive effect; in Ladd, supra, the majority felt free to do so because the rule was said to be merely one of evidence or procedure, while in Sandridge, supra, the brief two-page opinion by the judge of the Court of Common Pleas of Cuyahoga County failed to directly address the retroactivity issue. We choose to follow the better reasoned opinions in Young, supra, and Lewis, supra, abolishing the rule purely prospectively. The prosecutor’s view that the Ex Post Facto Clause only prohibits making illegal what was legal when done is far too narrow. Under the prosecutor’s analysis, the Legislature or this Court could retroactively redefine murder to include those cases in which the victim was critically injured, but fully recovered. The retroactive elimination of the requirement that the victim actually die would be justified by the rationale that the defendant did not lack fair warning that his conduct was illegal; that the defendant could not have so regulated his blows as to insure that his victim would be critically wounded but not die from the attack; and that the defendant could not have actually relied upon the victim’s surviving the near-fatal attack. Since this reasoning would strip the Ex Post Facto Clause of much of its substance, we refuse to accept it. As in People v Marshall, 362 Mich 170; 106 NW2d 842 (1961), our decision today is based on our interpretation of both the Michigan Constitution and the Constitution of the United States. We feel constrained to point out that refusing to abolish the year and a day rule ex post facto does not "free” the defendant from criminal responsibility. The defendant was originally charged with assault with intent to commit murder for the attack on the victim. The fact that the victim survived for more than a year and a day was no bar to prosecution for that offense, a felony with a maximum punishment of life imprisonment. The prosecutor is barred from charging that offense now only by the plea bargain in which he agreed to request dismissal of the assault with intent to murder charge (Count II) in exchange for the defendant’s plea of guilty to the charge of assault with intent to rob while armed (Count I). The plea bargain provides a separate and additional reason to forbid a murder prosecution in this case, since to do so would deprive the defendant of most if not all of the benefit of his bargain. It would violate the spirit, if not the letter, of the agreement to allow the prosecutor to obtain a guilty plea by dismissing the assault charge and then at a later date to bring a murder charge based on the very same assault. Following the defendant’s guilty plea, the trial judge sentenced the defendant to á prison term of 6 to 15 years, even though the maximum possible sentence was life imprisonment. The sentencing judge indicated his familiarity with the facts of the attempted robbery and assault, as well as his personal awareness of the seriousness of the wounds of the abdomen suffered by the victim. However, in light of a favorable presentence report and favorable letters from interested parties, including the assistant prosecutor, the circuit judge felt that the sentence imposed would best serve the interests of justice. The prosecutor is now seeking a second conviction and second sentencing in light of the subsequent death of the victim. Clearly the judge lacks authority to vacate a valid sentence and impose a heavier one in light of subsequent events. People v Barfield, 411 Mich 700; 311 NW2d 724 (1981); In re Richards, 150 Mich 421; 114 NW 348 (1907); People v Meservey, 76 Mich 223; 42 NW 1133 (1889). We are convinced that under the facts of this particular case that same result should not be reached by the expedient of obtaining a second conviction based on the same criminal behavior. For the foregoing reasons the judgment of the Court of Appeals affirming the quashing of the murder indictment is affirmed. Fitzgerald, C.J., and Williams and Coleman, JJ., concurred with Ryan, J. Although the year and a day rule as set forth in Chapman was quoted 10 years ago by this Court in an opinion by Williams, J., in People v Duffield, 387 Mich 300, 309, fn 6; 197 NW2d 25 (1972), the quotation was dictum in that case as well. Statutes of Gloucester, 6 Edward 1, ch 9 (1278); 3 Coke, Institutes of the Laws of England, ch 7, p 52 (circa 1620); 4 Blackstone Commentaries, ch 14, p 197; Hawkins, Pleas of the Crown (8th ed, 1824), ch 13, § 9, p 93; 3 Stephen, History of the Criminal Law of England, pp 7, 8; Russell, Law of Crimes (7th ed), p 690; 9 Halsbury, Laws of England (2d ed), § 734, p 428; 3 Chitty, Criminal Law, p 276; 2 Wharton, American Criminal Law, § 1073; 1 Warren, Homicide, p 60; Perkins, Criminal Law, p 605; 40 CJS, Homicide, § 12, p 856; 26 Am Jur, § 46, p 190; Louisville, E & St L R Co v Clarke, 152 US 230; 14 S Ct 579; 38 L Ed 422 (1894). Appellee suggests that the rule should be retained because it prevents potential violations of other important rights: speedy trial, cruel and unusual punishment, double jeopardy, and the like. Recognizing that such rights may be implicated in long-delayed prosecutions, we will continue to be vigilant in the enforcement of those rights where they are shown to have been abridged or denied under the facts of a particular case. Since none of those objections were briefed or argued in this Court in this case, we need not consider them here. (1) The Court could retain the year and a day rule. (2) The Court could modify the rule by extending the span of time, for example, to three years and a day. California Penal Code, § 194. (3) The Court could extend the rule to any length of time it chooses, perhaps two years, five years, or ten years. (4) The Court could change the rule from an irrebuttable presumption to a rebuttable one, but with a higher burden of proof. Cf. Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), requiring clear and convincing evidence. (5) Finally, the Court could simply abolish the rule entirely, leaving the issue of causation to the jury in light of the facts and arguments in each particular case. Commonwealth v Ladd, 402 Pa 164; 166 A2d 501 (1960), where the year and a day rule was abolished retroactively by judicial decision; People v Snipe, 25 Cal App 3d 742; 102 Cal Rptr 6 (1972), where the year and a day rule was legislatively changed to three years and a day after the attack, but before the defense had "vested”, the court allowed "retroactive” application. Commonwealth v Lewis, 381 Mass 411; 409 NE2d 771,775 (1980); see also Weaver v Graham, 450 US 24, fns 15, 21; 101 S Ct 960; 67 L Ed 2d 17 (1981). The text of the letter to the defendant’s attorney, included in the lower court file, is as follows: "This is to recapitulate our office’s position in the above matter. I was most impressed by what I consider a repentant armed robber who did not want the victim shot nor even contemplated a shooting. As I indicated, if his story is confirmed by the victim as to the- accidental nature of the shooting, we will offer a plea to an assault with intent to commit an armed robbery, §28.284. We will dismiss the assault with intent to murder upon a successful acceptance of the plea. I will go on the record, if you believe it necessary, to state that Stevenson be given great consideration for confessing to the crime before he really knew how good a case we had against him. I should say that the identification of our 'line-up witness’ was so good that she can even describe a very small scar that she had noted on your client. "While our policy is to consider all armed robberies as a most serious crime deserving a stiff sentence, even for 1st offenders, I will speak to the fact in the presentence report that Stevenson should be given consideration for confessing as opposed to forcing us to have a preliminary examination and a trial — even though the outcome was a foregone conclusion, but not apparent to Stevenson at the time of his admissions.”

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Fitzgerald, C.J. Four cases were consolidated on appeal to this Court, all questioning the application of the exclusive remedy provision of the Worker’s Disability Compensation Act. Three cases involve a labor broker situation in which temporary employment is provided to a business customer; one presents an unusual employment relationship of hockey teams and the sports league to which they all belong. To facilitate our analysis, we will deal with the labor broker cases together and separately address the hockey case. I Thomas Farrell was sent to work at Dearborn Manufacturing Company by State Labor, Inc. State Labor, Inc., is a labor broker, a company engaged in the business of furnishing employees to others. While operating a press at Dearborn Manufacturing, Mr. Farrell suffered a severe injury to his right hand. He applied for and received workers’ compensation benefits from State Labor’s insurance carrier. The present action was brought by Mr. Farrell against Dearborn Manufacturing as a third-party tortfeasor for negligence in the rebuilding and modifying of the press and for strict liability in tort. Defendant filed a motion for summary judgment on the ground that it was not a third-party tortfeasor, but was in fact Mr. Farrell’s employer and therefore immune from liability because of the exclusive remedy provision of the workers’ compensation act. This motion was denied. Defendant’s application for leave to appeal was denied by the Court of Appeals. This Court, after remanding the case to the lower court so that the trial judge could explain why the motion for summary judgment was denied, granted leave to appeal. Jane Marfuta was employed by Kelly Services, Inc., a labor broker. She was sent to the H. L. Blachford Company to work a diecutting roller press. While on the job, an accident occurred, resulting in the loss of one finger. Plaintiff received workers’ compensation benefits and thereafter began the present action alleging negligence of multiple defendants. While this action was pending, plaintiff amended her complaint to add the Blachford Company as a defendant. Settlements were eventually reached with the other parties. Blachford moved for summary or accelerated judgment on the grounds that it was plaintiff’s employer within the meaning of the workers’ compensation law and that the exclusive remedy provision barred the present action. This motion was granted. The Court of Appeals affirmed in an unpublished per curiam opinion. Ricky Wooten was employed by Employers Temporary Service and was sent, by it, to work at the Sennett Steel Company. He suffered a severe injury to his right thumb while working on a steel shear. Wooten received workers’ compensation benefits from ETS’s insurance carrier. He filed this action against Sennett Steel and Cincinnati, Inc., the manufacturer of the shear. Defendant Sennett Steel moved for summary judgment, alleging that plaintiff’s only remedy was under the workers’ compensation law. This motion was granted by the trial court and the judgment affirmed by the Court of Appeals. Plaintiff John Kellogg, a linesman for the International Hockey League, was allegedly injured when Reginald Fleming, a player for The Hockey Club of Saginaw, Inc. ("Saginaw Gears”), hit him with his hockey stick and pushed him into the goal cage’s steel bars. Kellogg brought suit against the hockey team and Fleming. The Hockey Club filed a motion for summary judgment on the ground that the claim was barred by the exclusive remedy provision of the workers’ compensation act. This motion was denied by the trial judge, but the judgment was reversed by the Court of Appeals in an unpublished per curiam opinion. II The exclusive remedy provision provides that "[t]he right to the recovery benefits as provided in this act shall be the employee’s exclusive remedy against the employer”. MCL 418.131; MSA 17.237(131). The language expresses a fundamental tenet of workers’ compensation statutes that if an injury falls within the coverage of the compensation law, such compensation shall be the employee’s only remedy against the employer or the employer’s insurance carrier. The underlying rationale is that the employer, by agreeing to assume automatic responsibility for all such injuries, protects itself from potentially excessive damage awards rendered against it and that the employee is assured of receiving payment for his injuries. In this scheme, statutory compensation has been substituted for common-law liability for negligence and its related defenses. Smith v Pontiac Motor Car Co, 277 Mich 652; 270 NW 172 (1936); Jones v Bouza, 381 Mich 299; 160 NW2d 881 (1968). Accordingly, it has consistently been held that if an employee receives a personal injury arising out of and in the course of his employment, the right to benefits as provided by the statute shall be that employee’s only remedy against his employer. It is argued that in the labor broker situation, the exclusive remedy provision should not automatically preclude a cause of action against the company or owner of the premises at which the injury took place because the conditions of liability as expressed in the statute do not exist. It is necessary, therefore, to examine the roles of the labor broker and its customers to determine which is to be considered the employer for purposes of the exclusive remedy provision. The labor brokers in three of these cases were engaged in the business of supplying personnel on a temporary basis to commercial and industrial companies. The customers of a labor broker typically call in their employment needs on a daily basis, and workers are sent by the broker to fill these needs. After arriving at the place of business, the worker is subject to the control and authority of the customer and the customer’s supervisory personnel. The customer has the power to discharge the employee from the daily work assignment and can refuse to accept a worker sent by the broker. The customer does not pay the employee directly. Rather, the labor broker pays the employee and includes as part of its charge to the customer amounts to cover its expenses for compensation premiums, social security, and other taxes. The issue of whether employment exists for purposes of the workers’ compensation law has been frequently addressed by our courts. The standard to be used is the economic reality test, a broad approach which, in the oft-quoted language of Justice Talbot Smith, looks to the totality of the circumstances surrounding the performed work. "Control is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one.” Schulte v American Box Board Co, 358 Mich 21, 33; 99 NW2d 367 (1959). See, also, Tata v Muskovitz, 354 Mich 695; 94 NW2d 71 (1959); Askew v Macomber, 398 Mich 212; 247 NW2d 288 (1976); McKissic v Bodine, 42 Mich App 203; 201 NW2d 333 (1972); Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979); Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975); Allos-sery v Employers Temporary Service, Inc, 88 Mich App 496; 277 NW2d 340 (1979). The economic reality test looks to the employment situation in relation to the statutory scheme of workers’ compensation law with the goal of preserving and securing , the rights and privileges of all parties. No one factor is controlling. In Renfroe v Higgins Rack Coating & Manufacturing Co, Inc, 17 Mich App 259, 266; 169 NW2d 326 (1969), the Court of Appeals addressed this specific issue and held that the employee’s exclusive remedy was under the workers’ compensation laws. Looking at the triangular relationship of the parties, the Court reasoned that for the labor broker (ETS) "economic reality is based on the fact that a profit can be made by efliciently matching workers with temporary work needs. ETS maintained control of the workers by its practice of daily reassignment and daily payment at its offices. It also maintained the formalities of employment by handling all paper work and payments incident to the employment.” The customer received a worker each day who was subject to its authority. By engaging the services of the labor broker, the customer knew that, in exchange for a set fee, the broker would pay the employees, handle all paperwork, and provide compensation coverage. The Court concluded that the economic reality was that both the labor broker and its customer were employers within the meaning of the workers’ compensation statutes. We agree with the reasoning and result of this decision. The labor broker providing personnel for temporary employment is a common business practice. The roles of the broker and its customer are defined and structured to fulfill short-term needs of many types of industries. When viewed in terms of control, payment of wages, allocation of responsibilities, maintenance of discipline, etc., it is clear that the two are so integrally related that their common objectives are only realized by a combined business effort. The broker supplies as the customers demand. To conclude that an individual so employed is outside the scope of the exclusive remedy provision would clearly disregard the overall objectives of the statutory scheme. We therefore hold that the exclusive remedy available to the employee in a labor broker situation is provided by the workers’ compensation statute and that a separate tort action against the customer of the labor broker may not be maintained. The judgment of the Court of Appeals is reversed in Farrell and affirmed in Marfuta and Wooten. Ill On May 4, 1975, John Kellogg, a linesman, was assigned by the International Hockey League to officiate at a season game between the Saginaw "Gears” and the Toledo "Goaldiggers”. Kellogg called a play "on-side” in favor of the Goaldiggers, and shortly thereafter the Goaldiggers scored. Reginald Fleming, a player for the Gears, was on the bench when the goal was scored. He skated onto the ice, skated at plaintiff from behind, and allegedly smashed his hockey stick into plaintiff’s back, knocking him into the crossbar and goalpost and then onto the ice. It is further alleged that Fleming continued the attack by holding his stick above Kellogg in an intimidating manner while verbally abusing him. Kellogg filed a petition for workers’ compensation benefits. This claim was redeemed after a decision by a hearing referee that the International Hockey League employed the plaintiff. Kellogg also filed this tort action against The Hockey Club of Saginaw and Reginald Fleming. Defendants moved for summary judgment, claiming that plaintiff’s action was barred by the exclusive remedy provisions of the workers’ compensation act. The circuit court denied the motion, concluding that the "economic reality” of the employment relationship was that the International Hockey League was plaintiffs employer and that the league and its member teams are not one and the same. The Court of Appeals reversed. Using the economic reality test, the Court held that the relationship of the league and its member teams was unique and that the plaintiff should not be allowed to maintain a separate tort action against a member team which had been held liable to contribute to the redemption of the workers’ compensation award. The Court also concluded that MCL 418.827; MSA 17.237(827) barred this suit for an intentional tort against a co-employee. As stated above, the economic reality test is the standard used to determine whether or not statutory compensation benefits are the exclusive remedy available to an employee. The total employment situation must be evaluated, not just isolated factors. No single consideration is controlling. Defendants contend that the International Hockey League is a joint venture, an unincorporated association composed of all member teams organized to foster the team’s efforts in securing a profit. They argue that the league is not a separate and identifiable legal entity apart from its member teams since the league’s very existence is derived from the powers granted to it by the teams. This unique relationship, defendants believe, leads to the conclusion that a civil action against the team and one of its players may not be maintained. Our interpretation of the compensation statutes is aided by the opinions of Justice Talbot Smith, whose prolific writings give guidance to the rela tionship of common-law remedies and workers’ compensation law. See Schulte v American Box Board Co, supra; Salmon v Bagley Laundry Co, 344 Mich 471; 74 NW2d 1 (1955); Crilly v Ballou, 353 Mich 303; 91 NW2d 493 (1958); Powell v Employment Security Comm, 345 Mich 455; 75 NW2d 874 (1956). In urging the abandonment of tort concepts when considering the applicability of compensation laws, Justice Smith’s opinions heralded the economic reality test. Compensation is the sole remedy available to an employee who incurs an injury "during his working day while he was doing a natural thing, a thing which an employee, while working, might reasonably do. The fundamental inquiry is whether or not the act in question, either because of its nature, or local custom, or contractual provision, is reasonably to be regarded as part of the on-the-job activities of the human being involved, a part of his normal and reasonable sphere of activities.” Salmon v Bagley Laundry Co, supra, 490. Exposure to hazards and resultant injuries while performing one’s job was certainly within the contemplated coverage of the compensation acts. "If the injury results from the work itself, or from the stresses, the tensions, the associations, of the working environments, human as well as material, it is compensable. Why? Because those are the ingredients of the product itself. It carries to the market with it, on its price tag stained and scarred, its human as well as its material costs. So says the statute. It does not become us to ignore its plain commands.” Crilly v Ballou, supra, 326. The social and remedial purposes of the laws were structured to quickly and assuredly compensate employees for injuries suffered. The legislation was not, however, designed to be an all-encompassing shield against liability. We do not believe that identifying the league as a joint venture (or conversely, concluding that it is not a joint venture) determines whether or not the plaintiff is able to maintain his cause of action. Rather, we believe that the economic reality test compels us to independently view the relationship of the hockey league and its member teams. The International Hockey League was organized to promote the game of hockey by promulgating rules to govern the conduct of member clubs and by regulating the interrelationships among players, individual member teams and the other hockey clubs. The league is empowered to arbitrate and settle disputes between the teams and their players. It is responsible for preparing, supervising and managing a schedule of ice hockey games. It is a not-for-profit, voluntary, unincorporated association. The league is financed by its member clubs; it has no assets of its own. Each year the league decides what its budget will be and calculates the games fee that member teams must pay. It assesses member teams for any deficits and pays for its expenses out of games fees. The referees and linesmen are responsible to the commissioner and board of governors of the league and, of necessity, maintain very little contact with the member teams. They receive their work assignments from the commissioner, as well as instruction regarding their jobs. Their salaries are paid by the league, and only the league has the power to discipline or fire the officials. Courts have recognized the special nature of organized professional sports and their need for a league structure. "Professional football is a unique type of business. Like other professional sports which are organized on a league basis it has problems which no other business has. The ordinary business makes every effort to sell as much of its product or services as it can. In the course of doing this it may and often does put many of its competitors out of business. The ordinary businessman is not troubled by the knowledge that he is doing so well that his competitors are being driven out of business. "Professional teams in a league, however, must not compete too well with each other in a business way. On the playing field, of course, they must compete as hard as they can all the time. But it is not necessary and indeed it is unwise for all the teams to compete as hard as they can against each other in a business way. If all the teams should compete as hard as they can in a business way, the stronger teams would be likely to drive the weaker ones into financial failure. If this should happen not only would the weaker teams fail, but eventually the whole league, both the weaker and the stronger teams, would fail, because without a league no team can operate profitably.” United States v National Football League, 116 F Supp 319, 323 (ED Pa, 1953). See, also, State v Milwaukee Braves, Inc, 31 Wis 2d 699; 144 NW2d 1 (1966); American Football League v National Football League, 205 F Supp 60 (DC Md, 1962). The league exists to maximize the efforts of the individual teams. By regulating, coordinating and supervising the hockey season, each team is better able to succeed. Whereas the league would not exist were it not for the individual member teams, the teams would not operate as successfully were it not for the league. We must conclude, however, that this dependency does not mean that the league and the teams are one and the same for purposes of the compensation statutes. Their special and unique business relationship is distinct from other commercial enterprises. The league is established as a separate entity with its own specific functions. It regulates the schedules of games, assignment of officials, etc. It is not involved with the teams’ daily operations, contractual negotiations or routine affairs. Each member team is separately owned and autonomously administered. Each team seeks to attract the finest players it can so that game attendance is high and a greater profit realized. We conclude that John Kellogg was employed only by the International Hockey League and not by the Saginaw "Gears”. Therefore, the exclusive remedy provision does not bar this cause of action. The unique relationship of a league, referees and teams does not present the traditional dual-employment situation, nor is it an instance of one individual rendering a similar service for multiple employers. Rather, officials are hired by and work only for the league; the teams contract with and are responsible for their own personnel. No similar business enterprise presents the unusual relationship we must consider in this case. We are persuaded that the economic reality is that referees and linesmen are employed only by the league. Defendants argue that MCL 418.827; MSA 17.237(827) which allows certain third-party actions in addition to the receipt of compensation benefits and bars suits by co-employees for injuries sustained in the course of their employment pre- eludes this action against defendant Fleming. We note, however, that only by concluding that the league and its members are engaged in a joint enterprise can a linesman and a player be considered co-employees. Since we have held that the Saginaw Gears is not plaintiffs employer, its team member is not a fellow employee. Thus, the action against defendant Fleming for an intentional tort is not barred. The judgment of the Court of Appeals is reversed. Kavanagh, Williams, Levin, and Coleman, JJ., concurred with Fitzgerald, C.J. We do not address the questions of whether the failure to warn or instruct employees or whether the affirmative negligence by the-customer of a labor broker will give rise to a cause of action. But see Sewell v Bathey Mfg Co, 103 Mich App 732; 303 NW2d 876 (1981). The relevant language of MCL 418.827; MSA 17.237(827) provides: "(1) 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 the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section.”

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Rehearing denied. Reported at 416 Mich 1. Cavanagh and Kavanagh, JJ., would grant rehearing.

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Kavanagh, J. This case involves the question whether a worker with a pre-existing vision disability who suffers the specific loss of a hand is entitled to total and permanent disability benefits. We affirm the decision of the Workers’ Compensation Appeal Board that he is not. On September 7, 1962, Edward Hakala lost his right hand in a press accident while working at Burroughs Corporation. Burroughs voluntarily paid specific loss benefits for the injury. On June 17, 1968, Mr. Hakala filed a petition claiming that he was totally and permanently disabled and asking for benefits from the Second Injury Fund. Before his injury in 1962, he had a nonoccupational vision impairment in his left eye. Thus, his claim was that he was totally and permanently disabled under former 1948 CL 412.8a; MSA 17.158(1): "If an employee has at the time of injury permanent disability in the form of the loss of a hand or arm or foot or leg or eye and at the time of such injury incurs further permanent disability in the form of the loss of a hand or arm or foot or leg or eye, he shall be deemed to be totally and permanently disabled and shall be paid, from the funds provided in this section, compensation for total and permanent disability after subtracting the amount of compensation received by the employee for both such losses. The payment of compensation under this section shall begin at the conclusion of the payments made for the second permanent disability.” The section of the workers’ compensation statute setting the periods of compensation for specific losses defined the loss of an eye as "[e]ighty percent loss of vision”. (The present statute is MCL 418.361; MSA 17.237[361].) There is no dispute that Mr. Hakala’s uncorrected vision meets this 80%-loss test, and also that his corrected vision does not meet the test. The referee awarded benefits on the theory that the proper standard was Mr. Hakala’s uncorrected vision. The WCAB reversed and denied benefits on the ground that the corrected vision standard should be used. The Court of Appeals affirmed, but on a different theory — that the prior disability must have been from an injury. Hakala v Burroughs Corp, 48 Mich App 639; 211 NW2d 60 (1973). On appeal, we reversed the decision of the Court of Appeals, Hakala v Burroughs Corp, 393 Mich 153; 224 NW2d 27 (1974), and, On Rehearing, 399 Mich 162, 172; 249 NW2d 20 (1976), remanded the matter to the WCAB to determine "whether Hakala’s loss of vision rendered him permanently disabled in the sense that term is used for purposes of Second Injury Fund coverage”. The referee made detailed findings of fact in May, 1978, which were affirmed by the WCAB in September, 1980. The Court of Appeals denied leave in April, 1981. The WCAB attempted to determine what "permanently disabled * * * for purposes of Second Injury Fund coverage” means. Chairman Gill- man’s concurring opinion said that Hakala was not permanently disabled by his bad eye because he had always been able to work. Member Marshall’s opinion for the board objected to this test because the Second Injury Fund was created to cover precisely that group: handicapped workers able to work. Marshall’s opinion used a different test: because Hakala’s bad eye had not "impaired his ability to do his work or otherwise caused him any employment-related problems”, he was not "permanently disabled”. It is apparent from both opinions that the board believes that a corrected- or uncorrected-vision standard in every case for every claim would best serve the purpose of the act. We are not so persuaded. In Nulf v Browne-Morse Co, 402 Mich 309; 262 NW2d 664 (1978), we affirmed the determination that a person who had a permanent disability on account of the loss of one eye was entitled to total and permanent disability benefits from the Second Injury Fund where an industrial accident caused the loss of industrial vision of the other eye. In Nulf we refused to extend the "uncorrected” vision test to total and permanent claims, although we had adopted such a test for specific loss claims in Lindsay v Glennie Industries, Inc, 379 Mich 573; 153 NW2d 642 (1967). We observed: "In Hakala v Burroughs Corp (On Rehearing), supra, this Court recognized that the question of Second Injury Fund benefits in situations involving the loss of an eye could not be adequately resolved by the universal adoption of either the "uncorrected vision” test or the "corrected vision” test. The Court held that the question of entitlement to Second Injury Fund benefits must be determined by reference to the statutory language creating those benefits found in MCL 418.521; MSA 17.237(521), which requires a determination of whether the employee has suffered a "permanent disability in the form of the loss of a[n] * * * eye”. The determination of whether a loss is a permanent disability within the meaning of that section must be evaluated in terms of the underlying legislative purpose of aiding the handicapped in obtaining and maintaining employment.” 402 Mich 312-313. We are persuaded that the Legislature intended compensation for a specific loss without regard to whether the vision could be "corrected” or restored after the injury. Lindsay, supra. We are now persuaded that the Legislature intended that a different standard be used in determining total and permanent disability inasmuch as it provided that only "total and permanent loss of sight” would constitute the qualifying eye loss for such benefits. We are satisfied that to carry out the legislative intent a "corrected” vision standard should hereafter be used in assaying claims for total and permanent disability involving the loss of sight. We conclude that in this connection that is the sense in which the term "permanently disabled” is used for the purposes of the Second Injury Fund. We recognize that our holding today may be inconsistent with our decision in Hilton v Oldsmobile Division of General Motors Corp, 390 Mich 43; 210 NW2d 316 (1973). In Hilton the permanency of the disability on account of the loss of an eye was not addressed. In any event, to the extent that Hilton is inconsistent with this decision it is hereby overruled. The Second Injury Fund was created to assist the handicapped in obtaining and maintaining employment. That end is served by removing the disincentive for employers in hiring such handicapped persons by eliminating the employers’ potential liability for total and permanent disability benefits if a "second injury” makes the worker eligible. When we originally considered this case, we were apprehensive that a decision on the point in question might affect that end. We are now content that it does not. In light of the fact that it is conceded that Mr. Hakala’s "corrected” vision does not amount to "[e]ighty percent loss of vision”, we affirm the decisions of the WCAB and the Court of Appeals. Williams, C.J., and Levin, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred with Kav-ANAGH, J. The present statute is MCL 418.521; MSA 17.237(521). It does not differ in substance from that applicable to Mr. Hakala’s injury.

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William:s, C.J. (for remand). This is a case of first impression concerning the Michigan Freedom of Information Act. MCL 15.231 et seq.; MSA 4.1801(1) et seq. We are asked to determine whether the identities of two police officers and their incident reports describing the David Prior homicide, which were both requested by the plaintiff newspaper, were properly withheld from disclosure under the FOIA by the City of Troy and its police chief. Specifically, we must decide, first, whether the Oakland Circuit Court and the Court of Appeals erred in holding that the defendants met their statutory burden of proof in withholding the incident reports and the identities of the two officers involved in the David Prior homicide which were contained in the requested reports from plaintiff under a "generic [blanket] determination” standard. MCL 15.240(1); MSA 4.1801(10X1). Second, we must consider whether the defendants failed to meet their statutory burden in neglecting to separate exempt material from that which was nonexempt. MCL 15.244(1); MSA 4.1801(14X1). We answer both questions in the affirmative, and, therefore, we reverse. Finally, in considering the appropriate procedures that a circuit court should employ in determining whether a requested document and the information contained therein should be withheld from disclosure under the FOIA exemptions, w.e generally adopt the procedures set forth in Vaughn v Rosen, 157 US App DC 340, 346-348; 484 F2d 820 (1973), and Ray v Turner, 190 US App DC 290; 587 F2d 1187 (1978). In considering the issues presented in this case, we look first to the basic policy of the FOIA as expressed in MCL 15.231(2); MSA 4.1801(1X2): "It is the public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.” The exemption relied on by the trial court in denying plaintiffs request reads as follows: "A public body may exempt from disclosure as a public record under this act: "(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following: "(i) Interfere with law enforcement proceedings.” (Emphasis added.) MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). Additionally, MCL 15.244(1); MSA 4.1801(14)(1) affirmatively provides that: "If a public record contains material which is not exempt under section 13, as well as material which is exempt from disclosure under section 13, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.” (Emphasis added.) In the case at bar, the trial court, without the defendants producing particularized reasons against disclosure, nevertheless concluded without particularized reasons that release of the reports as well as the identities of the two officers which were contained in the requested reports would interfere with law enforcement proceedings. The Court of Appeals held that the "generic determination” by the circuit court without a showing by the defendants of particular risk was not erroneous. First, we hold that the "generic determination” standard used by the trial court and affirmed by the Court of Appeals that release of the reports along with the information contained in them would "interfere with law enforcement proceedings” and "would indeed have a chilling effect on the investigation” did not meet the defendants’ statutory burden of proof to sustain their denial. Second, we hold that the defendants had an affirmative statutory duty under the act to separate exempt material from that which is nonexempt. The defendants in the instant case failed to undertake this duty. Finally, we reverse the judgments of the trial court and the Court of Appeals and generally adopt the procedures laid down in Vaughn v Rosen, supra, and Ray v Turner, supra. Facts In the early hours of July 31, 1979, two Troy police officers responded to a radio report concerning an ongoing larceny in a parked van. The owner, David Prior, was inside the van and was armed with a pellet gun. While checking the van, one of the officers shot and killed the owner. After the homicide, the two officers and several investigating officers filed their customary incident reports describing the events leading to the killing. The plaintiff Evening News Association, publisher of the Detroit News, made oral requests of the City of Troy on July 31 and during each of the three succeeding weeks. On August 22, 1979, plaintiff confirmed its requests in writing. The requests were made pursuant to the procedures established in Michigan’s FOIA. MCL 15.231 et seq.; MSA 4.1801(1) et seq. The information requested was copies of the two officers’ incident reports and the identities of the two officers involved in the David Prior killing. The identities of the two officers were contained in those reports. The Troy Police Chief and the City of Troy, along with the Oakland County Prosecutor’s Office, refused the requests. The plaintiff, on August 27, 1979, therefore, brought an action in the Oakland Circuit Court to compel disclosure under the FOIA. At a show-cause hearing on September 11, 1979, the defendants asserted that the reports and all the information contained in them were exempt from disclosure under MCL 15.243(l)(b)(i)-(vi); MSA 4.1801(13Xl)(bXi)-(vi). However, a witness admitted that some of the material sought was nonexempt. Plaintiffs witnesses testified that defendants had, in the past, disclosed information of the kind presently being requested and indicated that another police department in Oakland County had also released such information. In upholding the defendant’s denial of disclosure, the trial court "generically” concluded that the release of this information would "interfere with law enforcement proceedings”. MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). The court, without requiring the defendants to particularize their position, stated that the testimony at the hearing indicated that disclosure could jeopardize an ongoing criminal investigation. The opinion also stated that release of the information would allow the plaintiff to obtain conflicting statements by the witnesses noted by the officers in their reports and that release would further inflame an emotional public. About two weeks after the trial court’s decision and almost eight weeks after the homicide, the Oakland County Prosecutor’s Office on September 24, 1979, released a report entitled "Investigation Concerning the Homicide of David Prior” which exonerated the two officers of criminal responsibility for the killing without ever naming them. At no time have the defendants released the requested information to the plaintiff. On appeal, the Court of Appeals affirmed the trial court’s judgment. 101 Mich App 650; 300 NW2d 667 (1980). We granted leave on December 21, 1981. 412 Mich 884. I. The Propriety of a Generic Determination A. Statutory Interpretation The threshold issue is whether under the FOIA the trial court can by a "generic determination” foreclose the right of a citizen to know what his government is doing. We hold that a "generic determination” does not satisfy the FOIA. In reaching our decision, we are called upon to construe three pertinent sections of the FOIA, having in mind that the overall policy of the FOIA is "that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them”, MCL 15.231(2); MSA 4.1801(1)(2), and that the plaintiff in this case is in the business of enabling all persons to have such full and complete information and is not a defendant seeking early discovery in a suit against it. The operative language of the exemption reads as follows: "A public body may exempt from disclosure as a public record under this act: "(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following: "(i) Interfere with law enforcement proceedings,” (Emphasis added.) MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). It is immediately apparent that the exemption from disclosure does not automatically apply to all investigating records compiled for law enforcement purposes. There are three limitations that are importantly applicable: (1) MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i) itself supplies one important limitation on disclosure: "only to the extent that disclosure * * * would * * *' interfere with law enforcement proceedings”. (2) MCL 15.244(1); MSA 4.1801(14)(1), adds another significant limitation: "If a public record contains material which is not exempt * * * as well as material which is exempt from disclosure * * *, the public body shall separate the exempt and nonexempt material available for examination and copying.” (3) MCL 15.240(1); MSA 4.1801(10)(1), places the burden of proving the right to exemption on the party claiming it: "[T]he burden is on the public body to sustain its denial [of disclosure].” In analyzing these provisions together, it is apparent that the exemptions require particularized justification. First of all, MCL 15.240(1); MSA 4.1801(10X1) puts the burden of proof on the public body seeking exemption. Then MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i) specifies that the exemption applies "only to the extent that” there is interference. Finally, MCL 15.244(1); MSA 4.1801(14)0) makes particularization explicit: "the public body shall separate the exempt and nonexempt material”. B. Case Law We next consider the relevant decisions under the federal FOIA. These cases consider the legislative history and purposes of the legislation. The Michigan Legislature in enacting the Michigan FOIA did so in relation to this federal history. In determining the legislative meaning of the interference with "law enforcement proceedings” exemption, it must be remembered that it was not adopted by the Legislature in a vacuum. Michi gan has had an established history of requiring public agency disclosure before the act was passed. Moreover, we have noted that the Michigan exemptions created in the FOIA generally mirror the exemptions found in the federal FOIA, and we held that "[t]he similarity between the FOIA and the federal act invites analogy when deciphering the various sections and attendant judicial interpretations”. Kestenbaum v Michigan State University, 414 Mich 510, 525; 327 NW2d 783 (1982). See, also, Bredemeier v Kentwood Bd of Ed, 95 Mich App 767, 771; 291 NW2d 199 (1980); Penokie v Michigan Technological University, 93 Mich App 650, 658; 287 NW2d 304 (1979); IBM v Treasury Dep’t, 71 Mich App 526, 535; 248 NW2d 605 (1976); Citizens for Better Care v Public Health Dep’t, 51 Mich App 454, 464-465; 215 NW2d 576 (1974). Our reading of the federal cases finds that the most relevant case is Campbell v Dep’t of Health & Human Services, 221 US App DC 1; 682 F2d 256 (1982). Like the instant case and unlike the case of NLRB v Robbins Tire & Rubber Co, 437 US 214; 98 S Ct 2311; 57 L Ed 2d 159 (1978), on which the Court of Appeals relied in its opinion, Campbell is a "third party” case. A "third party” case is one where the party seeking disclosure of public documents is not itself the target of a legal action by the party from whom the documents are sought, but an uninvolved "third party”. The Robbins Tire case involves a target plaintiff. In the Campbell case, Campbell had advised both his employer and the Federal Drug Administration that his employer was violating FDA regulations. Campbell’s employer responded by discharging him. Thereupon Campbell sued his employer for damages in the state court. In the meantime, the FDA began to investigate Campbell’s employer. At this point, Campbell, for use in his state damage action, requested certain documents that his employer had filed with the FDA. The Campbell court specifically noted that this case did not involve a plaintiff who was an actual or potential target of an enforcement action who was seeking access to records not in its possession, as was the situation in Robbins Tire. Rather, it involved a third party attempting to procure material that a target had submitted to the defendant. 221 US App DC 4. Under its analysis of the legislative history associated with the exemption, the court stated that "the government must show something more than a direct relationship between agency records and a pending investigation in order to demonstrate that disclosure would interfere with enforcement proceedings”. 221 US App DC 6. Campbell noted that Robbins Tire indicated that an agency need not justify its withholding of each and every document. But the Campbell court enunciated this rule: "Congress, we conclude, based on [sic] the words it employed and the relevant legislative history, did not authorize blanket exemption for such [ongoing investigation] records. It required something more. We hold that, to prevail under Exemption 7(A), the government must show, by more than conclusory statement, how the particular kinds of investigatory records requested would interfere with a pending enforcement proceeding.” 221 US App DC 4. This Campbell quotation is significant because it establishes the rule that the government must show: (1) how the particular kinds of records would interfere with a pending enforcement investigation, (2) by more than conclusory statements. As we shall see in the case at bar, the defendants presented conclusory testimony and the court in turn made conclusory findings. The word "how” in required showing (1) is especially significant. It is, of course, the opposite of "conclusory”. It means that the agency seeking to exempt records from disclosure must give factually based reasons for not releasing particular kinds of documents. Along this line, the following sentence from Campbell is instructive: "The government makes that claim but, consonant with the style it has adopted for its other assertions of interference with the investigation, it offers not even a slim bill of particulars.” (Footnote omitted.) 221 US App DC 5. It is a "bill of particulars” that is so obviously missing in the defendants’ testimony and in the court’s determination in the case at bar. Defendants never show "how”, and why, for example, the release of the officers’ names would have a "chilling effect on the investigation”. The "not conclusory-give details” rule is so significant that it recurs like a dominant theme throughout Campbell. For example: "[T]he government does not meet its burden, nor does the district court discharge its responsibility, through conclusory statements, unaccompanied by supporting detail, that these exceptions are applicable.” (Footnote omitted.) 221 US App DC 10-11. In remanding the case to the district court, the Campbell court concluded that the trial court’s affirmation of the agency’s denial rested upon an overly expansive reading of the exemption. It stated that: "Campbell is not an actual or potential target of an FDA enforcement proceeding who seeks early discovery of the strength of the government’s case in order to tailor his defense. Rather, he is a third party seeking information to which a potential target apparently has access and, indeed, has submitted to the agency. * * * It does mean, however, that the district court must conduct a more focused and particularized review of the documentation on which the government bases its claim that the information Campbell seeks would interfere with the investigation.” 221 US App DC 10. The same factors which guided the Campbell court not to adopt the generic determination of Robbins Tire also exist in the case at bar, as we shall later detail. Similarly, in Jos Schlitz Brewing Co v Securities and Exchange Comm, 548 F Supp 6 (D DC, 1982), a third party, a competitor of the plaintiff, requested information from the defendant arising from an investigation of the plaintiff. The plaintiff brought suit to prevent the disclosure of documents submit ted by it to the defendant. The court stated that "Robbins [Tire] does not stand for the principle that a party claiming exemption from disclosure need only present a bald claim without more”. Schlitz, p 8. Since the same concerns calling for a generic determination in Robbins Tire did not exist, the Schlitz court concluded that the documents were not exempt. Moreover, in RCA Global Communications, Inc v Federal Communications Comm, 524 F Supp 579 (D Del, 1981), the plaintiff, who was not under a present or pending investigation by the defendant, sought disclosure from the defendant of documents which were submitted to it by a competitor company in response to the defendant’s subpoena. The court refused to affirm the agency’s denial on the basis of a generic determination that these records were exempt. Thus, even though in some cases a generic determination may be possible, the record still must be sufficient to demonstrate the government’s right to exempt as to each category of documents. RCA Global, p 586. In short, the court required some particularization of denial for the relevant documents. The lone third-party decision which does not follow the reasoning of the earlier cases is Copus v Rougeau, 504 F Supp 534 (D DC, 1980). In that case, an apparently non-target plaintiff filed an action to compel disclosure of quarterly compliance review forecasts prepared by the Department of Labor’s Office of Federal Contract Compliance Programs. The court, in denying disclosure, stated that Robbins Tire was contrary to plaintiffs position. The court held that it could determine "the likely effect of disclosure in a common sense generic manner, and the defendant need not show specific examples where disclosure has harmed OFCCP enforcement efforts” (emphasis in original). Copus, pp 538-539. Finally, it indicated that under a generic determination all the agency had to show was that disclosure "would generically 'interfere with enforcement proceedings’ ” (emphasis in original). The Copus court has given the holding of Robbins Tire the most expansive reading to date. Thus, a review of the cases factually similar to the Campbell case clearly indicates that a generic determination should not have been made in this case. First, the plaintiff Evening News Association was not seeking records that were part of the defendants’ inquiry into its corporate conduct. Second, the plaintiff requested the information for the lawful corporate purpose of publishing a newspaper. Third, there were only generic assertions by the defendants that disclosure would harm their investigations. Finally, there was no particularized evidence in the record that disclosure of the incident reports would have interfered with its investigation as it relates to witnesses’ statements. The circumstance that the plaintiff is a third party does not, as the Campbell court said, mean that it "must prevail” but rather that the circuit court "must conduct a more focused and particularized review of the documentation on which the government bases its claim that the information [it] seeks would interfere with the investigation”. 221 US App DC 10. C. Rules Derived From Statutory Interpretation and Case Law From our analysis of the FOIA itself and from the relevant federal cases interpreting the similar federal FOIA, we derive the following rules that should be used in analyzing a claim of exemption from disclosure under the FOIA: 1. The burden of proof is on the party claiming exemption from disclosure. MCL 15.240(1); MSA 4.1801(10X1). 2. Exemptions must be interpreted narrowly. Vaughn v Rosen, 157 US App DC 340, 343; 484 F2d 820 (1973). 3. "[T]he public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.” MCL 15.244(1); MSA 4.1801(14X1); Vaughn v Rosen, 157 US App DC 345. 4. "[Detailed affidavits describing the matters withheld” must be supplied by the agency. Ray v Turner, 190 US App DC 290, 317; 587 F2d 1187 (1978). 5. Justification of exemption must be more than "conclusory”, i.e., simple repetition of statutory language. A bill of particulars is in order. Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings. Campbell v Dep’t of Health & Human Services, 221 US App DC 1, 4-6, 10-11; 682 F2d 256 (1982); Vaughn v Rosen, 157 US App DC 347. 6. The mere showing of a direct relationship between records sought and an investigation is inadequate. Campbell v Dep’t of Health & Human Services, 221 US App DC 8-9. D. Application to Instant Case Application of the statutory construction requirements developed above to the opinion of the trial court results in the conclusion that its determination was conclusory and generic. Because of the defendants’ and the court’s lack of particularized justification of this exemption, the circuit court findings do not indicate that the FOIA requirements were met. The full text of the court’s opinion is included in the appendix, but, for convenience, pertinent portions are set out here for consideration: "It was the testimony of Mr. Thompson, the Chief Assistant Prosecutor, that they are now engaged in an ongoing criminal investigation, that to disclose any information whatsoever, information requested by the plaintiff,, namely the reports filled out by the responding officers, would indeed jeopardize their investigation and interfere with the law enforcement proceedings in that regard. That they have certain information given to them confidentially, although it may not be stated to be confidential, it’s their feeling — that is, the prosecutor’s feeling — that the information was given to them by witnesses who gave it only on the condition that the information would be kept confidential. "The prosecutor claims that any revelation now of the names and reports made by the responding officers would indeed have a chilling effect on the investigation which has taken longer than anticipated, but some things have come up which have to be checked for statements which did not quite align themselves with prior statements made by some to the witnesses. "Again, the plaintiff states that it doesn’t want all the files, just the reports of the responding officers, which therefore should mot endanger or jeopardize the finalization and completion of the investigation. "The only possible prejudice to the public that the court can see at this stage is that the news, when it is obtained, will indeed be stale news. The court finds that enough has been educed from the testimony of the prosecutor’s witness, Mr. Thompson, and the officers that the investigation could indeed well be jeopardized by providing to the plaintiff the information that it seeks at this time. It would be very difficult to screen out names of witnesses which the responding officers may have noted which would be subject to providing testimony or being researched by the press which could conceivably result in conflicting statements and further hamper the investigation; also, piecemeal, partial statements in the press could, conceivably, inflame the public further than it has already been inflamed. "It is the decision of the court, accordingly, that the request of the plaintiff be denied.” The question now before us is whether the circuit court’s opinion evidences that it had found that the particular sections of the public record requested would for particular reasons "interfere with law enforcement proceedings”. The quotation above includes the circuit court’s summary of pertinent testimony and its conclusions. The operative part of the opinion is the last long paragraph. Let us review it sentence by sentence. The first sentence referring to "stale news” relates to the court’s conception of a FOIA balancing test. While in our opinion the Legislature was concerned with more fundamental principles than whether news was fresh or stale, this sentence fails to speak directly to any exemption requirements. Specifically, this sentence gives no reason why disclosure of the two incident reports or the names of their authors would interfere with law enforcement proceedings. The second sentence, "[t]he court finds that enough has been educed from the testimony of the prosecutor’s witness, Mr. Thompson, and the officers that the investigation could indeed well be jeopardized by providing to the plaintiff the information that it seeks at this time” (emphasis added), is the critical one and does not satisfy the statute. To begin with, it was the defendants’ burden to show, and the court’s duty to find, that the particular information the plaintiff wanted "would * * * interfere with law enforcement proceedings”. "Could indeed well be jeopardized” and "would * * * interfere” are obviously not the same thing. The statute is positive. The opinion is tentative. The court has not made the required findings. Furthermore, the sentence by itself is conclusory unless the educed testimony contains particularized justification. However, the testimony relied upon cannot be the basis for proper judicial findings of a reason or reasons for nondisclosure. According to the court, the testimony of Mr. Thompson referred to covered three things. First, "that they are now engaged in an ongoing criminal investigation, that to disclose any information whatsoever * * * would * * * interfere with the law enforcement proceedings in that regard”. That statement at best is conclusory. It offers a statement of opinion, not of reason. Also it is an attempted generic justification for nondisclosure. In any event, no reason is given why such disclosure would interfere with law enforcement proceedings. Mr. Thompson’s testimony, second, indicates, although somewhat weakly, that some of the witnesses testified only because they understood that their testimony would be held confidential. If indeed that was the case, that is a plausible reason not to reveal their testimony. Such testimony need not be disclosed. However, it could be separated from testimony that was not so given. In any event, the direct reporting by the two police officers of what they did and saw has no such protection of confidentiality. Third, in the second paragraph of the quotation from the court’s opinion, it is stated that "[t]he prosecutor claims that any revelation now of the names and reports made by the responding officers would indeed have a chilling effect on the investigation”. As already adverted to, the circuit court opinion attempts to justify denial of release by a conclusory statement and reference to its summary of the testimony. Included in that summary is the following: "The prosecutor claims that any revelation now of the names * * * would indeed have a chilling effect on the investigation.” Again, this statement is entirely conclusory. There are no reasons given. In no way does this statement satisfy statutory requirements. In sum, the court’s second sentence in no way satisfied the statutory requirements which had to be met in not disclosing the officers’ reports. As for the third and last sentence in the court’s operative paragraph, it too fails to satisfy the statute. That "[i]t would be very difficult to screen out names” is not a concern of the statute. The statute states, "the public body shall separate the exempt and nonexempt material” (emphasis supplied). If it can be done, it must be done. In any event, the statement is largely, if not wholly, conclusory. The justification, if any, is that the names of witnesses "could conceivably result in conflicting statements and further hamper the investigation; also piecemeal, partial statements in the press could, conceivably, inflame the public further than it has already been inflamed”. The "could conceivably result”, etc., clause is speculative and conclusory. It certainly is no foundation to justify an exemption. The "could, conceivably, inflame the public” clause not only is speculation, but smacks of public censorship, which would not appear to be the purpose of FOIA. There may possibly be occasions where public safety requires minimal delay of announcements, but not for eight weeks and not on such a speculative basis. In sum, this third sentence gives no justification for nondisclosure either. Careful review of the whole paragraph, therefore, indicates that the trial court failed to find with sufficient particularity that the defendant had specifically justified its claimed exemption. It therefore erred by not showing a proper reason for denying the plaintiffs request. This is the same rationale as that for the Campbell decision, which that court summarized as follows: "We conclude that the district court’s response was too quick and categorical to comport with the congressional directive. That directive, we hold, requires a more particularized showing by the government and a more precise examination by the district court before a judgment may be made that the production sought would 'interfere with enforcement proceedings.’ ” 221 US App DC 2. II. Disclosure of Identity of Two Officers A. Mootness In the instant case, the plaintiff requested from the defendants the names of the two Troy police officers who were involved in the shooting of David Prior. In addition, the plaintiff requested the incident reports made by the two police officers. The record shows that these requests were denied. Several weeks after the trial court affirmed the defendants’ denial, the Oakland County Prosecutor released a document to the public entitled "Inves tigation Concerning the Homicide of David Prior” which exonerated the two officers from criminal liability for the Prior homicide. In that report, all references to the officer who had shot Mr. Prior were blanked out. Moreover, the requested reports were not released with the prosecutor’s report. Finally, at oral argument it was revealed that the requested reports have never been released by the defendants to plaintiff even though a civil lawsuit was filed and won against the defendants by the heirs of David Prior in federal court. In addition, the plaintiff was not sure that the reports were disclosed during the civil trial. While the parties have assumed that the issues in the case at bar fall within an exception to the mootness doctrine which allows further review, our analysis of the record indicates that there is an ongoing dispute between the parties. The requested information has never been released by the defendants to the plaintiff pursuant to its FOIA request. In addition, the record is unclear whether the information was ever released by the defendant to the public. Thus, we have an actual case and controversy which allows us to examine the information sought and the statutory procedures used by the trial judge. B. Interference In addressing whether the disclosure of specific information would interfere with law enforcement proceedings under the federal FOIA, the federal courts generally have stated that "interference” can encompass a wide range of concerns. The grounds which have prevented disclosure are the following: "(1) evidence, (2) witnesses, (3) prospective testimony, (4) the reliance placed by the government upon the evidence, (5) the transactions being investigated, (6) the direction of the investigation, (7) government strategy, (8) confidential informants, (9) the scope and limits of the government’s investigation, (10) prospective new defendants, (11) materials protected by the Jencks Act [18 USC 3500], (12) attorney work product, (13) the methods of surveillance, (14) subjects of surveillance. Kanter v Internal Revenue Service, 433 F Supp 812, 822, fn 18 (ND Ill, 1977). See New England Medical Center Hospital v NLRB, 548 F2d 377 (CA 1, 1976); National Public Radio v Bell, 431 F Supp 509 (D DC, 1977); Electric-Flex Co v NLRB, 412 F Supp 698 (ND Ill, 1976).” Docal v Bennsinger, 543 F Supp 38, 44, fn 12 (MD Pa, 1981). Furthermore, in considering these factors, if we must look to the evidence presented at the hearing, we find no adequate justification of the exemption. The defendants introduced testimony which indicated that several nonthreatening calls, criticizing the two officers, were received by the defendants after the homicide. There was also testimony that release of this information would be unfair to the police officers if they were properly exonerated from the homicide. This threat alone does not meet the defendants’ burden under the act. Critical public reaction is not interference with law enforcement proceedings. However, even if this evidence did indicate that direct harm to the officers would have resulted if their identities were made known, the trial court did not recognize that argument. Furthermore, public praise and criticism is part of the democratic process that'FOIA seeks to promote. In addition, the evidence indicated that the City of Troy and the Oakland County Prosecutor’s Office had disclosed in the past information similar to that sought in the instant case. Regarding the disclosure of names before a formal complaint is made, the FOIA does not recognize this argument. In short, we hold that the evidence presented did not sustain defendants’ burden to sustain denial of disclosure of the identities of the two officers involved in the David Prior homicide. III. Statutory Duty to Separate MCL 15.244(1); MSA 4.1801(14)(1) affirmatively requires that a "public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying” (emphasis added). In addition to this duty, the act places the burden on the public body to sustain its denial. MCL 15.240(1); MSA 4.1801(10)(1). The former provision ensures that the public body will be able to sustain its denial with particularized reasons. In the instant case, the defendants made no effort to separate exempt material from that which was nonexempt. In fact, the defendants’ main witness, .Oakland County Assistant Prosecutor Richard Thompson, reluctantly and vaguely con ceded that the generic exemption raised by the defendants did not blanket all information contained in the two incident reports. Thus, the trial court and Court of Appeals erred in holding that the defendants had met their statutory burden to sustain their denial where the defendants failed to separate admittedly nonexempt material contained in the two incident reports. IV. FOIA Procedures As we reach the point of ordering remand, we are compelled to contemplate, as other appellate courts before us, the inherent difficulties of procedure under the FOIA. Congress and state legislatures have expressed a clear intention that government records be made readily available to the public, because the proper functioning of government and public control of government in a democracy require that the people have full access to public information. Legislative bodies have recognized the necessity of limited practical exemptions from the general rule of disclosure and have attempted to define the standards under which such exemptions may be claimed. These legislative specifications are probably as clear as the situation permits, but that does not make them either clearly or easily self-executing. There are inherent problems. Where one party is cognizant of the subject matter of litigation and the other is not, the normal common-law tradition of adversarial resolution of matters is decidedly hampered, if not brought to a complete impasse. If one adds to this the natural tendency of bureaucracies to protect themselves by revealing no more information than they absolutely have to, it is clear that disclosure becomes neither automatic nor functionally obtainable through traditional methods. The practical aspect of the matter is adverted to in Vaughn v Rosen, 157 US App DC 340, 344-345; 484 F2d 820 (1973). This is how that court saw the matter: "This lack of knowledge by the party seeking disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution. Ordinarily, the facts relevant to a dispute are more or less equally available to adverse parties. In a case arising under the FOIA this is not true, as we have noted, and hence the typical process of dispute resolution is impossible. In an effort to compensate, the trial court, as the trier of fact, may and often does examine the document in camera to determine whether the Government has properly characterized the information as exempt. Such an examination, however, may be very burdensome, and is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure. * * * "The problem is compounded at the appellate level. In reviewing a determination of exemption, an appellate court must consider the appropriateness of a trial court’s characterization of the factual nature of the information. Frequently trial courts’ holdings in FOIA cases are stated in very eonclusory terms, saying simply that the information falls under one or another of the exemptions to the Act. An appellate court, like the trial court, is completely without the controverting illumination that would ordinarily accompany a request to review a lower court’s factual determination; it must conduct its own investigation into the document.” See Ray v Turner, 190 US App DC 290, 307; 587 F2d 1187 (1978). Under these circumstances the courts are challenged to find some way to compensate the inherent problems of (1) only the government knowing what is in the requested documents, (2) the natural reluctance of the government to reveal anything it does not have to, and (3) the fact that courts normally look to two equally situated adversarial parties to focus and illuminate the facts and the law. The longer federal FOIA experience indicates that federal appellate courts have struggled with the problem and have reached some conclusions worthy of our consideration and adoption. In reviewing this challenge, the Vaughn court had this to say: "The simple fact is that existing customary procedures foster inefficiency and create a situation in which the Government need only carry its burden of proof against a party that is effectively helpless and a court system that is never designed to act in an adversary capacity. It is vital that some process be formulated that will (1) assure that a party’s right to information is not submerged beneath governmental obfuscation and mischaracterization, and (2) permit the court system effectively and efficiently to evaluate the factual nature of disputed information. To possible ways of achieving this goal we now turn our attention.” (Emphasis added.) 157 US App DC 346. From these premises, it would appear that the following three-step procedure should be followed by Michigan trial courts: 1. The court should receive a complete particularized justification as set forth in the six rules above (Part IC); or 2. the court should conduct a hearing in camera based on de novo review to determine whether complete particularized justification pursuant to the six rules exists, Vaughn v Rosen, supra, pp 346-348; Ray v Turner, supra, p 311; or 3. the court can consider "allowing plaintiffs counsel to have access to the contested documents in camera under special agreement 'whenever possible’ Ray v Turner, supra, p 308, fn 24, and p 315. The objective, of course, is to secure disclosure of all pertinent information that is not exempt. If the government and the court are mutually aware of the six rules and the government is prepared to act accordingly, the matter should normally be resolved under the first step. Where the government for whatever reason is reluctant or antagonistic, or the court is in doubt, the trial court may have to proceed to the second step. If the matter is relatively clear and not too complex, the court, or the court with a master, may, within acceptable expenditure of judicial energy, be able to resolve the matter in camera. However, if the matter is not that clear or simple, the court may have to consider employment of plaintiffs counsel under special agreement in order to resolve the matter. The stakes are too high to do otherwise. Judge J. Skelly Wright referred to the following words of James Madison to make that point: " 'Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.’ ” Ray v Turner, supra, p 304, fn 10 (Wright, J., concurring). V. Conclusion The basic issue is whether at the time the plaintiff, The Evening News Association, requested the identities of two police officers and their incident reports describing the David Prior homicide, the defendants, the City of Troy and its police chief, properly withheld such information on the basis of the conclusory statement in the language of the statute that such information would "interfere with law enforcement proceedings”, and that such information "would indeed have a chilling effect on the investigation”. We hold first that the trial court erred in its generic determination that the defendants had met their statutory burden to sustain their claim of exemption where it was only alleged that disclosure would "[interfere with law enforcement proceedings” or "would indeed have a chilling effect on the investigation”. MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). We hold second that the trial court erred in concluding that the defendants had met their statutory burden to sustain their denial where the requested documents contained material which was admittedly subject to disclosure. We note that the defendants in their brief have conceded that the investigation is closed. The documents at issue must therefore be released. However, where an investigation is still "open” or in future cases, the three-step procedure adopted herein should be applied by trial courts in determining FOIA exemptions. The judgments of the Oakland Circuit Court and the Court of Appeals are reversed. The matter is remanded to the trial court for further proceedings consistent with our opinion. Kavanagh, Levin, Ryan, and Brickley, JJ., concurred with Williams, C.J. Cavanagh and Boyle, JJ., took no part in the decision of this case. Appendix The Oakland Circuit Court Opinion "The Court: This is a case instituted by the plaintiff, Evening News Association, against the defendants City of Troy and John T. Donovan, Chief of Police for the City of Troy, in which the plaintiff requests information under the Freedom of Information Act adopted by the State of Michigan, MCL 15.231 et seq.; MSA 4.1801(1) et seq. Plaintiff is seeking information relative to the shooting of one David Prior on or about July 31, 1979, in the City of Troy. The plaintiff has been refused any information whatsoever, including the names of the initial two officers involved in the shooting, by the City of Troy, the police department, and the prosecutor’s office which is currently involved in the main investigation of the matter._ "Now the Freedom of Information Act states that it is a public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees. It ends with stating that the people shall be informed so they may fully participate in the democratic process. "Plaintiff claims, in effect, that the people cannot really participate unless the news they get is fresh and not stale and that it’s been more than a month since they first requested this information from the defendants. "There are certain exemptions to the Freedom of Information Act which have been discussed at length as cited under MCL 15.243; MSA 4.1801(13). The defendants claim that these exemptions apply to them, specifically: interference with law enforcement proceedings, unwarranted invasion of personal privacy, disclosure of confidential sources, disclosure of law enforcement investigative techniques or procedures, and possible endangerment of physical safety of law enforcement personnel such as the two officers involved. These are primarily the exemptions as claimed, and it is up to the court to weigh and decide whether the exemptions claimed are indeed properly claimed by the defendants. "It was the testimony of Mr. Thompson, the Chief Assistant Prosecutor, that they are now engaged in an ongoing criminal investigation, that to disclose any information whatsoever, information requested by the plaintiff, namely the reports filled out by the responding officers, would indeed jeopardize their investigation and interfere with the law enforcement proceedings in that regard. That they have certain information given to them confidentially, although it may not be stated to be confidential, it’s their feeling — that is, the prosecutor’s feeling — that the information was given to them by witnesses who gave it only on the condition that the information would be kept confidential. "Also, it was the testimony of Mr. Thompson that there have been a lot of negative comments made regarding the police force in Troy which is buttressed by the testimony of a cadet police officer and another police officer — a lot of negative comment regarding this particular shooting as pertains to the police force of Troy. "The prosecutor claims that any revelation now of the names and reports made by the responding officers would indeed have a chilling effect on the investigation which has taken longer than anticipated, but some things have come up which have to be checked for statements which did not quite align themselves with prior statements made by some to the witnesses. Generally, that was the testimony of Mr. Thompson. "The plaintiff, on the other hand, claims that the exemptions as claimed under the Freedom of Information Act do not really apply to this specific situation as they were promulgated and established primarily to apply to investigations involving 'narc’ type officers engaged in secret identities where, obviously, disclosure of their names would endanger their life. Again, the plaintiff states that it doesn’t want all the files, just the reports of the responding officers, which r therefore should not endanger or jeopardize the finalization and completion of the investigation. "Admittedly this is a close case, but the court, in weighing one litigant against the other with the public interest, is of the opinion that the public interest is best served at this time by denying the plaintiff the relief that it requests. "The only possible prejudice to the public that the court can see at this stage is that the news, when it is obtained, will indeed be stale news. The court finds that enough has been educed from the testimony of the prosecutor’s witness, Mr. Thompson, and the officers that the investigation could indeed well be jeopardized by providing to the plaintiff the information that it seeks at this time. It would be very difficult to screen out names of witnesses which the responding officers may have noted which would be subject to providing testimony or being researched by the press which could conceivably result in conflicting statements and further hamper the investigation; also, piecemeal, partial statements in the press could, conceivably, inflame the public further than it has already been inflamed. "It is the decision of the court, accordingly, that the request of the plaintiff be denied. "Mr. Wolanin: Thank you, your Honor. "Mr. Lyons: Thank you, your Honor. "Mr. Stewart: Your Honor, if I may, does the court wish its opinion to reflect that the court has reviewed this entire file in camera and that its conclusion applies to the whole file? "The Court: The court has reviewed the file briefly, and the court does not feel that either the names or the entire file should be made available at this time. "Mr. Stewart: Second question, your Honor, will you certify this? "The Court: Any objection? "Mr. Lyons: No objection. "The Court: It will be certified. "Mr. Stewart: Thank you, your Honor. "Mr. Wolanin: Thank you, your Honor.” Order of the Oakland Circuit Court "Plaintiff’s motion for an order to show cause why the City of Troy should not produce certain incident reports prepared by the City of Troy Police Department, having come on for hearing and testimony having been taken; "Now, therefore, it is ordered, that for the reasons set forth in this court’s bench opinion of this date, the requested reports are exempt under the Freedom of Information Act and need not be produced. "It is further ordered that this order is certified pursuant to GCR 1963, 806.3(l)(ii). '7s/ Robert L. Templin Circuit Judge” MCL 15.243(l)(b)(i)-(vi); MSA 4.1801(13)(l)(b)(i)-(vi) provides that materials exempt from disclosure include: "(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following: "(i) Interfere with law enforcement proceedings. "(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication. "(iii) Constitute an unwarranted invasion of personal privacy. "(iv) Disclose the identity of a confidential source, or if the record is compiled by a criminal law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source. "(v) Disclose law enforcement investigative techniques or procedures. "(vi) Endanger the life or physical safety of law enforcement personnel.” The federal provision is nearly identical to the Michigan language: "(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel”. 5 USC 552(b)(7). See, generally, Comment, The Freedom of Information Act: A Survey of Litigation Under the Exemptions, 48 Miss L J 784 (1977). See fn 22. The following dialogue took place on direct examination between plaintiff and one of its witnesses: "Q. Will you state your name for the record and my benefit? "A. Joel Smith. "Q. Where are you presently employed? "A. Detroit News. "Q. What are your duties there now? "A. Assistant news editor in charge of our suburban operation. "Q. How long have you been in that position? "A. For about a year and a half. ”Q. Prior to that what did you do? "A. Just prior to that I was the assignment editor for the Detroit News. Prior to that, from 1970 to 1978, I was employed in our Oakland County Birmingham office for from about 1975 to 1978,1 was the Oakland County Bureau Chief in charge of the Oakland County operation. "Q. Was it part of your duty at that time to attempt to gather news from the Troy Police Department? "A. Yes, it was. I covered most of our police operations involving 44 law enforcement agencies including Troy. "Q. Were you here for the testimony this morning? "A. Yes, I was. "Q. Did you hear Chief Donovan testify that it was the policy of the City of Troy not to disclose the name of an officer under investigation until he was charged? "A. Yes, I did hear him say that. ”Q. Do you recall an incident in which the Troy Police Department did not conform to that policy? "A. Yes, I do. "Q. What do you recall about that incident? "A. In January, 1977, I was given information that a Troy police officer, a Sergeant Thomas Morris, was under investigation for gun running. As I pieced together the information, or once I pieced together the information, I went over and sat down and had a conversation with the police chief, at that time, Forrest Fisher. We met at his office, at his desk, and at that point we talked about this story, the information I had, including the point where I asked him if it was in fact Thomas Morris that’s being investigated. He said, 'Yes, it is.’ ”Q. So, in fact, the chief gave you the name? "A. Yes, he did. ”Q. Had that officer been charged? "A. At that point he had not been charged. It wasn’t until the chief did provide information that he was relieved of duty at least a week before, and he was subsequently charged about three months later. ”Q. Did you publish his name at the time you first received it from the chief of police? "A. No, we did not. ”Q. Why? "A. Well, there were a number of reasons. One, there was a federal grand jury investigating this. They still had some secret grand jury testimony to receive yet at this point, and it was just our discretion, we thought that we should withhold the name for the time being. "Q. Did you make an editorial judgment to withhold it? "A. It was an editorial judgment. It was our judgment. ”Q. As part of your duty as the Oakland County Bureau Chief, did you know the policy of any of the other police departments in Oakland County regarding disclosure of names of officers involved in shooting incidents? "A. In Oakland County? "Q. Yes. "A Yes. The policies vary somewhat, but I’ll give you some examples. Like Birmingham, Birmingham has a policy of releasing the names of officers. We had a situation several months ago that within a 30-day period Birmingham police were involved in two high-speed chases. The first one resulted in a car that was being chased running into a — struck another car — at Big Beaver and Woodward, resulting in a fatal accident. Police released the names of the officers that were chasing that car. "About a month later there was another high-speed chase down Woodward Avenue. I believe it was at Normandy in Royal Oak that the Birmingham police car struck a car traveling across Woodward with the green light. The person in the other car lost his arm as a result of this police chase. Birmingham police released the name of that officer who happened — I remember is Tim Gracey. "Southfield, while it hasn’t come up yet, we have been assured through Public Safety Director Roland G. Tobin that the names will always be available. ”Q. When you were in the courtroom this morning, do you recall Chief Donovan saying that it was the policy of the Troy police department that the name of the shopkeeper involved in a shooting would not be released until that-person was charged. 'A. Yes, I did hear him say that. "Q. Do you recall an incident in which the Troy police did not conform to that policy? 'A. Yes, I do. ”Q. What do you recall about that? "A In July, it was like the 12th or 13th, going to work, I heard on the radio that a son of a store owner in Troy, a party store owner, shot and killed a man over an argument over a six-pack of beer. Once at the office, I instructed one of our general assignment reporters, Chris Singer, to call the Troy police, get the information, and do a story. He did that, wrote the story, and it included the names of the— what happened at that party store. "Q. What did happen at that party store; do you recall? "A Well, as I recall, there was a customer who went in, purchased a six-pack of beer. The carton somehow broke. The beer tumbled to the floor and broke. There was an argument over whether the customer should get another six-pack of beer for no charge, and apparently there was a pushing and shoving match. As I recall, the store owner’s son was worried about some kind of metal plate in his face, that it might be dislodged, injuring him severely, and eventually shot the customer. ”Q. Do you know if that son of that party store owner was ever charged? "A. As of last Friday, when I checked with the Troy District Court, he was not charged. "Mr. Stewart: Thank you very much.” Standing to bring an action to compel disclosure under FOIA is given to any "individual, corporation, partnership, firm, organization, or association”. MCL 15.232(a); MSA 4.1801(2)(a). The plaintiff falls within this description. MCL 15.232(c); MSA 4.1801(2)(c) provides that: " 'Public record’ means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are exempt from disclosure under section 13, and (ii) all others, which shall be subject to disclosure under this act.” The federal exemption is nearly identical to the Michigan exception. 5 USC 552(b)(7)(A). See fn 1. MCL 15.232(c); MSA 4.1801(2)(e) provides that: " 'Public record’ means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are exempt from disclosure under section 13, and (ii) all others, which shall be subject to disclosure under this act.” The federal FOIA states that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 USC 552(b). MCL 15.232(b)(i)-(v); MSA 4.1801(2)(b)(i)-(v) states that: "(b) 'Public body’ means: "(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof. "(ii) An agency, board, commission, or council in the legislative branch of the state government. "(iii) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof. "(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority. "(v) The judiciary, including the office of the county clerk and employees thereof when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.” Since we are looking to the federal FOIA and the cases interpreting that act for assistance in our analysis, it is important to note a major legislative change which indicated a congressional intent to narrow the law enforcement records exemptions. See fn 1. The relevant federal provision, as originally adopted, covered "in vestigatory files compiled for law enforcement purposes except to the extent available by law to a private party”. PL 89-487, § 3(e); 80 Stat 250 (1966). Because of a congressional belief that the exemption had been applied too broadly, Congress amended it in 1974 to read "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings”. For the remaining language, see fn 1. Thus, contrary to the analysis employed by the Court of Appeals in the instant case, Congress explicitly rejected a per se rule of exemption under the federal FOIA since such an approach would withhold too much information from disclosure. See Note, FOIA Exemption 7 and Broader Disclosure of Unlawful FBI Investigations, 65 Minn L Rev 1139, 1143-1144 (1981). In fact, this fact was conceded by the United States Supreme Court in NLRB v Robbins Tire & Rubber Co, 437 US 214, 221-236; 98 S Ct 2311; 57 L Ed 2d 159 (1978). See Nowack v Auditor General, 243 Mich 200, 203-204; 219 NW 749 (1928); Burton v Tuite, 78 Mich 363, 375; 44 NW 282 (1889); Booth Newspapers, Inc v Muskegon Probate Judge, 15 Mich App 203, 205; 166 NW2d 546 (1968). The type of case in Schlitz Brewery is generally described as "reverse FOIA” in that a party submitting records to an agency sues the agency to prevent disclosure by asserting an appropriate exemption. See Chrysler Corp v Brown, 441 US 281; 99 S Ct 1705; 60 L Ed 2d 208 (1979). This case is classified as a third-party decision in that at the time the plaintiff made its request there was no present or pending investigation of the plaintiff by the defendant. Moreover, there was no special relationship between the plaintiff and the corporation which submitted the records to the defendant. See RCA Global, 524 F Supp 581. In Copus, the attorney-plaintiff, requesting the documents, was not identified as representing any "person” under investigation by the defendant’s agency. Therefore, Copus is treated as a third-party case. The Copus court seemed concerned that if the requested information was prematurely released, it could end up in the possession of targets under investigation. 504 F Supp 539-540. In Robbins Tire, an employer was charged by the NLRB with committing an unfair labor practice under the FOIA. In anticipation of the administrative hearing on the charge, the employer requested copies of the statements given to the NLRB by all prospective witnesses. The NLRB denied the request, claiming that disclosure would interfere with enforcement proceedings. The employer, who was the target of the agency’s investigation which related to the enforcement proceedings, asserted that the NLRB had failed to show speciñcally that release of the particular statements would hamper the investigation. The United States Supreme Court, however, rejected this argument and, instead, held that the use of a generic determination standard was possible "with respect to particular kinds of enforcement proceedings”. 437 US 236. While the Robbins Tire court, in a three-step inquiry, rejected a case-by-case approach, its holding nevertheless arose from specific concerns about protecting NLRB procedures when it investigates alleged unfair labor practices by employers. 437 US 236-243. First, the court held that the language of this exemption, unlike the other law enforcement exemptions, appeared to allow certain generic determinations against disclosure for particular proceedings like those brought by the NLRB. Id., pp 223-236. Second, the legislative history of the act indicated that this exemption was to eliminate blanket exemptions, like the generic determination, except that such a deter mination could be made "with respect to particular kinds of enforcement proceedings”. Id., p 236. Third, the court was specifically concerned about the deleterious effect upon NLRB unfair labor practice investigations if pre-hearing statements given by prospective witnesses were released to the target employer. Id., pp 236-242. However, none of the same concerns expressed in Robbins Tire exist in the instant case. Moreover, in contrast to the Campbell case, many of the cases interpreting Robbins Tire which were also cited by the Court of Appeals have involved FOIA requesters who were either the target or potential target or had a special relationship to a target being investigated by the public agency. See Ryan v Dep’t of Justice, 595 F2d 954 (CA 4, 1979); Amolsch & Madden, Inc v Federal Trade Comm, 192 US App DC 200; 591 F2d 809 (1978) (did not employ Robbins Tire); Steinberg v Internal Revenue Service, 463 F Supp 1272 (SD Fla, 1979); Kanter v Internal Revenue Service, 478 F Supp 552 (ND Ill, 1979); Grabinski v Internal Revenue Service, 478 F Supp 486 (ED Mo, 1979); Zeller v United States, 467 F Supp 487 (ED NY, 1979). In most cases, Robbins Tire was found dispositive because of concern caused by a party who attempts to impede an agency investigation of the requester. Thus, the requesters generally tried to employ the FOIA as a way to gain earlier and greater access to an agency’s investigation than they would otherwise have had. This was specifically rejected by the Robbins Tire court. 437 US 241. However, the same concerns do not exist in the instant case because plaintiff newspaper is not a target of police investigation seeking early discovery to protect itself against the police. Therefore, these cases are inapposite to the case at bar. Three members of the United States Supreme Court in Robbins Tire believed that an exemption per se should apply in all law enforcement records exemption cases. See Robbins Tire, 437 US 243 (Stevens, J., concurring). See, also, fns 1, 10. The trial court’s review of these records is to be a de novo review which connotes a strict standard of review. This conclusion is also supported by the fact that the Legislature has placed the burden of proof to sustain denial on the public agency. MCL 15.240(1); MSA 4.1801(10X1). The amicus curiae directs this Court to several New York cases which it believes support the notion that the police incident reports should not have been disclosed in the instant case. Wunsch v City of Rochester, 108 Misc 2d 854; 438 NYS2d 896 (1981) (records relating to citizen’s complaint against police officers alleging unnecessary use of force fell within New York’s FOIA); Sheenan v City of Binghamton, 59 AD2d 808; 398 NYS2d 905 (1977) (police complaint was part of an investigatory file and should not be divulged); Westchester Rockland Newspapers, Inc v Mosczydlowski, 58 AD2d 234; 396 NYS2d 857 (1977) (police incident reports on events surrounding death of prisoner should be withheld unless reports present purely factual matters). We refuse to adopt the New York line of reasoning for several reasons. First, it appears that New York, unlike Michigan, did not have a common-law tradition of agency disclosure before its FOIA was enacted. See Wunsch, supra, pp 898-899, citing Cirale v 80 Pine Street Corp, 35 NY2d 113; 359 NYS2d 1; 316 NE2d 301 (1974). See, also, cases cited in fn 11. Second, we read the language in the Michigan FOIA and the federal FOIA as indicating that the respective legislatures did not intend a blanket exemption like the one provided in the New York cases. Third, several other states, considering similar documents, did not apply blanket exemptions. Houston v Rutledge, 237 Ga 764; 229 SE2d 624 (1976) (files relating to deaths of jail inmates compiled by sheriffs department); Reinstein v Police Comm’r of Boston, 378 Mass 281; 391 NE2d 881 (1979) (rejects a blanket exemption in regard to police firearm discharge reports); Lodge v Knowlton, 118 NH 574; 391 A2d 893 (1978) (plaintiff sought file prepared by state police regarding a car accident involving a police cruiser under control of the chief of police). The following dialogue took place at oral argument: "Justice Levin: I have a question. Attached to, as an appendix to the city’s brief there is a report, called 'Report on Homicide Investigation’. And there are some blanked out, apparently blanked out words. Is there a reason why they’re blanked out? "Mr. Rassel: I don’t know why they were blanked out, your Honor. I believe, however, my guess is, they would reveal the identity of the two officers involved. On September 24, some 2-1/2 weeks after the hearing in question, the prosecutor did in fact conclude that- there was no reason to prosecute the two officers involved, and issued the 24-page report which is at the back of appellee’s brief, City of Troy’s brief. Notably the identity of the two officers involved is not in that report. It is specifically withheld. And notably the two incident reports sought by The Evening News Association are not included, not even the nonexempt portions. They have never been revealed. "Justice Levin: That was my second question. At no time have those incident reports been disclosed? "Mr. Rassel: Not to The Evening News Association. Now I do understand, your Honor, it’s represented in appellant’s brief, there was a subsequent civil trial in federal court in Detroit in 1981 in which the two officers and the City of Troy were found liable for negligently shooting this person. I think a civil rights violation actually was the theory under which the case proceeded. And it was a $5-1/2 million judgment against the officers and the City of Troy. It is represented in the brief that in fact the incident reports and the identity of the officers were revealed during that civil trial, but I cannot guarantee that that was the case. But they never were released to us. They were never released as part of the prosecutor’s report. "Justice Levin: Thank you.” See fn 19. The plaintiff wrote the following footnote in its brief: "(2) Although the events underlying this appeal occurred some 2-1/2 years ago, the issues are not moot because the abuse here is capable of repetition. Indeed repetition is invited by the Court of Appeals opinion. See: Nebraska Press Ass’n v Stuart, 427 US 539, 546; 96 S Ct 2791; 49 L Ed 2d 683 (1976): " 'The order at issue in this case expired by its own terms when the jury was impaneled on January 7, 1976. There were no restraints on publication once the jury was selected, and there are now no restrictions on what may be spoken or written about [State v Simants, 194 Neb 783; 236 NW2d 794 (1975)]. Intervenor Simants argues that for this reason the case is moot. " 'Our jurisdiction under Art III, § 2 of the Constitution extends only to actual cases and controversies. Indianapolis School Comm’rs v Jacobs, 420 US 128; 95 S Ct 846; 43 L Ed 2d 74 (1975); Sosna v Iowa, 419 US 393, 397-403; 95 S Ct 553; 42 L Ed 2d 532 (1975). The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one "capable of repetition, yet evading review.” Southern Pacific Terminal Co v ICC, 219 US 498, 515; 31 S Ct 279; 55 L Ed 310 (1911). " 'The controversy between the parties to this case is “capable of repetition” in two senses. First, if Simants’ conviction is reversed by the Nebraska Supreme Court and a new trial ordered, the District Court may enter another restrictive order to prevent a resurgence of prejudicial publicity before Simants’ retrial. Second, the State of Nebraska is a party to this case; the Nebraska Supreme Court’s decision authorizes state prosecutors to seek restrictive orders in appropriate cases. The dispute between the State and the petitioners who cover events throughout the State is thus "capable of repetition.” Yet, if we decline to address the issues in this case on grounds of mootness, the dispute will evade review, or at least considered plenary review in this Court, since these orders are by nature short-lived. See, e.g., Weinstein v Bradford, 423 US 147; 96 S Ct 347; 46 L Ed 2d 350 (1975); Sosna v Iowa, supra; Roe v Wade, 410 US 113, 125; 93 S Ct 705; 35 L Ed 2d 147 (1973); Moore v Ogilvie, 394 US 814, 816; 89 S Ct 1493; 23 L Ed 2d 1 (1969); Carroll v Princess Anne, 393 US 175, 178-179; 89 S Ct 347; 21 L Ed 2d 325 (1968). We therefore conclude that this case is not moot, and proceed to the merits.’ "See also: Richmond Newspapers, Inc v Virginia, 448 US 555, 563; 100 S Ct 2814; 65 L Ed 2d 973 (1979).” The following dialogue took place on recross-examination between plaintiff and defendants’ main witness, Richard Thompson, an Oakland County prosecutor: "Q. You indicate that in your opinion the disclosure of this information would interfere with ongoing criminal proceedings? "A. Yes. ”Q. Is that opinion with reference to every item contained in the incident report? As I recall, and we don’t — it’s not here, but we were dealing with a document that was perhaps half an inch thick. Is that opinion of yours applicable to every piece of information contained in the incident report? "A. No. "Q. So there are some things about — with respect to which — that opinion would not apply? "A. Things that have already been made public, yes. "Q. Well, there are — -there is — -information contained in that incident report with respect to which your opinion would not apply? 'A. Yes.” In the instant case, the plaintiff requests that it be awarded attorney fees and that this Court assess punitive damages in the amount of $500 against the defendants pursuant to MCL 15.240(4), (5); MSA 4.180Í(10)(4), (5). On remand, the trial court should also consider .the propriety of awarding attorney fees and granting punitive damages against the defendants.

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Rehearing denied. Reported at 414 Mich 510. Cavanagh, J., would grant rehearing.

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Rehearing denied. Reported at 416 Mich 166.

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