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Fellows, J: Defendant operates cement plants at Coldwater and Quincy in Branch county. Plaintiff owns coal mines and sells coal. In 1919 it shipped 52 cars of coal to defendant. It is claimed by defendant and admitted by plaintiff that some of the cars did not come from the field and were not the kind of coal agreed upon, the number of such cars being in dispute. There were conferences and correspondence in attempts to reach an adjustment. On July 15, 1920, representatives of the parties met at Coldwater. Some arrangement was there agreed upon, just what it was being the crucial fact in the case. Plaintiff contends that $1,600 was to be withheld by defendant from the amount of the bill until an analysis, which had been made of the coal by defendant’s chemist, could be obtained, the chemist being absent from the city. Defendant claims that it was agreed that the sum of $1,600 should be deducted from plaintiff’s bill and the balance paid, and that it was then paid, that there was complete accord and satisfaction. Upon the conflicting testimony the jury found for the defendant and plaintiff prosecutes ■ this writ of error. Defendant was permitted to show over objections correspondence showing* a controversy and arrangements for meetings to discuss it together with what occurred at the conference leading up to and including the final talk which it is admitted took place between but two men apart from the others attending the conference. We perceive no error in this. Defendant was bound to show an actual controversy which was then adjusted and satisfied. What the final agreement was constituted a disputed fact. As bearing upon these questions it was quite proper to show what occurred at the conference and all of it and the correspondence preceding it. After the conference which took place at the office of defendant’s attorney, the interested' parties, went to the office of defendant where a check, drawn by defendant’s bookkeeper, was given plaintiff’s representative for $3,965.46, being the amount of plaintiff’s bill less $1,600. Defendant’s bookkeeper made entries in defendant’s journal debiting plaintiff company $1,600, distributed this amount between the Coldwater and Quincy plants, and without the knowledge of plaintiff’s representative made this memorandum in the journal: “Adjustment on twenty-two cars of Ohio coal billed ds Kentucky as per settlement made with Mr. Heiner and O’Hara.” The check given plaintiff’s representative and cashed by plaintiff contained these words: “In settlement of vouchers on file as per agreement today.” The memorandum made by the bookkeeper was received in evidence over the objection of plaintiff’s counsel. This was error under the holding of this court in Boyle v. Waters, 206 Mich. 515. In that case Judge Hatch testified that he made a memorandum in his journal of what he claimed the agreement was on the day it was made and that he read it to Mr. Boyle. It was received in evidence upon the trial. A majority of the court held that it was not admissible. In the instant case the memorandum was not read to Mr. Heiner, plaintiff’s representative, and he had no knowledge of it. It was a self-serving statement inserted in the journal after the items of bookkeeping had been set down. There was no dispute between the parties as to the amount of coal shipped or the contract price, there was no disputed account. The question is controlled by the Boyle Case. Whether the parties arrived at the terms of a full and complete settlement of their differences on July 15th, whether the check was given and accepted as payment in full, and whether there was in fact a final settlement on that day were all disputed questions of fact for the jury. Under these circumstances the plaintiff should have been permitted to go more fully with its proof into the question of whether the Check was accepted as payment in full of an amount agreed upon. The judgment must be reversed with a new trial. Plaintiff will recover costs of this court. Wiest, C. J., and McDonald, Bird, Sharpe, Moore, and Steeke, JJ., concurred. Clark, J., did not sit.

Per Curiam. Defendant, Hawkeye Security Insurance Company, appeals from an order granting summary judgment to plaintiff, Reliance Insurance Company. The summary judgment was granted in plaintiffs suit against defendant for a declaratory judgment requiring defendant to defend and provide coverage in a Wayne County suit entitled Edward J Rickey v Angelo’s Crushed Concrete, Inc. On June 15, 1981, Rickey, an employee of Koenig Fuel & Supply, had the tips of his fingers cut off by a chute which slammed down on them while dumping concrete at the yard of Angelo’s Crushed Concrete, Inc. The practice of dumping excess concrete at Angelo’s yard had been carried on for a number of years and apparently provided a mutual benefit to the two companies, Angelo’s and Koenig. Rickey had previously gone to Angelo’s yard approximately twenty-five times during his employment with Koenig. On June 15th, when Rickey got to the yard, Angelo Iafrate, the owner of Angelo’s Concrete, directed him to the place where the concrete was to be poured. Rickey went to the back of the truck to unlock and pull down the chute which would pour the cement. While having his right hand on the primary chute, the chute slammed down, severing the tips of his fingers. Rickey claimed that the chute came down when Iafrate attempted to help him lower the chute. Plaintiff issued a general liability policy to Angelo’s Concrete, while defendant provided the no-fault insurance to Koenig, Rickey’s employer. Among other things, the no-fault policy issued by defendant Hawkeye provided that for any covered automobile it was "primary insurance.” In granting summary judgment, the trial court held that Angelo’s Crushed Concrete, Inc. and Angelo Iafrate were covered and insured under the policy issued by defendant to Koenig, that the policy is primary coverage as to Angelo’s and that defendant has the duty to defend Angelo’s Crushed Concrete, Inc. and Angelo Iafrate. The trial court also indicated that it was not considering or deciding the obligations of plaintiff to Angelo’s Crushed Concrete, Inc. and Angelo Iafrate. Thus, Rickey’s truck was owned by Koenig and insured under a no-fault policy issued by defendant to Koenig. Coverage under this no-fault policy, pursuant to an express omnibus clause included in the policy, extended to anyone using a covered auto under the policy with the permission of Koenig or Rickey. There would not appear to be any doubt that, as an employee of Koenig, Rickey could have given permission to Angelo Iafrate to drive or use the truck in connection with the dumping at the site. Thus, on appeal, we are concerned with a narrow issue. Did Iafrate use Rickey’s truck with Koenig’s or Rickey’s permission? If so, defendant Hawkeye is obligated under the no-fault insurance policy to undertake Iafrate’s defense in the case pending in Wayne County and previously identified. We decide no other issue because no other issue is before us on this appeal. We are not concerned here with the merits of Rickey’s claim against Angelo Iafrate’s company in Wayne County, nor with which insurance company will be obligated to pay if Rickey succeeds in his case, nor even with whether plaintiff also has a duty to defend Iafrate’s company. As indicated, Koenig had permission to dump concrete at Angelo’s yard. Angelo designated where the concrete was to be dumped and, where and when necessary, assisted the truck driver in the dumping. There is no question here that Rickey drove Koenig’s truck to Angelo’s yard to dump concrete with Koenig’s permission. But, was Angelo Iafrate "using” Koenig’s truck with Koenig’s permission? We believe that in directing Rickey to the location to dump and in assisting Rickey with the chute in unloading the cement, Angelo Iafrate was using the truck with Koenig’s permission so that Angelo Iafrate became an insured under defendant Hawkeye’s insurance policy. On appeal, defendant would have us adopt a narrow analysis and argues that Iafrate did not have specific permission to help lower the chute. Such an interpretation runs contrary to Michigan Mutual Liability Co v Ohio Casualty Ins Co, 123 Mich App 688, 692; 333 NW2d 327 (1983), a case involving a remarkably similar factual situation, where we said: The language of the omnibus clause is to be construed broadly to effectuate a strong legislative policy of assuring financial protection for innocent victims of automobile accidents. . . . The phrase "using an automobile”, for the purpose of the omnibus clause, is not limited to operating or having the benefit of the automobile, but includes doing something "to or with” an automobile. In deciding the motions for summary judgment brought by each party, the trial judge reviewed what he had before him and concluded that Angelo Iafrate had permission to help in dumping the cement. Contrary to the trial judge’s findings, defendant claims that (1) Koenig did not give Angelo permission to use the truck, and (2) Rickey had no authority from Koenig to permit Angelo to use the truck. We do not agree with defendant. Under Koenig’s understanding with Angelo, Angelo could designate where, when and how Koenig’s trucks and drivers could dump concrete. We believe that Koenig gave Angelo implied permission to "use” Koenig’s trucks in dumping cement at Angelo’s site. While it is, perhaps, unnecessary to decision here, we believe Rickey, as Koenig’s driver, had authority to permit Angelo to "use” Koenig’s truck for the purpose of dumping concrete. Thus, we reject defendant’s theory that would require Iafrate to have obtained separate and distinct permission for every detail in the dumping process. Such an approach would ignore the practical realities of the situation. Under the circumstances surrounding this incident, we believe that there is no genuine issue of material fact whether Angelo Iafrate had implied permission to assist in the. dumping. Therefore, we conclude that the trial judge properly granted plaintiff’s motion for summary judgment. Whether Angelo Iafrate was negligent in his help is a question for the other lawsuit in Wayne County. Affirmed.

P. C. Elliott, J. At a hearing for increased child support, Judge Steven N. Andrews ruled as follows (we add facts by footnote): The pertinent facts presented to the Court are as follows: The parties were divorced on January 10, 1979. Custody of the minor child, Barrett, was granted to the plaintiff mother, and the defendant father was ordered to pay child support in the amount of $100 per week. As part of the divorce judgment, the plaintiff gave the defendant a $2,000 lien on the marital home,[ ] payable on the occurrence of certain specified events. All claims to alimony were barred. Pursuant to plaintiff’s motion for an increase in child support, a hearing was held by the Friend of the Court on May 24, 1984. In its order of September 5, 1984, this Court increased the amount of child support to $155 per week, effective April 5, 1983. The parties agree that this has resulted in a gross arrearage of $2,377.20.[ ] This Court now reviews, de novo, plaintiff’s motion for increased child support. Having reviewed the transcript of the hearing conducted before the Friend of the Court, this Court finds that the incomes of both the custodial and non-custodial parents have increased since the divorce, although the father’s increase has been greater than the mother’s. During the year prior to the judgment of divorce, plaintiff’s income was $17,545 and defendant’s income was $40,999. In 1984 plaintiff’s income was $33,500 and defendant’s income was $200,000. The Court also finds that the child’s basic needs are being met, and the parties are in agreement on this.[ ] Any increases in the child’s needs are those due to his age and social development, and the increased cost of living. The issue before the Court, therefore, is defendant’s proper contribution to the income available to elevate the standard of living of Barrett and, incidentally, the plaintiff.[ ] A court has discretion as to modifications in child support, and the burden is on the petitioning party to show that a change in circumstances justifies the modification requested. McCarthy v McCarthy, 74 Mich App 105 [253 NW2d 672] (1977). Support payments are not property of the custodial parent, and are for the sole benefit of the child, measured by the needs of the child. Copeland v Copeland, 109 Mich App 683 [311 NW2d 452] (1981). To estimate the cost of supporting Barrett, the plaintiff cites those expenses which are solely and directly attributable to him, such as tennis lessons and haircuts. She then estimates other living expenses such as mortgage payment, insurance, car payment, utilities, and taxes, adds them, and then divides by two. The Court is unpersuaded by plaintiff’s economic theory. Many of the expenses plaintiff enumerates are affected minimally, if at all, by the fact that Barrett resides with the plaintiff. Certainly she could not maintain her current standard of living on half of what it now costs, but for Barrett’s presence. The Court finds, therefore, that based on the changed circumstances, to-wit, the increased cost of living and Barrett’s age and social development, an increase in child support from $100 per week to $155 per week is reasonable. As to the $2,377.20 arrearage in support payments incurred by defendant, he argues that he is entitled to a $2,000 setoff because of the lien which became payable upon the occurrence of certain conditions, one of which, the sale of the marital home, has occurred. Plaintiff argues that there was an oral modification of the divorce judgment, and the defendant is estopped from seeking an offset. However, at the May 23, 1984 hearing before the Friend of the Court, the plaintiff acknowledged that this is "a continuing obligation” that she would have to "make some arrangement for.” Transcript at page 36. The Court finds that the defendant father is entitled to a $2,000 offset in satisfaction of the lien, and that the total amount of the defendant’s arrearage is $377.20. We agree with Judge Andrews. It is improper to consider for the purpose of setting child support one-half of the plaintiff mother’s expenses for her car, condominium, utilities and insurance to be money spent on behalf of her son. Some of those living expenses may be increased somewhat by him, but she would have the bulk of those expenses without him. A portion of her mortgage payment is an investment. The needs of the boy, realistically shown by the plaintiff’s testimony, are adequately met by support payments from the father of $155 per week which total $8,060 annually. Plaintiff argues that a customary percentage of the father’s greatly increased income would result in a much larger support figure. Her request for $320 per week finds support in proposed guidelines. The Child Support Manual, submitted on May 22, 1986, by the Friend of the Court Bureau to the State Court Administrator’s Office to the Friend of the Court Advisory Committee, suggests the following computations: 1. Defendant’s annual net income, $160,000, plus plaintiff’s $24,000, totals $184,000 or a total net family income of $3,538 per week; 2. A table in the manual states support for one child from both parents should be $175 on the first $1,100 of net family income and ten percent of any excess over $1,100; 3. The resulting sum is $175, plus $243.80, totaling $418.80 per week, or $21,777 per yeár, as support for one child; 4. Of this amount the manual recommends that the father pay eighty-seven percent, (his net income, $160,000, divided by the total net income of both parents, $184,000); 5. Thus, the manual would compute Mr. Kalter’s weekly support obligation at $367, or more than $19,000 per year. This demonstrates that guidelines and percentages used without limitation are unrealistic and unfair when both parents have substantial incomes. See Stanaway v Stanaway, 70 Mich App 294; 245 NW2d 723 (1976). Support should be based on the child’s needs as well as the parents’ ability to pay. Cochran v Buffone, 137 Mich App 761, 766; 359 NW2d 557 (1984). When a parent has an ability to pay a large amount of support, the determination of a child’s needs can be generous, but all any parent should be required to pay, regardless of his or her ability, is a fair share of the amount actually necessary to maintain the child in a reasonable standard of living. Court-ordered support that is more than reasonably needed for the child becomes, in fact, tax-free alimony. When the custodial parent is employed, that parent should also contribute fairly to the maintenance of the child. This Court has stated on this point as follows: The plaintiff wife, however, should not be relieved entirely of her obligation to support the children solely because the defendant husband may happen, for whatever reason, to be financially able to support the children without assistance. [Beverly v Beverly, 112 Mich App 657, 662; 317 NW2d 213 (1981).] At some point, too much money can be bad for a child. Also, a court order for excessive child support can harm the relationship with the child when a parent is ordered to pay too much. A father should take his son to ball games and on trips and make gifts because he wants to do those things. He may contribute more voluntarily, as Mr. Kalter has done. A father who feels that he is being taken advantage of by an unfair order may bitterly fail to develop the close relationship the child or children need. Later, he may be unwilling to contribute to a college education that the law cannot command if it was not agreed to in a consent judgment. Arndt v Kasem, 135 Mich App 252; 353 NW2d 497 (1984). Mr. Kalter expressed his point of view very well before the referee: I would be willing, based on my ability to pay and the possibility that there are other increases as Mrs. Kalter may have pointed out, to increase the child support from $5200 a year that was originally requested or demanded by the Court by 50 percent to $7800. I think a 50 percent increase over five years is a good one._ And, should there be private schooling, to increase the portion that I would pay from one-third —two-thirds to 75 percent. I would be willing to pay for summer camp if she decided Barrett should attend and pay 75 percent of that also. And to continue to pay all medical expenses. The reason I would feel that, make that recommendation, is that I think that’s in line with some of the increases that have come about and to cover some of the needs that Barrett probably has as he gets older. And as costs have gone up and my ability to pay has gone up. I think beyond that becomes changing not only his quality of life but the quality of life of the household that he is in. Which, in turn, is changing Mrs. Kalter’s quality of life. And I think that, then, all of a sudden falls into another area. I think now I am supporting her lifestyle and I think that’s alimony and I believe we negotiated that there would be no alimony and in exchange for that she received the house which she received a $21,000 profit on. She received a car which was worth several thousand dollars. She received the entire savings account that we had of several thousand dollars. She received all the household furnishings. In fact, everything I owned outside my clothing. And, in exchange for that, we agreed that there would be no alimony. Further, we agree that it was equitable to credit the retroactively-created arrearage the defendant suddenly owed to plaintiff with the $2,000 she already owed to him. The trial judge was not required to make the increased order retroactive to the time of the mother’s petition for an increase, Cochran v Buffone, supra, p 766, and the judge could properly apply such a debt to it in equity. We recognize that either parent can request another investigation by the Friend of the Court if she or he believes that there has been an increased need of the child or changed financial conditions since the petition in 1983. MCL 552.517; MSA 25.176(17). If such a request is made and the Friend of the Court determines that a modification is necessary, it shall petition for the increase or decrease. Affirmed. Mr. Kalter had to pay income taxes of $2,000 on his capital gain when he deeded his interest in the marital home to Mrs. Kalter, who agreed to give him a lien in that amount. The arrearage was solely due to the retroactivity of the increase to the date of the petition. Before the retroactive order, the father was paid ahead because he voluntarily increased his support payments from $100 per week to $500 per month. He also voluntarily increased his support to $155 per week after the referee’s recommendation and before the increase was ordered by the court. In addition to the court-ordered support and his voluntary increase, Mr. Kalter was paying $4,000 for his son’s orthodontic work at $70 per month, about $25 per month for medical expenses not covered by the mother’s insurance, $300 for summer camp, approximately $500 per year for extra clothing and, until the mother removed the child from a private school, each parent paid a share of that annual expense. The father exercises regular visitation at his own home and has taken the boy to Disney World, the theater in New York City and on vacations in Northern Michigan. He gives his son an allowance and buys software for the boy’s computer. The mother testified that her neighbors were professional people: "They go on skiing trips. We don’t. We go out to Metro Park. I would like to be able to go with our friends, the friends of our family, on things like this.” See footnote 3, supra, and Riley v Riley, 319 Mich 74, 78; 29 NW2d 143 (1947): $40 per week will just barely pay for proper food, clothing and other expenses of the children under the present conditions. We are not satisfied that defendant’s large earnings would justify an increase of the amount to be paid for the children at the present time. We must assume that defendant is fond of his children, and if they require some extraordinary expenses on account of their health or education he will willingly pay it.

H. Hood, P.J. Respondent Marshell Andeson appeals as of right from the probate court order terminating his parental rights to the minor child Michael John Andeson pursuant to MCL 712A.19a(b), (e); MSA 27.3178(598.19a)(b), (e). At the same time the parental rights of the mother, Brenda Lee Merritt, and a putative father, Dennis Tolbert, who have not appealed, were also terminated. Following the termination order, respondent’s petition for rehearing, which alleged that he had not been personally served with a summons and a copy of the petition for termination of parental rights following an earlier adjournment of the hearing, was denied. Respondent now appeals from this rehearing denial and challenges the court’s termination decision as clearly erroneous. We affirm on both issues. On May 28, 1985, a petition was filed stating that Brenda Merritt desired to voluntarily terminate her parental rights to Michael. The petition also alleged that Michael’s putative father, either respondent or Tolbert, was unable to provide a home by reasons of neglect or abandonment and that respondent had refused to engage in a treatment plan designed to help him become a nonneglectful parent. It was requested that all parental rights to Michael be terminated. On June 6, 1985, the scheduled hearing on the petition was adjourned in order to update blood tests to determine paternity. Although respondent had attended nearly all of the other neglect proceedings in this case, he was not present at the September 10, 1985, proceeding on the petition to terminate his parental rights. The probate court denied respondent’s motion for rehearing, finding that he had received proper notice and summons of the termination hearing, that the June 6, 1985, hearing had been adjourned by agreement of the parties and that respondent had been sent notice of the September 10, 1985, hearing from the probate court and from his attorney through the regular mail. On appeal, respondent argues that even though he was personally served with the petition and summons for the June 6, 1985, hearing, under MCL 712A.20; MSA 27.3178(598.20) and MCL 712A.13; MSA 27.3178(598.13) he was entitled to again be personally served with a petition and a summons for the September 10, 1985, neglect proceedings. This Court recognizes the compelling interest of a respondent’s parental rights and the importance of the respondent’s presence during termination proceedings. In the Matter of Render, 145 Mich App 344; 377 NW2d 421 (1985). On the facts of this case, however, the probate court did not err by denying respondent’s motion for rehearing. Respondent received proper notice of the June 6, 1985, hearing and agreed to an adjournment of the proceedings. Despite respondent’s representation that he had no actual notice of the September 10, 1985, proceeding, the probate court found that respondent did, in fact, receive notice. Testimony indicated that, following the parties’ agreement to adjourn the June 6, 1985, proceedings, respondent was sent letters by regular mail from both the probate court and from his attorney notifying him of the September 10, 1985, hearing date. At the September 10, 1985, hearing, respondent’s attorney indicated that respondent knew of the hearing date. Counsel did not request another adjournment in order to attempt to effectuate respondent’s appearance at the termination proceeding. We conclude that despite the extensive statutory provisions requiring service of notice or service of summons in parental rights termination cases, these provisions should not be construed to require personal service in the instant situation where the hearing was simply adjourned until a later date. Adjournment of a proceeding until a later date is not the equivalent of creating a new hearing or a review hearing that would require personal service of a summons or notice. Respondent’s reliance upon In re Petrovich, 222 Mich 79; 192 NW 657 (1923), which stands for the proposition that juvenile court proceedings are void where there is a failure to serve a summons in a neglect proceeding, is misplaced since this is not a case where the probate court failed to give the requisite notice in order to acquire jurisdiction. When the parties agreed to adjourn, the jurisdiction of the probate court had already been established and the court was not required to personally serve respondent again. Respondent also argues that the court abused its discretion when it found that he had not made regular and substantial efforts to support or communicate with the child and that he intended to desert or abandon him. Respondent further contends that the court abused its discretion in finding that he was unable to provide a fit home by reason of neglect despite the court’s failure to ever consider placement of Michael with respondent in any meaningful sense. We will discuss these arguments together. This Court will not reverse an order terminating parental rights unless the trial court’s findings are clearly erroneous. In re Cornet, 422 Mich 274; 373 NW2d 536 (1985). A finding of fact is clearly erroneous when, despite the existence of evidence to support it, the reviewing court after examining the entire evidence is left with a definite and firm conviction that a mistake has been made. Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976). The party petitioning for termination of parental rights bears the burden of proving to the trial court by clear and convincing evidence that the termination of parental rights is warranted. In the Matter of Harmon, 140 Mich App 479; 364 NW2d 354 (1985). The petitioner must establish that the parent is unfit and is unable to become fit within a reasonable period of time. Respondent’s parental rights were terminated under MCL 712A.19a(b), (e); MSA 27.3178(598.19a)(b), (e). Section 19a(b) provides that the court may place a child in the permanent custody of the court if the court finds: The child is left with intent of desertion and abandonment by his parent or guardian in the care of another person without provision for his support or without communication for a period of at least 6 months. The failure to provide support or to communicate for a period of at least 6 months shall be presumptive evidence of the parent’s intent to abandon the child. If, in the opinion of the court, the evidence indicates that the parent or guardian has not made regular and substantial efforts to support or communicate with the child, the court may declare the child deserted and abandoned by his parent or guardian. Testimony at the September 10, 1985, hearing strongly supports the trial court’s conclusion that respondent did not make regular and substantial effort to support or communicate with Michael. Respondent stopped paying support after November 17, 1983, and was over $9,000 in arrears in support and medical payments for Michael and his other son, Marshall, at the time of the hearing. Although he attended approximately sixty percent of the scheduled visitations, he never appeared for visitation after June 7, 1985, three months prior to the hearing. While respondent sometimes exhib ited "real good quality playtime” with Michael, at other times he paid no attention and sometimes, after he had been drinking, he fell asleep on the floor. The foster care caseworker found a "basically minimal” relationship between the father and son with Michael viewing respondent more as a "special friend” than as a true parent. Respondent never made any effort to establish a home in which Michael could be placed. Although respondent had visited Michael within six months prior to the hearing, respondent provided no support for Michael for well over IV2 years. Section 19a(b) states that failure to provide support or to communicate shall be presumptive evidence of a parent’s intent to abandon a child. Thus, we cannot say that the probate court clearly erred in terminating respondent’s parental rights under § 19a(b). Respondent’s parental rights were also terminated under section 19a(e). Section 19a(e) provides that the court may place a child in the permanent custody of the court if the court finds: "The parent or guardian is unable to provide a fit home for the child by reason of neglect.” The probate court opined: Further, the Court finds by clear and convincing evidence and pursuant to Section 19a(e) of the Juvenile Code, that the child has been made a temporary ward of the court and remains in foster care and further that the evidence establishes or seriously threatens the neglect of the child for the long-run future. The testimony we heard today, consistent with all the other factors known to the Court, is that if this child were placed in the father’s custody there would be an extremely high probability of future abuse. Mr. Andeson, based on the best evidence the Court has before it, was the primary cause of a sibling’s death by the inten tional or grossly negligent actions on his part. And I feel that any child placed with him, particularly if Mr. Andeson was still involved in abusing alcohol, would likely result in injury and/or neglect of that child. Thus, the child would not be safe in his custody. At the hearing, the foster care caseworker told the court that alcohol abuse was linked to respondent’s obnoxious behavior at the Family Living Center and to his being asked to leave parenting classes. The worker was concerned about respondent’s ability to meet Michael’s emotional needs and feared that Michael would not be physically safe in respondent’s care. Respondent had a tendency to be abusive, obnoxious or belligerent after consuming alcohol. Most telling of all was Brenda Merritt’s testimony regarding respondent’s abuse of Michael’s fourteen-month-old brother, Markus, whose death two days prior to Michael’s birth may have been caused by respondent. According to Merritt, respondent, who was angered at Markus’s refusal to stay in bed for a nap, threw him five feet through the air into the headboard of his bed. Shortly after that incident, Markus died of a brain injury. How a parent treats one child is certainly probative of how that parent may treat other children. In the Matter of Futch, 144 Mich App 163, 168; 375 NW2d 375 (1984); In the Matter of LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973). Under the circumstances, we agree with the probate court that Michael’s placement with respondent could result in injury or neglect and, accordingly, the trial court’s finding that respondent’s parental rights should be terminated under § 19a(e) was not clearly erroneous. Considering all of respondent’s arguments, we find no abuse of the trial court’s discretion in its decision to terminate respondent’s parental rights. We affirm the decision of the probate court. Affirmed. Blood tests showed respondent’s likelihood of paternity was 98.47 percent. Testimony at the September 10, 1985, hearing indicated that respondent had signed an acknowledgment of paternity on April 28, 1983, shortly after Michael’s birth and that he had been under court order to provide support for Michael.

Per Curiam. On October 1, 1985, plaintiffs age discrimination suit was dismissed with prejudice. Plaintiff appeals as of right. We affirm. Plaintiff filed a complaint on April 28, 1980, alleging defendant’s decision to demote him from an "unclassified bonus” position to a grade 8 position was based on age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Between April, 1980, when plaintiff filed his suit, and October, 1985, when the suit was dismissed, plaintiff filed two sets of interrogatories and deposed one witness. Plaintiff avoided dismissal for lack of progress in April, 1982, by stating that he had been awaiting the outcome of a similar case and by assuring the trial court that discovery would be complete in sixty days. Plaintiff alleges that the present dismissal was improper, because MCR 2.502(A) only allows for dismissal in actions where no steps or proceedings were taken in the prior year, and in the instant case defendant had propounded interrogatories and noticed depositions in the past year. Dismissal of a suit for want of prosecution is a question left to the sound discretion of the trial court. Eliason Corp, Inc v Dep’t of Labor, 133 Mich App 200, 203; 348 NW2d 315 (1984). Appellate review is limited to whether justification exists in the record for the trial court’s ruling. Hurt v Cambridge, 21 Mich App 652, 658; 176 NW2d 450 (1970), lv den 384 Mich 760 (1970). In the instant case, the record provided sufficient justification for dismissal with prejudice. Plaintiff’s actions within the year preceding dismissal included filing a set of redundant interrogatories and allegedly noticing four depositions on people whose names had been in plaintiffs possession since 1981. Plaintiff’s actions failed to move the case toward resolution, as required by Penn walt Corp v Public Service Comm #1, 136 Mich App 530, 534; 357 NW2d 712 (1984). Although dismissal with prejudice is a harsh remedy, it was appropriate. Affirmed.

Cavanagh, J. We determine in this case whether the Michigan Catastrophic Claims Association (mcca) is a state agency, and therefore subject to the Administrative Procedures Act. We hold that it is not and reverse the decision of the Court of Appeals. i PACTS The Michigan automobile no-fault act was adopted by the Legislature in 1972, MCL 500.3101 et seq.; MSA 24.13101 et seq. The act requires that insurers pay or reimburse their policyholders’ lifetime medical expenses. There is no dollar limit on an insurer’s liability for medical, hospital, and rehabilitation benefits under the statute; thus, where injuries are severe, the resulting claims may be extremely high. The cost of covering an insured’s catastrophic losses — amounts of more than $250,000 — could be overwhelming to an individual insurance company. Following implementation of the no-fault act, more insurers and reinsurers became aware of the potential for enormous liabilities under the personal protection insurance coverage provisions. Consequently, the mcca was created in 1978 to serve as the means for reimbursing each member insurer for all "ultimate loss sustained under personal protection insurance coverages in excess of $250,000.00 in each loss occurrence.” MCL 500.3104(2); MSA 24.13104(2). In this case, the mcca, an unincorporated, nonprofit association of private insurers, adopted a statutorily required "plan of operation,” promulgated by its board of directors. The plan includes a method to calculate premiums for catastrophic claim coverage and generate funds to pay for those claims. Pursuant to the plan, the mcca is authorized to make and collect premium assessments from member insurers. MCL 500.3104(7)(d), (e); MSA 24.13104(7)(d), (e). The mcca charged its members for two premium payments, the first being sent out in February 1979. League General Insurance Company, a no-fault insurer required to be a member of the mcca and, thus, subject to its premium assessments, did not pay the premium. Instead, League General brought an action in Ingham Circuit Court against the mcca, claiming that the premiums were arbitrary and unreasonable. The mcca, in turn, filed a counterclaim for the unpaid assessments. Michigan Mutual Insurance Company brought a similar action in which it alleged that the mcca was a state agency subject to the apa, that the mcca had not complied with the rule-making requirements of the apa in adopting its operating plan, and, accordingly, that its plan and its assess- merits were invalid. The Commissioner of Insurance was joined as a party defendant, and the actions were joined for trial. The trial court ruled that the mcca was a state agency, that its operating plan was a “rule” subject to the apa, and that it could not levy premiums against plaintiff until the plan had been properly promulgated pursuant to the apa. The trial court indicated, however, that the mcca could offset indemnification payments to nonpaying member insurers to the extent of their unpaid premium assessments if the mcca promptly promulgated its plan pursuant to apa standards. The mcca appealed. League General cross appealed. The Attorney General intervened. The Court of Appeals affirmed the lower court’s decision regarding the mcca’s state agency status and that its plan of operation was null and void. The mcca appealed; this Court denied leave on July 11, 1988. On July 27, 1988, the Legislature passed 1988 PA 277, which amended MCL 24.203(2); MSA 3.560(103)(2) and statutorily pronounced the mcca not to be a state agency subject to the apa. Consequently, this Court granted the mcca’s motion for reconsideration and application for leave to appeal in a September 28, 1988, order, limited to two issues: (1) whether the amendment operated retroactively, and (2) if so, whether the statute was constitutional. On July 25, 1989, however, the Court determined it was necessary to ascertain whether the mcca was a state agency before the passage of 1988 PA 277, and issued a supplemental order to that effect. This is the sole issue before us today. n ANALYSIS Under the apa, MCL 24.203(2); MSA 3.560(103)(2), an "agency” is defined as "a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action.” As we determined in Hanselman v Wayne Co Concealed Weapon Licensing Bd, 419 Mich 168; 351 NW2d 544 (1984), the proper interpretation of this statute requires the presence of two characteristics for an "agency.” The entity at issue must be a "state” unit or position and must be created by the constitution, by statute, or by agency action. If these two requirements are met, and it is not specifically exempted, an "agency” is subject to the provisions of the apa. 419 Mich 182. In Hanselman, this Court had to determine whether the Wayne County Concealed Weapon Licensing Board was an "agency” within the meaning of the apa, so that it would be required to comply with apa provisions. There was no dispute that the licensing board was created by statute and that it was not specifically exempted from the apa. However, we had to ascertain whether the board was a state board in which case it would have been an agency under the apa and subject to those provisions. The Court of Appeals in the instant case did not embark upon this two-pronged inquiry. It found that because the mcca statute creates a board of directors, and "boards” are specifically included within the apa’s definition of agency, "[t]hat alone leads to the conclusion that the cca’s board of directors, in effect the association itself, must abide by the apa.” 165 Mich App 284. Only then did the Court note the oft-cited test enunciated in In re Advisory Opinion re Constitutionality of 1966 PA 346, 380 Mich 554, 571; 158 NW2d 416 (1968), as applied by the trial court. The Court of Appeals looked to our decision in Hanselman for guidance in applying Advisory Opinion to determine whether the licensing board was a state or local agency. After a very brief analysis, the Court of Appeals determined that application of the Advisory Opinion test led to the conclusion that the mcca was indeed a state agency. In Advisory Opinion, the Court had to ascertain whether the "state” housing development authority was an instrumentality of state government. We recognized:_ We must . . . look behind the name to the thing named. We must examine its character, its relations, and its functions to determine, indeed, whether it is an agency or instrumentality of State government. [380 Mich 571.] As we stated in Hanselman, the Advisory Opinion was not exactly analogous to the facts in that case; however, the analysis was appropriate to determine whether the board is a state board. 419 Mich 184. We believe the Court of Appeals erred (a) in not engaging in the dual analysis required to determine whether the mcca’s board was a "state” board, and (b) in applying the Advisory Opinion test and concluding that the mcca was a state agency. The Court of Appeals found that the nature of the mcca and its relation to the state rendered it a state agency. The reasons were: (1) the mcca was created by statute, (2) the Commissioner of Insurance appoints the directors and serves as ex officio member of the board of directors, (3) the mcca levies mandatory assessments against its members, and (4) it has the power to adopt rules and hear complaints. As we stated in Hanselman, supra, the fact that an entity is created by statute does not dispositively indicate "state” status. 419 Mich 187. See also Schlega v Detroit Bd of Zoning Appeals, 147 Mich App 79, 81; 382 NW2d 737 (1985). Likewise, it does not automatically follow that the mcca’s board can be classified as having state status. Second, the Court of Appeals stated that the Commissioner of Insurance appoints the mcca’s directors and serves as ex officio member of the board of directors. The Court of Appeals appar ently was focusing on MCL 500.3104(11); MSA 24.13104(H). Despite the fact that the commissioner appoints the five directors to the mcca board, the commissioner does not possess ostensible and pervasive control because of this appointment power. Although the commissioner serves as an ex officio board member, the commissioner has no voting power and is not counted for purposes of determining whether a quorum is present. Plaintiff, throughout the proceedings below, also emphasized the commissioner’s involvement in adoption of the mcca plan. No later than sixty days after its initial meeting, the board is required to submit the proposed plan of operation to the commissioner for approval. If no plan is submitted within this sixty-day period, the commissioner must formulate and effectuate a plan añer consulting with the board. MCL 500.3104(17); MSA 24.13104(17). The board’s plan is presumed to meet statutory requirements if not disapproved by written order of the commissioner within thirty days of its submission. If disapproved, the commissioner must notify the board as to which aspects of the plan are deficient, after which time the board has thirty days to submit a revised plan. Failure to submit a revised plan within this deadline will enable the commissioner to formulate and effectuate a plan. MCL 500.3104(18); MSA 24.13104(18). The plan of operation and amendments to the plan are subject to majority approval of the board, must be ratified by a majority of the voting membership, and are subject to the commissioner’s approval. MCL 500.3104(19); MSA 24.13104(19). Upon approval by the commissioner and ratification by the members of the plan submitted, or upon the promulgation of a plan by the commissioner, the insurer members become bound. MCL 500.3104(20); MSA 24.13104(20). While we recognize that this scheme entails involvement by the commissioner, it fails to rise to the level of dominant state control we deem requisite for state agency status. Third, the Court of Appeals stated that the mcca "levies mandatory assessments against its members,” 165 Mich App 285, denoting another earmark of a state agency. Plaintiff argued on appeal that because the power to assess members is the power to tax, the mcca must be a state agency because only the government has the power to tax. Stating that both taxes and assessments are involuntary extractions of monies which truly private entities cannot impose, plaintiff assailed the mcca’s reliance on Dukesherer Farms, Inc v Director of the Dep’t of Agriculture (After Remand), 405 Mich 1; 273 NW2d 877 (1979). In that case, the plaintiff, in a class action brought on behalf of the Michigan Cherry Producers, sought to permanently enjoin further implementation of the Michigan Cherry Promotion and Development Program. The Agricultural Commodities Marketing Act, MCL 290.651 et seq.; MSA 12.94(21) et seq., instituted this program. The act provided procedures to establish marketing programs for the state’s agri cultural products. The programs for each commodity were to be funded by an assessment collected from each producer of the commodity. The plaintiff protested the assessments, claiming they constituted taxes and were thus an unconstitutional delegation of the state’s taxing power. This Court affirmed the Court of Appeals ruling that the monies collected from the producers were assessments, not taxes. Although, as plaintiff in the case at bar points out, the marketing act was subject to the apa, 405 Mich 30, the analysis distinguishing an assessment from a tax is nonetheless instructional and applicable to the case at bar: "Taxes and assessments do have a number of elements in common. Both are exactions or involuntary contributions of money the collection of which is sanctioned by law and enforceable by the courts. Here, however, the similarity ends.” Exactions which are imposed primarily for public rather than private purposes are taxes. Revenue from taxes, therefore, must inure to the benefit of all, as opposed to exactions from a few for benefits that will inure to the persons or group assessed. The Act in question specifically states that funding is to come from an assessment collected from each producer of the commodity , who is directly affected by the marketing program. The Act further states that monies so collected are not state funds and are to be disbursed solely for necessary expenses incurred with respect to each separate marketing program. Thus, the Act itself is consistent with the imposition of an assessment rather than a tax; it is structured to apply to and for the benefit of producers of specific commodities. [405 Mich 15-16. Citations omitted.] Likewise, the assessments levied by the mcca are for a primarily private purpose — to protect and benefit no-fault insurers in Michigan, in particular, smaller insurers, who may have difficulty absorbing a catastrophic claim by an insured. Of course, there are certain incidental benefits to the public because of this arrangement. However, as we noted in Dukesherer Farms, Inc, 405 Mich 18, such an incidental advantage does not alter the primary purpose of the benefit. Accordingly, we find that the monies sought to be collected by the mcca are assessments, and not taxes. Fourth, the Court of Appeals noted that the mcca’s power to adopt rules and hear complaints is evidence of a state characteristic. However, we agree with defendants and hold that this characteristic is not determinative of state agency status. Private insurers are empowered to hear complaints as well. MCL 500.2113; MSA 24.12113. It is obvious that the Legislature intended the Commissioner of Insurance to be involved in the mcca. However, that participation is not so pervasive or controlling as to render the association a state agency. The provisions highlighted by plaintiff are but a few of those the Legislature enacted under the catastrophic claims act. As we stated in Hanselman, supra, 419 Mich 186-187, it is not proper to focus only upon selected characteristics in determining whether an entity is a state agency: In evaluating the characteristics of the board to determine whether it is a "state . . . board” or a non-state board, it is essential to avoid selective consideration of the board’s characteristics. While the . . . Court of Appeals [is] clearly correct in saying that the board possesses the characteristics enumerated in the Court’s holding, [it is] in error in not weighing the importance of these characteristics. Stated differently, "state” status in this case is not dependent upon the presence of a particular characteristic or a select group of characteristics. Rather, "state” status is determined by a review of all relevant characteristics which, when considered together, indicate the overall character of the board. . . . When considered together, the board possesses considerably more non-state-like characteristics than state-like characteristics and its composite character is not that of a "state . . . board.” [Emphasis supplied.] Accordingly, we find that the Court of Appeals selective focus on certain characteristics of the mcca impaired its analysis. Taken as a whole, the characteristics of the mcca lead us to recognize it as a private association. As noted previously, the commissioner has no voting power on the board and is not statutorily empowered to remove board members. Furthermore, although the mcca’s plan of operation is subject to the commissioner’s approval, MCL 500.3104(19); MSA 24.13104(19), this action is no different from the commissioner’s review of the rates and plans of private insurers, MCL 500.2107; MSA 24.12107, MCL 500.2408; MSA 24.12408, MCL 500.2108(1); MSA 24.12108(1). Finally, we address the last prong of Advisory Opinion, supra, which instructs that the function of the entity is to be examined in determining its true status. The plaintiff maintains that the mcca serves a public function and therefore is a state agency. We disagree. As we have already recognized, the association’s formation may have bestowed an incidental benefit upon the public by facilitating availability of automobile insurance. Nonetheless, its primary purpose was to protect smaller insurers from the potentially severe financial repercussions of the no-fault act. The mcca was enacted to create an association of insurance companies that could more evenly bear the expense of a catastrophic claim, as opposed to an individual company. We believe that this attempt to attain a less burdensome structure for handling catastrophic no-fault claims was intended primarily for private, not public, benefit. CONCLUSION Because we determine today that the mcca is not a state agency but a private association, the mcca is not subject to the apa and need not have promulgated its plan of operation pursuant to those requirements. Therefore, all premiums assessed to mcca member insurers are valid. We remand this case to the Ingham Circuit Court for a determination of the proper fees and assessments due. Riley, C.J., and Levin, Brickley, Boyle, Archer, and Griffin, JJ., concurred with Cavanagh, J. MCL 500.3104; MSA 24.13104. MCL 24.201 et seq.; MSA 3.560(101) et seq. League General Ins Co v Michigan Catastrophic Claims Ass’n, 165 Mich App 278; 418 NW2d 708 (1987). 1972 PA 294. 1978 PA 136. MCL 500.3104(1); MSA 24.13104(1) provides: Each insurer engaged in writing insurance coverages which provide the security required by section 3101(1) within this state, as a condition of its authority to transact insurance in this state, shall be a member of the association and shall be bound by the plan of operation of the association. MCL 24.207; MSA 3.560(107). Following trial, Michigan Mutual settled with the mcca. "Agency” at the time this case arose was defined by MCL 24.203(2); MSA 3.560(103)(2), as a "state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action. It does not include an agency in the legislative or judicial branches of state government, the governor, and an agency having direct governing control over an institution of higher education, or the state civil service commission.” This statute has since been amended to specifically exclude the mcca from the definition of agency. The Court of Appeals also affirmed other rulings of the circuit court favorable to the mcca but not pertinent to the issue here. Similarly, the Legislature amended the Insurance Code of 1956 in 1988 PA 349. Section 2 of the amendment provides that any plan adopted by an association (including the mcca) and any premium or assessment levied against an insurer member of that association is retroactively validated to the date of that association’s adoption. However, any consideration by this Court of the validity or retroactivity of these two amendments is unnecessary in light of our determination that, at its inception in 1978, the mcca was not a state agency. MCL 24.203(2); MSA 3.560(103)(2), exempts certain agencies from the apa: [It] does not include an agency in the legislative or judicial branch of state government, the governor, an agency having direct governing control over an institution of higher education, the state civil service commission .... MCL 28.426(1); MSA 28.93(1). We need not discuss whether an exemption under MCL 24.203; MSA 3.560(103) applies to the mcca, in light of our determination that the mcca is not a state agency. ' MCL 500.3104(9); MSA 24.13104(9). In pertinent part, this provision states: The board shall be initially composed of 5 members of the association appointed by the commissioner to serve as directors, and the commissioner or a designated representative . . . serving as an ex officio member of the board without vote. . . . The initial term of office of a director shall be 2 years. [Emphasis supplied.] MCL 500.3104(11), (14); MSA 24.13104(11), (14); MCCA Plan of Operation, art VI, § 6.02. MCL 500.3104(11), (13); MSA 24.13104(11), (13); MCCA Plan of Operation, art VI, § 6.04.

Boyle, J. We granted leave to appeal to determine whether the procedural safeguards surrounding a formal trial must be afforded a defendant subjected to an enhanced sentence pursuant to the second-offender provisions of the controlled substance act, MCL 333.7413; MSA 14.15(7413). We hold that a defendant charged under a statute which provides for imposition of an enhanced sentence on an individual previously convicted of an offense under the same statute is not entitled to notice within fourteen days of arraignment of the prosecutor’s intent to seek sentence enhancement or to a separate proceeding on the question whether he has previously been convicted of a narcotics offense. i The questions presented in this case are: 1) did the Legislature intend to require a supplementary information and a separate fact-finding proceeding under this statute, and, 2) if not, does the legislative scheme offend the constitution? Despite recent modification of sentence enhancement provisions, the Legislature has not granted defendants who are subsequent offenders under the same statute a right to early notice of sentence enhancement. Nor has it provided for a separate proceeding to determine the question of a defendant’s prior conviction of a drug offense. The sentence enhancement provision is a legislative authorization for judges to tailor punishment to the criminal on the basis of an objective factor, i.e., a prior conviction under the same statute. The Legislature has long provided that where a prosecutor intends to proceed under the habitual offender act, a separate charge must be filed, the defendant is entitled to a full jury trial, and the defendant’s prior convictions must be proven beyond a reasonable doubt. The habitual offender statutes are considered alternate sentencing provisions rather than penalty-enhancement provisions. In creating a sentence enhancement provision in the controlled substance act, the Legislature took a factor, the defendant’s prior criminal convictions, a traditional consideration in determining a defendant’s sentence, and authorized a weight to be given that factor, i.e., not more than twice the term authorized. The statute is directed to facts which relate to the criminal, not to the crime, and nothing in the act suggests a proceeding other than that comporting with the fundamental due process requirement that a sentence must be based on accurate information and a defendant have a reasonable opportunity at sentencing to challenge such information. By contrast, in situations in which the state creates a statutory scheme and elements of an offense, due process requires both notice of the charge and proof by the prosecutor of each element beyond a reasonable doubt. In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Conversely, a state may define the elements of an offense, and due process does not require the state to satisfy the reasonable-doubt standard as to facts not included in the statutory definition of an offense, so long as the definition does not offend a deeply rooted principle of justice. Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977). Thus, due process does not require the state to proceed by notice of a separate charge, the right to trial by jury, and proof beyond a reasonable doubt wherever sentence enhancement is authorized. Due process does not require the prosecutor to charge the prior drug conviction in the information in order for the defendant’s sentence to be enhanced on the basis of the prior conviction because the prior offense is not an element of a separate charge. Nor is the defendant entitled to a trial-type procedure regarding the use of the defendant’s prior drug convictions for sentencing purposes. In the instant case, the court informed the defendant prior to sentencing of the increased penalty for a second offense, the defendant had the opportunity at sentencing to contest the accuracy of the information included in the presentence report, and the accuracy of the information was admitted. Where the statute does not contemplate a separate trial-type proceeding but, rather, provides for sentence enhancement, due process requires a reasonable opportunity to challenge the accuracy of the information relied on in passing sentence. Because the defendant did not challenge the fact that he was a second offender, the Court of Appeals erred in vacating his sentence and remanding the case for resentencing. Accordingly, the decision of the Court of Appeals is reversed and the sentence imposed by the trial judge is reinstated. II On February 25, 1985, law enforcement personnel raided the defendant’s house and seized a small amount of cocaine and more than $30,000 in cash. The defendant was charged with possession with intent to deliver less than fifty grams of cocaine. MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401)(1) and (2)(a)(iv). The maximum sentence for this offense is twenty years in prison. On July 12, 1985, the defendant was arraigned in Detroit Recorder’s Court, and on September 12, 1985, the prosecutor filed a written notice of his intent to seek an enhanced (doubled) sentence pursuant to MCL 333.7413(2); MSA 14.15(7413X2). The defendant was convicted by a jury of possession with intent to deliver less than fifty grams of cocaine, and on January 31, 1986, was sentenced to a maximum of forty years in prison. Although advised at sentencing that the court was relying on the defendant’s prior conviction for possession of heroin, neither the defendant nor counsel contested the accuracy of the prior conviction, and counsel confirmed that the presentence report was accurate. On March 7, 1986, the defendant moved to vacate the sentence on the basis that the defendant’s prior drug conviction was not charged in either the information or a supplemental information and that the prosecutor had not proven that the defendant was a recidivist drug offender. The defendant relied on People v Stout, 116 Mich App 726, 735; 323 NW2d 532 (1982), in which the Court of Appeals held: In our view the quoted language from [People v] Urynowicz [412 Mich 137; 312 NW2d 625 (1981)] makes clear that a subsequent drug offender’s sentence may not be enhanced unless the prior drug offense is charged in either the information or a supplemental, information and the prosecutor proves that the defendant is a recidivist drug offender. [Emphasis in original.] The sentencing judge believed the Court of Appeals erred in Stout, but also that, under Stout, the notice filed was sufficient because the defendant received the notice and had not contested his conviction on the underlying charge. The motion was denied. In an unpublished per curiam opinion, the Court of Appeals affirmed the defendant’s conviction but remanded the case for sentencing. The Court of Appeals agreed with the defendant that the prosecution must charge the defendant as an habitual offender before his sentence could be enhanced under MCL 333.7413, 769.10(l)(c), 769.13; MSA 14.15(7413), 28.1082(l)(c), 28.1085. Relying on our decisions regarding proceedings under the habitual criminal act, the Court held that the prosecutor must file a supplemental information not more than fourteen days after a defendant is arraigned in circuit court unless the prose cutor is unaware of any prior felony record until after conviction or the delay in filing the information is due to the need to verify out-of-state felony convictions based on the record of a defendant’s prior arrests. People v Shelton, 412 Mich 565; 315 NW2d 537 (1982), reh den 413 Mich 1108 (1982). As these exceptions were not applicable, the Court of Appeals vacated the defendant’s sentence and remanded the case to the trial court for resentencing solely oh defendant’s charge of possession with intent to deliver cocaine. The prosecution contends that earlier decisions of this Court imposed procedural requirements in the sentence enhancement context that the Legislature never intended. See People v Urynowicz, supra, People v Wright, 405 Mich 832; 275 NW2d 1 (1979), and People v Lester, 417 Mich 927; 330 NW2d 854 (1983). The prosecutor further submits that the recent ruling of the United States Supreme Court in McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986), provides a justification for reconsideration regarding the issue what procedures are required under due process when the court enhances a defendant’s sentence pursuant to MCL 333.7413(2); MSA 14.15(7413)(2). The defendant claims that the prior drug offense must be charged in either the information or a supplemental information, and that the prosecutor must prove that the defendant is a recidivist drug offender. hi The issue presented is whether the sentence provision of the controlled substance act, authorizing an enhanced penalty for a defendant previously convicted of a like offense, offends due process by failing to provide prior notice of intent to enhance or a separate adversarial proceeding to establish proof of the prior conviction. People v Stout, supra. It is well settled that in a criminal trial, the defendant’s conviction must rest on evidence which proves "beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged” and includes the right to a trial by jury, a public trial, counsel, confrontation of adverse witnesses, and a fair and speedy trial. The most fundamental of these safeguards in a criminal proceeding is the right to a trial by jury. See Duncan v Louisiana, 391 US 145, 158, n 30; 88 S Ct 1444; 20 L Ed 2d 491 (1968); Baldwin v New York, 399 US 66, 72; 90 S Ct 1886; 26 L Ed 2d 437 (1970). By contrast, the due process right at a typical sentencing hearing is the right to be sentenced on the basis of accurate information. Trial-type procedures are not required. Williams v New York, 337 US 241; 69 S Ct 1079; 93 L Ed 1337 (1949). In Williams, the United States Supreme Court rejected a claim that the defendant was denied the opportunity to confront and examine his accusers by the trial court’s reliance on the presentence investigation as the basis for its sentence. Id., p 244. The Court held the procedure did not violate due process and identified a distinction between guilt determination and sentencing, observing: In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. . . . [B]efore verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. ... A sentencing judge, however, is not confined to the narrow issue of guilt. . . . Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. [Id., pp 246-247.] The Court concluded that the "due process clause should not be treated as a device for freezing the evidentiary procedure of sentencing in the mold of trial procedure.” Id,, p 251. Decisions following Williams supported traditional individualized sentencing on the basis of a broad inquiry. The Court held that while information obtained in violation of a defendant’s right to counsel could not be considered, a sentencing judge might permissibly take into account a defendant’s trial conduct and the defendant’s refusal to cooperate with law enforcement officials. The basic tenor of these cases is that an individualized sentence can be based on any relevant and reliable information, and that, while normal sentencing proceedings are not immune from due process attacks, only minimal due process protections are required in those proceedings. United States v Davis, 710 F2d 104 (CA 3, 1983), cert den 464 US 1001 (1983). However, the Supreme Court has required additional procedural safeguards to satisfy due process requirements in situations in which a court seeks to impose additional penalties on a defendant pursuant to a finding of fact equivalent to invoking a new charge. Specht v Patterson, 386 US 605; 87 S Ct 1209; 18 L Ed 2d 326 (1967). In Specht, the defendant was convicted under one Colorado statute for indecent liberties which carried a maximum sentence of ten years. Id., p 607. Thereafter, the defendant was sentenced under a different act for a sentence of one day to life without full notice or a hearing. Id. The Court noted that the act made one conviction the basis for invoking a separate proceeding under the sex offenders act, thus requiring a determination that constituted "a new finding of fact.” Id., p 608. As such, the defendant was entitled to the " 'full panoply of the relevant protections which due process guarantees in state criminal proceedings ... all those safeguards which are fundamental rights and essential to a fair trial ....’” Id., pp 609-610, citing Gerchman v Maroney, 355 F2d 302, 312 (CA 3, 1966). Subsequent to the Specht decision, in 1970, the United States Supreme Court declared that the Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, supra, p 364. Five years later in Mullaney v Wilbur, 421 US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975), the Court held that Maine’s homicide statute impermissibly shifted the burden of proof to the defendant on the issue of heat of passion on sudden provocation. Justice Powell observed: [I]f Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment. [Id., p 698.] However, in Riviera v Delaware, 429 US 877; 97 S Ct 226; 50 L Ed 2d 160 (1976), the Court confirmed that it remained constitutional to burden the defendant with proving the insanity defense, and also held that the state could place the burden of proving a new affirmative defense, extreme emotional disturbance, on the defendant when the affirmative defense did "not serve to negative any facts of the crime which the State is to prove in order to convict of murder.” Patterson v New York, supra, p 207. While Winship and Specht establish that a Legislature is not wholly free to define elements of an offense as factors bearing only on punishment, it is clear that the limitation is a narrow exception to the deference accorded a state’s administration of justice. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. [Patterson v New York, supra, p 210.] In McMillan, supra, p 86, the Court recently has reaffirmed the state’s ability to pursue "its chosen course in the area of defining crimes and proscribing penalties.” The Court rejected a due process challenge to a state statute that provided for imposition of a mandatory minimum sentence where a sentencing judge finds by a preponderance of the evidence that an individual convicted of an offense "visibly] possessed] a firearm” during its commission. While declining to define the express parameters of the state’s authority to define the elements of an offense, the Court observed that Patterson had rejected the claim that whenever a state linked the severity of punishment to the presence or absence of an identified fact, McMillan, supra, p 84, the state must prove that fact beyond a reasonable doubt. The Court further distinguished Specht on the basis that in Specht the defendant was confronted with a "radically different situation” from the usual sentencing proceeding. The Court observed: The Pennsylvania Legislature did not change the definition of any existing offense. It simply took one factor that has always been considered by sentencing courts to bear on punishment — the instrumentality used in committing a violent felony —and dictated the precise weight to be given that factor if the instrumentality is a firearm. Pennsylvania’s decision to do so has not transformed against its will a sentencing factor into an "element” of some hypothetical "offense.” [Id., pp 89-90.] Of significance to the language in Stout, supra, that the prosecution prove the factor that authorizes enhancement, the Court also observed that "Sentencing courts have traditionally heard evidence and found facts without any prescribed burdens of proof at all,” McMillan, supra, p 91, and noted "embracing . . . the clear-and-convincing standard here would significantly alter criminal sentencing, for we see no way to distinguish the visible possession finding at issue here from a host of other express or implied findings sentencing judges typically make on the way to passing sentence.” Id., p 92, n 8. The second-offender provision with which we here deal likewise neither seeks to impose additional penalties on the basis of a finding of fact equivalent to a new charge, Specht, nor changes the definition of an existing offense, Winship. It simply takes one factor that has historically been of paramount importance in imposing an appropriate sentence, a previous conviction for a like offense, and authorizes an increased penalty. Therefore, due process neither compels a separate charge nor imposes trial-type evidentiary burdens on the sentencing process. IV In the present case, the Court of Appeals va cated the defendant’s sentence and remanded to the lower court for resentencing on the basis that the defendant did not receive sufficient notice of the prosecutor’s intent to seek enhanced sentencing. However, we recognize the existence of precedent from this Court that suggests that it is error for a trial court to enhance a defendant’s sentence under the controlled substance act unless a defendant is charged as a second or subsequent offender, as required under the habitual offender act. Despite the fact that in Oyler v Boles, 368 US 448, 452; 82 S Ct 501; 7 L Ed 2d 446 (1962), the United States Supreme Court held that due process required reasonable notice and an opportunity to be heard relative to a recidivist charge, but not notice prior to trial on the underlying offense, this Court, citing Oyler, thereafter held that the prosecutor separately, or coincidentally, must charge the defendant as an habitual offender prior to trial on the underlying substantive offense. People v Wright, 405 Mich 832; 275 NW2d 1 (1979). The apparent purpose of requiring the information to be filed is to provide the accused notice, at an early stage of the proceedings, of the potential consequences should the accused be convicted of the underlying offense. People v Shelton, supra, p 569. In Shelton, the Court defined "promptly” as not more than fourteen days after the individual the prosecutor elects to charge as an habitual offender is arraigned in circuit court on the underlying felony (or before trial if the defendant is tried within the fourteen-day period). It is clear from a reading of Oyler and McMillan that Shelton is distinguishable, and that due process does not require the filing of a separate charge pursuant to a statute that does not create a new offense but simply authorizes the sentencing court to enhance the sentence. The prosecutor is not required to charge the prior conviction in the information because it is not an element of a new charge, separate from the offense for which the defendant is presently charged. Instead, the prior conviction is a factor which the judge may consider when imposing the sentence. See People v Mellor, 302 Mich 537; 5 NW2d 455 (1942). Where, as here, the factor, a prior conviction, has not historically been considered an element of the crime, is objectively ascertainable, and carries little risk of erroneous determination, and there is no indication that the Legislature is seeking to avoid the procedural protections of Winship, due process requires neither the filing of a separate charge nor adversarial proceedings at sentencing. In sum, "[traditional sentencing factors need not be pleaded and proved at trial.” United States v Affleck, 861 F2d 97, 99 (CA 5, 1988). The pertinent sentence enhancement provision of the controlled substance act, MCL 333.7413(2); MSA 14.15(7413X2) provides: (2) Except as otherwise provided in subsections (1) and (3), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both. Under subsection 2, the trial judge may consider a defendant’s prior offense if the present offense is a drug-related crime involving an amount less than fifty grams. In the present case, the defendant was convicted of a second offense of an amount less than fifty grams, and the trial judge imposed a maximum sentence of forty years, twice the twenty-year maximum otherwise authorized. It is clear that neither the statute nor its predecessor requires an information filed prior to trial charging the defendant as a second offender under the habitual offender act or prior to a separate jury trial. This Court’s reference to Wright, in Urynowicz, supra, a second offense criminal sexual conduct sentence, implied that due process required a separate proceeding whenever a defendant’s sentence is increased on the basis of prior offenses. Id. For the reasons stated, we are now of the view that the Court erred in Urynowicz in concluding due process requires a separate proceeding and proof before enhancing the sentence of a second offender. A defendant may challenge the accuracy of the information contained in the presentencing report and is entitled to an opportunity to he heard on the matter if accuracy is contested. However, enhanced sentences based on prior conviction of the same statute are not subject to the Shelton rule, nor do they require adversarial proceedings. CONCLUSION In this case, the defendant contends he did not receive the notice required under People v Shelton. He does not contend he was denied a reasonable opportunity to contest the information in the presentence report. Although we hold that the fourteen-day rule in Shelton is not applicable to sentence enhancement authorized under this statute, we observe that due process requires notice of the information in the presentence report sufficiently in advance of sentence to provide a meaningful opportunity to contest its accuracy. Thus, we would remand the case to the trial court if we were unable to determine that the defendant was provided a reasonable opportunity to respond to the accuracy of the information in the report. Here, the record confirms that counsel reviewed the presentence report and guidelines with the defendant, that defendant was given an opportunity to respond to the accuracy of the information contained in the report, and that counsel agreed that the information was accurate. Accordingly, we reverse the decision of the Court of Appeals and reinstate the sentence imposed below. Riuey, C.J., and Brickley and Griffin, JJ., concurred with Boyle, J. Const 1963, art 1, § 17. US Const, Ams V, XIV. MCL 769.10-769.13; MSA 28.1082-28.1085. See People v Fountain, 407 Mich 96; 282 NW2d 168 (1979). In Fountain, the Court noted that defendant Jones was incorrectly sentenced for the unarmed robbery conviction, and, as an habitual offender, the defendant may be sentenced only under one or the other charge. Id., p 98, n 2. See also, e.g., People v Kraai, 92 Mich App 398; 285 NW2d 309 (1979). Although there is no express statutory requirement that the habitual offender act be applied to other sentence enhancement provisions, this Court and the Court of Appeals have implied such requirements in both criminal sexual conduct, MCL 750.520f; MSA 28.788(6), and controlled substance cases. See People v Urynowicz, 412 Mich 137; 312 NW2d 625 (1981). See also People v Wright, 405 Mich 832; 275 NW2d 1 (1979), People v Lester, 417 Mich 927; 330 NW2d 854 (1983), and People v Stout, 116 Mich App 726; 323 NW2d 532 (1982). Indeed, even if the prosecutor overlooked the prior conviction, if the matter came to the trial court’s attention through the presentence investigation, the judge would be authorized to enhance the sentence provided the defendant did not claim lack of notice or contest the factual accuracy thereof. United States v Brown, 381 US 437, 458; 85 S Ct 1707; 14 L Ed 2d 484 (1965). Had the defendant chosen to contest the accuracy of the information in the presentence report and claimed surprise at the hearing, and had the trial judge not allowed the defendant an opportunity to address the issue, the proper remedy would be to provide an opportunity for the defendant to contest the accuracy of the report which would be accomplished by a remand to the trial court. However, an evidentiary hearing at the sentencing stage is not an adversary trial, and due process is satisfied so long as the information the sentencing judge considers has sufficient indicia or reliability. United States v Blade, 811 F2d 461, 468 (CA 8, 1987). Because sentencing is a critical stage of the proceedings, the defendant has a Sixth Amendment right to counsel. Mempa v Rhay, 389 US 128; 88 S Ct 254; 19 L Ed 2d 336 (1967). The defendant contended he had no knowledge of the prosecutor’s intent to seek sentence enhancement and that there was no documentation indicating that the letter notifying the court and him of the intent was ever time stamped as having been received by a clerk of the trial court. In addition, the defendant asserted there was no proof of service in the file indicating that the opposing side was in fact served. The notice of intent was dated September 12, 1985. However, it did not bear the lower court’s date stamp. The defendant was previously convicted of possession of a controlled substance and was sentenced on March 3,1980. At sentencing the judge noted that the defendant had previously been convicted of second-degree murder in 1979 and for possession of heroin in 1983. The judge indicated that he intended to deviate from the sentencing guidelines because, given the defendant’s background and the jury’s conclusion that the defendant sold drugs, the guidelines which called for a thirty- to forty-two-month sentence were totally inadequate. People v Eason, unpublished opinion per curiam of the Court of Appeals, decided January 22,1988 (Docket No. 91429). In addition, the defendant claimed he was entitled to be sentenced by the judge who presided over the trial. Judge Talbot presided over part of the trial and sentenced the defendant, and the Court of Appeals found there had not been any error. The prosecution notes that this is clear when the language used by the Legislature in MCL 333.7413(2); MSA 14.15(7413X2), "[a]n individual convicted of a second or subsequent offense under this article may be imprisoned for not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both,” is compared with the language of MCL 769.13; MSA 28.1085 in which the Legislature requires a full trial if the defendant pleads not guilty to the charge of prior felony convictions. Davis v United States, 160 US 469, 493; 16 S Ct 353; 40 L Ed 499 (1895). See In re Winship, supra, pp 363-364. The policy .considerations underlying the reasonable doubt standard include the protection of a defendant’s liberty interest, and the reduction of the risk of erroneous convictions. See also note: Criminal law — Fourteenth Amendment Due Process Clause — preponderance standard satis&es due process where state makes visible possession of ñrearm sentencing factor rather than component of crime, 18 St Mary’s L J 543, 545-546 (1986). See, generally, Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968). Trial by jury of one’s peers has long been regarded as a precious and intractable right and the right is expressly reserved in the constitution, the Bill of Rights, and in the state constitution. Note, Enhanced sentencing under North Carolina’s DWI statute: Making due process disappear — Field v Sheriff of Wake County, NC, 23 Wake Forest LR 517, 525 (1988). Early principles of sentencing due process doctrine were established by the United States Supreme Court in Williams v New York. Weissman, Sentencing due process: Evolving constitutional principles, 18 Wake Forest L R 523, 524 (1982). See also United States v Satterfield, 743 F2d 827, 840 (CA 11, 1984), cert den 471 US 1117 (1985). The holding of Williams represented a divergence from another seminal sentencing decision decided in the previous year, Townsend v Burke, 334 US 736; 68 S Ct 1252; 92 L Ed 1690 (1948). In Townsend, the United States Supreme Court held the defendant’s due process rights were violated when the defendant was sentenced on the basis of false information concerning his criminal record. Id., p 740. While at first blush the holding of Townsend appears to support the idea that the Court favored increased due process safeguards at sentencing, the decision was limited by the Court’s emphasis on the total lack of effort with which the sentencing judge investigated the truth of the defendant’s past convictions, three of which were charges that had either been dismissed or resulted in a finding of not guilty. See United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); United States v Grayson, 438 US 41; 98 S Ct 2610; 57 L Ed 2d 582 (1978); Roberts v United States, 445 US 552; 100 S Ct 1358; 63 L Ed 2d 622 (1980). The United States Supreme Court held information regarding prior convictions obtained in violation of a defendant’s right to counsel could not be considered as sentencing factors by the trial judge at the sentencing hearing. United States v Tucker, pp 443, 447. In Grayson, n 19 supra, p 44, the trial judge discounted the defendant’s credibility due to the defendant’s testimony during trial in which the defendant denied his guilt. The sentencing judge took into account the defendant’s persistent refusal to cooperate with law enforcement authorities in identifying other participants in the drug conspiracy. The United States Supreme Court concluded such refusal was highly relevant on the issue of the defendant’s prospects for rehabilitation and thus was properly considered at sentencing. Roberts v United States, n 19 supra, p 552. Note, The constitutionality of statutes permitting increased sentences for habitual or dangerous criminals, 89 Harv LR 356, 364 (1975). Colo Rev Stat Ann, § 40-2-32 (1963). Pursuant to the Colorado sex offenders act, Colo Rev Stat Ann, §§ 39-19-1 to 10 (1963), if the trial court was of the opinion that a person convicted of specified sex offenses constituted a threat of bodily harm to the public or was an habitual offender and mentally ill, the state could sentence a defendant to commitment in a mental institution as a sexual psychopath for an indefinite period. Id. The only procedural requirements were that the state have the defendant examined and a psychiatric report prepared for the trial judge prior to sentencing. Id., p 608. Relying on In re Winship, petitioners contended that visible possession of a firearm was an element of the crimes for which they were being sentenced and thus must be proved beyond a reasonable doubt. While it is true that the Court also observed that the sentencing scheme in question did not alter the maximum penalty for the crime, it is clear that the factor here made relevant for sentencing purposes, a prior conviction of a crime, historically has been considered one of the most significant factors bearing on appropriate punishment. The United States Supreme Court noted: Any other rule would place a difficult burden on the imposition of a recidivist penalty. Although the fact of prior conviction is within the knowledge of the defendant, often this knowledge does not come home to the prosecutor until after the trial, and in many cases the prior convictions are not discovered until the defendant reaches the penitentiary. [Id., p 452, n 6.] The statute requires a separate charge. It does not require an habitual offender charge prior to trial. If after conviction and either before or after sentence it appears that a person convicted of a felony has previously been convicted of crimes as set forth in section 10, 11, or 12, the prosecuting attorney of the county in which the conviction was had may file a separate or supplemental information in the cause accusing the person of the previous convictions. The court in which the conviction was had shall cause the person to be brought before it and shall inform him of the allegations contained in the information, and of his right to be tried on the allegations, and require the offender to say whether he is the same person as charged in the information or not. If the offender says he is not the same person, or remains silent, the court shall enter a plea of not guilty, and a jury of 12 jurors shall be impaneled from the petit jurors serving at the then or a following term of court to determine the issues raised by the information and plea. The accused may waive trial by jury in the manner provided by this act. The usual practice in the trial of criminal actions shall be followed in the impaneling of a jury and the trial of the issue. ... If the accused pleads guilty to the information or if the jury returns a verdict of guilty, the court may sentence the offender to the punishment prescribed in section 10, 11, or 12, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the vacated sentence if required. [MCL 769.13; MSA 28.1085.] When the Court has considered a statutory scheme incomplete, it has imposed additional requirements in accordance with the object or intent of the statute. While that solution is more appropriately provided by the Legislature, it has been utilized by this Court when as in this situation it was believed necessary. Schwartz, Multiple punishment for the "same offense”: Michigan grapples with the definitional problem, 25 Wayne L R 825, 856 (1979). In circumstances presented by this case, the enhanced sentencing statutes have no relation to the circumstances of the wrongdoing constituting the most recent offense, but rather to something which is wholly unrelated thereto. Further, they do not relate to determining what the accused has done, but rather to what the state has previously determined that he has done. And that previous determination must have been a formal, judicial determination of guilt; and hence one as to which the full measure of constitutional protections was available. [See Buckley v Butler, 825 F2d 895, 903 (CA 5, 1987). Emphasis in the original.] By contrast, when a prior conviction is an element of the charge, the earlier offense must be charged in the information when, for example, an individual charged for a second or subsequent offense of driving under the influence of liquor is found guilty of a felony. While the offense is a misdemeanor, a third or subsequent offender can be charged with a felony. MCL 257.625; MSA 9.2325. However, the defendant must be charged as a second, or subsequent offender, which is an element of the underlying felony charge. ’ Thus, it appears that the better construction of the cases discussed in the dissent is that the Court construed the legislation in question as necessarily requiring a separate information filed to provide the opportunity for a preliminary examination for the defendant and to provide the circuit court with jurisdiction. Further, the question before the Court is one of legislative intent, and we find it highly doubtful that the Legislature was deemed to be aware of decisions of this Court and relied on liquor law cases from the mid-1920’s to require separate charges in the present cases, which involve sentence enhancement and not a separate felony charge as found in the liquor law cases cited by the dissent. The Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and District of Columbia Circuit Courts have held that the Armed Career Criminal Act, 18 USC App 1202 did not create a separate offense mandating specific pleading or proof of recidivism that triggers enhanced sentencing. United States v Hawkins, 811 F2d 210 (CA 3, 1987); Field v Sheriff of Wake Co, NC, 831 F2d 530 (CA 4, 1987); United States v Affleck, 861 F2d 97 (CA 5, 1988); United States v Brewer, 853 F2d 1319 (CA 6, 1988); United States v Jackson, 262 US App DC 294; 824 F2d 21 (1987); United States v Rush, 840 F2d 574 (CA 8, 1988) (en banc); United States v West, 826 F2d 909 (CA 9, 1987); United States v Gregg, 803 F2d 568 (CA 10, 1986), cert den 480 US 920 (1987). The penalties for possession of controlled substances in amounts of fifty grams or more, but less than 650 grams, are addressed in MCL 333.7401(2)(aXii) or (iii); MSA 14.15(7401)(2)(a)(ii) or (iii). The controlled substance act, 1971 PA 196, MCL 335.348; MSA 18.1070(48) provided: (1) Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both. (2) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this act or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs. The act authorized the sentencing judge to enhance the punishment for certain individuals. If a defendant was a second, or subsequent drug offender, the statute did not contemplate a separate proceeding. In People v McFadden, 73 Mich App 232, 234; 251 NW2d 297 (1977), the defendant argued that the procedural requirements of the habitual offender act should be applied to this section of the controlled substance act. The Court held there was no express statutory requirement that the habitual offender act be applied to this provision and, further, the fact that the Legislature did not write the procedural requirements of the earlier habitual offender act into the controlled substance provision indicated no intent to provide such safeguards. Id., pp 234-235. However, in 1979 this Court remanded a case for resentencing on the basis that the trial court improperly imposed a double sentence pursuant to MCL 335.348; MSA 18.1070(48). People v Wright, supra. The Court again cited Oyler v Boles, supra, in which the United States Supreme Court held that due process did not require notice prior to the trial that an habitual criminal proceeding would follow, but did require that the defendant have notice and a reasonable opportunity to be heard on the recidivist charge. A panel of the Court of Appeals recognized and addressed this issue in People v Bailey, 103 Mich App 619; 302 NW2d 249 (1981). The Court noted that the defendant who claimed the trial court erred in sentencing him to a mandatory five-year minimum sentence pursuant to MCL 750.520f; MSA 28.788(6), despite the fact that no supplemental information was filed, was incorrect. Id., p 627. The Court held that there was no such procedural requirement under the act and declined to infer such a requirement. The Court stated: In People v Wright, 405 Mich 832 (1979), the Court examined the sentence enhancement provision of the Controlled Substances Act. MCL 335.348; MSA 18.1070(48). The defendant had been charged only with delivery of cocaine and conspiracy to deliver cocaine, but he was sentenced as a second offender to twice the term of imprisonment authorized. The Court said that doubling the sentence was improper and cited Oyler v Boles, 368 US 448; 82 S Ct 501; 7 L Ed 2d 446 (1962) in which the United States Supreme Court required, as a matter of due process, that a defendant receive reasonable notice and an opportunity to be heard on a recidivist charge. [Urynowicz, supra, p 143.] Subsequent to that decision, a panel of the Court of Appeals found that Urynowicz overruled, sub silentio, the decision in People v McFadden, supra, that the habitual offender act did not have any application to the sentence-enhancement provision of the former controlled substance act. Stout, supra. The Court of Appeals vacated the defendant’s sentence which had been doubled because it was the defendant’s second conviction of a drug offense and stated: In our view the quoted language from Urynowicz makes clear that a subsequent drug offender’s sentence may not be enhanced unless the prior drug offense is charged in either the information or a supplemental information and the prosecutor proves that the defendant is a recidivist drug offender. [Stout, supra, p 735.] Likewise, this Court remanded a case for resentencing which posed the same issue as Wright, supra, and noted that a drug offender’s sentence could not be enhanced unless the prosecutor complied with the procedures under the habitual offender act: Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, the defendant’s sentences are vacated and the matter is remanded on March 21, 1983, to the Genesee Circuit Court for resentencing. The defendant’s sentence may not be enhanced pursuant to MCL 333.7413; MSA 14.15(7413) because he was not charged with being a subsequent offender. MCL 769.10, 769.13; MSA 28.1082, 28.1085; People v Urynowicz, 412 Mich 137 (1981); People v Stout, 116 Mich App 726, 734-735 (1982). [People v Lester, supra.] The prosecutor does not contend the defendant waived the right to challenge the accuracy of the information contained in the report by failing to raise the issue at the sentencing hearing. See MCR 6.425(B). Under the Criminal Rules of Procedure, MCR 6.425(B) provides that the court must permit the prosecutor, the defendant’s lawyer, and the defendant to review the presentence report at a reasonable time before the day of sentencing. If the defendant challenges the information, under MCR 6.425(D)(3), the court must make a finding with respect to the challenge or determine that a finding is unnecessary because it will not take the challenged information into account when sentencing the defendant. The sentencing hearing took place on Friday, January 31, 1986, and at this time the court inquired whether counsel had had an opportunity to go over all the presentence report and guidelines with the defendant. Counsel answered in the affirmative.

Per Curiam. Plaintiff was injured on August 6, 1982, while a passenger in an automobile driven by her husband, defendant John H. Earl, which was struck at the intersection of Secor Road and County Road 151 in Monroe County by a vehicle driven by defendant Robert Don White. Plaintiffs complaint stated that the accident was caused by defendant White’s negligently driving into the path of the Earl automobile, and by defendant Earl’s negligently failing to yield the right-of-way to White’s vehicle. Plaintiff was taken to the emergency room of Riverside Hospital in Toledo, Ohio, where she was diagnosed as suffering from a hematoma on her scalp, a soft-tissue contusion of the right ankle, and a contusion of the left knee. On August 9, 1982, after plaintiff had been in the hospital for three days, an orthopedic surgeon, Dr. John Chow, was called in to examine her right ankle. Dr. Chow noted that there was severe swelling and marked ecchymosis of her right foot and ankle, and also observed that there was no fracture or dislocation of the ankle. He recommended a short leg plaster splint for plaintiffs right foot and ankle for two weeks, to be followed with the application of a short leg cast. Plaintiff remained in the hospital a total of two weeks. Subsequent to her discharge from the hospital, plaintiff went to Dr. Chow’s office and had the plaster splint removed and a short leg cast applied to her lower right leg and ankle. She wore the cast for approximately four weeks, during which time she was forced to walk on crutches. After the cast was removed plaintiff continued physical therapy for several months. Her difficulties in walking ended approximately November 4, 1982, some three months after the accident occurred. The last time plaintiff saw a doctor for any injury arising out of the accident at issue was in early 1983 and, while plaintiff claims her right ankle still hurts, she admits that she takes no pain medication and that she has not had to significantly change her life style. Suit was commenced in this matter on March 26, 1984, and, on November 30, 1984, defendant Earl filed a motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10), alleging that plaintiff had failed to demonstrate that her injuries met the requisite "impairment of body function” threshold of the no-fault act and asking that the Court determine under Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), that the plaintiff did not meet the threshold as a matter of law. On January 31, 1984, defendant White filed a concurrence in defendant Earl’s motion and, after a hearing on the motion, the trial judge granted the motion by an order dated February 15, 1985. We affirm the determination by the trial judge. Plaintiff has claimed two procedural flaws with defendants’ motion which, under the Michigan Court Rules that became effective March 1, 1985, would not be serious defects. Plaintiff alleges that no supporting affidavits were filed as required by GCR 1963, 117.3, and that the deposition testimony of the plaintiff on which the defendants principally relied in their motion was not proper evidence, as plaintiffs deposition was never filed with the lower court. Under MCR 2.116(G)(3), affidavits, depositions, admissions, or other documentary evidence are required when judgment is sought based on MCR 2.116(C)(10). A key exception has developed to the affidavit requirement in dealing with the serious impairment of body function threshold under the no-fault act. This exception has been applied to situations where a supporting affidavit was filed, but the affidavit was defective: "The function of an affidavit by the defendant is to establish affirmatively that there is no basis in fact to support plaintiff’s claim. To that end, the defendant must come forward with some evidentiary proof — some statement of specific fact.” Durant v Stahlin, [375 Mich 628; 135 NW2d 392 (1965)], Doornbos v Nordman, 26 Mich App 278, 281; 182 NW2d 362 (1970). In the present case, the specific evidential facts (see Simerka v Pridemore, 380 Mich 250, 275; 156 NW2d 509 [1968]) concerning the nature of plaintiff’s injuries and treatment were within the personal knowledge of only the plaintiff and Dr. Eisman. It is unlikely that either of them would have provided the defendants with a voluntary statement and affidavit. Under such circumstances, the trial court has the authority to excuse the defendant from presenting the material facts in the affidavit. GCR 1963, 116.6. The affidavit is then supplemented by depositions or answers to interrogatories. [Brooks v Reed, 93 Mich App 166, 174; 286 NW2d 81 (1979), lv den 411 Mich 862 (1981).] In Pullen v Warrick, 144 Mich App 356, 359; 375 NW2d 448 (1985), the rule was extended to the situation where no affidavits were filed in support of a summary judgment motion under the no-fault act. Plaintiff first argues that defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(3) was jurisdictionally defective because it was not accompanied by affidavits, as required by subrule 117.3. . . . The better view is expressed in Jakubiec v Kumbier, 134 Mich App 773, 775-776; 351 NW2d 865 (1984), where this Court concluded that affidavits based on personal knowledge were unnecessary where defendant conceded for purposes of the motion that there was no genuine issue of material fact as to the nature and extent of plaintiff’s injuries and defendant relied on plaintiff’s answers to interrogatories and deposition testimony as well as exhibits. In this case, defendants have conceded that there is no genuine issue of material fact as to the nature and extent of plaintiff’s injuries, and their only disagreement is with the effect of these injuries on plaintiff’s life. Defendants rely for the most part on plaintiff’s own deposition testimony in their motion for summary judgment, an approach explicitly approved of in Brooks and Pullen. There is no requirement in this case that supporting affidavits be submitted. The issue regarding the filing of the deposition would appear to be moot if the Court were to reverse the trial court and send the matter back for further hearing in view of the provisions of MCR 2.302(H). This provision is a new provision governing the filing of discovery materials and differs from both prior Michigan practice and the federal rules. See 2 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), Staff Comments, p 160. If the issue does exist, it would appear plaintiff has waived it, inasmuch as at no time at the trial level either in her brief in opposition or at the argument on the motion did she ever object to the use of her deposition testimony. Absent a showing of manifest injustice, plaintiff has waived this objection. Brooks v January, 116 Mich App 15, 30; 321 NW2d 823 (1982); Taubitz v Grand Trunk Western R Co, 133 Mich App 122, 129-130; 348 NW2d 712 (1984). Also, in her brief on appeal plaintiff has not cited any case, statute, court rule, or policy consideration in support of her position. Therefore her arguments are not preserved for review. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Even if plaintiffs argument is not waived, the Court is satisfied that the language of GCR 1963, 117.3 indicates that the trial court could consider other documents submitted by the parties: "Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing.” (Emphasis added.) In Guerrero v Schoolmeester, 135 Mich App 742, 746; 356 NW2d 251 (1984), lv den 422 Mich 881 (1985), an almost identical situation in the no-fault context existed, and the Court ruled consistent with the ruling in this case. In Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984), this Court noted that the following standards have been developed to assist the courts in determining whether a threshold injury was sustained: First, "impairment of body function” actually means "impairment of important body functions.” Second, by its own terms, the statute requires that any impairment be "serious.” Third, the section applies only to "objectively manifested injuries.” [Citations omitted.] Despite plaintiff’s attempt to take the trial court’s statement out of context by stating that the trial court required permanency for a determination of serious impairment, we note that the court said: "Also, although an injury need not be permanent to be serious, permanency is relevant.” The trial judge indicated that he found that there was an impairment of a body function, namely ambulation, and indicated that ambulation is an important body function. He found, however, that it was not a serious impairment and could not be equated, or begin to be equated, with either death or permanent serious disfigurement. He noted correctly that recovery for pain and suffering is not predicated on serious pain and suffering, but on the injuries that fall within the considerations mentioned by the Supreme Court. He also correctly noted that there was no objective manifestation at this time as to pain, except the scar tissue. And his comment that plaintiff indicated that there was really nothing she cannot do now because of the accident that she could not do before the accident is borne out by her own deposition where she said as follows: Q. Okay. Is there anything you can’t do with that ankle now — other than, I know when you do a lot of stuff, a lot of walking, or a lot of steps, but is there anything that you can’t do now that you did before the accident, because of the ankle? A. Well, the stairs, when I do my wash, or anything like that, it’s really hard. Q. So, it gets painful? You can do it, but it just gets painful? A. I have to do it yes. Q. Has this accident affected your marriage at all? A. No. Consistent with the findings in Williams v Payne, supra, Pullen v Warrick, supra, Franz v Woods, 145 Mich App 169; 377 NW2d 373 (1985); and Denson v Garrison, 145 Mich App 516; 378 NW2d 532 (1985), we believe that the trial judge properly found as a matter of law that there was not a serious impairment of a body function as required by the no-fault act. Affirmed.

Per Curiam. In this medical malpractice case, defendant Bay Medical Center appeals by leave granted from the November 8, 1984, interlocutory order of the circuit court denying defendant’s motion for entry of an order compelling arbitration. This is the second time that the instant case has been before this Court. Prior to this appeal, defendant sought leave to appeal from the trial judge’s December 15, 1981, order denying defendant’s motion for accelerated judgment in which the trial judge ruled that the Michigan Malpractice Arbitration Act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., was unconstitutional. On April 29, 1982, this Court granted defendant’s application for leave to appeal from that order, but held the appeal in abeyance pending a decision by the Supreme Court on the same issue in Morris v Metriyakool, 418 Mich 423; 344 NW2d 736 (1984). (Toska v Campbell, Court of Appeals Docket No. 62531.) On April 19, 1984, after the Supreme Court in Morris, supra, upheld the constitutionality of the Malpractice Arbitration Act, this Court peremptorily reversed the trial court’s December 15, 1981, order, remanded the cause and instructed the trial judge to enter an order submitting the matter to arbitration. Subsequently, on May 22, 1984, defendant filed a notice of entry of order compelling arbitration with the trial court. Plaintiff objected on the ground that an evidentiary hearing should be held to determine whether plaintiff’s mother voluntarily and knowingly signed the arbitration agreement. After oral argument in the matter, the trial judge determined that this issue had not been decided by the Court of Appeals. Therefore, according to the court, it was necessary and appropriate to hold an evidentiary hearing on that issue prior to submitting the case to arbitration. As a result, the trial judge denied defendant’s motion for entry of an order compelling arbitration. Defendant now appeals by leave granted. On appeal, defendant contends that the trial court’s order for an evidentiary hearing violated this Court’s order remanding the case for submission to arbitration proceedings. The first basis for defendant’s contention is that the trial court was without jurisdiction to grant relief inconsistent with this Court’s order. The second basis is that this Court’s order in the first appeal constituted the law of the case, thereby precluding the trial court from ordering the evidentiary hearing prior to submitting the matter to arbitration. In Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959), our Supreme Court stated that the power of the lower court on remand after an appeal is to take such action as law and justice may require as long as that action is not inconsistent with the judgment of the appellate court. See also Bray v Dep’t of State, 97 Mich App 33, 37; 294 NW2d 236 (1980), rev’d on other grounds 418 Mich 149; 341 NW2d 92 (1983), cert den 467 US 1252; 104 S Ct 3537 82 L Ed 2d 842 (1984). The law of the case doctrine provides that, where an appellate court has passed on a legal question and remanded a case for further proceedings, the legal questions determined by that appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same. This doctrine applies only to those questions determined by an appellate court’s prior decision and to those questions which are necessary to the court’s determination. United States Fidelity & Guaranty Co v Liberty Mutual Ins Co, 127 Mich App 365, 370-371; 339 NW2d 185 (1983), lv den 418 Mich 917 (1984). It is clear that, in the first appeal, this Court did not consider the voluntariness issue because the order resulting from that appeal stated that the sole issue before the court was whether the Malpractice Arbitration Act of 1975 was constitutional. Because the instant issue was neither considered nor necessary to the first decision from this Court, that decision does not constitute the law of the case as to this issue. Nevertheless, this Court reversed the lower court’s decision and remanded the case with specific instructions to submit the case to arbitration. The present trial court’s order, denying defendant’s motion to compel arbitration and granting the evidentiary hearing, is in direct contravention of that order and is therefore in error. Compare The Gray Eagles, Inc v Lucchesi, 50 Mich App 82; 212 NW2d 749 (1973); George v Wayne Circuit Judge, 336 Mich 543; 58 NW2d 915 (1953). We would point out that the proper procedure for clarifying this Court’s order in a case such as this is to file with this Court a motion for rehearing pursuant to MCR 7.215(H). See Taylor v Lint, 338 Mich 673, 675; 62 NW2d 453 (1954). Reversed and remanded. D. E. Holbrook, Jr, P.J., concurs in result only.

Per Curiam. Defendant pled guilty to a charge of operating a motor vehicle while having an unlawful blood alcohol level, MCL 257.625(2); MSA 9.2325(2). He was sentenced to serve forty-five days in jail, had his driver’s license suspended for one year, and was granted work release (day parole) privileges if he was able to provide transportation to and from work. The district court apparently placed no other conditions on defendant’s work release. When defendant reported to the jail to begin his sentence, a chemical test revealed that he had consumed alcohol before being transported to jail, apparently in sufficient quantity to produce a blood alcohol level of at least 0.10 percent. The district court subsequently withdrew defendant’s work release privileges without notice to him. The circuit court affirmed and this Court denied leave to appeal. The Supreme Court remanded the case to this Court for consideration as on leave granted. 424 Mich 862 (1985). We affirm. Defendant’s first issue is easily answered. MCL 801.251; MSA 28.1747(1) provides: A sentence or commitment of a person to a county jail for any reason may grant such person the privilege of leaving the jail during necessary and reasonable hours for any of the following purposes: (a) Seeking employment; (b) Working at his employment; (c) Conducting his own self-employed business or occupation, including in the case of a woman housekeeping and caring for the needs of her family; (d) Attendance at an educational institution; or (e) Medical treatment. A person may petition the court for such privilege at the time of sentence or commitment, and in the discretion of the court may renew his petition. The court may withdraw the privilege at any time by order entered with or without notice. The district court clearly proceeded according to the statute. No notice or hearing was required by the statute. We disagree that this provision must be read together with MCL 801.258; MSA 28.1747(8). The latter provision concerns reports by the sheriff of violations of any conditions specified by the court for work release. It does not relate to the trial court’s withdrawal of the privilege. Defendant’s second issue, however, is considerably more difficult. Defendant argues that the district court’s withdrawal of his work release privileges violated due process. Recognizing that no cases have interpreted MCL 801.251; MSA 28.1747(1), defendant analogizes withdrawal of the work release/day parole privileges to parole or probation revocations. The prosecutor, with no citation of authority, argues that the two situations may be distinguished. In the parole situation, a person has been released from regular confinement. In the probation situation, a person has not yet been confined. To revoke the freedom enjoyed by such persons certainly requires the observance of due process. A person on a work release program, however, remains a prisoner who is given only temporary and limited "freedom.” We emphasize that even under the terms of the work release provision, defendant was to remain an inmate under a jail sentence. The United States Supreme Court noted in Wolff v McDonnell, 418 US 539, 555-556; 94 S Ct 2963; 41 L Ed 2d 935 (1974), that prisoners may claim the protections of the due process clause. This fact in no way implies, however, that such rights are not "subject to restrictions imposed by the nature of the regime to which [the prisoners] have been lawfully committed.” Id. Whether any procedural protections are due depends on the extent to which an individual will be "condemned to suffer grievous loss.” Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 (1972). What procedural due process may require under any given set of circumstances requires the determination of the precise nature of the governmental function involved as well as of the private interest affected. Id. The United States Supreme Court has found that due process requirements, including notice and hearings, apply to the loss of liberty occasioned by parole revocation, Morrissey, supra, and probation revocation, Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct 1756; 36 L Ed 2d 656 (1973). There is, however, no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. Greenholtz v Nebraska Penal & Correctional Complex Inmates, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979). The critical distinction between a parole revocation and parole release is that of being deprived of the liberty one has and being denied a conditional liberty one desires. The Court noted in Greenholtz that a state may create a protected entitlement or expectation of liberty, such as parole, by statute, for example, though such must be determined on a case-by-case basis. 442 US 12. A state creates a protected liberty interest by placing substantive limitations on official discretion. A state has not created a constitutionally protected liberty interest if the decision-maker can deny the requested relief for no reason at all. Olim v Wakinekona, 461 US 238, 249; 103 S Ct 1741; 75 L Ed 2d 813 (1983). The statute at issue puts the privilege of work release from county jail within the court’s discretion. Our reading of MCL 801.251 to 801.258; MSA 28.1747(1) to 28.1747(8) does not convince us that the Legislature has created a protectible expectation of the privilege. The instant statute and case thus differ from those cases involving work release from prison administered by prison officials through a complex regulatory scheme. The district court’s revocation of such work release privilege required neither notice nor a hearing. Moreover, as did the circuit court, we find the instant case analogous to Jago v VanCuren, 454 US 14; 102 S Ct 31; 70 L Ed 2d 13 (1981), in that defendant’s work release privileges were revoked before they began. Until defendant actually began the work release program, he had only an expectation. While we do not believe the statute gives rise to a constitutionally protected liberty interest, it certainly does not do so prior to existence of the privilege. In Jago, the United States Supreme Court found no constitutionally protected liberty interest in an expectation of parole or reliance on "mutually explicit understandings” that the defendant would be paroled. Though we reach a different conclusion and do not believe it is necessary to distinguish the cases, the fact that defendant had not yet exercised the privilege would distinguish this case from the parole revocation situation discussed above and Commonwealth v Christina, 225 Pa Super 95; 311 A2d 318 (1973), a case finding a constitutionally protected liberty interest under a very similar county jail work release statute. Affirmed. See, e.g., Whitehorn v Harrelson, 758 F2d 1416 (CA 11, 1985) (work release privilege terminated); Garcia v DeBatista, 642 F2d 11 (CA 1, 1981) (reconfinement to prison from a halfway house); Winsett v McGinnes, 617 F2d 996 (CA 3, 1980), cert den sub nom Anderson v Winsett, 449 US 1093; 101 S Ct 891; 66 L Ed 2d 822 (1981) (denial of access to work release program); Schumate v New York, 373 F Supp 1166 (SD NY, 1974) (summary removal from work release program). The instant case is more like the work release denial in Baumann v Arizona Dep’t of Corrections, 754 F2d 841 (CA 9, 1985), in which no constitutionally protected liberty interest was found given the complete discretion to deny work release privileges.

Per Curiam. Plaintiff, Panzy Calladme, individ ually and as guardian of William Calladine, brought suit in the Wayne Circuit Court against defendants Hyster Company, Hyster Credit Corporation, and Modern Handling Equipment Company. Plaintiff alleged that Modern Handling, as owner of a forklift, was responsible for all injuries resulting from the negligent operation of the forklift and that defendants were liable to them based on defective product design and manufacture. Defendants filed a third-party complaint against Dana Corporation alleging that Dana had agreed to indemnify and hold them harmless from any and all liability resulting from the forklift. Dana moved for summary judgment, and on March 8, 1985, the trial court issued an order granting in part and denying in part the motion for summary judgment. The trial court found as a matter of law that the forklift was a motor vehicle for purposes of Michigan’s owner’s liability statute, MCL 257.401; MSA 9.2101. Apparently, it also found that Dana had agreed to indemnify defendants for products liability claims. Third-party plaintiffs’ claims of common-law indemnity were dismissed with prejudice by stipulation of the parties. Dana appeals by leave granted. On May 30, 1978, William Calladine, an employee of Dana, was struck and seriously injured by a Hyster Model S80B forklift (or lift truck) driven by a coemployee. The accident occurred inside the press room of Dana’s facility in Ecorse. The forklift was designed and manufactured by defendant Hyster Company and was leased or sold to Dana by a Hyster subsidiary on or about September 29, 1976. Model S80B forklifts were eight thousand pound capacity forklifts equipped with low-profile, cushion tires. The forklifts did not have headlights, tail lights, turn signals, seat belts, windshields, back-up lights, hazard warning flash ers, or rearview mirrors as standard equipment. The forklift involved in this case had been operated on private roads outside of Dana’s plant, but it had not been operated on roads open to the general public. The owner’s manual for the S80B forklifts indicates that, "note: Hyster lift trucks are not intended for operation on public roads.” On appeal, Dana raises two issues. First, it contends that the trial court erred as a matter of law when it determined that the forklift which struck William Calladme was a "motor vehicle” for purposes of the owner’s liability statute. We agree. MCL 257.401; MSA 9.2101, the owner’s liability statute, reads, in pertinent part: The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires. [Emphasis added.] That provision is part of the civil liability act, MCL 257.401 et seq,; MSA 9.2101 et seq., which is Chapter iv of the Michigan Vehicle Code, MCL 257.1 et seq.; MSA 9.1801 et seq. In Frazier v Rumisek, 358 Mich 455; 100 NW2d 442 (1960), the Supreme Court noted: The owner liability statute before us was passed in response to an overwhelming public need. Common-law liability, circumscribed as it was by the doctrine of bailment, respondeat superior, agency, and the like, was unable to cope with the rising tide of injuries resulting from the use of the new mechanism, the automobile. Principal among the legislative answers were the owner liability laws. Their purpose, as Mr. Justice Edwards held in Moore v Palmer, 350 Mich 363 [86 NW2d 585 (1957)], was to extend and complement the common law. The legislative theory was simple to state and broadly applicable: An owner was liable for the negligent operation of the machine owned by him when he had consented to its use. [358 Mich 457.] MCL 257.33; MSA 9.1833 of the Michigan Vehicle Code defines motor vehicle as "every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.” MCL 257.79; MSA 9.1879 of the code defines vehicle as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices exclusively moved by human power or used exclusively upon stationary rails or tracks” and excepting mobile homes. MCL 257.20; MSA 9.1820 defines a highway or street as "the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” In this appeal, we must decide if the forklift involved in the accident with William Calladine was a motor vehicle for purposes of MCL 257.401; MSA 9.2101. New cases have dealt with the definition of motor vehicle under the owner’s liability statute. However, we have often considered the definition of motor vehicle contained in MCL 500.3101; MSA 24.13101 of the Insurance Code. See Citizens Ins Co of America v Detloff, 89 Mich App 429; 280 NW2d 555 (1979), lv den 407 Mich 864 (1979); Ebernickel v State Farm Mutual Automobile Ins Co, 141 Mich App 729; 367 NW2d 444 (1985), lv den 422 Mich 971 (1985); Apperson v Citizens Mutual Ins Co, 130 Mich App 799; 344 NW2d 812 (1983). Those cases are not necessarily dispositive of the issue presented here, however, because that provision states that motor vehicle "means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels” and excepts motorcycles, mopeds, and certain farm equipment. The provisions construed in this appeal are not identical to those found in the Insurance Code. In West v Cyril J Burke, Inc, 137 Mich App 191, 197; 357 NW2d 856 (1984), lv den 422 Mich 852 (1985), we held that the owner’s liability statute does not apply unless a vehicle is being driven at the time of the injury. However, that decision did not discuss whether or not a mobile crane is a motor vehicle for purposes of the statute. In this case, it appears that the forklift was being driven when Calladme was injured. We also note that Ladner v Vander Band, 376 Mich 321; 136 NW2d 916 (1965), is inapposite. In that case, the Supreme Court held that the owner’s liability statute is not restricted to the operation of motor vehicles on public highways, Ladner, supra, p 328. That case involved an automobile, however, and the Court did not consider the definition of motor vehicle under the statute. The place where a device is operated may affect the determination of whether or not it is a motor vehicle. See DAIIE v Spafford, 76 Mich App 85; 255 NW2d 780 (1977), lv den 402 Mich 825 (1977). We hold that the forklift which struck plaintiff’s ward was not a motor vehicle within the meaning of the owner’s liability statute. Where a device is not actually transported or drawn upon a highway and where it cannot lawfully be operated on a highway, it is not a vehicle within the purview of the owner’s liability statute. That is the meaning of the "is or may be” language found in MCL 257.79; MSA 9.1879. This reading of the statute comports with the legislative design to deal primarily with injuries occasioned by automobiles, as set out in Frazier, supra. Since the forklift involved in this case could not lawfully be driven upon a highway, and since it was never driven upon a highway, as defined in MCL 257.20; MSA 9.1820, it was not a motor vehicle as that term is used in the owner’s liability statute. See Ebernickel, supra. The trial court erred when it refused to grant summary judgment to Dana on plaintiffs claims for negligence based on the owner’s liability statute. Second, Dana argues that the trial court erred when it construed the indemnification language in the equipment lease agreement to include indemnification for products liability claims. The lease agreement between Modern Handling and Dana provides, in pertinent part: Lessee shall indemnify and save Lessor harmless from any and all injury to or loss of the equipment from whatever cause but shall be credited with any amounts received by Lessor from insurance procured by Lessor. Lessee shall further indemnify and save Lessor harmless from all liability arising out of the use, maintenance, repair and/or delivery of the equipment, including all costs and expenses attributable to claims for loss damage, bodily injury or death, whether or not proven, arising out of such use, maintenance, repair and/ or delivery, but shall be credited with any amounts received by Lessor, from insurance procured by Lessee. The amount of damage for injury to or loss of any unit of equipment shall be based on the retail market value of such unit immediately prior to such loss or injury and shall not be reduced because of rentals theretofore paid or accrued. [Emphasis added.] In Pritts v J I Case Co, 108 Mich App 22; 310 NW2d 261 (1981), lv den 413 Mich 909 (1982), we noted: An indemnity contract is construed in accordance with the rules for the construction of contracts generally. Meadows v Depco Equipment Co, 4 Mich App 370; 144 NW2d 844 (1966). The cardinal rule in the construction of indemnity contracts is to enforce them so as to effectuate the intentions of the parties. Title Guaranty & Surety Co v Roehm, 215 Mich 586; 184 NW 414 (1921). Intention is determined by considering not only the language of the contract but also the situation of the parties and the circumstances surrounding the contract. Id. Indemnity contracts are construed most strictly against the party who drafts them and against the party who is the indemnitee. Gartside v Young Men’s Christian Ass’n, 87 Mich App 335; 274 NW2d 58 (1978). Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977). It has also been said of the construction of indemnity contracts that in order to be effective, the terms must be unequivocal. Hayes v General Motors Corp, 106 Mich App 188; 308 NW2d 452 (1981). See generally 41 Am Jur 2d, Indemnity, §§ 13-15, pp 697-702. [108 Mich App 29.] We have held that there cannot be any broader classification than the word all, and that the ordinary and natural meaning of that word, when used in an indemnity agreement, leaves room for no exceptions. See Pritts, supra, p 30; Paquin v Harnischfeger Corp, 113 Mich App 43, 50; 317 NW2d 279 (1982). The trial court, relying on the use of the term all in the indemnity clause, apparently concluded that the clause would cover products liability claims. Dana contends that, because the language of the agreement here is different than that used in Pritts, it does not include claims for products liability. According to Dana, products liability claims arise out of the manufacture, rather than the "use, maintenance, repair or delivery” of the equipment. We disagree. Dana’s argument is based on semantics rather than substance. We conclude that the use of language referring to "all liability” arising out of the use, maintenance, repair and/or delivery of the equipment covers products liability claims. Thus, the trial court’s apparent denial of Dana’s motion for summary judgment on the indemnification agreement was correct. Reversed in part and affirmed in part.

Per Curiam. Defendant appeals from a judgment for plaintiff entered by the trial court subsequent to a bench trial. The trial judge held that defendant, as plaintiffs no-fault insurer, was liable to plaintiff for personal protection insurance benefits in the amount of $15,375.27. Plaintiff was injured in an accident on Ford Motor Company property in Flat Rock while working on a mobile crane. The mobile crane at issue is powered by a motor and rolls on wheels. The crane is equipped with a loading block and boom at all times. In its "travel mode” the crane travels on the highway, by special permit, at speeds of from thirty to forty miles per hour. Once at the job site, the vehicle is immobilized; outriggers are placed and hydraulically activated to stabilize the crane during "picking” operations. Seventy-five thousand pounds of counterweights are placed on the crane to further stabilize it during the "pick.” To prepare for highway travel after a "pick,” the boom is locked in position, the outriggers are withdrawn, and the counterweights are removed. After the "pick” in the instant case, the outriggers were withdrawn and the boom was locked in place. The mobile crane was then driven, with counterweights in place, one hundred yards, across a nearby road, to ready the crane for highway travel in its "travel mode.” It was during the "offloading” of the counterweights that plaintiff sustained injuries for which he sought no-fault personal protection insurance benefits. MCL 500.3105(1); MSA 24.13105a). Defendant moved for summary judgment prior to trial, pursuant to GCR 1963, 117.2(3), arguing that personal protection insurance benefits were not properly payable because the mobile crane was not a "motor vehicle” within the meaning of § 3101(2)(c) of the no-fault act. MCL 500.3101(2)(c); MSA 24.13101(2)(c). Specifically, defendant claimed that the mobile crane was not a motor vehicle because it was not designed primarily for highway travel or, alternatively, that the mobile crane was not a motor vehicle because it was not designed for highway travel with the counterweights in place. Subsequent to trial, the trial court denied defendant’s motion for summary judgment, rejecting its claim that a vehicle must be designed primarily for highway use in order to be a "motor vehicle” as contemplated by § 3101(2)(c). Relying on Johnston v Hartford Ins Co, 131 Mich App 349, 351; 346 NW2d 549 (1984), lv den 419 Mich 893 (1984), the trial court found that the crane was a "motor vehicle” because it was designed for highway operation in its travel mode, and that the mobile crane was operated "as a motor vehicle” at the time of plaintiff’s injury, as evidenced by plaintiff’s testimony that the crane had just traveled one hundred yards prior to the accident. MCL 500.3105(1); MSA 24.13105(1) provides that an insurer is liable to pay personal protection insurance benefits for accidental bodily injury "arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” At the time of plaintiff’s injury, "motor vehicle” was defined in MCL 500.3101(2)(c); MSA 24.13101(2)(c) as a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels. Motor vehicle does not include a motorcycle or a moped, as defined in section 32b of Act No. 300 of the Public Acts of 1949.[ ] The mobile crane was not, in fact, operated on a public highway at the time of plaintiff’s injury. Thus, our inquiry is limited to whether it was designed for operation upon a public highway. Whether we review the record deposition testimony under the standard for review of denial of a motion for summary judgment pursuant to GCR 1963, 117.2(3); Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973), or plaintiff’s testimony under the standard for review of a trial court’s findings following a bench trial, MCR 2.613(C); Precopio v Detroit, 415 Mich 457, 466; 330 NW2d 802 (1982), we conclude that at the time plaintiff was injured, the mobile crane was not in its mode designed for operation on the highway. The fact that a vehicle might be "functional” on a highway "in an extreme emergency” is not dispositive of whether it was designed for highway operation. McDaniel v Allstate Ins Co, 145 Mich App 603; 378 NW2d 488 (1985); Ebernickel v State Farm Mutual Automobile Ins Co, 141 Mich App 729; 367 NW2d 444 (1985), lv den 422 Mich 971 (1985). In Johnston, this Court held that an injury arising from the operation of a mobile crane which was materially indistinguishable from the crane at bar, when totally immobilized for a "pick,” was not an injury arising from the use of a motor vehicle "as a motor vehicle” as required by § 3105(1). This Court found that the mobile crane was clearly designed to operate on a public highway, and thus was a motor vehicle per § 3101(2)(c), but concluded that because the mobile crane could not be operated on the highway in its immobile state, it was not being operated "as a motor vehicle” at the time of the injury. We differ slightly with the Johnston Court’s construction of the statute. However, we also disagree with the trial court’s application of Johnston to the facts at hand. As we stated earlier, since the mobile crane was not operated upon a public highway at the time of plaintiff’s injury, our focus is on the question of whether it was designed for operation upon a public highway. It was so designed, but only when in its highway configuration or mode. It was not in its highway mode at the time plaintiff sustained his injuries. Thus, it was not at that time designed for operation upon the highways and was not a motor vehicle within the meaning of § 3101(2)(c). Moreover, § 3105(1) permits recovery for personal injuries "arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” Differing slightly from the Johnston Court, we believe that the §3105(1) term "arising out of’ sets forth a temporal circumstance for determining whether a vehicle is a "motor vehicle” as well as for determining, as the Johnston Court held, whether it is operated "as a motor vehicle.” The most important rule of statutory construction is to discover and give effect to the legislative intent. In re Certified Questions, 416 Mich 558, 567; 331 NW2d 456 (1982). We do not believe that the Legislature intended that a vehicle with several separate design functions, only one of which is highway travel, maintains its status as a motor vehicle at all times regardless of its operative function at the time of injury. Conversely, substituting the alternative definition of "motor vehicle,” we do not believe it could be seriously contended that an off-the-highway injury arising from a vehicle not designed for highway travel is compensable under § 3105. See, e.g., Pioneer State Mutual Ins Co v Allstate Ins Co, 417 Mich 590, 596; 339 NW2d 470 (1983). We hold that a vehicle from which injuries arise must be operated on the highway or be designed for operation on the highway at the time of the injury in order for recovery of § 3105 benefits. Applying this panel’s construction of the statute to the facts before us, we conclude that plaintiff was not entitled to no-fault personal protection insurance benefits. To avoid misinterpretation of the ramifications of our decision not to align ourselves with the Johnston panel, we note that our decision is in harmony with Johnston, where the Court stated at 360-361: A too technical approach, i.e., one dictating that, once a dual-purpose vehicle has been ruled a motor vehicle, it is a motor vehicle at all times and for all purposes, would destroy the intent of the statute and create undesirable results. A common sense approach, however, dictates that the intention of the Legislature was to limit the act’s coverage here to motor vehicles whose function at the time of the accident was one compatible with that of a motor vehicle. The intent of the Legislature should not be defeated by a technical or forced interpretation of the statutory language. Grand Rapids Motor Coach Co v Public Service Comm, 323 Mich 624, 635; 36 NW2d 299 (1949). Under this analysis, once a dual-function unit has been converted to a sole nonlocomotive function, it should fall outside the liability statute. Plaintiffs argument that refusal to treat the crane as a motor vehicle would be inconsistent with the parked vehicle statute is not persuasive. A dual-function unit which has not been converted, e.g., one which is merely parked or stopped while functioning under its motor vehicle design, would still be a parked vehicle under MCL 500.3106; MSA 24.13106. Thus, interpreting the "as a motor vehicle” language to relate to the function of a vehicle at the time of an accident should impose liability with respect to a dual-function unit only when in use in its locomotive function. Converted solely to its other function, the unit would fall outside the statute. A dual unit operating as both would fall within the motor vehicle liability provision. [Emphasis added.] Like the Johnston Court, we decline to impose liability with respect to the dual function unit in the case sub judice because it was not in its locomotive function. Our only difference with the Johnston panel is that that panel would consider the mobile crane at all times to be a motor vehicle, while we would not. But even were we to consider the mobile crane to have been at all times a motor vehicle under § 3101(2)(c) as per Johnston, like Johnston we would not hold it to be in use "as a motor vehicle” under the facts here. Thus, under either panel’s construction, we would conclude that the trial court’s judgment was in error. Accordingly, the judgment of the trial court is reversed. APPENDIX Jack Schmalzried, equipment superintendent of Laramie & Sons, plaintiff’s employer at the time of the accident, testified, by deposition, as follows concerning the crane’s capacity for traveling on the highway with the counterweights in place: Q. [Mr. Dickinson, Plaintiff’s Counsel] And when you say in its immobile mode, the crane, even with seventy-five thousand pounds of counterweight on it can move; can it not? A. It can move, but it cannot move down the highway. Q. It could move, it was possible to move down the highway? A. Under an extreme emergency condition. Q. I am not talking about extremes. I am talking about, it was physically possible to move down the highway with seventy-five thousand pounds of counterweight on it? A. I would not say at a high rate of speed, or at a rate of speed that you would be asking for too much weight on your planetaries and your complete system. Q. My question is, it is possible for it to move down the highway to be in a mobile fashion? Mr. Borin: [Defendant’s Counsel] On a public highway with seventy-five thousand pounds on it of counterweights. A. It could be run but— Q. [Mr. Dickinson] That is all I am asking. It could be run, whether you want to take the risk or not, it could be run; correct? A. It could be run, yes, but there would be a tremendous risk involved. Q. It might be a rougher ride with the extra counterweight on the tail? A. You would probably involve in a steering problem. Q. You might have a steering problem, and you might not be able to go as fast as you would without the counterweights; correct? A. Right. Q. But you still could move? A. You could move, yes. Plaintiffs testimony at trial also revealed that the crane can be operated on the highway with the counterweights in place, but that such operation is not ordinary: Q. [Mr. Borin, Defendant’s Counsel] There was a separate truck that came along with the 75,000 pounds of counterweights, is that correct? A. That’s correct. Q. And as far as you knew, in your entire career with Laramie, you had never seen a 3900 operated on the public highways on the streets of Detroit, in the State of Michigan, counterweighted with 75,-000 pounds, had you, sir? A. Yes, I have. Q. You have seen that done? A. Yes, I have. Q. When did you see it done? A. To give you an actual date, I cannot, but I can give you the situation. Q. Okay. Was it a situation where the pick was being done on the street? A. That was one situation, yes. Q. In other words, I don’t know if you saw it up here at the Renaissance Center, they were doing a pick about a week and a half ago, and they actually had this thing on the streets, on the public highway, counterweighted, but they were doing the pick, is that right? A. That was the crane. Q. I am talking about driving it from the yard out to such a situation as you had in February of 1979, when you had to drive twenty, fifteen, twenty miles to the construction site, is that right? A. Yes. Yes, sir, I have seen it driven out from where our yard was located out to this train derailment in Dearborn, approximately ten miles with the counterweights loaded. Q. Was it permitted, was it an emergency situation? A. It was an emergency situation. Q. Okay. You have never seen a permit drawn by the State of Michigan to drive a counterweighted crane on the public highways, have you? A. No, sir, I have not. Q. Mr. McFadden, as I gather from all of the testimony that I have heard from you, you recognize that in certain circumstances, the vehicle that we are talking about, the 3900 T Mannitar Crane, can be driven on public highways? A. Yes. Q. You have seen that done and you have done that yourself, is that correct? A. Yes, sir. Q. All right. At the time that you were removing the counterweights, the 75,000 pounds of counterweights, you were not operating the vehicle on the public highway, were you? A. No, sir. Q. And the fact of the matter is, sir, that except for the isolated situation in an emergency set of circumstances, this particular vehicle and the configuration that existed at the time of your accident was not meant for operation on the public highway, isn’t that correct, sir? A. I guess you could say that, yes. Q. [Mr. Dickinson, Plaintiff’s Counsel] At the time of your accident, after the pick had been done, the vehicle could have been operated on a public highway, could it not? A. Yes, sir. Q. In its particular configuration at that time? A. After it was undressed, is what you are saying. Q. Yes. A. Oh, most definitely. Q. Okay. It could have been on the public highway; it could have been operated; it might have had a lot of counterweights on it, but it could have been driven? A. Oh, yes, it could have handled the road. It could have been functional. Apparently, there is no dispute between the parties with respect to the parked vehicle provision of the no-fault act, MCL 500.3106; MSA 24.13106. Specifically, plaintiff and defendant apparently agree with the trial court that plaintiff’s injury falls within the exception of § 3106(l)(b). Because not presented to this Court as an issue on appeal, we express no opinion on the application of the exception to the case at bar. We do note that by virtue of 1981 PA 209, codified at MCL 500.3106(2); MSA 24.13106(2), effective January 1, 1982, subsequent to plaintiffs cause of action, personal protection insurance benefits are no longer available to one in plaintiffs position because plaintiff sustained his injury in the course of his employment and workers’ compensation benefits were available and have been made available in this case. MCL 500.3101(2)(c); MSA 24.13101(2)(c) has since been amended to exclude from the definition of "motor vehicle” tractors and other implements of husbandry not subject to registration requirements of the Vehicle Code. We have inserted as an Appendix a portion of the deposition testimony of Jack Schmalzried, equipment superintendent of Laramie & Sons, plaintiff’s employer at the time of the accident, and plaintiff’s trial testimony, pertinent to the crane’s capacity for highway travel with its counterweights in place.

Archer, J. We granted leave to appeal to determine whether the defendants should be sentenced under MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) as amended subsequent to the dates their crimes were committed. We would affirm the judgment of the Court of Appeals. i A. PEOPLE V SCHULTZ Defendant David M. Schultz was tried and convicted in the Oakland Circuit Court of transporting ten ounces of cocaine. On November 13, 1986, Schultz, a twenty-five-year-old Bloomfield Hills middle school teacher with no prior criminal record, was arrested at the home of Daniel Jamieson when the police raided the house after an undercover officer purchased cocaine from Jamieson. Defendant was charged with the manufacture, delivery or possession with intent to deliver more than 225 grams but less than 650 grams of cocaine. The prosecution’s theory of the case was that defendant aided and abetted Jamieson in the cocaine sale to the undercover police officer. At trial, defendant testified that on the night of his arrest, he was at his girl friend’s apartment when Jamieson telephoned. Jamieson asked defendant to pick up a package and deliver it to him. Defendant agreed. Jamieson arranged for a friend to place the package in defendant’s car, which was parked outside his girl friend’s apartment. Defendant then retrieved and delivered the package to Jamieson’s house. Defendant and Jamieson were arrested when the police raided the house after Jamieson sold cocaine to an undercover police officer. Defendant also testified at trial that, although he delivered a package to Jamieson, he did not know its contents. In contrast, a police officer testified that during postarrest interrogation, defendant told him he knew the package contained cocaine. Defendant was convicted of possession of more than 225 grams but less than 650 grams of cocaine on April 28, 1987. On May 18, 1987, he was sentenced to twenty to thirty years imprisonment. As it existed at the time of defendant’s conviction and sentencing, MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii), the sentencing statute, provided a mandatory twenty-year minimum term of imprisonment. The trial judge reluctantly imposed this sentence, noting on the record that the statute required the court to do so. Defendant appealed, contesting both his conviction and sentence. The Court of Appeals affirmed the conviction. 172 Mich App 674; 432 NW2d 742 (1988). The Court, however, remanded the case to the trial court for resentencing in light of 1988 PA 47, which became effective March 30, 1988, some ten months after defendant was sentenced. 1988 PA 47 amended MCL 333.7403; MSA 14.15(7403), the statute under which defendant had been convicted and sentenced, and reduced the mandatory minimum term of imprisonment from twenty years to ten. 1988 PA 47 also authorized the trial court to depart from the ten-year minimum term for substantial and compelling reasons. The prosecutor subsequently filed an application for leave to appeal. We granted leave on April 11, 1989, to determine whether the Court of Appeals erroneously ordered the trial court to resentence defendant under MCL 333.7403; MSA 14.15(7403) as amended by 1988 PA 47. 432 Mich 892 (1989). B. PEOPLE V SAND Defendant Jeffrey Francis Sand pled guilty of conspiracy to deliver more than 50 grams but less than 225 grams of cocaine for his role in a scheme to supply cocaine to an undercover police officer. At the plea hearing held on February 4, 1988, defendant stated that he was introduced to an undercover officer and agreed to supply him with cocaine in exchange for money. Defendant agreed to go to Florida and obtain the cocaine. While in Florida, but before he purchased the cocaine, defendant reneged on his part of the bargain. Defendant was subsequently arrested and brought back to Michigan to face prosecution. At the time defendant committed the offense and pled guilty, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii) provided a mandatory ten-year minimum term and a maximum term of twenty years or lifetime probation. About one month prior to defendant’s scheduled sentencing date, 1987 PA 275 took effect and amended § 7401(2)(a)(iii) by reducing the minimum term of imprisonment from ten years to five. At defendant’s sen tencing on May 2, 1988, the trial court sentenced defendant to a term of ten to twenty years imprisonment. Defendant subsequently filed a claim of appeal, and the Court of Appeals unanimously reversed in an unpublished per curiam decision decided May 22, 1989 (Docket No. 109768). The Court held that defendant should have been sentenced under § 7401 as amended by 1987 PA 275. The people subsequently filed an application for leave to appeal, which we granted on September 27, 1989. n The people argue in both cases that criminal defendants are to be sentenced under the relevant statute as it existed on the date the offense was committed. The prosecution claims that, absent an express contrary statement of legislative intent, ameliorative acts that amend sentencing statutes and mitigate the authorized terms of punishment apply prospectively to all offenses committed subsequent to the date the amendment takes effect. Insofar as the prosecution maintains that the question presented is one of legislative intent, we agree. Under the constitution of this state, the people have vested in the Legislature the exclusive authority to determine the terms of punishment imposed for violations of the criminal law. Const 1963, art 4, § 45; In re Callahan, 348 Mich 77, 80; 81 NW2d 669 (1957); People v Coles, 417 Mich 523, 538; 339 NW2d 440 (1983). The Legislature also has the constitutional authority to provide that an ameliorative amendatory act applies prospectively to offenses committed after the amendatory act takes effect. In the context of the two cases presented before this Court, however, we disagree that the Legislature intended to exercise this power and so narrowly constrict the prospective operation of the amended Public Health Code. In light of the Legislature’s decision that the current terms of punishment authorized in the Public Health Code constitute an appropriate social response to narcotics crimes and abuse, we would hold that the Legislature intended cases pending in the trial court and those on direct appeal, where the issue is raised and preserved, on the date the ameliorative amendments took effect to be included within the ambit of the amended Public Health Code. To conclude otherwise would be inconsistent with the underlying purpose of the general saving statute and the sentencing policies of this state. Despite the intent of the Legislature expressed in 1987 PA 275, 1988 PA 47, and 1989 PA 143, all of which mitigate the terms of punishment authorized in the Public Health Code for the manufacture, delivery, or possession of controlled substances, the prosecution submits that defendants Schultz and Sand should be sentenced under MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) as those statutes existed when the defendants committed their crimes. The people reason that both the action to enforce criminal liability and the terms of punishment authorized in the statutes prior to amendment remain in effect by operation of the general saving statute, MCL 8.4a; MSA 2.214. Section 8.4a provides that the repeal of any statute under which a liability, forfeiture, or penalty is incurred does not discharge that liability, forfeiture, or penalty, absent a contrary statement of legislative intent: The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. Although it is clear that the two defendants before this Court have incurred criminal liability for which they may be punished, neither the purpose of § 8.4a nor the relevant case law from the Court of Appeals lends persuasive support to the prosecution’s argument that the Legislature intended the terms of punishment authorized prior to amendment in MCL 333.7401; MSA 14.15(7401) and MCL 333.7403; MSA 14.15(7403) to remain in effect against these defendants. The history surrounding § 8.4a indicates that the Legislature enacted the general saving statute in response to a factual scenario vastly different from that presented before our Court today. Section 8.4a was specifically adopted to abrogate an anomaly resulting from the interplay between the common-law abatement doctrine and the constitutional Ex Post Facto Clause. This Court held in People v Lowell, 250 Mich 349; 230 NW 202 (1930), that at common law the repeal of a criminal statute barred the prosecution of all pending and subsequent cases authorized under the repealed statute in the absence of a saving clause or general saving statute. In Lowell, the defendant was charged with violating the Michigan prohibition act. Subsequently, the act was amended to increase the authorized maximum term of punishment. We affirmed the lower court order granting defendant’s motion to quash the bindover and concluded that the prosecution could no longer continue. Under the common-law abatement doctrine, the act authorizing the prosecution had been repealed by the amendatory act. Id. at 352. Likewise, prosecution under the amended act, which provided a term of punishment that had been increased subsequent to the date of offense, was barred by the constitutional Ex Post Facto Clause. In order to alleviate this anomalous situation where a criminal defendant could no longer be prosecuted under any law even though his conduct was proscribed under the statute both before and after amendment, we invited the Legislature to enact a general saving statute. Subsequently, the Legislature responded by enacting MCL 8.4a; MSA 2.214. By enacting § 8.4a, the Legislature has expressed its intent that conduct remains subject to punishment whenever a statute imposing criminal liability either is repealed outright or reenacted with modification, even though a specific saving clause has not been adopted. While § 8.4a does indicate that conduct remains subject to punishment, it does not indicate that the Legislature intended the statute prior to amendment to provide the terms of punishment where an amendatory act mitigates the authorized terms of punishment but continues to proscribe the same conduct. Although the dissent correctly notes that other jurisdictions have rejected this view, see post, pp 542-543, to conclude that the Michigan general saving statute also requires the defendants to be sentenced under the terms of punishment authorized in the statutes prior to amendment would be to gloss over the historical and philosophical underpinnings of § 8.4a. The decisions of our Court of Appeals also support the view that the Legislature intended § 8.4a to prevent technical abatements from barring actions to enforce criminal liability and thereby excusing offenders from punishment. While the cases do illustrate the instances in which the Legislature did not intend to excuse criminal defendants from prosecution, they do not support the proposition that the Legislature enacted §8.4a to save the terms of punishment in effect on the date of offense when an ameliorative amendment was subsequently enacted and the case had not yet reached final disposition before our Court. Thus, in People v McDonald, 13 Mich App 226; 163 NW2d 796 (1968), where an ameliorative amendment eliminated the distinction between nighttime and daytime breaking and entering and reduced the maximum authorized term of punishment, the Court properly rejected the defendant’s argument that prosecution was precluded under the statute as it existed prior to amendment. In light of § 8.4a and the amendatory act, which also proscribed the same conduct as the statute prior to amendment, the Court correctly reasoned that the Legislature did not intend to excuse the defendant from criminal prosecution. Likewise, this analysis was also properly followed in People v Gravedoni, 172 Mich App 195; 431 NW2d 221 (1988), where the Court of Appeals correctly held that the defendant’s conduct was still subject to punishment notwithstanding an ameliorative amendment enacted subsequent to the date of offense. See also People v Ulysee Gibson, 71 Mich App 220; 247 NW2d 357 (1976). Cf. People v Dalby, 181 Mich App 673; 451 NW2d 201 (1989). The same statutes at issue in McDonald, supra, were also the subject of the litigation in People v Poole, 7 Mich App 237; 151 NW2d 365 (1967). In that case, however, the defendant did not claim that the prosecution was barred because his conduct was no longer subject to punishment. Rather, the defendant argued that he should be sentenced under the terms of the amended statute, which reduced the maximum term of punishment. Since the defendant’s judgment of conviction was no longer subject to direct appellate review and had become final when he moved to be resentenced, the Court correctly held that the defendant was properly sentenced under the statute as it existed prior to amendment because the common-law abatement doctrine did not affect completed prosecutions. See also People v Dickerson, 17 Mich App 201; 169 NW2d 336 (1969). The courts of other states that have adopted general saving statutes also hold that, in the absence of a contrary statement of legislative intent, criminal defendants are to be sentenced under an ameliorative amendatory act that is enacted subsequent to the date of offense and becomes effective during the pendency of the prosecution. This rule recognizes that the constitutional authority to determine sentencing policies rests exclusively with the Legislature and not the courts. It should likewise be the rule in Michigan since there is every reason to conclude that the Legislature intended the amended Public Health Code to apply to defendants before our Court. Both 1987 PA 275 and 1988 PA 47 reduce the mandatory minimum terms of imprisonment and provide a departure policy. Although in 1989 PA 143 the Legislature restored the mandatory minimum terms, the departure policy was retained. Thus, the legislative mandate is clear: The sentencing courts of this state are authorized to exercise discretion and, in appropriate cases presenting substantial and compelling circumstances, to depart from the Public Health Code’s mandatory minimum terms. In their capacity as representatives of the people of this state, the members of the House and the Senate have determined that an appropriate social response to the menace of narcotics trafficking and abuse is to vest in the trial courts a limited degree of discretion to determine whether the legitimate goals of indeterminate sentencing will be promoted by imposing the mandatory minimum terms authorized in the Public Health Code. Indeterminate sentences are to be individually tailored, People v Coles, supra at 537, and the availability of judicial discretion is an integral aspect of indeterminate sentencing, id. at 539. Four factors may be taken into consideration to determine the appropriateness of a sentence: rehabilitation, deterrence, the protection of society, and punishment. People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). Because the Public Health Code before and after amendment continues to proscribe the same conduct for which defendants Schultz and Sand were convicted, it is clear that deterrence, the certainty of punishment, and the other goals of indeterminate sentencing will continue to be promoted by sentencing the defendants under the terms provided in the ameliorative amendatory acts. Fairness will also be promoted since the trial courts would be better able to tailor a sentence to fit the needs of the individual defendant and society as well. Defendant Schultz is precisely the type of individual the Legislature envisioned when the ameliorative amendments were enacted: A twenty-five-year-old middle school teacher with no prior criminal record. As this Court noted in People v Lorentzen, 387 Mich 167, 180; 194 NW2d 827 (1972), the ultimate goal of sentencing in this state is not to exact vengeance, but to protect society through just and certain punishment reasonably calculated to rehabilitate and thereby " 'convert bad citizens into good citizens ....’” Quoting People v Cook, 147 Mich 127, 132; 110 NW 514 (1907). Thus, although the Legislature has enacted a departure policy in order to more equitably promote the sentencing policies of this state, whether the trial court would in fact find substantial and compelling reasons to depart from the mandatory minimum term, as it indicated it would in Schultz, or not, as in Sand, is irrelevant. Our general saving statute was adopted to amend a technically correct but logically absurd result that arose from a legislative oversight. To ignore the plain intent of the Legislature in this case would lead to an equally anomalous result. Consequently, we would merely hold that where, as in this case, the clear intent of the Legislature is to vest discretion in the trial courts to determine whether a departure from the mandatory minimum terms authorized in the Public Health Code is warranted, the general saving statute and sentencing policies of this state do not indicate a contrary legislative intent that the defendants should be sentenced under the Public Health Code as it existed prior to amendment. We would therefore affirm the judgment of the Court of Appeals in both cases and remand for resentencing under the Public Health Code as amended. Levin and Cavanagh, JJ., concurred with Archer, J. MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). Jamieson was similarly charged, but absconded while on bail. To date, he has not been apprehended. Defendant was arrested in a basement room adjacent to the one in which Jamieson sold the cocaine to the undercover police officer. 172 Mich App 674, 677; 432 NW2d 742 (1988). Inside the room, the police found in plain view a chemical compound used to cut cocaine, a scale, a mirror covered with white powder residue, and a switch blade knife. Id. Following his arrest, defendant waived his Miranda rights. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). At the time of defendant’s arrest, trial, and sentencing, § 7403 provided: (1) A person shall not knowingly or intentionally possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article. (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and: (ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years. Cocaine is a controlled substance classified in schedule 2. MCL 333.7214(aXiv); MSA 14.15(7214Xa)(iv). [I]f I had the discretion I would not impose a twenty-year minimum sentence nor anything even close to it. 1988 PA 47 provides: (1) A person shall not knowingly or intentionally possess a controlled substance unless the controlled substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article. (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and: (ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 30 years. (3) The court may depart from the minimum term of imprisonment authorized under subsection (2)(ii), (iii), or (iv) if the court ñnds on the record that there are substantial and compelling reasons to do so. [Emphasis added.] MCL 750.157a; MSA 28.354(1) and MCL 333.7401(2)(a)(iii); MSA 14.15(7401X2Xa)(iii). Section 7401 provided: (1) Except as authorized by this article, a person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant. (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and: (iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that substance is guilty of a felony and shall be either imprisoned for not less than 10 years nor more than 20 years or placed on probation for life. In addition to providing a departure policy and eliminating the lifetime probation provision, 1987 PA 275 provided: (1) Except as authorized by this article, a person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant. (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and: (iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 5 years nor more than 20 years. (4) The court may depart from the minimum term of imprisonment authorized under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so. In 1989 PA 143, the Legislature restored the mandatory minimum terms as they were enacted in the 1978 Public Health Code prior to amendment by 1987 PA 275 and 1988 PA 47. 1989 PA 143, however, retained the departure policy adopted in the two ameliorative amendments. The term "repeal” also includes the reenactment of the same statute with modification. Id. at 354. See, generally, note, Today’s law and yesterday’s crime: Retroactive application of ameliorative criminal legislation, 121 U Pa LE 120,121 (1972). We suggest to the legislature that, if this ruling does not accord with its actual intention, a similar situation may be avoided in the future by the enactment of a general saving statute, covering such cases and with such provisions as- the legislature may determine. [Id. at 361.] Prosecutions completed prior to the repeal of a criminal liability statute remained unaffected by the common-law abatement doctrine. In re Jerry, 294 Mich 689, 691; 293 NW 909 (1940); People v McDonald, 13 Mich App 226, 229-230; 163 NW2d 796 (1968). See, e.g., In re Estrada, 63 Cal 2d 740; 48 Cal Rptr 172; 408 P2d 948 (1965); State v Coolidge, 282 NW2d 511 (Minn, 1979); People v Oliver, 1 NY2d 152; 151 NYS2d 367; 134 NE2d 197 (1956); People v Festo, 96 AD2d 765; 463 NYS2d 444 (1983). 1989 PA 143, amending MCL 333.7401(4); MSA 14.15(7401)(4) and MCL 333.7403(3); MSA 14.15(7403)(3). As we noted in People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973), "The modern view of sentencing is that the sentence should be 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. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state.” See n 6. Mr. Sand, this Court doesn’t have any sympathy for you.

E. E. Borradaile, J. The principal question in this case is whether the basement of a two-story multiple-unit dwelling was a part of the first floor or the curtilage for purposes of a search and seizure under a search warrant. The defendant was convicted by a Recorder’s Court jury of receiving and concealing stolen property over $100 and was sentenced to from two to five years imprisonment. He appeals from his conviction as of right. The evidence at trial showed that a Detroit police officer was patrolling on foot after receiving information from his commander about car thefts in the area. He spotted a blue Corvette automobile in the driveway of premises on LaSalle. A few minutes later, he saw a man leave the premises, enter the Corvette, and drive it to a nearby alley. He next saw four other individuals, including defendant, leave the house, walk to the alley and begin removing parts off the Corvette — tires, seats, roof top and glass top. The officer saw defendant loosen the tires, and then witnessed all five individuals carry the car parts into the house from which they had exited. He saw defendant carry one of the tires. The officer and his partner requested that the door to the premises be opened, were refused entry and threatened to forcibly enter. They then requested a search warrant, which arrived shortly thereafter. Before it arrived, the five individuals, including defendant, walked out of the house and were immediately arrested. The search pursuant to the search warrant produced car seats, top, visor, wheels and tires from the basement of the home. All five of the individuals identified by the officers were charged with three counts: (1) receiving and concealing stolen property over the value of $100, MCL 750.535; MSA 28.803, i.e., one blue Corvette; (2) breaking and entering a motor vehicle for the purpose of stealing goods of the value of not less than $5; and (3) larceny from a motor vehicle of the wheels, tires, seats, top and visor which were removed from the Corvette. Two of those charged pled guilty to receiving and concealing stolen property over $100, and a third pled guilty to attempted receiving and concealing stolen property over $100. Defendant and another chose to go to trial. Before trial, defendant moved to suppress the evidence taken from the basement, alleging that the police officers exceeded the scope of the warrant when they searched the basement. The trial judge denied the motion, as he did a motion for reconsideration of the denial. The denial of these two motions is one of the issues raised in this appeal, the other issue being sufficiency of the evidence of a value over $100. We affirm the trial court. i A defendant seeks suppression of evidence by a motion to suppress. People v Kinnebrew, 75 Mich App 81; 254 NW2d 662 (1977). The trial judge may hold a separate evidentiary hearing to consider the motion. People v Carroll, 396 Mich 408; 240 NW2d 722 (1976); Kinnebrew, supra, p 83. The trial judge is free to exercise his own judgment concerning the motion and to consider testimony in addition to that contained in the preliminary examination record. Kinnebrew, supra, p 83. A trial court’s ruling on a motion to suppress evidence will not be reversed on appeal unless clearly erroneous. People v Grimmett, 97 Mich App 212, 214; 293 NW2d 768 (1980), lv den 411 Mich 853 (1981); People v Mackey, 121 Mich App 748; 329 NW2d 476 (1982). If upon its review of the record this Court does not possess a definite and firm conviction that the trial court made a mistake, it must affirm. People v Burrell, 417 Mich 439, 449; 339 NW2d 403 (1983). The Fourth Amendment of the United States Constitution provides in part: [N]o 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. Similarly, the Michigan Constitution states in part: 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. [Const 1963, art 1, § 11.] In addition, MCL 780.654; MSA 28.1259(4) states in part: A search warrant shall be directed to the sheriff or any peace officer, commanding such officer to search the house, building or other location or place, where any property or other thing for which he is required to search is believed to be concealed. Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized. The search warrant in this case described the place to be searched as: 15903 LaSalle, a 2 story, 2 family dwelling, brick with white trim, 5th house south of Puritan on west side of street and entire curtilage. Down stairs only. The items to be seized were described as: "T-Tops to a corvette, 2 blue bucket seats to a corvette, 4 tires with rims, unk make, taken from corvette and unk make radio/cassette player.” Defendant claims that the officers exceeded the scope of the search warrant because the warrant was limited to the "[d]own stairs only” and did not authorize a search of the basement. Defendant seems to concede that, had the search warrant not contained the term "[d]own stairs only,” a search of the basement would have been proper, but argues that adding the additional words in the warrant limited the search to the main floor of the downstairs apartment only. From the testimony, it appeared that one of the individuals involved in the auto-stripping lived downstairs and his sister lived in an upstairs apartment, with a common basement used by both the upstairs and downstairs tenants. The testimony showed that entry to the basement was from both the downstairs and upstairs flats. There was only one stairway leading to the basement, and both the downstairs and upstairs had access to use. of that stairway. There were two doors leading to the stairway, one from the downstairs flat and one from the hallway from the upstairs flat. Access to these doors and to the basement opening, which had no door, was from a landing which was separate from the downstairs flat. To reach the basement, the officer had to exit the downstairs flat, enter the landing, and descend the stairs. The officer who executed the warrant testified that he entered the stairs through the door which led from the downstairs flat. The tires of the Corvette and other parts were found strewn throughout the basement, and there was no evidence presented that the basement was separated into a portion for the upstairs and a portion for the downstairs tenant. The officer did admit that the officers also searched the upstairs flat and found the bucket seats to the Corvette. The prosecutor concedes that the seats taken from the upstairs flat were not properly seized. This issue appears to be one of first impression in this state. The general rule, where a multi-unit dwelling is involved, is that the warrant must specify the particular sub-unit to be searched, unless the multi-unit character of the dwelling is not apparent and the police officers did not know and did not have reason to know of its multi-unit character. People v Franks, 54 Mich App 729; 221 NW2d 441 (1974); Kinnebrew, supra. See cases in Anno: Search warrant: sufficiency of description of apartment or room to be searched in multiple-occupancy structure, 11 ALR3d 1330. The search warrant in this case clearly complied with the general rule, since the magistrate inserted the words "[d]own stairs only” on the warrant. Though Michigan case law indicates that a warrant for one address does not authorize a search for another address, People v Musk, 221 Mich 578; 192 NW 485 (1922), in this case the evidence showed that the upstairs flat was 15903 LaSalle and the address of the downstairs was 15901 LaSalle. The warrant was for ”15903 LaSalle . . . [d]own stairs only,” which is ambiguous, but the defendant seems not to have raised the issue, and it appears any ambiguity was cleared up when the magistrate put the words "[djown stairs only” on the warrant. The trial judge in this case determined that the basement was a part of the downstairs flat, stating: Every flat I’ve ever been in, each apartment has access to the basement. So in this case the downstairs flat, the basement would be part of the downstairs apartment unit, and I find that the language in the search warrant allowed the police to go in the downstairs unit, so Í believe the basement would be included in that, within that phrase allotted in the search warrant. It appears the trial judge took judicial notice of the configuration of the premises and the conclusions to be drawn. MRE 201 allows judicial notice of adjudicative facts and states:__ A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. [MRE 201(b).] MRE 201(b) would seem to require that a fact judicially noticed be beyond reasonable dispute and the fact must be either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. See Michaels v Pinten, 208 Mich 455; 175 NW 465 (1919); Winekoff v Pospisil, 384 Mich 260; 181 NW2d 897 (1970). This Court believes that the judge could not properly take such judicial notice in order to make his decision, but it was harmless error. The history of search and seizure in the United States and in Michigan has been one of very carefully limiting the extent to which a police officer may search a private residence, in view of the historical concern with police entering premises and searching as they pleased, as the colonists experienced it. A distinction must also be made between searches incident to a lawful arrest and searches which are conducted as the result of securing a search warrant. In this case, the question is limited solely to the effect of the search warrant. As said in 79 CJS, Searches and Seizures, § 75, p 876, "[t]he description or designation of the place must be clear, certain, specific, or particular, and if it is not so described or designated, a search warrant issued thereon is void, and the search is unlawful.” In the case of People v Lienartowicz, 225 Mich 303; 196 NW 326 (1923), although the premises owner’s name was in the warrant and it also included the basement, no street number was shown. The Supreme Court, quoting Musk, supra, indicated that the magistrate could not issue a search warrant to search a place other than that in the affidavit, but that nice or technical descriptions are not required. In United States v Gonzales, 697 F2d 155 (CA 6, 1983), the court indicated that, where a structure is divided into more than one unit, probable cause must exist for each unit, relative to the warrant. In that case, the warrant had covered one address, but the officers were able to show probable cause for search of each unit within the building. In our instant case, though there is some indication the parties entered the building with all of the items removed from the vehicle, there is no indication that the officer had adequate reason to believe that they could go into any part of the house and, as noted above, the prosecutor has conceded that items seized on the second floor were not properly seized. In People v Musk, supra, pp 580-581, the Court, quoting 24 RCL 713, said: The constitutional requirement is a description which particularly points to a definitely ascertainable place and so as to exclude all others. The writ should not leave the place to be searched to the discretion of the officer; and the modern authorities are unanimous in holding that a search warrant directing an officer to search places generally is clearly illegal._ The search warrant provided for a search of the "entire curtilage” of the lower flat. "Curtilage” is defined as "a space, necessary and convenient and habitually used for the family purposes, and the carrying on of domestic employments. It includes the garden, if there be one, and it need not be separated from other lands by fence.” Blacks Law Dictionary (4th ed), p 460. While no case seems to deal with whether a basement is a part of the curtilage for a search warrant, it would seem apparent that a doorless opening leading from two doors of two different units would be a total part of the space necessary and convenient for family purposes for the particular family involved in the first floor dwelling or first floor level. In People v Terrell, 53 Misc 2d 32, 35, 43; 277 NYS2d 926 (1967), aff'd 291 NYS2d 1002 (1968), the trial judge found that a fire escape outside of a person’s residence is in law a part of the "curtilage” of an apartment, and as such was entitled to the protection of the federal constitutional protections against unreasonable searches and seizures. The only case we have discovered that discusses the basement as a part of the house was a Kentucky decision where burglarly was charged and a defendant argued that the cellar which could not be entered from the first floor but only from outside the house was not a part of a dwelling for purposes of the burglary statute. The court in Mitchell v Commonwealth, 88 Ky 349, 352; 11 SW 209 (1889), finding that as used the cellar was appurtenant to and a parcel of the dwelling house, said: There is a diversity of decision as to what does, and what does not, in law, constitute a part of a dwelling house. Some cases include all within the curtilage; and this, according to Blackstone, ap pears to have been the common law rule; while others are made to turn upon the use. . . . It is difficult to lay down any general rule upon the subject, owing to the nice distinctions to be found in some of the cases. It seems to us, however, that both the use and the situation should be considered. As said in People v Ranes, 230 Mich 384; 203 NW 77 (1925), "[technicalities of description as in a conveyance are not required.” We believe that in this case, where it was apparent that the first floor dwelling had full access to the basement and that there was no division of the basement showing that part was for one floor and part was for the other, the items seized in the basement should not be suppressed. We find the trial judge correctly denied suppression of those items, though for different reasons than relied upon by the trial judge. ii Defendant’s second issue on appeal is that there was insufficient evidence presented to justify a verdict of guilty of receiving and concealing stolen property over the value of $100. Defendant argues that, since he was carrying only one tire, there was insufficient evidence presented to indicate that he was guilty of receiving and concealing stolen property of a value over $100, and also that there was insufficient evidence presented to indicate that he knew the Corvette had been stolen. The elements of the crime of receiving and concealing stolen property over the value of $100 are set forth in the proposed Michigan Criminal Jury Instructions (CJI) 26:1:01, which provides: (1) some property must be shown to have been stolen; (2) the defendant must have received, concealed, or aided in the concealment of that property; (3) the property must be identified as being the same property which had been previously stolen; (4) the defendant must have known that the property was stolen at some time, either when he received, concealed, or aided in the concealment of the property or at some time when he wrongfully continued to possess the property; and (5) the property at the time it was knowingly received or concealed must have had a fair market value which exceeded, that is, was over $100. The people must prove every element of the crime charged by direct or circumstantial evidence beyond a reasonable doubt. People v Gadson, 348 Mich 307; 83 NW2d 227 (1957). The credibility and weight to be given the testimony of a witness is within the province of the jury. People v Morris, 12 Mich App 411; 163 NW2d 16 (1968). The standard is the same for reviewing both a sufficiency of the evidence claim and a denial of a motion for directed verdict. The trial judge, when ruling on a motion for a directed verdict of acquittal, must consider the evidence presented by the prosecution up to the time the motion is made, view the evidence in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980); People v Cook, 131 Mich App 796, 809; 347 NW2d 720 (1984). Defendant claims that there was insufficient evidence on the issue of the value of stolen parts which defendant was convicted of receiving and concealing. Because the crime is a felony if the property value is over $100, and is a misdemeanor if the property is of a value worth less than $100, the issue of value is critical in the charge of receiving and concealing stolen property. Where the prosecutor fails to prove that the value of the goods is over the statutory minimum to make a felony, defendant must be convicted of only a misdemeanor. People v Hanenberg, 274 Mich 698; 265 NW 506 (1936). In People v Vicuna, 141 Mich App 486, 495-496; 367 NW2d 887 (1985), this Court summarized the law applicable to aiding and abetting: One who procures, counsels, aids or abets in the commission of an offense may be tried and convicted as if he directly committed the offense. MCL 767.39; MSA 28.979. The phrase "aiding and abetting” describes all forms of assistance rendered to the perpetrator of the crime and comprehends all words or deeds which may support, encourage or incite the commission of a crime. People v Palmer, 392 Mich 370; 220 NW2d 393 (1974); People v Cortez, 131 Mich App 316; 346 NW2d 540 (1984); People v Turner, 125 Mich App 8; 336 NW2d 217 (1983). Mere presence, even with knowledge that an offense is about to be committed, is not enough to make one an aider or abettor. People v Burrel, 253 Mich 321; 235 NW2d 170 (1931); Turner, supra. To be convicted, the defendant must either himself possess the required intent or participate while knowing that the principal possessed the required intent. Turner, supra; People v Karst, 118 Mich App 34; 324 NW2d 526 (1982); People v Triplett, 105 Mich App 182; 306 NW2d 442 (1981), remanded on other grounds 414 Mich 898; 323 NW2d 7 (1982). In this case, the fact that the defendant was seen carrying only one tire back to the house after he and his four friends had gone to the vehicle that had been moved from the driveway into the alley does not preclude him from being guilty as an aider or abettor for receiving and concealing all the stolen parts. The value of stolen goods is their market value at the time of the receiving or possession by defendant. People v Fishel, 270 Mich 82; 258 NW 217 (1935); People v Dandy, 99 Mich App 166, 173; 297 NW2d 604 (1980), rev’d on other grounds 410 Mich 901 (1981). This value is to be determined by the jury by consideration of all the testimony that has been presented in the case, and applying its judgment to that testimony to determine the value. Fishel, supra, p 85. It was stipulated at the trial that the owner of the stolen Corvette had just bought it for $21,000. In addition, all the parts of the automobile which were seen carried back to the house — the seats, wheels, tires, roof, and glass top — clearly exceeded $100. Even if the individual tire which defendant was seen carrying into the house was not worth over $100, defendant is guilty, under the aiding and abetting theory, of receiving and concealing all the parts, not just one tire. The officer also testified that he had seen the defendant loosen all four tires. Under the Hampton standard, a rational trier of fact clearly could find that the defendant was guilty of receiving and concealing stolen goods over the value of $100 on the basis of his participation in the overall theft. The trial court correctly denied defendant’s motion for a directed verdict. Defendant’s other argument, which does not require much consideration, is that there was insufficient evidence to submit the question of knowledge to the jury. In many criminal cases, it is impossible to submit direct proof of the corpus delicti. It and the defendant’s guilt can rest together on one foundation of circumstantial evidence. People v Hawksley, 82 Mich 71; 45 NW 1123 (1890). While it is true that knowledge of the fact that the parts are stolen is an essential element of the crime of receiving and concealing stolen property, People v Montague, 71 Mich 318; 39 NW 60 (1888), a rational trier of fact under the Hampton standard could clearly find that, when defendant went to the alley with the other individuals and they all descended on the car "like a pit crew,” as stated by the officer who observed the event, defendant had the requisite guilty knowledge. Affirmed. The issue of standing was also not raised by either of the parties in the trial court or on appeal, but there may be some question as to defendant Toodle’s standing to raise the question of the search. The automatic standing rule has been abolished in Michigan and has been replaced by the reasonable expectation of privacy test. People v Smith, 420 Mich 1, 20-21; 360 NW2d 841 (1984). To determine whether a defendant may attack the propriety of a search or seizure, that search or seizure must have infringed upon an interest of the defendant which article 1, § 11 of the Michigan Constitution was designed to protect and, in making this determination, this Court must decide whether defendant had an expectation of privacy in the place of the search and whether that expectation is one that society is prepared to recognize as reasonable. This requires considering the totality of the circumstances. Smith, supra, p 28. See also the recent discussions in People v Houze, 425 Mich 82; 387 NW2d 807 (1986). Though the evidence seemed to show that defendant Toodle did not live at the house, there is no evidence to indicate how long he had been present before he was seen emerging with the other individuals from the home. Though People v Mason, 22 Mich App 595; 178 NW2d 181 (1970), lv den 383 Mich 826 (1970), which held that finding a person to be a guest and thus without standing was too broad a statement, was decided before Smith, supra, we have inadequate evidence to make a determination as to standing and, since the issue was not reused by either party, we prefer to deal with the issue of whether the basement was a part of the first floor for purposes of the search warrant. A distinction must also be made between cases where the premises are not adequately or accurately described, but the owner’s or occupant’s name is included in the search warrant. See 68 Am Jur 2d, Searches and Seizures, §§ 77, 79, pp 730-732, 733-734.

G. W. Crockett, III, J. The defendants-counter-plaintiffs, Billy D. Isbell and Peggy S. Isbell (defendants), appeal as of right from an October 7, 1985, amended order for judgment of deficiency entered by the Livingston Circuit Court. In addition to this order, defendants challenge a judgment of foreclosure, entered on April 15, 1985, and an order of partial summary judgment, entered on May 2 1985, in favor of the plaintiffs-counterdefendants, Raymond L. Stewart and Joan M. Stewart (plaintiffs). The appeals were consolidated for hearing and decision by the Court of Appeals. On December 2, 1980, the plaintiffs sold their home and acreage located in Deerfield Township, Livingston County, under a land contract to the defendants for a sum of $150,000. The contract called for the defendants to deposit a down payment of $20,000, to pay monthly installments of $1,200, and to make a $58,000 "balloon” payment on September 15, 1983. The unpaid balance was subject to an interest rate of eleven percent per annum (simple interest). The contract contained an "as is” clause and required the defendants to maintain adequate insurance on the premises. On January 20, 1981, a fire, caused by the improper installation of a wood-burning stove, destroyed the home. On April 20, 1982, the plaintiffs filed a complaint to foreclose the land contract, alleging that the defendants stopped making payments on January 5, 1982. The defendant subsequently filed a counterclaim sounding in negligence, fraud and misrepresentation, and intentional infliction of emotional distress. Discovery followed. On May 18, 1982, the circuit court ordered the defendants to place $80,000 in insurance proceeds into an escrow account. On November 29, 1982, the defendants were ordered to use the insurance proceeds to satisfy the arrearage payments under the land contract. The proceeds were depleted in September of 1983, leaving a balance of over $50,-000 still owed to the plaintiffs according to a January 11, 1985, written opinion of the circuit court. On January 12, 1984, after discovery was made, the defendants filed an amended counterclaim against the plaintiffs and also a complaint against Jack S. Schade, the builder of the chimney, and Montgomery Ward & Co., Incorporated, the retailer of the stove. The claim against the added parties was not considered below and is not relevant to this appeal. The amended countercomplaint contained four counts. Count i sounded in negligence, alleging that the plaintiffs failed to: (1) comply with building and safety codes; (2) properly install the stove; (3) warn the defendants of the hazards; and (4) inspect the stove. It also alleged that the plaintiffs negligently hired an unlicensed builder to install the stove. Count n set forth allegations of three instances of fraud and misrepresentation by the plaintiffs. First, the defendants claimed that the plaintiffs misrepresented that the water well was in good working order when, in fact, the well malfunctioned and had to be replaced. Second, the plaintiffs purportedly misrepresented that the septic system was in good condition, but it failed after the defendants took possession. Third, it was alleged that the plaintiffs intentionally omitted to disclose that the stove was unsafe and improperly installed. Defendants further alleged that the plaintiffs knew or should have known of the misrepresentations and concealed defects. Count iii attempted to state a cause of action for intentional infliction of emotional distress resulting from the way the plaintiffs handled the insurance proceeds. First, the defendants claimed that the plaintiffs, knowing that they were responsible for the fire, intentionally prevented the defendants from using the insurance funds to reconstruct the home. Second, the plaintiffs delayed depositing the insurance proceeds in an interest-bearing account, thus causing the loss of interest upon these funds. Count iv applied to defendant Montgomery Ward and is not relevant here. On March 13, 1984, the plaintiffs moved for partial summary judgment for the reason that defendants "have failed to allege an intentional tort on the part of the plaintiffs, and therefore, defendants’ claim for damages under the counterclaim is barred by the contractual agreement between the parties.” The plaintiffs filed an affidavit stating that at no time were they ever aware of any defect in the stove, the flue, or the installation and that they never encountered any difficulty whatsoever in its operation even though they had used it on a continual basis. On January 14, 1985, the circuit court issued a written opinion granting the motion. The circuit court determined that the burden of risk of loss remained with the defendants since the plaintiffs were unaware of the dangerous and concealed defect and the "as is” clause absolved the plaintiffs of liability for unknown defects. The written opinion struck "Paragraph 9(c) of the counterclaim,” an apparent reference to the original counterclaim, in ruling that the defendants did not allege sufficient facts supporting a counterclaim for mental suffering. On May 2, 1985, an order of summary judgment was entered dismissing the countercomplaint with prejudice and awarding costs to plaintiffs in the sum of $202.45. The order recited that both parties had filed extensive briefs and affidavits and that the court found that the countercomplaint failed to state a cause of action against plaintiffs for reasons stated in its prior opinion. The order did not identify the applicable court rule under which summary judgment was granted. On April 15, 1985, the circuit court entered a judgment of foreclosure which provided: Now, therefore, it is ordered that there is due the Plaintiffs upon the land contract set forth in the Complaint, for principal and interest as of February 5, 1985, the sum of Eighty-Three Thousand Nine Hundred Seventy-Five and 76/100 ($83,-975.76) Dollars, and that Defendants, Billy D. Isbell and Peggy S. Isbell, are personally liable for the payment thereof. . . . The judgment of foreclosure further ordered defendants to pay interest on the $83,975.76 sum at the rate of twelve percent per annum from February 5, 1985. It further ordered that the premises be sold at a public auction. At the foreclosure sale on June 28, 1985, plaintiffs purchased the property for $87,400. A deficiency judgment was subsequently entered against the defendants in the sum of $776.77 together with interest from the date of the foreclosure sale. Two issues are presented. First, did the circuit court erroneously dismiss the countercomplaint for the reason that it failed to state a cause of action? Second, did the judgment of foreclosure erroneously compute interest on the principal balance at the statutory rate of twelve percent instead of the contractual rate of eleven percent? i At the outset we note that the plaintiff’s motion for partial summary judgment, the circuit court’s written opinion, and the order fail to specify the applicable court rule under which summary judgment was granted. A motion for summary judgment under GCR 1963, 117.2(1) tests the legal sufficiency of the pleadings with all well-pleaded facts accepted as true. Summary judgment is warranted only if a claim is so clearly unenforceable as a matter of law that no factual development could justify a right to recovery. Abel v Eli Lilly & Co, 418 Mich 311; 343 NW2d 164 (1984), reh den 419 Mich 1201 (1984), cert den — US —; 105 S Ct 123; 83 L Ed 2d 65 (1984). In contrast, a motion for summary judgment under GCR 1963, 117.2(3) tests the factual support for a claim or a defense. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972). Its limited purpose is to determine whether a genuine issue of any material fact exists. Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965). When deciding a motion for summary judgment on this ground, the court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). The court must be satisfied that it is impossible for the claim or the defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo, supra. A motion based upon GCR 1963,117.2(3) must be supported by affidavits. GCR 1963, 117.3. If summary judgment is granted under the wrong subsection, this Court may review the order of summary judgment as though it were granted under the proper subsection when the record permits meaningful review. Lawrence v Dep’t of Treasury, 140 Mich App 490, 494; 364 NW2d 733 (1985). The written opinion first considered whether the plaintiffs knew of the hidden defect in the stove which caused the fire. The buyer bears the risk of loss under an "as is” contract unless the seller fails to disclose concealed defects known to him. Lenawee Co Bd of Health v Messerly, 417 Mich 17, 32; 331 NW2d 203 (1982); Christy v Prestige Builders,, Inc, 415 Mich 684; 329 NW2d 748 (1982). The doctrine of caveat emptor governs land contracts when the seller surrenders title, possession, and control over the property to the buyer. Christy, supra, p 694. This rule is subject to two exceptions, the first of which is relevant here, namely, that the seller has a duty to disclose to the buyer any concealed condition known to the seller which involves an unreasonable danger. Under this exception, failure to make disclosure or efforts to actively conceal a dangerous condition renders the seller liable for resulting injuries. Christy, supra, p 694. The circuit court found that the plaintiffs had no knowledge of the concealed defects in the stove or chimney since they had used the stove for years without mishap. In reaching this conclusion, the circuit court clearly went beyond the pleadings to the affidavit filed by the plaintiffs. Thus, the circuit court granted summary judgment on this point under GCR 1963, 117.2(3), even though the language of the opinion ("there is no allegation of intentional tort, nor that the sellers concealed any known defects”) and of the order of partial summary judgment ("the countercomplaint failed to state a cause of action against Plaintiffs Stewart only, for the reasons stated in the Court’s Opinion dated January 11 1985”) suggests reliance on GCR 1963, 117.2(1). In any event, GCR 1963, 117.2(1) would be an inappropriate basis for summary judgment since the amended countercomplaint was legally sufficient. The defendants properly alleged that the plaintiffs knew of the hidden defects and that they either negligently or intentionally failed to disclose them. The plaintiffs’ knowledge of the concealed defects is plainly the center of this controversy and raises a genuine issue of material fact. Against the defendants’ allegation of plaintiffs’ knowledge of the concealed defects, the plaintiffs submitted depositions and filed their own affidavits. Defendants’ allegations of knowledge were supported by the deposition testimony of Richard Schade, the unlicensed contractor who helped install the stove and chimney, and the deposition testimony of Cindy Short, a former neighbor of the plaintiffs. Schade testified that plaintiffs hired him in April of 1976 to build a brick hearth, brick wall, and chimney to accommodate the wood-burning stove. Schade’s testimony described how he constructed the chimney and venting system. Schade testified that he assisted plaintiff Raymond Stewart remove the stove from its shipping carton and helped place it near the wall. Schade denied installing the stove or a stove pipe which connected it to the wall. Short testified that plaintiff Joan Stewart stated that her husband, Raymond, installed the stove. Short testified that Joan Stewart remarked, "[Djidn’t Ray do a nice job with the brick, and putting the stove in it.” The deposition testimony of Jack Hughes, a fire investigator, reported two probable causes of the fire. First, he opined that the venting pipe which ran through the chimney was installed without proper insulation and was located too close to the interior wall. Second he testified that the damper, a vent within the internal component of the stove, was wired in the open position, thereby causing the stove to burn fuel at optimum temperatures. Hughes thought that the damper was wired for the purposes of shipping. However, the answers to interrogatories filed by defendant Montgomery Ward stated that no wire was used to hold the damper in place. Hughes explained that the damper could be visible from a certain angle before it was installed, but would be hidden after installation. In light of the deposition testimony and the pleadings, it is clear that a genuine issue of material fact existed concerning plaintiffs’ knowledge of the concealed defect. The deposition testimony of Schade and Short indicates that plaintiff Raymond Stewart installed the stove, including the stove pipe, which the plaintiffs admit caused the fire. Second, a conflict exists concerning the wiring of the damper. In light of defendant Montgomery Ward’s denial of the use of wire and the evidence that Raymond Stewart connected the stove, an issue exists of whether he knew about the wiring. In short, summary judgment under GCR 1963, 117.2(3) was improper. Thus, we reverse the decision of the circuit court and vacate the order of partial summary judgment on this ground. The opinion next addressed the claim for damages due to mental distress under the theories of negligence (Count i), fraud (Count ii) and intentional infliction of emotional distress (Count in). Relying upon Chrum v Charles Heating & Cooling Inc, 121 Mich App 17; 327 NW2d 568 (1982), the circuit court ruled that the defendants could not recover for mental distress due to the plaintiff’s negligence since the countercomplaint failed to allege that the defendants suffered a definite physical impact. On appeal the defendants do not challenge and we do not disturb this portion of the circuit court’s holding. The circuit court correctly observed that the defendants failed to allege sufficient facts concerning the element of physical impact. We conclude that the circuit court prop erly disposed of the claim seeking recovery for emotional distress under Count i in accordance with GCR 1963, 117.2(1), for failure to state a claim upon which relief may be granted. The opinion is devoid of reference to the counterclaims for mental distress damages under the theories of fraud and misrepresentation contained in Count ii, specifically, concerning the operability of the water well and septic systems, as well as the theory of intentional infliction of emotional distress alleged in Count hi concerning the alleged mishandling of insurance proceeds. Notwithstanding this failure to consider these counterclaims for mental distress under theories alleged in Count n and Count iii, the order of partial summary judgment dismissed all counterclaims against the plaintiifs. In light of the circuit court’s failure to consider the defendants’ counterclaims under these alternate theories, we reverse and vacate the order of partial summary judgment and remand for further proceedings. In light of this disposition, we do not consider the argument that the circuit court erred by deciding the motion for partial summary judgment based upon the original countercomplaint and not upon the amended countercomplaint. ii In the judgment of foreclosure the amount owed of $83,975.76 was calculated by applying the eleven percent of interest specified by the land contract to the arrears, and also by applying the twelve percent rate of interest specified by the interest statute, MCL 600.6013(4); MSA 27A.6013(4). The judgment of foreclosure further required defendants to pay the sum due with interest at the rate of twelve percent per annum thereafter, again apparently in reliance upon the interest statute. Although the parties argued the applicability of the interest statute at the hearing held April 15, 1985, the circuit court apparently found that it should apply. MCL 600.6013; MSA 27A.6013 provides: (1) Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section. * * * (4) For complaints filed on or after June 1, 1980, interest shall be calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate of 12% per year compounded annually unless the judgment is rendered on a written instrument having a higher rate of interest. In that case interest shall be calculated at the rate specified in the instrument if the rate was legal at the time the instrument was executed. The rate shall not exceed 13% per year compounded annually after the date judgment is entered. Subsection 4, an amendment enacted by the Legislature in 1980 PA 134, clearly allows compound interest at a rate of twelve percent on a money judgment in which the complaint has been filed on or after June 1, 1980. The previous interest statute had authorized interest at a rate of six percent which the courts had construed as simple interest. Gage v Ford Motor Co, 423 Mich 250, 259; 377 NW2d 709 (1985). The difference between simple and compound interest is that simple interest does not merge with the principal and thus does not become part of the base on which future interest is calculated. Gage, supra. The purpose of an award of interest under MCL 600.6013; MSA 27A.6013 is to compensate the prevailing party for the expenses incurred in bringing an action and for the delay in receiving money damages. In re Cole Estate, 120 Mich App 539, 550; 328 NW2d 76 (1982), and cases cited therein. An award of interest under the statute is mandatory in cases to which the statute applies. State Highway Comm v Great Lakes Express Co, 50 Mich App 170; 213 NW2d 239 (1973). The issue presented here is whether a judgment of foreclosure is a money judgment recovered in a civil action for purposes of the interest statute, MCL 600.6013; MSA 27A.6013. We hold that it is not. For purposes of the interest statute, a money judgment is defined as one which adjudges the payment of a sum of money, as distinguished from an order directing an act to be done or property to be restored or transferred. Moore v Carney, 84 Mich App 399, 404; 269 NW2d 614 (1978), quoting from Black’s Law Dictionary (4th ed), p 980. See also, 14 Callaghan’s Michigan Civil Jurisprudence, Interest, § 13, p 478. Under this definition, the judgment of foreclosure was not a money judgment because it ordered the sale of property in order to satisfy the amount owed under the land contract. Analogous results have been reached in other cases. In a minority shareholder’s action, an order requiring the corporation and the individual directors to purchase the minority shareholder’s stock for a certain sum with costs and awarding attorney fees to the minority shareholder was deemed not to be a money judgment for purposes of the interest statute. Moore, supra. In that case the court noted that, while the judgment involved money, it was not solely a "money judgment,” but was essentially part of an equitable remedy. Likewise, a probate court order awarding a widow a forced share of an estate pursuant to MCL 700.126; MSA 17.5126 was held not to be a money judgment under the interest statute. In re Cole Estate, supra. A proceeding to foreclose a land contract is purely statutory in nature. MCL 600.3101 et seq., MSA 27A.3101 et seq. When a complaint is filed for the foreclosure of a land contract, the court has power to order a sale of the premises which are the subject of the land contract or of that part of the premises which is sufficient to discharge the amount due on the land contract plus costs. MCL 600.3115; MSA 17A.3115. If the property is sold at a public sale, the land contract vendee may redeem the premises within six months by paying the sum which was bid with interest from the time of the sale at the rate borne by the land contract. MCL 600.3140; MSA 27A.3140. The foreclosure statute further provides that the court shall determine and adjudge which defendants are personally liable on the land contract. MCL 600.3150; MSA 27A.3150. Further, the judgment shall provide that upon the confirmation of the report of sale that if either the principal, interest, or costs ordered to be paid is left unpaid after applying the amount received upon the sale of the premises, the clerk of the court shall issue execution for the amount of the deficiency upon the application of the plaintiffs attorney without notice to the defendant or his attorney. MCL 600.3150; MSA 27A.3150. GCR 1963, 745.4, now MCR 3.410(D) provides that, if any surplus money remains from a foreclosure sale after satisfying the amount due the plaintiff, any party to the action may bring on for hearing before the court the disposition of the surplus money. From these sources it appears that the amount to be calculated in the judgment of foreclosure is that which is owed under the written instrument. This accords with the contingent nature of a judgment of foreclosure described by the Supreme Court in Powers v Golden Lumber Co, 43 Mich 468, 472; 5 NW 656 (1880). The determination of personal liability in a foreclosure decree is contingent or provisional and, until a deficiency arises and the mortgagors are required to answer for it, the mortgagors are not bound to pay it even if responsible. Powers, supra. In other words, where a foreclosure decree provides for the sale of land, there is no personal liability to be enforced against a defendant until after that land has been sold and a deficiency reported, and (under the law existing before the foreclosure statute, MCL 600.3101 et seq.; MSA 27A.3101 et seq.) subsequent proceedings are taken to secure a deficiency decree. Kelly v Gaukler, 164 Mich 519, 531; 129 NW 703 (1911). In short, the circuit court erred by applying the statutory interest rate of twelve percent in the judgment of foreclosure. The circuit court should have applied the interest rate of eleven percent per annum (simple interest) set forth in the land contract. We reverse and vacate the judgment of foreclosure and the deficiency judgment in light of this error in computation. We remand this case to the circuit court for a determination of the amount owed under the land contract after application of the eleven percent rate of interest. If a deficiency remains after the auction proceeds are applied against the new figure, then a judgment may enter in that amount with statutory interest under MCL 600.6013; MSA 27A.6013. Reversed and remanded for proceedings not inconsistent with this opinion. Allen, J., concurred.

Archer, J. The question presented is whether the trial court properly granted defendant’s motion for summary judgment because plaintiff’s previous nolo contendere plea to attempted burning of real property terminated any rights plaintiff had under his policy of insurance with defendant company. i The plaintiff, Dennis Lichon, was the proprietor of Denny’s Party Store in Saginaw, Michigan. The defendant, American Universal Insurance Company, insured Lichon’s business against the risk of fire loss. The building housing Denny’s Party Store caught fire in December, 1984, resulting in partial damage to the business. In January, 1985, as Denny’s was preparing to reopen, a second fire destroyed the entire building, causing the total loss of the business. Lichon filed claims for the fire damage. When nearly a year had passed without a positive response from the insurance company, he filed this suit, seeking to recover his losses under the terms of his insurance policy. Within seven months after the suit was filed, the parties were able to come to a settlement agreement. Approximately five weeks later, but before American Universal paid the agreed sum, Lichon was charged with burning real property, MCL 750.73; MSA 28.268. The state accused Mr. Lichon of setting both fires. Lichon eventually entered a plea of nolo contendere to the lesser charge of attempted burning of real property. He was convicted and sentenced to one year in the county jail. In this civil action, American Universal filed a motion for summary disposition under MCR 2.116(C)(7) and (10), contending that Lichon’s nolo contendere plea and conviction prevented him from recovering on the insurance contract. The insurance company argued that Lichon was barred from recovery under the contract’s antifraud exclusionary clause. The company argued that it was entitled to judgment as a matter of law. American Universal argued that it was entitled to judgment under MCR 2.116(C)(7), because Lichon was collaterally estopped by his conviction from disputing his role in setting the fires, and under MCR 2.116(0(10) because principles of equity es-topped Lichon from raising any issue of fact regarding his role in the arson. American Universal argued that Lichon was unable to rebut its affirmative defense of arson. The circuit court granted defendant’s motion under MCR 2.116(0(10) and entered judgment in its favor. The Court of Appeals affirmed. We granted leave to appeal and we hereby reverse. ii We begin our analysis by acknowledging a fundamental principle which presents the background for this case: A wrongdoer should never profit from crime. Budwit v Herr, 339 Mich 265; 63 NW2d 841 (1954). It is axiomatic that a person who owns insured property and causes it to burn is not entitled to collect the insurance proceeds. See also Walz v Peninsular Fire Ins Co, 221 Mich 326; 191 NW 230 (1922); Eagle, Star & British Dominions Ins Co v Heller, 149 Va 82, 111; 140 SE 314 (1927). This axiom holds true for two reasons. First, the language of standard business insurance policies, including the policy of insurance issued on Mr. Lichon’s property, prevents recovery for damages caused by an insured’s criminal acts. Second, it is untenable on public policy grounds to allow a person to profit from such a fraud. As the Supreme Court of Virginia in Eagle, Star, supra, p 111, so eloquently stated: To permit a recovery under a policy of fire insurance by one who has been convicted of burning the property insured, would be to disregard the contract, be illogical, would discredit the administration of justice, defy public policy and shock the most unenlightened conscience. To sustain such a judgment would be to encourage and give support to the current thoughtless and carping criticism of legal procedure, and to justify the gibe that the administration of the law is the only remaining legalized To say that an arsonist should not profit from his crime, however, does not answer the question at the heart of this case, the question how a court may properly determine that a litigant is, in fact, an arsonist. Under review is the trial court’s order granting American Universal’s motion for summary judgment under MCR 2.116(0(10). A motion for summary disposition under that court rule tests the factual sufficiency of the plaintiff’s claim. The trial court cannot grant the defendant’s motion unless it is impossible to support the plaintiff’s claim at trial because of some deficiency that cannot be overcome. See Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). The trial court granted judgment for American Universal, stating "that the theory of equitable estoppel should be applied in this case.” The trial court held that Lichon was equitably estopped from disclaiming responsibility for the fires that burned his store because he pled nolo contendere to attempted burning of real property. In effect, the court reasoned that, since Lichon was estopped by his plea and conviction from disclaiming responsibility for the fires, he would be unable to present any facts at trial that would overcome American Universal’s affirmative defense. The court further supported its holding on the public policy grounds that one should not profit from wrongdoing. Our review of this case requires us to determine whether the trial court was correct in ruling that Lichon was unable, because of his nolo contendere plea and conviction, to raise a question of material fact regarding his role in setting the fires that burned his business. The trial court was correct only if Lichon is estopped, either by general principles of equity or principles of collateral estoppel, from denying responsibility for the fires after his nolo contendere plea and conviction. We hold that the trial court erred. We do not believe Lichon was estopped from disclaiming any role in setting the fires. Neither do we believe that Lichon’s nolo contendere plea-based conviction collaterally estopped him from presenting evidence at trial in an attempt to disprove his responsibility in starting the fires. His denial of responsibility, therefore, raises a genuine issue of material fact precluding summary disposition under MCR 2.116(0(10). hi The plaintiff is not precluded from litigating the issue whether he burned his business because his nolo contendere plea to a charge of attempted burning of real property is not an admission of guilt that can be used against him in subsequent civil or criminal litigation. A Equitable estoppel " 'arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.’ ” Fleckenstein v Citizens Mutual Automobile Ins Co, 326 Mich 591, 599-600; 40 NW2d 733 (1950). Therefore, Lichon is estopped from denying he set the fires only if he explicitly or tacitly, intentionally or negligently, admitted his guilt in such a way as to induce his insurance company’s justified and detrimental reliance. This case does not present a situation where the doctrine of "equitable estoppel,” strictly defined, applies. American Universal did not detrimentally rely upon Lichon’s nolo contendere plea in such a way that principles of equitable estoppel would prevent Lichon from contesting his responsibility for setting the fires that destroyed his business. Equitable estoppel enables a party to avoid litigating, in a second proceeding, claims which are plainly inconsistent with those litigated in a prior proceeding. However, "[b]ecause the doctrine is intended to ensure fair dealing between the parties, the courts will apply the doctrine only if the party asserting the estoppel was a party in the prior proceeding and if that party has detrimentally relied upon his opponent’s prior position.” Edwards v Aetna Life Ins Co, 690 F2d 595, 598 (CA 6, 1982). See also Davis v Wakelee, 156 US 680, 689; 15 S Ct 555; 39 L Ed 578 (1895). Because American Universal was not a party to Lichon’s criminal prosecution, it cannot rely on the doctrine of equitable estoppel. It is possible that the trial court intended to rely, not on "equitable estoppel,” but on the doctrine of "judicial estoppel” or estoppel by pleading. Under this doctrine, a party who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding. Edwards, supra at 598. Under the doctrine of judicial estoppel, Lichon is prevented from denying responsibility in setting the fires in this civil trial only if such a position is inconsistent with the position he adopted in his criminal case. In other words, he would be judicially estopped in the civil trial from asserting his innocence in burning his business if such a position is inconsistent with his earlier plea of nolo contendere. The two claims are inconsistent only if we interpret the nolo contendere plea as an admission of guilt that can be held against Lichon in this subsequent litigation. However, the very nature of a nolo contendere plea, as it has been defined by the courts and in the Rules of Evidence, dictates that the plea cannot be held against the plaintiff as an admission of responsibility in subsequent litigation. Therefore, Lichon is not judicially estopped from contesting his responsibility. B Until recently, Michigan law did not recognize the plea of nolo contendere. See, e.g., People v Franchi, 3 Mich App 511; 142 NW2d 881 (1966). By 1969 PA 334, the Legislature amended MCL 767.37; MSA 28.977 to recognize the authority of the courts to accept pleas of nolo contendere. This statute, however, does not define the nature of the plea, its evidentiary value, or operative effect in subsequent litigation. To determine these, therefore, we must look to our Rules of Evidence and the common law. The primary purpose of a plea of nolo contendere is to avoid potential future repercussions which would be caused by the admission of liability, particularly the repercussions in potential future civil litigation. Guilty Plea Cases, 395 Mich 96, 134; 235 NW2d 132 (1975), cert den 429 US 1108 (1977). A nolo contendere plea does not admit guilt, it merely communicates to the court that the criminal defendant does not wish to contest the state’s accusations and will acquiesce in the imposition of punishment. To the extent a nolo contendere plea is an implicit admission of guilt, it is such an admission only for the purposes of the criminal proceeding in which the plea is entered. Thus, Lichon’s plea acts as an admission to the circuit court only that he attempted to burn his business. Under Michigan Rules of Evidence 410 and 803(22), the trial court erred when it considered Lichon’s nolo contendere plea as judicially estopping him from contesting responsibility for the fires. These rules indicate that nolo contendere pleas are neither explicit nor implicit admissions of guilt that can be used against a pleader in subsequent litigation. MRE 410 states: 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 contendere 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. [Emphasis added.] MRE 803(22) states that, in terms of the evidence rules regarding hearsay, evidence that is not excluded, even where the declarant is available as a witness, is [e]vidence of a final judgment, entered after a tried or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. [Emphasis added.] Rule 410, therefore, prevente the trial court from giving estoppel effect to Lichon’s nolo contendere plea, since such pleas are "not admissible in any civil or criminal proceeding against the person who made the plea . . . Rule 803(22) likewise prevents the court from treating Lichon’s conviction based on the nolo contendere plea as substantive evidence of his role in starting the fires. The advisory committee notes accompanying each of the federal counterparts to these rules illustrate why the plaintiff’s nolo contendere plea does not estop him from litigating his responsibility for setting the fires. The notes accompanying FRE 803(22) indicate that, notwithstanding the hearsay rule, FRE 803(22) allows the admission of criminal convictions as substantive, but not preclusive, evidence in subsequent litigation. The note is careful to mention, however, that judgments of conviction based upon pleas of nolo contendere are inadmissible to prove the fact of a party’s guilt of the crime of which that party was convicted. "This position is consistent with the treatment of nolo pleas in Rule 410 . . . .” Advisory Committee Notes to FRE 803(22). The notes accompanying FRE 410 state: Pleas of nolo contendere are recognized by Rule 11 of the [Federal] Rules of Criminal Procedure, although the law of numerous States is to the contrary. The present rule gives effect to the principal traditional characteristic of the nolo plea, i.e., avoiding the admission of guilt which is inherent in pleas of guilty. This position is consistent with the construction of Section 5 of the Clayton Act, 15 USC 16(a), recognizing the inconclusive and compromise nature of judgments based on nolo pleas. . . . Exclusion of offers to plead guilty or nolo has as its purpose the promotion of disposition of criminal cases by compromise. The policies behind the recognition of the plea of nolo contendere indicate the reasons why such a plea does not preclude a party from denying culpability in subsequent litigation. First, MRE 410 and 803(22) recognize that a plea of nolo contendere does not of necessity establish a party’s guilt because of the "inconclusive and compromise nature of judgments based on nolo pleas.” Advisory committee notes to FRE 410. These rules recognize that there are some situations in which a criminal defendant will find it preferable to accept a light punishment offered by the prosecution in exchange for a nolo contendere plea, rather than to face far worse consequences both in terms of criminal punishment and civil liability. Second, and more importantly, by allowing a criminal defendant to enter a plea that is not admissible against him in a future criminal or civil action, the court rules and the Rules of Evidence facilitate plea bargaining and the concomitant speedy resolution of criminal cases. See advisory committee notes to FRE 410. These policies are as applicable in situations where the individual who pleas nolo contendere is a plaintiff in subsequent litigation as in those where that person is a defendant. The United States Court of Appeals for the Fifth Circuit in United States v Williams, 642 F2d 136, 139 (CA 5, 1981), accurately summed up the definition and effect of a nolo contendere plea when it stated: A plea of nolo contendere performs a specific function. As a statement of the defendant for which he may, in another proceeding or on another occasion be called upon to account, it admits nothing. It is the same as a plea of not guilty. The ABA Project on Standards for Criminal Justice, Pleas of Guilty (Approved Draft 1968), § 1.1(a), pp 14-15, which we cited in State Bar Grievance Administrator v Lewis, 389 Mich 668, 679; 209 NW2d 203 (1973), states: "Although some minor variations are to be found from jurisdiction to jurisdiction, in most states the nolo plea has the following significance: (1) Unlike the plea of guilty, a plea of nolo contendere may not be put into evidence in a subsequent civil action as proof of the fact that the defendant committed the offense to which he entered the plea.” [Emphasis added.]_ As the author of "one leading text” relied upon by the dissent stated: It has long been established in the federal courts that the plea of nolo contendere "does not create an estoppel, but ... is an admission [of guilt] for the purposes of the case” in which the plea is made. In any subsequent action, whether arising out of the same facts or not, neither the nolo plea nor the conviction based on the plea may be admitted as either an admission or proof of guilt. [2 Weinstein & Berger, Evidence, ¶ 410[06], pp 410-44 to 410-45. Citing Hudson v United States, 272 US 451, 455; 47 S Ct 127; 71 L Ed 347 (1926).] We agree that the plaintiff’s nolo contendere plea to the charge of attempted burning of real property admitted nothing in this proceeding. The trial court erred by holding that this plea precluded Lichon from litigating the issue of his responsibility in causing the fires. Our holding is further supported by the recent Court of Appeals decision in Ramon v Farm Bureau Ins Co, 184 Mich App 54; 457 NW2d 90 (1990). The Ramon panel specifically adopted the "well-reasoned dissent” of Judge Sawyer in this case, 173 Mich App 182. Ramon rejected the analysis of the Court of Appeals panel presently under review, stating that "[allowing a trial court to use a nolo contendere plea in deciding a motion for summary disposition in a related civil action renders use of this plea in a criminal proceeding meaningless.” Id. at 60. c We recognize the force of the arguments made by the Court of Appeals and the dissent that public policy should prohibit a party from relying on a nolo contendere plea in a case where that party is a plaintiff. However, neither MRE 410 nor MRE 803(22) makes such a distinction. We read MRE 410 to mean that a plea of nolo contendere may not be introduced against the party who entered that plea, irrespective of whether that party is a plaintiff or a defendant in subsequent litigation. The language of MRE 410 states that a nolo contendere plea is not admissible "in any civil or criminal proceeding against the person who made the plea . . . .” The dissent argues that the word "against” modifies the word "proceeding” and not the word "person,” thus indicating that nolo contendere pleas are admissible in proceedings brought "by” the pleader. While this novel interpretation is not directly contradicted by the language of the rule, we are unpersuaded that this interpretation is correct. Our interpretation is supported by the history of the federal rule, the language of which was altered in 1980 in order to foreclose the sort of interpretation as that offered by the defendant. The advisory committee notes accompanying this amendment state: "The phrase fin any civil or criminal proceeding’ has been moved from its present position, following the word 'against,’ for purposes of clarity. An ambiguity presently exists because the word 'against’ may be read as referring either to the kind of proceeding in which the evidence is offered or the purpose for which it is offered. The change makes it clear that the later construction is correct.” [Saltzburg & Redden, Federal Rules of Evidence Manual (3d ed), Rule 410, Advisory Committee Notes, p 211. Emphasis added.] The advisory committee notes thus make it clear that the original language of FRE 410 was not intended to qualify the admission of a nolo contendere plea upon the type of proceeding in which it is offered, but, rather, on the purpose for which that evidence is offered. Because the language of Michigan’s rule is taken directly from the federal rule, we are persuaded by this interpretation. The dissent’s reading of the rule would also lead to nonsensical results. The policies advanced by the dissent in support of its reading are not promoted by conditioning admissibility of nolo contendere pleas on whether the pleader is a plaintiff or a defendant in a subsequent proceeding. Take, for example, a situation where an insurer pays its insured for fire damages and the insured later pleads nolo contendere to a charge of burning the insured property. If the insurer then sued for restitution of the policy proceeds, that action would be a "proceeding against” the insured. Under the dissent’s analysis, MRE 410 would prevent the insurer from using the insured’s plea against the insured. However, the use to which the insurer wishes to put the plea is indistinguishable from the use the trial court made of Lichon’s plea. Restricting the application of MRE 410 to cases in which a nolo contendere pleader is a defendant would lead to anomalous results. The distinction the dissent makes is a distinction based on the use a party makes of a nolo contendere plea, not on the status of the pleader in subsequent litigation. The language of MRE 410, however, does not make such a distinction. Pleas of nolo contendere or non vult, in jurisdictions where allowed, are generally regarded as inadmissible [as admissions], and in fact that attribute is a principal reason for their employment. Furthermore, if MRE 410 is applied as the dissent suggests it would certainly have to be applied in cases in which civil plaintiffs made and later withdrew guilty pleas or offered guilty pleas which were rejected. For instance, if, instead of pleading nolo contendere, Lichon made an offer to plead guilty that the prosecutor rejected and Lichon was acquitted after a trial, his plea offer would be admissible under the dissent’s interpretation. Surely, that result is not intended by MRE 410, though the rule’s language, given the dissent’s reading, would dictate it. We agree with the dissenting Judge Sawyer’s argument in the Court of Appeals that the trial court was incorrect in stating that Lichon used his plea here as a "sword” rather than as a "shield.” 173 Mich App 178, 183; 433 NW2d 394 (1988). American Universal raised the issue of the nolo contendere plea and conviction as establishing conclusively its affirmative defense of arson. Lichon’s reliance on MRE 410 in this litigation is in response to that affirmative defense. Lichon is not using his plea to prove American Universal’s lia bility. He argues only that the nolo contendere plea may not be used against him to defeat his claim. Lichon is therefore still using rule 410 as a shield. Preventing American Universal from asserting Lichon’s nolo contendere plea as conclusively establishing an affirmative defense is not the equivalent of granting judgment for Lichon on the basis of the plea. American Universal has ample opportunity at trial to prove, through evidence other than Lichon’s plea, that Lichon had some part in starting the fires. We further note that the stated policies behind MRE 410 and 803(22) dictate their application in all proceedings, whether the individual who pled nolo contendere in the earlier criminal case is subsequently a plaintiff or a defendant. It is possible that public policy might supersede these interests. The public interest might be served better by a rule that prevents an individual who pled nolo contendere to criminal charges from excluding evidence of that plea in an action in which the pleader seeks to establish some entitlement arising out of the crime of which the pleader was convicted. Such a rule, however, would be different from current rules 410 and 803(22), because it would not involve withdrawn pleas or rejected offers to plead, it would require different language, and it would be based on different considerations. Such a change in the law would be more properly accomplished through our administrative powers to amend the Rules of Evidence, because the administrative process gives us greater opportunity to deliberate the effects of such a change and to gather input from the public, the bench, and the bar. IV Defendant urges that, even if plaintiff’s plea does not bar his recovery in this action, the conviction based on that plea does. Although the trial court did not specifically base its decision on a collateral estoppel theory, it did note in its written opinion, "Plaintiff cannot be allowed to deny in this case what he has been convicted of in a criminal case based on the same events as in the case at bar.” We disagree. American Universal’s claim relies on principles of issue preclusion, an aspect of collateral estoppel. The insurance company contends that Lichon’s culpability for setting the fires was determined by the judgment of conviction in the criminal action brought against plaintiff. That issue being determined, American Universal argues, Lichon is precluded from relitigating it. American Universal’s argument fails, however, because it ignores two elements of collateral estoppel doctrine: the requirement that there be mutuality of estoppel and that the issue foreclosed actually be litigated. The doctrine of mutuality of estoppel requires that in order for a party to estop an adversary from relitigating an issue that party must also have been a party, or a privy to a party, in the previous action. In other words, " '[t]he estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him.’ ” See Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 43; 191 NW2d 313 (1971). Although there is a trend in modern law to abolish the requirement of mutuality, this Court reaffirmed its commitment to that doctrine in 1971 in Howell. Mutuality of estoppel remains the law in this jurisdiction and bars American Universal from using Lichon’s criminal conviction to settle an issue in this civil case, since the insurance company was not a party to the criminal case and would not have been bound by an acquittal had one resulted. Collateral estoppel is also unavailable to American Universal because the issue whether plaintiff set the fires was never actually litigated. Under 1 Restatement Judgments, 2d, § 27, p 250, collateral estoppel applies "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment . . . .” (Emphasis added.) Comment e to this section clarifies this rule: "A judgment is not conclusive in a subsequent action as to issues which might have been but were not litigated and determined in the prior action.” Id., p 256. See also Stolaruk Corp v Dep’t of Transportation, 114 Mich App 357; 319 NW2d 581 (1982). While 2 Restatement Judgments, 2d, § 85, favors granting preclusive effect to criminal convictions in subsequent civil proceedings, it specifically excepts nolo contendere pleas from this provision. Section 85(2)(a) states: (2) A judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action: (a) Against the defendant in the criminal prosecution .... [2 Restatement Judgments, 2d, § 85(2)(a), p 294.][ ] However, comment b to this section clarifies: The rule of this Section presupposes that the issue in question was actually litigated in the criminal prosecution. . . . Accordingly, the rule of this Section does not apply where the criminal judgment was based on a plea of nolo contendere or a plea of guilty. A plea of nolo contendere by definition obviates actual adjudication and under prevailing interpretation is not an admission. The taking of Lichon’s nolo contendere plea cannot be considered "actual litigation,” at least not in terms of collateral estoppel jurisprudence. The essence of a nolo contendere plea is in its name, "nolo contendere,” or, "I will not contest it.” If the charges are uncontested, they are necessarily unlitigated. Neither can we accurately say that the procedures followed by the judge in establishing a factual basis for taking a nolo contendere plea constitute "actual litigation.” We recognized this fact in the Guilty Plea Cases, supra, where we quoted the dissenting opinion of Judge Levin in People v Coates, 32 Mich App 52, 70; 188 NW2d 265 (1971): " 'Direct questioning of the defendant is informative . . . [but it] does not mean that the judge must decide that the defendant is guilty before he agrees to accept the plea.” 395 Mich 133, n 2. Justice Williams, in discussing the trial court’s duty to determine the factual basis for a guilty plea stated "[s]uch examination is not the equivalent of a legal trial . . . .” People v Taylor, 387 Mich 209, 225-226; 195 NW2d 856 (1972). See also People v Chilton, 394 Mich 34; 228 NW2d 210 (1975). Comment e of 1 Restatement Judgments, 2d, § 27, p 257, further indicates that "[i]n the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated.” v In Imperial Kosher Catering v Travelers Indemnity Co, 73 Mich App 543; 252 NW2d 509 (1977), the Court of Appeals affirmed a grant of summary disposition in favor of the defendant where the defendant established that the sole stockholders of the plaintiff corporation had been convicted by a jury of setting fire to the insured property. The primary distinction between Imperial Catering and the case at hand is the difference between a conviction based on a jury verdict and a conviction based on a nolo contendere plea. In the first instance, the issue of the insured’s responsibility for setting the fire actually had been litigated; it was thus arguably appropriate to give the judgment preclusive effect. In this case, principles of collateral estoppel permit the plaintiff to contest defendant’s claim that the plaintiff set the fire. Were Imperial Catering applicable to this case, we would still decline to follow its reasoning. While we make no comment today on the soundness of that case’s result, we note the inadequacy of its reasoning in that it gives preclusive effect to a criminal conviction without regard to the absence of mutuality of estoppel. It may be appropriate to create an exception to the mutuality requirement in such a case, but only upon adequate reflection and after stating .the explicit reasons for making a departure from settled legal principles. We express no opinion regarding whether a criminal conviction, based upon a jury verdict, may be given preclusive effect in a subsequent civü proceeding. See Eagle, Star, supra. We make no ruling as to the preclusive effect of a conviction based upon a guilty plea. Cf. Wheelock v Eyl, 393 Mich 74; 223 NW2d 276 (1974). Neither do we disturb our holding in State Bar Grievance Administrator v Lewis, supra. Furthermore, we express no opinion regarding whether Lichon’s conviction would be admissible at trial for impeachment purposes. We hold only that neither a plea of nolo contendere nor a conviction based thereon prevents the person who entered that plea from maintaining innocence in subsequent civil litigation regardless of whether the person who entered the plea is the plaintiff or the defendant in the subsequent litigation. When the plaintiff contested his responsibil ity for setting fire to his business in his affidavit in opposition to the defendant’s motion for summary judgment, he raised an issue of fact which precluded summary disposition under MCR 2.116(0(10). Naturally, nothing in this opinion precludes the defendant from establishing at trial the affirmative defense that the plaintiff intentionally burned his business. So long as defendant can prove this fact by a preponderance of the evidence, plaintiff will be precluded from recovery. We reverse and remand this case to the trial court for a trial on the merits. Levin, Brickley, and Cavanagh, JJ., concurred with Archer, J. The claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action. Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. This clause stated: Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured .... The policy also stated, This Company shall not be liable for loss: ... (4) caused by pilferage, appropriation or concealment of any property covered or any fraudulent, dishonest or criminal act done by or at the instigation of any insured, partner or joint venture, including any officer, director, trustee, employee or agent thereof, or any person to whom the property covered may be entrusted .... 173 Mich App 178; 433 NW2d 394 (1988). 433 Mich 894 (1989). See n 3. Nolo contendere is a Latin phrase meaning "I will not contest it.” Black’s Law Dictionary (5th ed), p 945. Here we are dealing with the "equitable estoppel” effect the court gave to the conviction. As is illustrated by the advisory committee notes to FRE 803(22), this rule of evidence does not determine the collateral estoppel or res judicata effect to which such a judgment may be entitled. For a discussion of that issue, see §m of this opinion. Under rules 801 and 803(22), American Universal is precluded from asserting that Lichon’s plea-based conviction establishes the truth of its charge that Lichon played a role in starting the fires. Therefore, as an equitable matter, the fact of Lichon’s conviction cannot estop him from contesting American Universal’s assertion. To hold otherwise would require us to ignore the language and previous interpretations of rules 410 and 803(22). The dissent ignores this basis of MRE 410 in its discussion, post, pp 439-440, of the rationale supporting the rule. Noting that, historically, criminal convictions are inadmissible as substantive evidence in civil trials, the dissent tries to distinguish between the effect given nolo contendere pleas in civil proceedings brought against the convicted party, and those brought by that party, claiming that such a distinction is "not new to the law.” Post, p 440. The dissent is correct that some courts and commentators have noted such a distinction, but this Court has not yet done so. Rather, this Court has prohibited the substantive use of criminal convictions in civil proceedings where the convicted parties were plaintiffs as well as where they were defendants. See Day v Gold Star Dairy, 307 Mich 383; 12 NW2d 5 (1943), and Wheelock v Eyl, 393 Mich 74; 223 NW2d 276 (1974). Post, pp 438-439. The preamendment version of FRE 410 stated, in the same language as current MRE 410, "a plea of nolo contendere ... is not admissible in any civil or criminal . . . proceeding against the person who made the plea . ...” As amended, FRE 410 states: [EJvidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea .... (2) a plea of nolo contendere .... We decline to follow Walker v Schaeffer, 854 F2d 138 (CA 6, 1988) on this point. The United States Court of Appeals for the Sixth Circuit ignores language in the advisory committee note accompanying the 1980 amendment of FRE 410, clarifying that the rule is applicable regardless of the nature of the proceeding. Furthermore, we believe the Sixth Circuit is incorrect in its assertion that a nolo contendere plea should be treated as an admission. 854 F2d 143. See Powell v King, 33 Mich App 41; 189 NW2d 746 (1971) (opinion of Levin, J., concurring); 29 Am Jur 2d, Evidence, § 702, p 760. As stated in McCormick, Evidence (3d ed), § 265, p 783: Summary judgment on the basis of collateral estoppel is properly granted under MCR 2.116(C)(7), not the court rule under which the trial court ruled here, MCR 2.116(0(10). American Universal moved for summary disposition under both court rules, however, and discussed collateral estoppel in its brief to the trial court in support of its motion. Despite the statement by the trial court that it was granting judgment under MCR 2.116(0(10) and its use of the term "equitable estoppel” and not "collateral estoppel,” we will treat collateral estoppel as an alternative ground for the court’s decision. It is the substance of the order, rather than its label, that should steer our review. See Warvel v Michigan Community Blood Center, 74 Mich App 440; 253 NW2d 791 (1977). See Howell at 46. We note that lack of mutuality does not always preclude the application of collateral estoppel. There are several well-established exceptions to the mutuality requirement, such as when an indemnitor seeks to assert in its defense a judgment in favor of its indemnitee, or where a master defends by asserting a judgment for a servant. See Braxton v Litchalk, 55 Mich App 708; 223 NW2d 316 (1974); Darin & Armstrong v Ben Agree Co, 88 Mich App 128; 276 NW2d 869 (1979), lv den 406 Mich 1007 (1979). The Court of Appeals has recognized that there may be other situations in which the mutuality requirement is relaxed. See Knoblauch v Kenyon, 163 Mich App 712; 415 NW2d 286 (1987). Turbessi v Oliver Iron Mining Co, 250 Mich 110; 229 NW 454 (1930), cited by the defendant, dealt with the issue of malicious prosecution and res judicata and did not discuss mutuality of estoppel. It is therefore insufficient authority for us to consider the mutuality requirement excused here. Ultimately, however, we refuse to follow defendant’s suggestion that we ignore the absence of mutuality since we need not do so in deciding the case. Alternate grounds are adequate for reversal. Cf. Wheelock v Eyl, n 10 supra. MCR 6.302. See Danish Inn, Inc v Drake Ins Co of New York, 126 Mich App 349, 353; 337 NW2d 63 (1983), which questioned Imperial Catering for, among other things, its "expansion of the doctrine of collateral estoppel . . . The question of the effect of a guilty plea and a conviction based thereon raises issues of both collateral estoppel and equitable estoppel. See 1 Restatement Judgments, 2d, § 27, comment e, pp 256-257. In Lewis, we noted that attorney discipline is based on the fact of conviction alone in the context of a disciplinary rule allowing suspension of license upon conviction, even a conviction after a nolo contender e plea. Here, the defendant seeks to establish the existence of plaintiff’s specific wrongdoing through the fact of conviction. See also Williams, supra.

AFTER REMAND Per Curiam. The issue in this case is whether an insurance company provided adequate notice of its intent to cancel a no-fault automobile insurance policy. The circuit court and the Court of Appeals found that because separate notice was not provided to one of the named insureds the policy was not canceled. Under the circumstances of this case, we find that the insurer did provide adequate notice. Accordingly, we reverse the judgments of the circuit court and the Court of Appeals. i This is an action for declaratory judgment. Auto Club Insurance Association (acia) seeks a determination of its rights and responsibilities with regard to a separate lawsuit brought against persons who had been insured by the company. The underlying suit arose from an accident that occurred on Sunday, June 3, 1984. A young girl was seriously injured when her bicycle was struck by a 1974 Ford Mustang driven by Carrie M. Hawkins. The injured girl’s parents sued Ms. Hawkins individually and on behalf of their daughter. The suit also named Ms. Hawkins’ parents, Shirley R. Hawkins and Elbur V. Hawkins, as the owners of the Mustang. The Hawkins family insured several vehicles, including the Ford, with Auto Club Insurance Association. Believing that the automobile insurance policy had been canceled for failure to pay the premium, acia brought this action for declaratory judgment. Acia sought a determination that it was not obliged to provide a defense for the Hawkins family, as well as a determination that it would not be obliged to pay any judgment resulting from the suit. The course of dealings between the Hawkins family and acia was presented at a one-day bench trial in the circuit court. At that time, it was established that acia had issued a policy covering several vehicles that were owned by the Hawkins family. On or about January 23, 1984, acia mailed its "renewal declaration certificate,” which listed the vehicles owned by the Hawkins family and stated the coverage that applied to each. The 1974 Ford was not among the vehicles that were listed. The renewal certificate listed Shirley Hawkins as the "principal named insured” and Elbur Hawkins under the heading "other named insureds.” Together with the renewal certificate, acia mailed a premium notice that stated the total amount due, as well as a lesser amount that could be paid if periodic payments were preferred by the insured. Shirley Hawkins elected to make a partial premium payment, but her tardy check was dishonored because insufficient funds were on deposit. Several days later, the check was resubmitted. This time, it was honored by the bank. Despite its tardiness, the payment was accepted by acia. However, no additional premium payments were made. After the time the premium (or partial payment) was due, acia sent a "confirmation of non- renewal” that was addressed to Shirley Hawkins, informing her that her policy "was not renewed . . . due to non-payment of premium.” This document explained that payment on or before an extended premium deadline could lead to reinstatement of the policy. Shirley Hawkins was listed on the notice as "principal named insured”; no one was listed under the separate heading "named insured(s).” Several days after sending the confirmation of nonrenewal, acia issued an endorsement that added the 1974 Ford Mustang to the policy. That endorsement listed Shirley Hawkins as the "principal named insured,” but did not list Elbur Hawkins under the heading "other named insureds.” When the extended premium deadline passed without a payment, acia issued a cancellation notice. It stated that the policy would be canceled if the required premium was not received by noon of the final premium deadline date. This notice was addressed to Shirley Hawkins. Also typed on the notice were the names of Elbur Hawkins and another family member. The names of Elbur Hawkins and the other family member appeared in the upper portion of the notice, but there was no heading above their names, i.e., no indication of the capacity in which they were being listed. These two names were printed on the notice in a position that would not have allowed them to be visible through the address window of acia’s mailing envelope. The final premium deadline passed without payment. Acia then issued a "cancellation of policy,” addressed to Shirley Hawkins. This notice stated that the policy had terminated at noon on the final premium deadline date. The notice had a heading for "named insured(s),” but no name was listed there. ii In a detailed opinion, the circuit court addressed the issue whether acia had satisfied the statutory requirement that notice of cancellation be sent to "the insured.” MCL 500.3020(l)(b); MSA 24.13020(l)(b). In the course of its analysis, the circuit court observed this Court’s statement that such notice must be sent to each person who qualifies as an "insured” under the terms of the policy. Lease Car of America, Inc v Rahn, 419 Mich 48; 347 NW2d 444 (1984), reh den 419 Mich 1213 (1984). Although Shirley Hawkins testified that she did not receive the cancellation premium notice, the circuit court found that the notices had been sent to her and that she had actual knowledge that the policy had been canceled. This determination is not being challenged on appeal. Elbur Hawkins also denied knowledge that the policy had been canceled. With regard to him, the circuit court concluded that the notice had not been adequate. In light of Lease Car, the circuit court concluded that Elbur Hawkins’ status as an "other named insured” entitled him to separate notice. In its judgment, the circuit court found the policy to be canceled with respect to Shirley Hawkins, but effective with respect to Elbur Hawkins. Thus the trial court found that in the underlying litigation arising from the automobile accident acia was "obligated to defend the claims, pay judgments and to otherwise perform the duties imposed upon it by the insurance agreement.” Acia later filed a motion that was in the nature of a motion for rehearing. In this motion, acia urged the trial court to find "that Shirley Hawkins was the agent for Elbur V. Hawkins with regard to receiving mail[,] and notice received by Shirley Hawkins should be deemed to be notice received by Elbur V. Hawkins.” It also pointed out that Elbur Hawkins was not listed as an insured in the endorsement that added the 1974 Ford. The circuit court denied the motion, saying that acia had neither pleaded nor argued that Shirley Hawkins was the agent of Elbur Hawkins. With regard to the omission of Elbur Hawkins’ name from the endorsement governing the 1974 Ford Mustang, the circuit court appears to have concluded that the omission was inadvertent and that the endorsement was intended by both parties to change only the policy’s coverage of vehicles. hi The Court of Appeals affirmed, agreeing with the trial court that acia was obliged to give Elbur Hawkins separate notice of the cancellation: It is true that under the specific terms of the insurance contract plaintiff was only required to give actual notice of cancellation to the "principal insured,” which in this case was Shirley Hawkins. However, our Supreme Court in Lease Car of America v Rahn, 419 Mich 48; 347 NW2d 444 (1984), ruled that MCL 500.3020; MSA 24.13020 requires that notice of cancellation of a policy be given to all of the parties insured under the policy without limitation. Following Lease Car, supra, plaintiff was required was required [sic] to give Elbur Hawkins notice of the cancellation. We agree with the trial court that notice of cancellation was insufficient as to Elbur Hawkins. The notice of cancellation was addressed to Shirley Hawkins and did not contain Mr. Hawkins’ name on the face of the notice of cancellation. Nor can we declare that Shirley Hawkins acted as an agent for Elbur Hawkins. Testimony did show that Mrs. Hawkins routinely negotiated and paid for the family’s auto insurance. The trial court, following plaintiff’s motion for an amendment of findings and reconsideration of the court’s declaratory judgment, ruled that an agency relationship did not exist as Mr. Hawkins did not intend his wife to act as his agent. It is well settled that the existence and scope of an agency relationship are questions of fact. Whitmore v Fabi, 155 Mich App 333, 338; 399 NW2d 520 (1986). Insufficient evidence was introduced to support a different finding. Since notice to Shirley Hawkins did not constitute notice to Elbur Hawkins, the trial court was correct in declaring that plaintiff failed to effectively cancel its auto insurance policy as to Elbur Hawkins and was therefore obligated to perform its duties under the policy. Acia then sought leave to appeal in this Court. In lieu of granting leave to appeal, we remanded the case to the Court of Appeals "for further consideration of whether the absence of Elbur Hawkins’ name from the Mustang endorsement affects either the policy’s coverage or the cancellation notice requirements.” Auto Club Ins Ass’n v Hawkins, 431 Mich 866; 429 NW2d 168 (1988). On remand, the Court of Appeals said that the absence of Elbur Hawkins’ name from the Mustang endorsement was of no consequence: We find that the absence of Mr. Hawkins’ name from the Mustang endorsement affected neither coverage nor the cancellation notice requirements. Hie failure to include Mr. Hawkins’ name on the Mustang endorsement, when the Mustang was added as an additional insured vehicle, created an ambiguity which must be construed against plaintiff as the insurer and in favor of Mr. Hawkins as the insured. Herring v Golden State Ins Co, 114 Mich App 148, 152; 318 NW2d 641 (1982). Mr. Hawkins was named as an insured in the original policy declaration. As such, he was entitled to notice under MCL 500.3020; MSA 24.13020. Lease Car of America, Inc v Rahn, 419 Mich 48, 54-55; 347 NW2d 444 (1984), reh den 419 Mich 1213 (1984). Acia again applies for leave to appeal. IV The policy listed Shirley Hawkins as "principal named insured.” Adequate notice was sent to her, and the trial court has found as fact that she had actual knowledge that the policy was canceled. The policy documents generally (but not uniformly) listed Shirley Hawkins’ spouse, Elbur Hawkins, as an "other named insured.” Relying in significant part upon Lease Car, the courts below have found that acia was obliged to give separate notice to Elbur Hawkins. Because acia failed to send him separate notice, the lower courts held that the policy remained in effect with respect to him. Lease Car involved a situation that was quite a bit different than the present case. There, a corporation leased an automobile to an individual. The lease required the lessee to purchase automobile insurance. The lease further provided that, upon notice to the corporate lessor that the insurance had been canceled, the lessor could, at its option, continue the policy and charge the lessee the cost of the premium. As required by the lease, the lessee purchased automobile insurance. However, he failed to pay the required premium. The insurer then notified the lessee that the policy was canceled. The insurer never sent notice to the corporate lessor. The language of the policy provided that, where there is a failure to pay the premium, notification to the individual lessee was sufficient. However, an endorsement to the policy specifically named the corporate lessor as an insured. This Court held that, regardless of the language of the policy, cancellation could be effected only through compliance with the statute, which requires notice to "the insured.” This Court observed that "[t]he statute makes no exception for a 'named insured,’ a 'designated insured,’ or the like.” Id., p 55. Thus, we said in Lease Car, the statute "requires notice of cancellation of a policy to be given to all insureds covered by the policy, not just to whatever individual insured the policy language may designate as entitled to notice.” Id., p 54. The statute requires notice to "the insured,” and such notice was properly sent to Shirley Hawkins. Her spouse was also a named insured and he did not receive separate notice. Examining the statute, as well as our decision in Lease Car, we are persuaded that acia did satisfy MCL 500.3020(l)(b); MSA 24.13020(l)(b) in this case. We hold today that, where notice of cancellation is properly provided to the "principal named insured” or (if the policy terminology is different) to the insured in whose name the policy was issued, that is sufficient notice to any other insured person who is a family member and who lives in the same household. We are confident that this outcome fulfills the intent of the Legislature, as well as the considerations underlying our decision in Lease Car. For these reasons, we reverse the judgments of the Court of Appeals and the circuit court, and we remand this case to the circuit court for entry of a judgment that is consistent with this opinion. MCR 7.302(F)(1). Riley, C.J., and Levin, Brickley, Cavanagh, Boyle, Archer, and Griffin, JJ., concurred. During the months covered by this factual narrative, acia issued two other endorsements that did list Elbur Hawkins under the heading "other named insureds.” The cancellation was accompanied by a separate notification that members of the Hawkins family were not to operate their vehicles unless they were insured in accordance with Michigan law. Acia insists that the agency issue was raised and tried in the trial court. Our holding in the present case removes the necessity of addressing the question of agency. Auto Club Ins Ass’n v Hawkins, unpublished opinion per curiam of the Court of Appeals, decided February 23,1988 (Docket No. 97197), slip op, pp 3-4. Auto Club Ins Ass’n v Hawkins (On Remand), unpublished opinion per curiam of the Court of Appeals, decided April 6, 1989 (Docket No. 111710), slip op, pp 1-2. MCL 500.3020(l)(b); MSA 24.13020(l)(b). Carrie Hawkins, the Hawkins’ daughter, was driving the 1974 Ford at the time of the accident that gave rise to the underlying litigation. The insurance documents indicate that one of the Hawkins’ other cars was rated for "occasional use” by her. Thus her name appears in the insurance documents. Further, there is no dispute that if the policy is effective as to the parents it will cover this accident. This raises the question whether the daughter is also entitled to separate notice under Lease Car. The circuit court said that "[t]o follow [Lease Car] at its broadest would require such a holding,” but that such an analysis "would carry us to the ridiculous” and "would seem to go too far.” Thus, the circuit court said that its holding "is limited to the named insured listed in the declaration.” In light of our holding in the present case, it is unnecessary to analyze separately the question of notice to Carrie Hawkins, who was living in the Hawkins’ family home at the time of the accident.

Riley, C.J. This case presents us with the issue whether the Fourth Amendment of the United States Constitution and Michigan’s analogous provision, Const 1963, art 1, § 11, apply to a defendant who discards illegal contraband during a police chase. Our determination of this issue depends upon the resolution of two narrower issues: First, whether a person has standing in the context of the Fourth Amendment to challenge the introduction of a discarded bag containing illegal drugs, or, more specifically, whether the person has a reasonable expectation of privacy in the discarded bag and its contents, and, second, whether police pursuit of a person amounts to a seizure under the Fourth Amendment of the United States Constitution. Under the facts of the instant case, we would hold that the defendant did not have standing to challenge the introduction of the narcotics discovered in the bag. Rather, we believe that the defendant renounced any reasonable expectation of privacy in the bag and its contents once he abandoned it during the police chase. We also would hold that the police pursuit of the defendant did not constitute a seizure under the Fourth Amendment. Consequently, the police conduct never implicated the constitutional protections provided by the Fourth Amendment. We would reverse the decisions of the Court of Appeals and the trial court and remand this case to the trial court for proceedings consistent with this opinion. I. FACTS AND PROCEEDINGS The defendant was charged with possession of a controlled substance, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv). Kelvin Patrick, a Detroit police officer, offered the only testimony at the preliminary examination. He testified that on September 19, 1986, at approximately 7:50 p.m., he and his partner were driving a marked patrol car southbound on Log Cabin in Detroit. As they approached the corner of Log Cabin and Grove, an area with a history of narcotics activity, they observed the defendant, Mark Mamón, standing next to a public telephone. The defendant noticed the police car and fled toward a dwelling located at 16744 Log Cabin. The officers stopped the car and followed the defendant on foot, during which time they saw the defendant reach into his right pocket and throw away a burgundy-colored bag. The officers detained the defendant and retrieved the bag, in which they discovered six particles of suspected cocaine. Upon the basis of this information, the district court bound the defendant over to Detroit Recorder’s Court on the controlled substance charge. At a hearing on May 29, 1987, the Recorder’s Court suppressed the cocaine and dismissed the case upon the basis of People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985). The court reasoned that the police obtained the cocaine as a result of an unlawful seizure. In particular, the court found that the police pursuit constituted a seizure and that, at the time the police initiated their pursuit of the defendant, they did not have a reasonable, articulable suspicion upon which they could base their actions. The Court of Appeals affirmed the decision of the trial court. On June 30, 1989, this Court granted the people’s application for leave to appeal. II. ANALYSIS The Fourth Amendment provides in pertinent part, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” US Const, Am IV. In order to receive the panoply of its constitutional safeguards, a person must have standing in the context of the Fourth Amendment to challenge the introduction of the particular piece of evidence being offered against him. This initial standing inquiry depends upon whether the defendant has a reasonable expectation of privacy in the particular goods at issue. Katz v United States, 389 US 347, 361; 88 S Ct 507; 19 L Ed 2d 576 (1967) (Harlan, J., concurring); Terry v Ohio, 392 US 1, 9; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Moreover, a person does not have a reasonable expectation of privacy. in property which he has "abandoned.” Abel v United States, 362 US 217, 241; 80 S Ct 683; 4 L Ed 2d 668 (1960); Hester v United States, 265 US 57, 58; 44 S Ct 445; 68 L Ed 898 (1924); People v Jackson, 175 Mich App 562; 438 NW2d 84 (1988); People v Wright, 151 Mich App 354; 390 NW2d 187 (1986); People v Boykin, 119 Mich App 763; 327 NW2d 351 (1982); United States v Thomas, 275 US App DC 21, 23-24; 864 F2d 843 (1989). As the United States Court of Appeals for the District of Columbia recently explained: A warrantless search or seizure of property that has been "abandoned” does not violate the fourth amendment. See, e.g., Abel v United States, 362 US 217, 241; 80 S Ct 683, 698; 4 L Ed 2d 668 (1960). "When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.” United States v Jones, 707 F2d 1169, 1172 (CA 10 [1983]) (citation omitted), cert den 464 US 859; 104 S Ct 184; 78 L Ed 2d 163 (1983). The test for abandonment in the search and seizure context is distinct from the property law notion of abandonment: it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object. See, e.g., United States v Colbert, 474 F2d 174, 176 (CA 5, 1973). To determine whether there is abandonment in the fourth amendment sense, the district court must focus on the intent of the person who is alleged to have abandoned the place or object. See United States v Anderson, 663 F2d 934, 938 (CA 9, 1981). The test is an objective one, and intent may be inferred from "words spoken, acts done, and other objective facts.” Colbert, 474 F2d at 176. Accordingly, in the instant case, we must determine whether the defendant had a reasonable expectation of privacy in the bag and its contents. If he did, then the search of the bag without a warrant violated the defendant’s Fourth Amendment rights. Whereas, if he did not, as the people contend, when the defendant threw away the bag, he abandoned it and cut off his standing to challenge the introduction of the bag and its contents under the Fourth Amendment. The people argue, and we agree, that the police did not need a warrant to search the discarded bag. Our assessment of the facts persuades us that the defendant unquestionably relinquished any reasonable expectation of privacy in the bag and its contents when he voluntarily reached into his right pocket and discarded the bag. However, the defendant contends that even if he abandoned the bag, he did so contemporaneously with or after the police unlawfully seized him. Therefore, he contends that the trial court properly suppressed the narcotics found in the bag as evidence obtained solely from an unlawful seizure. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963). We will only reverse the decision of the trial court if it clearly erred at the suppression hearing. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Consequently, we must determine whether the police conduct constituted a seizure under the Fourth Amendment. In a recent case almost identical to the one before this Court today, the United States Supreme Court refused to adopt a brightline rule to determine when a police chase constituted a seizure. Michigan v Chesternut, 486 US 567, 573; 108 S Ct 1975; 100 L Ed 2d 565 (1988). Rather, the Court reaffirmed its adherence to a "traditional contextual approach”: In Terry v Ohio, 392 US 1 (1968), the Court noted: "Obviously, not all personal intercourse between policemen and citizens involves 'seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure’ has occurred.” Id. at 19, n 16. . . . The test provides that the police can be said to have seized an individual "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” . . . The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to "leave” will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs. [Citations omitted.] In Chesternut, two police officers, while on routine patrol in a marked police car, approached an intersection in a high crime area of Detroit when they noticed the defendant standing at the street corner talking with another man. The defendant ran upon seeing the police car. The police followed the defendant in their car "to see where he was going.” Id., p 569. They caught up with him and drove alongside the defendant for a short distance. At this point, the police observed the defendant throw away a number of tiny packets. One officer got out of the car and examined the packets. The packets contained pills which the officer suspected contained codeine. The police arrested the defendant for possession of narcotics. A search of the defendant at the police station revealed more pills, heroin, and a hypodermic needle. Under these facts, the Supreme Court concluded that respondent was not seized by the police before he discarded the packets containing the controlled substance. Although Officer Peltier referred to the police conduct as a "chase,” and the Magistrate who originally dismissed the complaint was impressed by this description, the characterization is not enough, standing alone, to implicate Fourth Amendment protections. Contrary to respondent’s assertion that a chase necessarily communicates that detention is intended and imminent . . . the police conduct involved here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent’s freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block respondent’s course or otherwise control the direction or speed of his movement. . . . While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure. Cf. United States v Knotts, 460 US 276 [103 S Ct 1081; 75 L Ed 2d 55] (1983) (holding that continuous surveillance on public thoroughfares by visual observation and electronic "beeper” does not constitute seizure); Florida v Royer, 460 US [491, 497; 103 S Ct 1319; 75 L Ed 2d 229 (1983)] (plurality opinion) (noting that mere approach by law enforcement officers, identified as such, does not constitute seizure). Without more, the police conduct here — a brief acceleration to catch up with respondent, followed by a short drive alongside him — was not "so intimidating” that respondent could reasonably have believed that he was not free to disregard the police presence and go about his business. [Immigration & Naturalization Service] v Delgado, 466 US [210, 216; 104 S Ct 1758; 80 L Ed 2d 247 (1984)]. The police therefore were not required to have "a particularized and objective basis for suspecting [respondent] of criminal activity,” in order to pursue him. United States v Cortez, 449 US 411, 417-418 [101 S Ct 690, 694-695; 66 L Ed 2d 621] (1981). [Chesternut, supra, pp 574-576.] The defendant contends that Chesternut is distinguishable from the instant case. More precisely, he argues this Court should distinguish the instant case from Chesternut because the police in Chesternut "drove alongside” rather than pursued the defendant on foot. We disagree. The police in Chestemut "drove alongside” the defendant only after they accelerated their marked police car in an obvious attempt to catch up with him. Furthermore, they did so after the defendant fled from a street corner with a history of narcotics activity and without any provocation from the police. Although the Court recognized that this type of police conduct might be somewhat intimidating, it would not necessarily convey to a reasonable person that he was not free to leave. Similarly, in the instant case, the police followed the defendant on foot only after he fled a street corner with a history of drug transactions. As in Chesternut, while following a person on foot might be somewhat "intimidating,” it does not amount to a seizure under the Fourth Amendment. We do not believe that it would convey to a reasonable person that he was not free to leave. Conversely, it cannot be assumed that a person’s unprovoked flight from a street corner in a high crime area is an indication of that person’s desire to avoid communication with the police. Moreover, we see no distinguishable difference between accelerating in a police car to catch up with a fleeing person and doing so on foot. In either case, without more, the police have not seized the person. We also believe that application of the other factors considered integral by the Chesternut Court in determining whether a seizure occurred supports our conclusion in the instant case. As the Chesternut Court noted, [T]he police conduct involved here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent’s freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block respondent’s course or otherwise control the direction or speed of his movement. [Chestemut, supra, p 575.] Similarly, in the instant case, the police never acted in a manner which might transform a police chase into a Fourth Amendment seizure. They never activated a siren or flasher, they never commanded the defendant to halt, they never displayed any weapons, and they never attempted to force the defendant to run in a direction other than the one chosen by him when he decided to flee from the street corner. See People v Hamp, 170 Mich App 24; 428 NW2d 16 (1988). (The police seized the defendant when he entered a home. The police surrounded the defendant and began reaching for their badges.) Put simply, the police never exhibited any show of authority which would indicate to a reasonable person that he was not free to leave. To conclude otherwise, in the context we are presented with today, would effectively do what the United States Supreme Court has specifically refused to do: reduce the totality of the circum stances test to a brightline rule in which almost every police chase constitutes a seizure. For example, consider the Court of Appeals suggestion that the police can do more than "stand idly by and watch defendant run. Rather, defendant’s activity was suspicious enough to justify some further investigation.” 173 Mich App 429, 442-443; 435 NW2d 12 (1988). We think the Court of Appeals correctly recognized that the police can do more than stand by idly and observe the defendant run away. However, under the Court of Appeals analysis, once the police officers observe a person running, they cannot follow after him without "seizing” him for purposes of the Fourth Amendment. Surely the Court of Appeals and defendant do not suggest that the police may only walk after a person who is running away. In essence, the Court of Appeals and the defendant imply that the police can only pursue a defendant under the narrow factual circumstances of Chesternut. We do not read the United States Supreme Court opinions as limiting nonseizure police chases to these rare situations. We find it incomprehensible that the police can drive up to and alongside a person fleeing in the opposite direction, but once they get out of the car and commence their pursuit on foot, the pursuit instantaneously transforms into a seizure. Nothing in Chesternut even remotely suggests this conclusion. In our opinion, without more, a police foot chase does not amount to a seizure within the meaning of the Fourth Amendment. Otherwise, we would effectively reduce the role of a police officer to that of a mere spectator. Effective law enforcement techniques not only require passive police observation, but also necessitate their interaction with citizens on the streets. This interaction means that oftentimes the police must follow after and observe persons moving faster than a person walking at a normal pace. We recognize that there is a delicate balance between efficient police conduct which does not intrude upon a person’s constitutional rights, and that which does. However, we cannot ignore the devastating effect that illegal drugs has had on our society. Our decision today permits police to participate actively and effectively to help curtail the use of illegal drugs, while not intruding upon a person’s Fourth Amendment right against unreasonable seizures. On the one hand, it permits the police to follow and observe persons in public places, and on the other, it leaves open the possibility that some police chases might constitute a seizure under the Fourth Amendment. As the Chesternut Court noted, the inquiry is whether a "reasonable person” thought he was free to leave and not whether the defendant thought he was free to leave. A reasonable person would not necessarily believe that police following after him intended to capture him, nor would his unprovoked flight from a street corner necessarily express his preference not to communicate with the police. Moreover, we believe that Brower v Inyo Co, 489 US 593; 109 S Ct 1378; 103 L Ed 2d 628 (1989), a recent civil rights case decided by the United States Supreme Court, supports our conclusion. In Brower, the police set up a roadblock in order to stop a car thief. The thief crashed into the roadblock and died. The thief’s estate brought a civil rights action against the police. Significantly, the majority stated in dicta that [violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking [citations omitted], but the detention or taking itself must be willfül. . . . ... It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. [Id., pp 596-597. Emphasis in original.] Although not necessary to our decision in the instant case because of our reliance upon Chester-nut, the Brower dicta strongly suggest that the police conduct in the instant case did not constitute a seizure within the meaning of the Fourth Amendment. III. CONCLUSION Therefore, we conclude that the police pursuit of the defendant did not amount to a seizure under the Fourth Amendment. Consequently, the defendant relinquished any reasonable expectation of privacy in the contents of the bag once he discarded it during his flight from the street corner. He had no standing to challenge its admissibility under the Fourth Amendment. We would reverse the opinion of the Court of Appeals and remand the case to the trial court for proceedings consistent with this opinion. Boyle and Griffin, JJ., concurred with Riley, C.J. 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. We have not previously interpreted this provision differently from the Fourth Amendment of the United States Constitution. People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985); People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v Pennington, 383 Mich 611; 178 NW2d 471 (1970). Therefore, any reference to the Fourth Amendment applies equally as well to Const 1963, art 1, § 11. See Michigan v Long, 463 US 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983). The defendant also contends, and the Court of Appeals agreed, that the police did not have a reasonable, articulable suspicion justifying the seizure. See Shabaz, n 1 supra; People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977). However, we need not address this issue because we conclude that the police had not seized the defendant when he abandoned the narcotics. We also note that in Michigan v Chesternut, 486 US 567, 575, n 8; 108 S Ct 1975; 100 L Ed 2d 565 (1988), in dicta, the United States Supreme Court distinguished, rather than overruled Shabaz, on the grounds that the prosecutor in Shabaz stipulated that the chase constituted a seizure. Our review of the briefs in Shabaz indicates that the prosecutor vigorously argued that the chase did not constitute a seizure. Apparently, the Shabaz Court assumed, without deciding, for purposes of this opinion that the police chase constituted a seizure. Subsequent chemical tests confirmed that the bag contained cocaine. 173 Mich App 429; 435 NW2d 12 (1988). 432 Mich 921 (1989). Many courts consider the determination of whether a person has abandoned property as a factual inquiry into the person’s intent, and therefore, reviewable under a “clearly erroneous” standard of review. See Wright, supra; Thomas, supra at 846. See also People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983) (the trial court decision at the suppression hearing was reviewed under a clearly erroneous standard). In the instant case, neither the trial court nor the Court of Appeals addressed this issue. However, we note that the defendant appears to concede the issue. More importantly, from our review of the record, we can find no testimony which would lead to the conclusion that the defendant did not intentionally relinquish any expectation of privacy in the cocaine when he threw away the bag in which it was contained. Thus, unlike Shabaz, there is no evidence which might lead to the conclusion that the defendant attempted to conceal, rather than abandon, the bag. 424 Mich 65-66. The Chesternut Court rejected the defendant’s proposed brightline rule that all police chases are seizures. The Court also rejected the prosecutor’s proposed brightline rule that a seizure never occurs until the suspect responds to the police officer’s show of authority. Apparently, the defendant also believes that we should distinguish between police "chases,” "pursuits,” and "followings.” We decline to do so. In our opinion, these terms have similar, if not the same, meanings in the context of these cases. While we agree with the dissent that the Chestemut Court never intended this list of other factors to be exhaustive, without the existence of these or any "additional” factors in the instant case, the police pursuit did not constitute a seizure. In Immigration & Naturalization Service v Delgado, supra at 218, the Court noted that immigration agents posted at the exits of a factory did not amount to a seizure of the factory worker because the agents did nothing that would lead the defendants to believe they were not free to leave. Analogously, in the instant case, the defendant ran from the street corner before the police chased after him. We find this significant because it shows that it was not the police conduct that coerced the defendant into fleeing, but rather the defendant’s belief that he was free to leave the street comer.

Griffin, J. This appeal raises again the question whether an indigent defendant is constitutionally entitled to the assistance of counsel in a contempt proceeding for failure to pay child support. In Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976), this Court concluded that in such a civil proceeding there is no right per se to appointed counsel. In light of more recent developments in due process jurisprudence and changes in Michigan statutes governing child support enforcement, we now are persuaded that our holding in Sword must be modified to recognize that the Due Process Clause of the Fourteenth Amendment of the United States Constitution precludes incarceration of an indigent defendant if he has been denied counsel in a contempt proceeding for failure to pay child support. i Plaintiff Marvetta Mead and defendant William Batchlor were divorced April 23, 1976, and the Cass Circuit Court ordered defendant to pay $30 a week as support for his two children. Defendant complied with the order until sometime in 1980. On January 27, 1981, the court entered an order which had the effect of assigning $35 per week from defendant’s earnings for child support. The assignment was effective until July 1985 when defendant was laid off. He continued for a while to make support payments out of his unemployment compensation. However, when his unemployment benefits expired and he did not find another job, defendant and his present wife applied for welfare (general assistance benefits). After June 1986, he and his wife received only welfare in the amount of $235 per month, and defendant paid no child support. On December 2, 1986, the Cass County Friend of the Court petitioned on plaintiff’s behalf for an order requiring defendant to show cause why he should not be held in contempt for failure to comply with the court’s child support order. Responding in writing in propria persona, defendant asserted indigency and requested that counsel be appointed to represent him. The court denied the request without a hearing on January 8, 1987. A few days later, on January 12, 1987, the court conducted a show cause hearing, and defendant appeared without counsel. The court questioned defendant about his employment status and receipt of welfare; however, no determination was made concerning defendant’s claim of indigency or his ability to pay the ordered child support. Nevertheless, the court entered an order holding defendant in contempt for "[fjailure to pay out of currently available resources all or some portion of the amount due,” and directed defendant to pay $30 a week for support and an additional $10 a week to be applied against the arrearage. The order further provided: Defendant is placed on two year’s probation and ordered to pay as stated above. Failure to comply, [sic] a Bench Warrant shall issue and Defendant shall be arrested and confined to jail for 40 days. He [may] be released on payment of $400.00. In the Court of Appeals defendant claimed that the circuit court erred by denying his request for appointed counsel. Two weeks after defendant filed his appeal, the circuit court, upon motion of the Friend of the Court, entered an order reciting that "the child support shall abate . . . until such time as the Defendant obtains employment or obtains other income.” Thereafter, in a brief per curiam opinion, the Court of Appeals affirmed, stating: Inasmuch as defendant is no longer under the threat of incarceration, we do not believe it appropriate for this Court to address the question of whether defendant was entitled to court-appointed counsel at the contempt proceeding.[ ] We granted leave to appeal. 430 Mich 890 (1988). ii Although the facts of this case suggest that the question may be moot, we decline to follow the route taken by the Court of Appeals. Where a court’s adverse judgment may have collateral legal consequences for a defendant, the issue is not necessarily moot. In Sibron v New York, 392 US 40; 88 S Ct 1889; 20 L Ed 2d 917 (1968), the United States Supreme Court considered whether the challenge to a criminal conviction was moot where the defendant had already served the imposed sentence. The Court stated that such a challenge is moot "only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” 392 US 57. In this case, defendant faces possible adverse consequences even though the circuit court has temporarily abated defendant’s obligation to make support payments. The finding of contempt has not been rescinded, and the circuit court, at any time, could reinstate its order directing defendant to pay support. Even if it might be said that the contempt order is no longer valid, defendant faces the possibility of future contempt proceedings. A disposition based on mootness is not required where the underlying conduct is capable of repetition, yet evades review. Finally, we have granted leave to appeal because the issue raised in this case is of sufficient public importance that a decision on the merits is warranted: [T]he refusal of a court to decide a moot case or to determine a moot question is not based on lack of jurisdiction to do so ... a court will decide a moot case or determine a moot question where this appears to be in the public interest, as for guidance in future cases. [20 Am Jur 2d, Courts, § 81, p 443.]_ This is not the first time that we have recognized the public-interest exception to the mootness doctrine. See, e.g., Civil Rights Dep’t ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173; 387 NW2d 821 (1986); Lafayette Dramatic Production v Ferentz, 305 Mich 193; 9 NW2d 57 (1943). hi We turn now to the question whether an indigent defendant in a contempt proceeding for failure to pay child support is constitutionally entitled to appointed counsel before he can be incarcerated. It is noted initially that the right to counsel, at public expense if necessary, is well established with respect to proceedings that are criminal in nature. The Sixth Amendment’s guarantee of counsel in criminal prosecutions has been applicable, through the Due Process Clause of the Fourteenth Amendment of the federal constitution, in all state felony trials since Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), and to indigents who, if they lose, could be incarcerated for petty or misdemeanor offenses since Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972). When this Court decided Sword, supra, we focused upon the civil nature of such a hearing — the fact that it is not a criminal proceeding. The Sword ruling also rested on an assessment that a contempt proceeding for nonsupport was not complex. A number of decisions by the United States Supreme Court and federal courts of appeal issued after Sword prompt us to reexamine the significance of incarceration as a factor in determining whether and when the Due Process Clause of the Fourteenth Amendment requires that counsel be appointed for an indigent in such a civil proceeding. Moreover, in the light of significant changes since Sword in this state’s statutes governing child support enforcement, we believe a new assessment concerning the complexity of such a proceeding is required. A "For all its consequence, 'due process’ has never been, and perhaps can never be, precisely defined. . . . [T]he phrase expresses the requirement of 'fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty.” Lassiter v Durham Co, North Carolina, Dep’t of Social Services, 452 US 18, 24; 101 S Ct 2153; 68 L Ed 2d 640 (1981). Although application of the Due Process Clause is an "uncertain enterprise,” the Supreme Court has counseled that its meaning in a particular case is discovered "by first considering any relevant precedents and then by assessing the several interests that are at stake.” Id. at 25. As we read the precedents, even though an indigent defendant in a civil nonsupport proceeding is not entitled to the full panoply of process due a criminal defendant, it does not follow that he can be incarcerated without having had the benefit of counsel simply because the proceeding is considered to be civil in nature. In Argersinger, supra, the Supreme Court held that absent a knowing and intelligent waiver, a defendant may not be imprisoned, no matter how petty the criminal offense, unless represented by counsel at trial. The rationale supporting such a rule turned on the deprivation of physical liberty by incarceration, even if it were for only a brief period. 407 US 32-33, 41 (Burger, C.J., concurring). The defendant in Scott v Illinois, 440 US 367, 373; 99 S Ct 1158; 59 L Ed 2d 383 (1979), was fined $50 for shoplifting, but he was not incarcerated. He claimed nevertheless that he was entitled to appointed counsel because the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” (Emphasis added.) In denying the claim, the Supreme Court de-emphasized the nature of the proceeding and focused instead on actual imprisonment as the dividing line: [W]e believe that the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment — is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. [440 US 373.] On several occasions the Supreme Court has found in civil cases that the Due Process Clause requires the appointment of counsel. As in the criminal context, the Court’s focus in these cases has been not on the civil or criminal nature of the proceeding, but rather on whether the proceeding results in deprivation of the defendant’s physical liberty. In In re Gault, 387 US 1; 87 S Ct 1248; 18 L Ed 2d 527 (1967), a juvenile was committed as a delinquent to a state facility for the period of his minority. Under the state’s laws, the proceeding was considered to be civil in nature. The Supreme Court held that the Due Process Clause of the Fourteenth Amendment required the appointment of counsel despite the fact that the proceedings were styled "civil” and not "criminal.” The Court reasoned: A proceeding where the issue is whether the child will be found to be "delinquent” and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child "requires the guiding hand of counsel at every step in the proceedings against him.” [Id. at 36.][ ] The Court’s preeminent focus on a defendant’s liberty interest was also evident in Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973). There the Court determined that "as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel.” Lassiter, 452 US 26. The Gagnon Court concluded that a probationer, who retains only a conditional liberty interest, does not have a right per se to appointed counsel in a probation revocation hearing. A similar result was reached in Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), where parole revocation was involved. The Court said, "[Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” In Lassiter, the Supreme Court considered the denial of appointed counsel for a woman whose parental rights were terminated in a North Carolina civil proceeding. In the course of affirming the state’s decision, the Court provided highly significant guideposts for due process determination which must be considered in the context of this case. The Lassiter Court stated, "[t]he pre-eminent generalization that emerges from [the] Court’s precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the indigent may lose his physical liberty if he loses the litigation.” 452 US 25. Citing In re Gault, the Lassiter Court emphasized that "it is the defendant’s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel . . . .” Id. Then, after summarizing its precedents on the right to counsel, the Lassiter Court stated: In sum, the Court’s precedents speak with one voice about what "fundamental fairness” has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured. [452 US 26-27. Emphasis added.] By its reference to the "other elements in the due process decision” the Court focused upon the three factors propounded for evaluation in Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976), viz: "the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” The Lassiter Court proceeded to "balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” 452 US 27. Since the Court concluded that the appointment of counsel was not required on the facts in Lassiter, it has been suggested that much of its analysis is dicta. However, it is difficult to ignore the guideposts and formula for due process decision which were set forth, as well as the clear indication that if the indigent’s liberty interest had been at stake in Lassiter, she would have been entitled to appointed counsel. B While not bound, we are influenced, of course, by decisions of the United States Courts of Appeals, particularly on a point of federal constitu tional law with regard to which the United States Supreme Court has not ruled directly. Our review indicates that every federal circuit court of appeals confronting the issue now before us has concluded that the Due Process Clause of the Fourteenth Amendment at least requires that an indigent defendant in a nonsupport proceéding may not be incarcerated if he has been denied the assistance of counsel. Sevier v Turner, 742 F2d 262 (CA 6, 1984) (en banc); Walker v McLain, 768 F2d 1181 (CA 10, 1985); Ridgeway v Baker, 720 F2d 1409 (CA 5, 1983); Henkel v Bradshaw, 483 F2d 1386 (CA 9, 1973) (in dicta). See also Nordgren v Mitchell, 716 F2d 1335 (CA 10, 1983) (a paternity action). We note also that the federal district courts uniformly have reached a similar result. McKinstry v Genesee Co Circuit Judges, 669 F Supp 801 (ED Mich, 1987); Johnson v Zurz, 596 F Supp 39 (ND Ohio, 1984); Lake v Speziale, 580 F Supp 1318 (D Conn, 1984); Young v Whitworth, 522 F Supp 759 (SD Ohio, 1981); Mastin v Fellerhoff, 526 F Supp 969 (SD Ohio, 1981). See also Cobb v Green, 574 F Supp 256 (WD Mich, 1983), vacated on grounds of abstention, 611 F Supp 873 (WD Mich, 1985) . The analysis provided by the United States Court of Appeals for the Tenth Circuit, which focuses on the significance of incarceration in such a determination, is generally representative of the reasoning adopted by most of the federal courts: It would be absurd to distinguish criminal and civil incarceration; from the perspective of the person incarcerated, the jail is just as bleak no matter which label is used. In addition, the line between criminal and civil contempt is a fine one, and is rarely as clear as the state would have us believe.[ ] The right to counsel, as an aspect of due process, turns not on whether a proceeding may be characterized as "criminal” or "civil,” but on whether the proceeding may result in a deprivation of liberty. [Walker v McLain, 768 F2d 1183. Citations omitted.] Likewise, a large majority of the state courts which have confronted the issue have determined that, absent a valid waiver, an indigent defendant is entitled to counsel in such a proceeding before he can be incarcerated. The rationale expressed by the Maryland Supreme Court in Rutherford v Rutherford, 296 Md 347, 360-361; 464 A2d 228 (1983) , is typical: A defendant’s actual incarceration in a jail, as a result of a proceeding at which he was unrepresented by counsel and did not knowingly and intelligently waive the right to counsel, is fundamentally unfair. As repeatedly pointed out in criminal and civil cases, it is the fact of incarceration, and not the label placed upon the proceeding, which requires the appointment of counsel for indigents. Accord Padilla v Padilla, 645 P2d 1327 (Colo App, 1982); Dube v Lopes, 40 Conn 111; 481 A2d 1293 (1984) ; McNabb v Osmundson, 315 NW2d 9 (Iowa, 1982); In re Marriage of Stariha, 509 NE2d 1117 (Ind App, 1987); Cox v Slama, 355 NW2d 401 (Minn, 1984); Hunt v Moreland, 697 SW2d 326 (Mo App, 1985); New York v Lobenthal, 129 AD2d 28; 518 NYS2d 928 (1987). c Although the Michigan experience with respect to an indigent’s right to counsel in civil cases has been limited, it is noteworthy that this Court has recognized such a right in other contexts. In Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), a case decided prior to Sword, we ruled that an indigent defendant in a paternity action is entitled to appointed counsel, even though the proceeding is civil in nature. Describing such an action as "quasi-criminal,” we stated that "[t]he interests of the individuals affected are substantial, and the nature of the proceedings is sufficiently complex so as to require counsel to insure a fair trial.” Id. at 57. Three years after Sword, this Court was confronted with the question whether an indigent defendant is entitled to appointed counsel in a civil contempt proceeding for refusing to testify before a grand jury. In People v David Johnson, 407 Mich 134, 148; 283 NW2d 632 (1979), we concluded that the appointment of counsel was required "pursuant to the Due Process Clause, for an indigent witness in [civil] contempt proceedings which may result in incarceration.” In both Artibee and David Johnson, this Court focused primarily on the deprivation of liberty and the complexity of the proceeding, rather than on the civil or criminal nature of the proceeding. To the extent that Sword turned on the civil-criminal dichotomy, it might now be regarded as an anomaly. Upon the basis of our review of the federal and state precedents, we find it well established that the due process right to appointed counsel is triggered by an indigent’s fundamental interest in physical liberty, and not by the civil or criminal nature of the proceeding. IV Although the Sword opinion does not refer to Mathews v Eldridge, supra, it appears that its principles were considered and applied. With a view toward weighing them anew, we look again at the Eldridge factors as they apply in a nonsupport contempt proceeding wherein the defendant claims indigency and faces the prospect of incarceration. It is axiomatic that the liberty interest of every citizen — the right to personal, physical freedom — is of paramount importance under the constitution. As the United States Supreme Court has observed, "[T]he prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ’petty’ matter and may well result in quite serious repercussions affecting his career and his reputation.” From time to time it is suggested that the defendant in a civil nonsupport contempt proceeding has only a conditional liberty interest, akin perhaps to the probationer or parolee in Gagnon and Morrissey. The argument goes that because the civil contempt order contains a purge clause, the contemnor holds "the keys to the jailhouse door . . . .” The faulty reasoning behind such an argument, as it applies to an indigent, was well explained in Walker v McLain, supra at 1184: It is true that the defendant’s right to appointed counsel diminishes as his interest in personal liberty diminishes. Lassiter, 452 US 26 ... . However, petitioner’s liberty interest cannot truly be viewed as conditional. If petitioner is truly indigent, his liberty interest is no more conditional than if he were serving a criminal sentence; he does not have the keys to the prison door if he cannot afford the price. The fact that he should not have been jailed if he is truly indigent only highlights the need for counsel, for the assistance of a lawyer would have greatly aided him in establishing his indigency and ensuring that he was not improperly incarcerated. The argument that the petitioner has the keys to the jailhouse door does not apply to diminish petitioner’s liberty interest. [768 F2d 1184.] Furthermore, the risk of error in nonsupport proceedings, leading to the deprivation of physical liberty, has increased significantly since our decision in Sword due to changes in the Michigan statutes governing enforcement of child support obligations. In Sword, we focused on the relatively informal, uncomplicated nature of the typical nonsupport civil proceeding: [T]he judge in most cases questions the parties in a relatively informal hearing. The Friend of the Court is usually not an attorney nor represented by an attorney. The door is always open to counsel of named plaintiff and/or defendant. The facts establishing the arrearage are bookkeeping matters and rarely are subject to substantial dispute. Inquiry concerning defendant’s ability to pay, reasons for the arrearage and mitigating circumstances normally are not complicated. [399 Mich 382.] However, amendments adopted by the Legislature in 1982 included a statutory presumption that every defendant in such a proceeding has the ability to pay four weeks of child support: The court may find a payer in contempt if the court finds that the payer is in arrears and if the court is satisfied that the payer has the capacity to pay out of currently available resources . ... In the absence of proofs to the contrary introduced by the payer, the court shall presume that the payer has currently available resources equal to 4 weeks of payments under the support order. [MCL 552.633; MSA 25,164(33). Emphasis added.?[ ]_ Thus, the indigent faces complexities not present when we decided Sword. The indigent may be unaware of the statutory presumption, and it is not likely that he will be knowledgeable concerning the variety and sufficiency of evidence required to surmount the presumption. Absent presentation of sufficient evidence to overcome the statutory presumption, as in this case, the court may consider it unnecessary to make an independent determination of the defendant’s present ability to comply with the order to pay. Moreover, the 1982 amendments include a proviso that incarceration shall be ordered "only if other remedies appear unlikely to correct the payer’s failure or refusal to pay support.” MCL 552.637(1); MSA 25.164(37)(1). Thus, whether the defendant goes to jail may depend upon his ability to effectively persuade the court that an alternate remedy exists. At least when he is faced with the loss of physical liberty, an indigent needs an attorney to advise him about the meaning and requirements of applicable laws and to raise proofs and defenses in his behalf. In addition, since the state’s representative at such a hearing is well versed in the laws relating to child support, fundamental fairness requires that the indigent who faces incarceration should also have qualified representation. See Bowerman v McDonald, 431 Mich 1, 12; 427 NW2d 477 (1988). Against the strong, fundamental interest of the indigent in his physical liberty, and the risk of erroneous deprivation of his liberty, we must balance the government’s interests. Where contempt proceedings for nonpayment of child support are concerned, the state has two principal interests at stake. First, the state seeks to assure that each child receives proper financial support. When an obligated parent with the ability to do so fails to support a dependent child, the cost of support falls upon the state. Second, the state seeks to avoid administrative expenses, including fees for appointed attorneys, to the extent possible consistent with constitutional and statutory requirements. In assessing the government’s interests, it is noteworthy that since Sword, changes in Michigan’s child support laws have significantly enhanced the state’s ability to enforce support orders by means other than incarceration. The alternatives were few when Sword was decided. However, today a variety of effective means are available to compel compliance — if the defendant has the ability to pay — e.g., income withholding, federal tax intercept, state tax intercept, establishing a lien against an individual’s real or personal property or requiring a hearing in front of a referee. Indeed, when methods other than incarceration are used, there is reason to believe that regular child support payments are more likely to continue. Furthermore, we have not been convinced that the financial burden which the government must bear by providing counsel in cases where an indigent is to be incarcerated outweighs the fundamental physical liberty interest of the indigent defendant and the risk of erroneous deprivation of his liberty. In response to our invitation, excellent briefs amici curiae were provided in this appeal by representatives of affected governmental units. However, they were unable to demonstrate that the administrative costs involved, when placed on the Eldridge scale, would be so burdensome as to outweigh the other interests at stake. In its amicus curiae brief, the Association for Michigan Counties argues that the cost of providing counsel in all child support hearings would be significant. We do not disagree. However, our ruling today does not require the appointment of counsel in all such proceedings. We hold only that an indigent defendant may not be incarcerated if he has been denied counsel in a contempt proceeding for nonsupport. In light of the constitutional limitation that we are required to recognize today, it is anticipated that methods other than incarceration will be scrupulously employed to the extent possible. We expect strict compliance with MCL 552.637; MSA 25.164(37), which directs that incarceration shall not be ordered if any other remedy can be effective. Considering also that the appointment of attorneys in some cases will save the government jail housing costs, the record and briefs made available in this case leave one to speculate whether a cost increase or a cost saving will be the ultimate result. In any event, when the net weight of the Eldridge factors is balanced against the Lassiter presumption, it is clear that due process requires the result we reach today. v Accordingly, we hold that the Due Process Clause of the Fourteenth Amendment precludes incarceration of an indigent defendant in a contempt proceeding for nonpayment of child support if the indigent has been denied the assistance of counsel. We overrule Sword v Sword only to the extent that it can be read to be inconsistent with this holding. In any contempt proceeding for nonsupport, the court should assess the likelihood that the defendant may be incarcerated, and particularly in light of MCL 552.637; MSA 25.164(37), which requires the use of other remedies to the extent possible. We endorse this statement by Justice Levin in Sword: Whenever it is proposed to jail a person for nonsupport a stenographic record is required and there should be careful inquiry focusing on his present ability to pay. . . . Before the defendant can be incarcerated there should be findings supported by substantial evidence that he has the ability to perform the condition of the proposed order of confinement. [399 Mich 394.] If the defendant claims indigency and the court wishes to reserve the discretionary power to incarcerate the defendant, the careful inquiry referred to by Justice Levin must also focus on whether the defendant is indigent under the guidelines provided in Administrative Order No. 1972-4, 387 Mich xxx. If the court determines that the defendant is indigent, and the court wishes to reserve the discretionary power to incarcerate the defendant, the court shall appoint an attorney to represent the defendant unless the right to an attorney is waived._ vi The judgment of the Court of Appeals is reversed; we vacate the order of the circuit court dated January 12, 1987, which found defendant in contempt; and we remand this case to the circuit court for such further proceedings as may be appropriate, consistent with this opinion. Riley, C.J., and Levin, Brickley, Cavanagh, Boyle, and Archer, JJ., concurred with Griffin, J. One child was bom on July 22,1968, and the other on October 16, 1970. At the time defendant filed for leave to appeal to this Court, the children were ages eighteen and sixteen. The order recites that it was entered pursuant to 1964 PA 175, § 3. At that time defendant was employed at Sundstrand, Inc., a manufacturing firm in Cass County. The sum of $5 a week was added to the previously ordered weekly rate of $30 as a means of paying off an accumulated arrearage. One of the duties of the Friend of the Court is to "establish a system for initiating enforcement of support orders without awaiting complaints from the recipient of support.” MCL 552.511; MSA 25.176(11). The written order quoted part of MCL 552.633; MSA 25.164(33), which provides: The court may find a payer in contempt if the court finds that the payer is in arrears and if the court is satisfied that the payer has the capacity to pay out of currently available resources all or some portion of the amount due under the support order. In the absence of proofs to the contrary introduced by the payer, the court shall presume that the payer has currently available resources equal to 4 weeks of payments under the support order. The court shall not find that the payer has currently available resources of more than 4 weeks of payments without proof of such resources by the office of the friend of the court or the recipient of support. Upon finding a payer in contempt of court under this section, the court may immediately enter 1 of the following orders: (a) Committing the payer to the county jail. (b) Committing the payer to the county jail with the privilege of leaving the jail, during such hours as the court determines and under such supervision as the court considers necessary, for the purpose of allowing the payer to go to and return from his or her place of employment. (c) Committing the payer to any penal or correctional facility in this state which is not operated by the state department of corrections. [1982 PA 295, § 33, effective July 1, 1983.] Unpublished opinion per curiam of the Court of Appeals, decided October 12,1987 (Docket No. 98177). See also Carafas v LaVallee, 391 US 234, 237; 88 S Ct 1556; 20 L Ed 2d 554 (1968). See MCL 552.28; MSA 25.106, also York v York, 113 Mich App 306; 317 NW2d 604 (1982). Moreover, the state could take into account a contempt finding in fixing child visitation rights or in imposing a more severe sanction if defendant were found to be in contempt in the future. See Walker v McLain, 768 F2d 1181 (CA 10, 1985), cert den 474 US 1061 (1986); Ridgeway v Baker, 720 F2d 1409 (CA 5, 1983). Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973); Civil Rights Dep’t ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 176-177; 387 NW2d 821 (1986); In re Midland Publishing Co, Inc, 420 Mich 148, 152; 362 NW2d 580 (1984); In re Wayne Election Comm, 150 Mich App 427, 432; 388 NW2d 707 (1986). See also Ferency v Secretary of State, 139 Mich App 677; 362 NW2d 743 (1984); In re Marriage of Stariha, 509 NE2d 1117 (Ind App, 1987). See also Vitek v Jones, 445 US 480; 100 S Ct 1254; 63 L Ed 2d 552 (1980) (an indigent prisoner is entitled to counsel before he can be involuntarily transferred to a mental hospital). See e.g., Young v Whitworth, 522 F Supp 759, 764 (SD Ohio, 1981). Amicus curiae have pointed to the recent decision in Hicks v Feiock, 485 US 624; 108 S Ct 1423; 99 L Ed 2d 721 (1988), as support for the argument that the right to counsel is controlled by the nature of the proceeding. The Hicks Court did remand the case for a determination of whether a nonsupport proceeding under California law is civil or criminal. However, the right to counsel was not at issue. Rather, the Hicks Court was concerned with the validity of a statutory presumption and its relation to the appropriate standard of proof in such a proceeding. While a statutory presumption may be valid and applicable in a civil proceeding, Hicks underscores that such a presumption cannot be substituted for proof beyond a reasonable doubt in a criminal case. Courts traditionally have looked to whether the proceeding is civil or criminal in determining whether criminal procedural rights (e.g., proof beyond a reasonable doubt) are due a particular defendant. However, as this Court noted in Bowerman v McDonald, 431 Mich 1, 13; 427 NW2d 477 (1988), the right of an indigent to counsel is a "particular and clearly demarcated right” separate from the full panoply of criminal procedural rights. The issue was not before the United States Court of Appeals for the Seventh Circuit in Mann v Hendrian, 871 F2d 51 (CA 7, 1989), wherein it was decided that the plaintiff in a 42 USC Í983 suit did not have standing to seek an order requiring the defendant state judge to advise the plaintiff of a right to counsel in future contempt proceedings which might be brought against the plaintiff for failure to pay child support. In the underlying contempt proceeding, the plaintiff was jailed for sixty days by an order which contained no purge clause, and for that reason the court of appeals recognized that the proceeding was criminal in nature, not civü. Although in obiter dicta the court expressed some disagreement with reasoning set forth in Walker v McLain, we do not read its Mann decision as being inconsistent with our holding today. As the United States Supreme Court stated, The critical feature that determines whether the remedy is civil or criminal in nature is . . . whether the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying with the terms of the original order. [Hicks, n 13 supra at 635, n 7.] Clearly, it was intended that the Michigan statutory procedure authorizing incarceration for child nonsupport should be regarded as civil in nature. The statute refers to the action as "a civil contempt proceeding.” MCL 552.631; MSA 25.164(31) (emphasis added). Moreover, under Hicks, n 13 supra, the statutory presumption in MCL 552.633; MSA 25.164(33) that a defendant has currently available resources equal to four weeks of payment under the support order could not be applied except in a civil proceeding. However, as Justice Levin cautioned in Sword, such a proceeding may be criminal in nature if the defendant in fact does not have the present ability to comply: If the defendant does not have the present ability to pay, then he does not have the "keys to the jail”; what is nominally a civil contempt proceeding is in fact a criminal contempt proceeding — the defendant is not being coerced, but punished. [399 Mich 393.] ther states have also required appointed counsel in civil cases when an individual is going to be incarcerated for various other reasons: Otton v Zaborac, 525 P2d 537 (Alas, 1974) (the threat of incarceration and the right to a jury trial in contempt proceedings suggests that indigents should receive appointed counsel); Ventura Co v Tillett, 133 Cal App 3d 105; 183 Cal Rptr 741 (1982), cert den 460 US 1051 (1983) (the disparity of bargaining power between indigent defendants and the state and the defendant’s potential loss of liberty require appointed counsel); Bowen v Bowen, 471 So 2d 1274 (Fla, 1985) (criminal contempt proceedings require appointed counsel for indigents; in civil contempt proceedings defendants must have the present ability to purge the contempt or they cannot be incarcerated); Johnson v Johnson, 11 Kan App 317; 721 P2d 290 (1986) (Mathews factors were relied upon to determine that appointed counsel is required); State v St Pierre, 515 So 2d 769 (La, 1987); State v Broussard, 490 So 2d 273 (La, 1986) (the contempt procedure for enforcing support obligations is essentially criminal in nature and therefore requires appointed counsel); Gordon v Bowden, 553 A2d 665 (Me, 1989) (no opportunity to purge a contempt sentence violates substantive due process); Carroll v Moore, 288 Neb 561, 571; 423 NW2d 757 (1988), cert den 488 US 1019; 109 S Ct 817; 102 L Ed 2d 807 (1989) ("[T]he right of an indigent to court-appointed counsel may be found in either a civil or criminal context. If a State’s paternity process could directly lead to incarceration, Lassiter would provide an absolute right to appointed counsel.”); Wake Co v Townes, 306 NC 333; 293 SE2d 95 (1982) (Lassiter presumption adopted in paternity actions); In re Gorger, 82 Or App 417; 728 P2d 104 (1986) (Or Rev Stat 33.095 requires the appointment of counsel in child nonsupport civil contempt proceedings); Commonwealth ex rel Brown v Hendrick, 220 Pa 225; 283 A2d 722 (1971) (reversed a civil contempt conviction for failure to make support payments where the contemnor did not have counsel and the present ability to comply was not demonstrated); Ex parte Gunther, 758 SW2d 226 (Tex, 1988) (Texas required counsel to be appointed in child support and paternity hearings, see Texas Family Code Annotated, § 14.32[F]); Tetro v Tetro, 86 Wash 2d 252; 544 P2d 17 (1975) (reliance on Argersinger to require appointed counsel when incarceration is possible); Ferris v Maass, 75 Wis 2d 542; 249 NW2d 789 (1977). A few state courts, in addition to Michigan, have ruled to the contrary. See Sheedy v Merrimack Co Superior Court, 128 NH 51; 509 A2d 144 (1986); New Mexico v Rael, 97 NM 640; 642 P2d 1099 (1982); Jolly v Wright, 300 NC 83; 265 SE2d 135 (1980). As identified in Lassiter, supra at 27, the Eldridge factors are: "[1] the private interests at stake, [2] the government’s interest, and [3] the risk that procedures used will lead to erroneous decisions.” Baldwin v New York, 399 US 66, 73; 90 S Ct 1886; 26 L Ed 2d 437 (1970). In addition, the 1982 amendments made it easier for the court to hold an individual in contempt for not exercising diligence in paying child support: (1) The court may find a payer in contempt if the court finds that the payer is in arrears and if the court is satisfied that by the exercise of diligence the payer could have the capacity to pay all or some portion of the amount due under the support order and has failed or refused to do so. (2) Upon finding a payer in contempt of court under this section, the court may immediately enter an order committing the payer to the county jail with the privilege of leaving the jail, during such hours as the court determines and under such supervision as the court considers necessary, for the purpose of allowing the payer to go to and return from his or her place of employment or, if the person wishes to seek employment, to seek employment. [MCL 552.635; MSA 25.164(35). Emphasis added.] An indigent might have other defenses, e.g., a challenge to the initial support order or to an income withholding order. Lapeer Dep’t of Social Services v Harris, 182 Mich App 686; 453 NW2d 272 (1990). The Court in McKinstry v Genesee Co Circuit Judges, supra at 807, found that a defendant in child nonsupport proceedings is less likely to be incarcerated if he has an attorney: What was the effect here of the denial of an attorney? The first noticeable effect is that this plaintiff was jailed without an attorney, and he was released when he obtained one. More importantly, however, the testimony at the hearing in this court revealed that those represented by counsel were treated far differently than those unrepresented. . . . Applying a standard statistical analysis to data generated from a specific study of this very court over a time period, it was determined that these differences could not he accounted for as merely random results, but were explainable only by the presence and participation of attorneys. The value of an attorney is demonstrated in plaintiff McKinstry’s actual case. There, the state judge sentenced him to 60 days confinement when under the applicable law, he could have been sentenced to no more than 45 days. There is no question but that the presence of an attorney would have revealed the error to the judge. Accord Walker v McLain, Ridgeway v Baker, and Mastin v Fellerhoff, supra. As one commentator has written, for each nonpayer of ordered child support, "[tjhere is ... a victim — a child, visible and often hurting.” Chambers, Making Fathers Pay: The Enforcement of Child Support (Chicago: University of Chicago Press, 1979), p 245. Although there was limited provision in 1976 for income withholding, MCL 552.203; MSA 25.163, the present statute is broader and more effective. It requires that every support order provide for income withholding. If the obligated parent falls behind in making payments, income is withheld and assigned automatically to the Friend of the Court to be disbursed to the proper recipient. MCL 552.607; MSA 25.164(7), MCL 552.603; MSA 25.164(3). The term "income” includes not only wages but "[a]ny payment . . . from a profit-sharing plan, pension plan, insurance contract, annuity, social security, unemployment compensation, supplemental unemployment benefits, and worker’s compensation.” See MCL 552.602; MSA 25.164(2). When certain requirements are met, the Internal Revenue Service will withhold payment of any income tax refund to a taxpayer who is delinquent in complying with a child support order. The refund is issued instead to the Friend of the Court for disbursement. MCL 552.624; MSA 25.164(24). See also 45 CFR 303.72. The state tax intercept program operates in a manner similar to the federal program. Any state tax refund to which such a taxpayer might otherwise be entitled is paid instead to the Friend of the Court. MCL 552.624; MSA 25.164(24). A lien may be imposed against any real or personal property owned by the defendant. Where feasible, a bond may be required from the defendant to ensure future payment. MCL 552.625; MSA 25.164(25). The authority to order a hearing before a referee, authorized by MCL 552.507; MSA 25.176(7), can not only save the time of the circuit court, but it often prompts payments: (2) A referee may do all of the following: (a) Hear all motions in a domestic relations matter, except motions pertaining to an increase or decrease in spouse support, referred to the referee by the court. (b) Administer oaths, compel the attendance of witnesses and the production of documents, and examine witnesses and parties. (c) Make a written, signed report to the court containing a summary of testimony given, a statement of findings, and a recommended order; or make a statement of findings on the record and submit a recommended order. (d) Hold hearings as provided in the support and visitation enforcement act. The referee shall make a record of each hearing held. (e) Accept a voluntary acknowledgment of support liability, and review and make a recommendation to the court concerning a stipulated agreement to pay support. (f) Recommend a default order establishing, modifying, or enforcing a support obligation in a domestic relations matter. According to the State Court Administrator’s Office, approximately 33,807 child nonsupport cases were disposed of in 1988 by using referee hearings. Chambers notes in his book, Making Fathers Pay: The Enforcement of Child Support, n 22 supra at 232-236, that when sanctions other than incarceration were used, regular elidid support payments continued in sixty-six percent of the cases whereas only thirty percent of the jailed group began making regular payments after release from jail. The brief amicus curiae filed by the Attorney General on behalf of the State of Michigan takes the position that counsel should be appointed for indigents facing incarceration for chñd nonsupport regardless of the cost. We are not aware of any comprehensive study which considers and documents the costs involved in providing appointed counsel to indigents in child nonsupport contempt hearings. In McKinstry, supra, the Court received expert testimony and state reports on this subject. In its report to the McKinstry Court, the State Court Administrator’s Office stated that "[wjhile dire predictions have been made by some judges concerning both cost and a reduction in the efficiency of our child support enforcement system, no such evidence has yet surfaced.” Meanwhile, statistics recently released by the Federal Office of Child Support Enforcement indicate that for the fiscal year ending September 30, 1988, Michigan led the nation in total collections. Because our holding is based upon the Due Process Clause of the Fourteenth Amendment of the United States Constitution, we need not consider whether such a right is also protected by the Michigan Constitution. The court may not rely on the presumption in MCL 552.633; MSA 25.164(33) that a defendant has the ability to pay four weeks of child support in determining whether the defendant is indigent.

R. B. Burns, P.J. Defendant Everett appeals by leave granted from a June 21, 1985, order of the circuit court denying his motion for summary judgment in which he claimed plaintiff’s injuries did not constitute serious impairment of body function or permanent serious disfigurement under Michigan’s no-fault insurance act, MCL 500.3135; MSA 24.13135. Plaintiff was standing on the shoulder of the road in front of defendant Martin’s automobile, which had stalled. Defendant Everett’s car approached the scene and struck Martin’s vehicle. The collision caused the Martin car to strike plaintiff, causing his injuries. The first thing plaintiff remembered after coming to was standing in the road and then being taken to Franklin Community Hospital in Vicksburg, where he was treated and released that morning. X-rays revealed no broken bones. At his deposition, plaintiff did not remember much about the accident, complaining of memory loss as a result of the accident. In his complaint, plaintiff alleged he was catapulted through the air a distance of approximately twenty-five to thirty feet and crashed into the ground. At plaintiff’s deposition, he testified that he suffered a banged-up right knee, torn muscles in his back, loss of memory, and much pain. He also received a large cut on his forehead, which required thirty-two stitches, and a cut on his left forearm, which required nine stitches. Approximately one week after the accident, plaintiff saw Leo B. Rasmussen, M.D., at the suggestion of the hospital and was still complaining of his injuries. Dr. Rasmussen recommended that plaintiff see a physical therapist and a neuropsychologist, Dr. Thomas R. VanDenAbell. Subsequently, he was sent to Detroit to be examined by Dr. S. E. Newman. After the lawsuit was filed, defendant arranged to have plaintiff examined by two doctors, Dr. Leslie A. Neuman and Dr. Paul C. Kingsley, and another psychiatrist, John T. Gallagher. At the time of the accident, plaintiff was employed as a prototype technician and troubleshooter at Triple S Company, a manufacturer of plastic parts for computers. His job involved in specting new tools and molds and testing them to make sure they met specifications before they went into mass production. He testified that he missed approximately four months of work after the accident. On appeal, Everett claims (1) the trial court erred in denying his motion for summary judgment in which he alleged that plaintiff did not suffer serious impairment of body function and (2) plaintiff’s scar does not constitute permanent serious disfigurement'. Michigan’s no-fault insurance law was enacted for the purpose of providing the victims of motor-vehicle accidents adequate and prompt reparation for loss, and to reduce the number of tort claims resulting from automobile accidents, which often overcompensated minor injuries and undercompensated serious injuries. Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978). Thus, tort liability will be imposed only in limited circumstances as expressed in MCL 500.3135(1); MSA 24.13135(1): A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.” [Id.] Where there is no material factual dispute as to the nature and extent of a plaintiff’s injuries, courts are to decide as a matter of law whether there has been a serious impairment of body function under Michigan’s no-fault act. Cassidy v McGovern, 415 Mich 483, 488; 330 NW2d 22 (1982), reh den 417 Mich 1104 (1983). Serious impairment of body function must be determined on a case-by-case basis. Cassidy, supra, p 503; Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984). Nevertheless, some guidelines have been established. The affected body function must be an important body function. The injury just be objectively manifested. The impairment must be serious. Cassidy, supra, pp 504-505; Williams, supra, p 409. The seriousness is to be measured by an objective standard which looks to the effects of the injury on a person’s general ability to lead a normal life. Cassidy, supra, p 505. The injury need not be permanent to be serious, but permanency is relevant. Cassidy, supra, pp 505-506; Guerrero v Schoolmeester, 135 Mich App 742, 747; 356 NW2d 251 (1984), lv den 422 Mich 881 (1985). Objective manifestation is not satisfied by plaintiff’s complaint of symptoms, rather, the injury itself must be objectively manifested. This Court has interpreted this to mean that the injury must be capable of medical measurement. Williams, supra, p 409. Medically unsubstantiated pain will always be present in a tort action for pain and suffering. Williams, supra, p 410. Pain and suffering is not recoverable per se, but only when it arises out of an injury that affects the functioning of the body. Cassidy, supra, p 505; Guerrero, supra, p 747. A claim of serious impairment must be considered in light of the other two requirements of the statute — death and permanent serious disfigurement. Cassidy, supra, p 503. In plaintiff’s brief on appeal, plaintiff states he suffers from sixteen basic complaints as a result of the accident. We will discuss three of his complaints. The first complaints to be analyzed are plaintiff’s headaches and loss of memory. We believe that these two complaints should be analyzed together since they obviously both arose when plaintiff’s head hit the pavement. We further believe that memory is an important body function. Memory is a body function which people use in their everyday life. Memory is essential to a person’s performance at work. Memory is also important in social situations such as meeting people, conversing, engaging in hobbies and recreation, and reminiscing with friends. The impairment to plaintiffs memory in the instant case was serious. Plaintiff testified at his deposition that, before the accident, he had an excellent memory. After the accident he could not perform like he used to be able to at work. He could not remember parts, molds, and the proper way to start jobs. He constantly had to ask people. He was always confused, he was reassigned to third shift and, in addition, he could not remember past events in his life, and could not converse with people about these past events. This infirmity interferes with a person’s ability to live a normal life. The crucial question is whether this complaint arose out of an objectively manifested injury. Plaintiff was examined by Thomas R. VanDen-Abell, Ph.D., a clinical neuropsychologist. Dr. VanDenAbell performed a number of tests on plaintiff. Plaintiff had difficulty with tests assessing his ability to inspect complex displays in the Picture Completion Test. In the Bushke Auditory Verbal Learning Paradigm, which tested plaintiff’s verbal memory skills, plaintiffs performance was at the lower level of normal, but the pattern of his errors suggested the effects of some psychodynamic interference with his abilities. The Ray Complex Figure test measured plaintiffs nonverbal memory. His performance was described as normal, although he could retrieve only sixty percent of the design. Dr. VanDenAbell suggested that this pattern of performance suggests some left hemisphere lateralization of plaintiff’s memory defect. On other tests not involving memory, plaintiff performed normally. In summary, Dr. VanDenAbell stated that plaintiff showed minimal but consistent evidence of higher cortical dysfunction which he felt was due to plaintiffs head injury. Whether plaintiffs complaints of memory loss result from an objectively manifested injury is a close question, however. We believe that Dr. VanDen Abell’s report indicates that plaintiffs head injury was objectively manifested. Taking the evidence in a light most favorable to plaintiff, plaintiffs head injury was objectively manifested and plaintiffs memory loss was due to this injury. Dr. VanDenAbell also signed an affidavit in support of plaintiffs claims. In the affidavit, Dr. VanDenAbell further states that he feels plaintiff will experience permanent residual memory difficulties and permanent cognitive difficulties. Dr. Neuman, defendant’s doctor, stated that he could find no objective evidence of why plaintiff was making the complaints. There is a dispute between the parties and their doctors as to the nature and extent of plaintiffs head injury. Plaintiffs neuropsychologist believes plaintiffs injury was objectively manifested by his tests, while the doctors employed by defendant do not. Therefore, the determination of serious impairment of body function regarding plaintiffs complaint of loss of memory must be made by the jury in this case, and the trial judge properly denied defendant’s motion for summary judgment on this basis. The next complaint which must be analyzed is plaintiffs complaint of back problems. Plaintiff complains of muscle popping, limited flexion, and pain. This Court has held that movement of one’s back is an important body function. Sherrell v Bugaski, 140 Mich App 708, 711; 364 NW2d 684 (1984). The next step is determining whether there was evidence that plaintiffs back injury was objectively manifested and whether his complaints arise out of that objectively manifested injury. Dr. Rasmussen, in his report of September 22, 1981, stated that on June 19, 1981, plaintiff came into his office complaining that he was unable to bend back at all, and complaining of pain in his back. Dr. Rasmussen, upon examination, found tenderness over the low thoracic spine and decreased range of motion when plaintiff bent backwards. However, x-rays of the thoracic spine were normal. On June 25, 1981, Dr. Rasmussen still found tenderness. X-rays taken on that date revealed transitional vertebrae with small associated spina bifida occulta. However, at Dr. Neuman’s deposition, he testified that this was congenital and not related to the accident. Plaintiff does not challenge this; thus, this infirmity cannot be taken into account by this Court. On July 24, 1981, after plaintiff still complained of pain and discomfort, Dr. Rasmussen diagnosed muscle spasms over the superior left scapula (shoulder blade). In Salim v Shepler, 142 Mich App 145; 369 NW2d 282 (1985), a panel of this Court held that limited flexion is objectively manifested if diagnosed by a passive range of motion test, but not if it is diagnosed by an active range of motion test. An active test is plaintiffs merely stating that he cannot bend. Dr. Rasmussen’s report does not state whether he used a passive or an active test in diagnosing plaintiffs limited flexion. Since it is plaintiff’s responsibility to present his claim in the best manner, this Court must assume the limited flex-ion was not objectively manifested. On the whole, we do not believe that Dr. Rasmussen’s report sufficiently indicates that plaintiff’s back injury was objectively manifested. However, plaintiff was examined by S. E. Newman, M.D., on March 19, 1985. In Dr. Newman’s examination of plaintiffs spine, he noted that, in the cervical spine area, plaintiff had flexion of eighty, normal being ninety. Such limited motion is objectively manifested, as it appears Dr. Newman used a passive test since he found the exact percentage of flexion. In addition, the x-rays Dr. Newman took revealed reversal of the normal cervical lordotic curve, and revealed structural change at the lumbosacral joint, the area of the spine around the loins. This is also an objective manifestation. Thus, according to Dr. Newman, plaintiffs back injury was objectively manifested. Besides that, Dr. Newman noted tenderness, pain and scars around the neck, spine and scapulae. Under "diagnosis,” Dr. Newman diagnosed plaintiff as having (1) traumatic craniocervical syndrome manifested by cephalgia (headache) and memory loss, (2) traumatic myofascial sprain of the cervical spine musculature with left scapulocostal components comfirmed by x-ray, (3) traumatic myofascial sprain of the lumbosacral spine musculature in a structurally weak back, and (4) traumatic arthralgias with sensory phenomena involving the hands and right knee. Defendant’s orthopedic surgeon, Dr. Kingsley, wrote a letter to defendant’s attorney regarding plaintiff on October 22, 1984. In the letter, Dr. Kingsley states that, in his October 12, 1984, examination of plaintiff, he found plaintiffs spine to be normal, with no evidence of deformity or muscle spasm. An x-ray of the spine revealed only the congenital problem of spina bifida occulta. At the end of Dr. Kingsley’s report, he states that his examination failed to reveal any significant objective findings to substantiate plaintiffs complaints. Once again, there is a dispute between the parties’ doctors as to the nature and extent of plaintiffs injuries. Therefore, if the impairment is serious, summary disposition for defendant was not proper. In our opinion, the other complaints of plaintiff do not merit consideration. Affirmed. Costs to plaintiff. Psychodynamics is the study of the mental and emotional processes underlying human behavior and its motivation, especially as developed unconsciously in response to environmental influences. Webster’s New World Dictionary, 2d ed, p 1147. The impairment or abnormality of the outer portion of the brain. The middle part of the spine. The reversal of the normal curve of the spine near the neck. Symptoms in the skull and neck caused by a severe blow to the head. Sprain of the membranes surrounding the muscles of the neck, spine and shoulder blades. Sprain of the membranes surrounding the lower spine. Pain in the joints.

V. J. Brennan, P.J. Defendant appeals as of right from a March 29, 1984, judgment following a bench trial. The trial court found defendant guilty of one count of criminal sexual conduct in the first degree (esc i), MCL 750.520b; MSA 28.788(2), one count of extortion, MCL 750.213; MSA 28.410, and one count of possession of a firearm during the commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was given a life sentence for the esc i conviction, a sentence of from twenty to thirty years for the extortion conviction, and the mandatory two years for the felony-firearm conviction. The complainant testified that she was driving to her sister’s house on September 23, 1983, to drop off her two-year-old daughter before going to work when she stopped at a traffic light at the intersection of Hill and Genesee in Saginaw at approximately 5:30 a.m. While she was stopped at the light, the defendant opened the car door and, pointed a gun in her face and told her to move over. After driving for a few minutes, the defendant blindfolded her and brought her to a white brick building. They walked through a doorway of beads and the defendant sat her on the bed and told her to undress. The complainant, who was wearing a two-piece suit, removed her nylons and underpants and defendant raped her. The defendant then put a sweatshirt over the complainant’s and her daughter’s heads and they left the apartment. The defendant asked her her name and where she lived, and she gave him her name and an incorrect address. She was told by the defendant that if she reported the incident to anybody, he would come after her and her daughter and hurt them. After getting into the car, defendant took ten dollars and the complainant’s driver’s license from her purse. The defendant explained that if she did not tell anybody about the attack he would mail the license back to her in a couple of days, but otherwise he would hurt her or her daughter. After defendant left the car, she drove back to her apartment and the police were eventually called. On September 28, the complainant’s father found her driver’s license in her mailbox. Defendant claims that the trial court erred by allowing expert testimony concerning a blood type test. Robert Avery, a lab scientist who analyzed body fluids, testified at trial that a seminal stain was found on the interior lining of the complainant’s skirt. According to Avery, the stain was a type A secretion which could not have been secreted by the complainant because she was a type b secretor. Avery stated that defendant is a type a secretor. Avery testified that from eighty to eighty-five percent of the population are secretors, defined as persons who secrete their blood grouping within their body fluids. Nonsecretors do not secrete their blood grouping within their body fluids. Avery testified that forty-three percent of all secretors, which would include defendant, are type a secretors. Thus, Avery concluded that defendant could not be eliminated as a possible source of the seminal stains found on the inside liner of the complainant’s skirt, nor could between thirty-two and thirty-six percent of the rest of the population. Defense counsel did not object to Avery’s testimony. At the present time, there is a split among the various panels of this Court which have considered the issue of the admissibility of blood typing tests such as admitted in this case. On the one hand, the test has been excluded by certain panels considering the issue. See People v Sturdivant, 91 Mich App 128; 283 NW2d 669 (1979), lv den 407 Mich 933 (1979), People v White, 102 Mich App 156; 301 NW2d 837 (1980), and People v McMillen, 126 Mich App 211; 336 NW2d 895 (1983). On the other hand, several panels of the Court have found blood typing evidence to be admissible. In People v Camón, 110 Mich App 474; 313 NW2d 322 (1981), lv den 414 Mich 859 (1982), evidence from a secretor test indicated that fluids present oil the complainant’s panties came from persons who were secretors with type A and type o blood. Blood and saliva samples revealed the complainant to be a type a secretor and the defendant to be a type o secretor. The Court observed that approximately thirty-six percent of the population at large are type o secretors. The Court held that the trial court did not err in allowing the introduction of the evidence. The Court stated that, under MRE 401, the test of relevancy is whether evidence has any tendency to make the existence of any material fact more or less probable. Camon, supra, p 480. The Court also stated that the blood type evidence admitted at trial provided one additional circumstance contributing to the identification of the defendant, and that the objection of remoteness goes to weight and is more appropriately a matter for argument before the jury. Id. The decision in Sturdivant was also rejected in People v Horton, 99 Mich App 40; 297 NW2d 857 (1980), vacated and remanded on other grounds 410 Mich 865 (1980). In Horton, seminal fluid found on a bedsheet was produced by a nonsecretor male, and the defendant, like twenty percent of the population at large, was a nonsecretor. In declining to follow Sturdivant, supra, the Court stated that the overwhelming majority of courts allow the use of blood grouping evidence in criminal trials. Horton, supra, p 50. The Court pointed out that the Court in Sturdivant based its decision on the provisions of the Paternity Act, MCL 722.716; MSA 25.496, banning the use of this sort of evidence in paternity proceedings except to protect a putative father. Horton, supra, p 50. The statute was amended in 1982 to make blood type tests admissible, 1982 PA 129, § 1. The Horton Court did not find the reasoning of Sturdivant persuasive and stated that whatever legislative policies and considerations might have led to his rule do not affect the practices of the Court in criminal proceedings. Id. The Court said deposits of blood and other identifiable bodily substances do not differ from other pieces of physical evidence which show possible connections between defendants and criminal acts, and that the weight of such evidence is for the jury’s determination. Horton, supra, p 51. In People v Thorin, 126 Mich App 293; 336 NW2d 913 (1983), the Court stated that cases decided since Sturdivant, supra, and Horton, supra, have followed the Horton rationale. Thorin, supra, p 302. The Court concluded that the Horton rationale is the better view, stating that blood type evidence which places the defendant within the group of the population is relevant in that it does have some tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Thorin, supra, p 303. The cases allowing the introduction of such testimony are persuasive. However, we point out that, standing alone, such testimony without any other strong admissible evidence tending to show the defendant’s guilt would indeed be inadmissible. We stated in McMillan that admission of such evidence was error, but harmless error because the defendant was identified by the complainant. Here, we are going a step further and departing from the McMillan approach and we find that admission of the blood typing evidence is not error when there is other competent evidence linking defen dant to the crime, when the jurors have been properly cautioned about the use of such evidence in their deliberations, and when a proper foundation has been laid for admission of such evidence. In this case, the complainant positively identified the defendant as her assailant. Fibers from the blue sweatshirt worn by defendant on the day of the attack were found on the complainant’s skirt. Fibers from a yellow blanket at the alleged site of the rape were found on the complainant’s skirt. Fibers from the defendant’s sweatshirt were also found on the complainant’s blouse. The defendant also told police officers that he committed the crime. The defendant told his cousin, Noel Nerio, that he had picked up a woman and her child, brought them to his apartment, and raped the woman. Nerio testified that defendant told him that he had taken money from her, forced his way into her car, and blindfolded her with a shirt. Barney Nowicki, a friend of the defendant, testified that in late September defendant said that he took from a lady with a child ten dollars and her driver’s license, which he said he would give back to her in the future. Nowicki testified that defendant showed him the license and later told him that he had put in her mailbox. Karen Gutierrez, a friend of the defendant, testified that defendant told her that he had taken a woman’s driver’s license so that she would not go to the police, and that he later took it to her house and put it in her mailbox. Gutierrez further testified that defendant told her that he had taken ten dollars from the woman, that the incident happened at around 5:00 a.m. and that a little girl was with the woman. Finally, the complainant testified that defendant told her that if she did not go to the authorities he would return her driver’s license to her. The com plainant’s father found the license in the mailbox on September 28. Eva Hartung testified that around noon on September 28 she observed defendant in his car near the complainant’s apartment complex. We believe that the evidence here was relevant under MRE 401 since it placed defendant within a smaller group of the population which could have committed the rape. The evidence here significantly narrowed the number of people who could have committed the rape. We agree with the Horton Court that the weight to be given to such evidence is for the jury’s determination. The objection of remoteness goes to weight and is more appropriately a matter for argument before the jury. Camon, supra, p 480. The danger of unfair prejudice does not outweigh the probative value of the evidence. As the Court in People v Goree, 132 Mich App 693; 349 NW2d 220 (1984), points out, MRE 403 does not exclude evidence because it simply prejudices the cause of the objecting party, but, rather, excludes only unfairly prejudicial evidence. Any unfair prejudice created by the introduction of such evidence can be eliminated by proper cross-examination, argument, instructions by the court, and the jury’s common sense. Goree, supra, p 703. These precautions should prevent the jury from placing undue emphasis on such testimony and enable it to put the evidence in its proper statistical light. In our opinion, such precautions will prevent any unfair prejudice and lead the jury to recognize that blood typing evidence is not conclusive of the defendant’s guilt but only increases the probability of that fact. We do note that, as the Court in Horton, supra, p 50, and Thorin, supra, p 302, pointed out, the majority of courts considering this issue have al lowed the introduction of blood grouping evidence in criminal trials. We, likewise, hold that such evidence is admissible when there is other competent admissible evidence and the safeguards mentioned in this opinion are present. The next question is whether the defendant’s threat to hurt the complainant if she reported the rape to the police constitutes extortion, MCL 750.213; MSA 28.410. The complainant testified that as they were leaving the apartment defendant asked her name and address and that she told him her name and an incorrect address. She testified that defendant told her that if she reported the incident to the authorities he would come after her and her daughter and hurt them. When in the car, defendant took her driver’s license and address book from her purse and told her that if she did not report the attack to anybody, he would mail the license back to her in a couple days. Otherwise, according to the complainant, defendant stated that he would hurt her or her daughter. MCL 750.213; MSA 28.410 states: Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than twenty [20] years or by a fine of not more than ten thousand [10,000] dollars. In People v Krist, 97 Mich App 669, 676; 296 NW2d 139 (1980), lv den 409 Mich 936 (1980), the Court stated that prosecutions for statutory extortion have generally been characterized by threats of future harm if the victim does not comply with the extortionist’s wishes. Convictions affirmed.

Per Curiam. Defendant appeals by leave granted from an adverse decision in the Wayne Circuit Court. The circuit court reversed a district court order permitting defendant to revoke his previous rejection of a Wayne County Mediation Tribunal award in the sum of $7,500 in favor of plaintiff. Our review persuades us that the decision of the circuit court was correct and that the case should be remanded to the district court for further proceedings. The lawsuit concerns the division of income from a lVi-year law partnership between plaintiff and defendant Zeff which terminated in 1969. The 1978 suit sought an accounting. On May 7, 1981, a unanimous Wayne County Mediation Tribunal rendered a $7,500 award for plaintiff. Defendant filed a timely rejection and plaintiff, by failing to formally reject or accept, pursuant to former WCCR 403 accepted the mediation. Since the evaluation was less than $10,000, the case was remanded to district court. Both parties then proceeded in the district court in what the circuit court judge in her opinion aptly described as "a manner which has neither contributed to the progress of discovery nor resulted in a likelihood of settlement.” On April 22, 1982, defendant moved for entry of judgment pur suant to mediation or, in the alternative, a motion for dismissal for plaintiiFs willful failure to make discovery. Defendant asked the district court to allow him to revoke his prior rejection and to enter a judgment in the amount of the mediation award in plaintiiFs favor. Defendant’s motion reiterated the discovery history of the action and alleged that plaintiff had made numerous attempts to delay and impede the progress of the case. In a decision dated November 21, 1983, the district court ordered judgment in the award amount plus costs from the date of defendant’s initial mediation rejection. Plaintiff then appealed to the circuit court urging that WCCR 403 did not provide a means by which defendant could revoke his prior rejection of the mediation award. The circuit court concluded that any relief from a mediation rejection or acceptance must be predicated upon GCR 528.3, now MCR 2.612(C), and that, since neither of the parties nor the district court invoked that rule, the trial court had abused its discretion in allowing defendant to revoke his mediation rejection. On appeal to this Court defendant asserts that the circuit court clearly erred since plaintiff had previously accepted the award and the district court’s ruling did not detrimentally affect any rights of the plaintiff. This is an issue of first impression. We have previously recognized that a trial court máy exercise its discretion to allow a party to revoke a prior mediation acceptance. Muntean v Detroit, 143 Mich App 500; 372 NW2d 348 (1985); Young v Everlock Taylor Corp, 137 Mich App 799; 359 NW2d 213 (1984), lv den 422 Mich 930 (1985). However, no case has considered whether a party may obtain relief by revoking his prior rejection of a mediation award. Defendant agrees with the circuit court that a strong showing under former GCR 528.3 is necessary in order to revoke a prior acceptance of a mediation award since such a revocation cuts directly against the overwhelming policy of the mediation rules "to expedite and simplify final settlement of cases.” See Cooper v Automotive Finishes, Inc, 109 Mich App 530; 311 NW2d 414 (1981). However, defendant contends that neither the rule nor the rationale should apply to a situation where a party seeks to revoke a previous rejection of a mediation award and the opposing party is not prejudiced by the action. Defendant submits that plaintiff failed to make even a de minimus showing of prejudice by defendant’s revocation of the rejection and that therefore the district court judge cannot be said to have abused his discretion. Plaintiff maintained to the circuit court as well as to this Court at oral argument that he would be prejudiced by the relief sought by defendant. He asserted that subsequent to the mediation he had discovered convincing proof of defendant’s liability, and that defendant had no chance of prevailing at trial. Plaintiff contends that defendant now wishes to accept the mediation award, well knowing that at trial he will be faced with a substantially larger verdict. The circuit judge found that, whether or not plaintiff’s contention is true, defendant failed to show that substantial rights of the plaintiff would not be detrimentally affected if the mediation rejection is set aside. We decline to decide in this case whether the court rule providing grounds for relief from judgments is applicable to a situation where a party seeks to revoke a prior rejection of a mediation award. Nonetheless we do agree with the circuit court judge that in this case the relief granted by the district court remedied no injustice. Rather we conclude that principles of finality compel us to consider defendant’s original rejection as binding upon him. WCCR 403.15(b), now MCR 2.403(N)(1), clearly provides that, if any party rejects the mediation panel’s evaluation, the case proceeds to trial. We think that, in the absence of a much stronger showing of good cause than is offered by defendant here, to allow revocation of the defendant’s original rejection would be to permit the mediation process to be used as a conclusive settlement device that lacks the requisite mutual voluntary acceptance of an award. The effect of such a rule would be like allowing an offeree of a contract who has rejected the offeror’s proposed terms to unilaterally revoke his rejection and then accept the original contract offer at any time, even a year later. Beyond considerations of fundamental fairness, it is entirely obvious that a significant change in both parties’ circumstances may have occurred in the period following the defendant’s initial rejection. It would be highly unjust to permit a party who initially files a rejection of a mediation award to control the disposition of the case based solely upon a unilateral change of mind. Defendant’s professed desire to settle in order to assist in curtailing the crowded docket system remedies no injustice. Instead, it raises the spectre of injustice in coercing and enforcing such a judgment against the plaintiff. Obviously, this is not to say that the parties are forever wedded to trying the case in order to finally resolve the dispute. On the contrary, we encourage them to make renewed efforts to reach a mutually agreeable resolution of this matter. We only conclude in this opinion that the time has long since passed for using the mediation award as the appropriate vehicle to conclude this matter. For this reason, we agree with the circuit court that the district court abused its discretion in allowing defendant to revoke his prior rejection of the mediation award. The case is remanded to the district court for further proceedings. Plaintiff has since asserted in these proceedings that he did, in fact, file a timely rejection to the mediation evaluation which apparently was never recorded due to clerical error. Since plaintiff never raised this argument until defendant moved to set aside his prior rejection we agree with the circuit court judge that this assertion "is rather dubious.” We note however that, if the case does ultimately go to trial, the district court has jurisdiction to consider the allegations of discovery abuses in its determination of costs. MCR 2.313. Moreover, we also recognize the existence of MCR 2.405 concerning offers to stipulate to entry of judgment as a possible basis for reaching a settlement.

Per Curiam. These cases, consolidated for appeal by order of this Court on February 6, 1985, involve review of judgments requiring the boards of commissioners of Clare and Gladwin Counties to implement a salary structure for employees of the Seventeenth District Probate Court. The Seventeenth District Probate Court encompasses Clare and Gladwin Counties and is jointly financed by these counties on a percentage basis determined by the population ratio of each county. Traditionally this has resulted in a fifty-five percent funding by Clare County and forty-five percent by Gladwin County. The Seventeenth District Probate Court consists of one probate judge and seven court employees. Each county allocates funds for three positions, i.e., probate register, juvenile register and juvenile probation officer. The seventh position, the director of court services, is funded by the State of Michigan, through a Department of Social Services grant to each county, and by one or the other or both of the counties in this dispute. For several years prior to 1984, the probate court and the county commissioners of Clare and Gladwin Counties had disagreed over the level of compensation for the seven court employees. The dispute came to a head in 1983 during the preparation and submission of the court budget for 1984. Separate lawsuits in circuit court were filed by the court against the two county boards of commissioners. The suits did not involve the use of an administrative order by the court nor the use of or threat of the contempt power of the court and are described by the parties as a good faith, honest dispute involving the authority of separate branches of government and the separation of powers doctrine. Although Employees and Judges of the Second Judicial District v Hillsdale Co, 423 Mich 705; 378 NW2d 744 (1985), had not been decided when these cases were being tried, the parties to this dispute utilized a dispute resolution procedure which was prescient of the dispute reso lution portions of administrative order of 1985-6 promulgated in the Hillsdale Co case. These cases present the issue of the use of the inherent power doctrine by a probate court. The relationship between judicial independence and the doctrine of separation of powers, and the concomitant issue of the propriety of an award of attorney fees to a court invoking the inherent power doctrine, will be examined utilizing such guidance as is provided by the Supreme Court in the Hillsdale Co case. There is a proper record before this Court for review of these issues. Because the question of a probate court’s authority to order salary increases has not been dispositively resolved in this state and because courts must respect the inherent power and authority of the other coequal branches of government, we find it necessary and helpful to develop extensively the factual background of these lawsuits and the relevant issues so raised and then to apply, to the extent we find it applicable, the Hillsdale Co decision to these issues. We undertake this assignment mindful of the delicate balance of power in each branch of our tripartite form of government and of the dangers of stepping into a "political thicket.” Colgrove v Green, 328 US 549, 556; 66 S Ct 1198; 90 L Ed 1432 (1946) (opinion of Frankfurter, J.). Davis v Bandemer, 478 US —, —; 106 S Ct 2797; 92 L Ed 2d 85 (1986) (concurring opinion of O’Connor, J.). FACTS CLARE COUNTY For several years prior to 1983, the probate court and the county commissioners of Clare County had disagreed over the level of compensation for the employees of the probate court. In 1978 or 1979 the Michigan Department of Civil Service, at the request of Clare County, conducted a classification and compensation study for Clare County employees. The study compared salaries of employment positions in Clare County with similar jobs in other counties. The report recommended a salary structure for job positions, but the recommendations were not implemented by the county. This study was admitted as an exhibit at trial and was utilized by an expert witness as part of that witness’ analysis and recommendations in the trial of this matter. In 1983, the Seventeenth District Probate judge attempted to explain his requests for increased compensation submitted as part of the court budget. The judge did this by holding an informal budget hearing. He invited county commissioners to the hearing and had employee job descriptions prepared by the employees of the court. These descriptions were available for examination at the hearing. The judge and the court administrator explained the job functions to those attending the hearing and had the employees available for questioning. A transcript was made available to the board of commissioners for use by those commissioners who did not attend the meeting. Following this meeting, the court administrator attended budget committee meetings held by the board of commissioners. The court submitted three separate compensation requests to the board of commissioners. Each request was in a decreasing amount. As the parties approached the end of the year and implementation of the 1984 budget, it became apparent that, despite the recent efforts of the parties to reach an agreement on the compensation question, an agreement could not be reached. The probate court began an action for a writ of mandamus and injunctive relief. The court sought an order compelling the Clare County Board of Commissioners to appropriate approximately $13,000 to implement the court’s compensation plan, restraining the board from implementing its longevity and insurance plan, declaring the employees to be court employees, requiring the board to pay the judge’s state bar dues and committee membership dues, and compelling the board to pay the court’s reasonable attorney fees in connection with the litigation. The Clare County Board of Commissioners filed a counterclaim for declaratory judgment. The board of commissioners asked the circuit court to declare the probate court budget appropriated by the board to be reasonable and sufficient and to declare the budget submitted by the probate court to be unreasonable, arbitrary and not necessary for the maintenance of the probate court. The board of commissioners claimed the employees were county employees and that the board had the exclusive right to set their compensation. In a further effort by the parties to resolve their differences, the matter was mediated by the Michigan Judges Association and Michigan Counties Association joint council. The issues could not be resolved by mediation. At the time the trial commenced, the parties were approximately $15,000 apart in their compensation dispute. The issues joined for trial were: (1) Who was the employer of the employees — the county or the court? (2) What is a reasonable and necessary level of compensation for the court’s minimum needs? (3) Was the county system of compensation for the employees an irrational and unfair system? (4) Was the court entitled to reasonable attorney fees incurred in the prosecution of the lawsuit? (5) Who has the authority to set the compensation of the employees? With respect to the compensation issue, the county’s position was that it had implemented an across-the-board wage increase of ten percent for all county positions including the positions involved in this controversy. The county stated that the ten percent was reasonable and that the action of the county in setting the salaries was the sole, nonreviewable function of the county commissioners. The court’s position was that the ten percent increase was not reasonable and was not actually a ten percent increase as to all positions. The court also claimed that the county’s method of determining compensation did not take into account the training, responsibilities and duties of each position. Exacerbating the dispute was the fact that Gladwin County had not contributed toward compensating the director of court services on a pro-rata basis for the services rendered by the director at a group home utilized by both counties. At trial each party produced two witnesses. The plaintiff presented a witness who was qualified, without objection by the defendant, as an expert in the field of salary administration. This expert witness took into account a two and one-half hour difference in the work week of the respective courts, and made an adjustment in arriving at his recommendation for the compensation of the employees of each court. Judge Alexander Strange, the probate judge of the Seventeenth Judicial District, testified on behalf of the plaintiff. The defendant presented a witness who was an employee of the Michigan Department of Civil Service and who had been involved in preparing the 1978 Clare County job study. The defendant’s other witness was a member of the Clare County Board of Commissioners. The job responsibilities and duties for the positions in the court were: Director of Court Services. The director serves as the Clare County juvenile officer, court administrator for both counties and referee for the juvenile court for both counties. He is responsible for the training and supervision of the juvenile probation officers for each county and for the preparation of the budgets and reports for the court. He serves also as the supervisor of the court’s group home maintained for neglected, delinquent or abused children who come under the jurisdiction of the court. His responsibility includes the maintenance of the physical facilities at the county group home. Probate Register. This person is responsible for processing estates of deceased individuals, guardianships and conservatorships. In uncontested estate matters being probated in independent probate this individual has the same responsibility as the judge. This person also has the responsibility for scheduling cases in the probate division and acts as the juvenile register in the juvenile register’s absence. Juvenile Register. This person is responsible for scheduling cases in the juvenile division. The job requires that the person filling it act as a court recorder, which is a position requiring certification by the State of Michigan. The juvenile register is also the deputy probate register and acts in the absence of the probate register. Juvenile Probation Officer. This position requires a minimum of a bachelor’s degree. This requirement is mandated by the State of Michigan through the Department of Social Services. The person occupying this position is on call and on duty twenty-four hours a day, 365 days a year and has the responsibility of removing children from homes when necessary, transporting children to foster care placement, and supervising foster care children and children who are on probation to the court. This person must also conduct home investigations and guardianship investigations in adoption matters and prepare investigative reports for the court for dispositional hearings. At the time of trial, each party’s position on the compensation question was: Position Court Clare County Juvenile Probation Officer $19,965 $13,009 Juvenile Register $16,478 $13,009 Probate Register $16,478 $13,009 Director of Court Services $25,162 $15,738 Some analysis of the method of funding these positions is necessary to illustrate the basis and complexity of this funding disagreement. The county is reimbursed approximately twenty-five percent of the salary of the juvenile probation officer. This reimbursement comes to the county from the State of Michigan through the child care fund. The director of court services position is funded in a much more complex manner. The person occupying this position serves also as the county juvenile officer. The salary proposed by the county for this position would be: Amount Source Total Compensation $12,444 State of Michigan - County Juvenile Officer $ 4,200 State of Michigan - Group Home Grant $ 3.300 Clare Countv_S19.944 The manner of compensating the director of court services best illustrates the fertile ground for dispute and disagreement. The county claims that the director of court services received a ten percent raise. The difficulty begins with the application of the ten percent formula. The county’s ten percent was to be applied only to the county’s 1983 contribution. The 1983 contribution was approximately $3,000. Hence the ten percent raise being offered by Clare County was $300. In 1983 the director of court services received, along with all other personnel in Clare County, a $500 bonus. This amount was not applied to the base salary. The court’s claim was that the claimed ten percent raise when applied to the director of court services resulted in a net reduction of $200. An additional area of dispute is that on the $4,200 paid from the state grant for the operation of the group service home, there is no deduction for fica or income tax, and there is not a retirement credit on this amount. The director of court services received his salary from the State of Michigan, from the grant administered through the Department of Social Services for the operation of the group home, and from Claré County. The compensation package for the employees had over the years resulted in ill will between the county and the court. The court had received both written and verbal protest from its employees on a number of occasions. Since 1974, the probate court had a total of three registers of probate and four juvenile case workers. The court was experiencing morale problems with its employees. The court had for a period of time placated the employees by telling them that the financing of the court would soon be taken over by the State of Michigan. However, it became apparent to the court in 1983 that state financing was not to become effective that year as promised; consequently the employees’ dissatisfaction continued and increased. The probate judge testified that in his opinion the court functioned efficiently and effectively in 1982 and 1983. He described his staff as dedicated and loyal notwithstanding their dissatisfaction with the compensation package. The county established through one off its witnesses that there are seventy employment positions in Clare County. Since 1978, twenty-six of these positions had experienced changed personnel. The reasons for the twenty-six changes are not in the record. The expert witness called by the plaintiff stated that his charge in this matter was to render an opinion as to the reasonable and necessary salaries to compensate the employees of the court. To arrive at his conclusion he reviewed the salary schedules for both Clare and Gladwin Counties, the personnel policies for both counties, the transcript of the hearing held by Judge Strange, the job descriptions and job analysis information from Clare County, and a comparison of salaries paid within the funding unit with the salaries paid by similar organizations for comparable jobs. He took into account the county’s ability to pay. The record establishes that Clare County had a $104,000 contingency fund in its 1983 budget that was transferred to the 1984 budget. The expert testified that it is not rational to pay a probation officer at the same rate as a general clerical employee. However under the county compensation structure, if a newly hired employee for the probate register position or the juvenile proba tion officer position became employed in the year 1984, that employee would receive the beginning level compensation of a clerical employee. His opinion was that this system of compensation was irrational and that an irrational system of compensation leads to employee dissatisfaction. He further testified that a relationship exists between dissatisfaction and job performance, productivity and turnover problems. The expert’s conclusion, which was not rebutted by any witness produced by the defendant, was that the minimum level salary as a reasonable and necessary salary for 1984 for each court position was: Juvenile Probation Officer $17,000 Juvenile Register $14,200 Probate Register $15,400 Director of Court Services $22,000 The expert recommended a benefit package for all of the court’s employees which was comparable to the benefit package being given to county employees. The expert’s opinion was that payment of the judge’s bar dues and section memberships, while reasonable, was not a necessary expenditure and therefore should be left to the discretion of the board of commissioners. In a written opinion and judgment Judge Gillespie resolved the Clare County salary dispute as follows: Position Court County Salary Established by Judgment_ Juvenile Probation Officer $19,165 $13,009 $17,000 Juvenile Register 16.478 13.009 14,200 Probate Register 16.478 13.009 15,400 Director of Court Services 25,162 15,738 22,000 Judge Gillespie also found that the employees were employees of the probate court (this finding is not being appealed) and awarded attorney fees to the plaintiff. GLADWIN COUNTY As in Clare County, the disagreement over the level of compensation for the employees of the probate court had existed for several years prior to 1983. In 1983, Judge Strange attempted to explain his requests to the Gladwin County Board of Commissioners as he had to the Clare County Board of Commissioners. When an agreement could not be reached in Gladwin County, the board of commissioners and the court filed a joint petition for declaratory judgment. In the circuit court action the parties sought answers to the following questions: (1) Which is reasonable and necessary, the salary schedule adopted by the probate court or the salary appropriations adopted by the board? (2) Are the Michigan state bar dues of the probate judge a reasonable and necessary expense which the county is obligated to pay? (3) Are the reasonable fees of the probate court’s attorneys, which are charged for prosecution of this controversy, a reasonable and necessary expense which the county is obligated to pay? The suit between the Gladwin County Board of Commissioners and the Seventeenth District Probate Court was mediated by the Michigan Judges Association and Michigan Counties Association joint council. The issues between Gladwin County and the probate court could not be resolved by mediation. At the time of the trial in the Gladwin County case, the probate court adopted the recommendations of the expert witness in the Clare County trial as to the reasonable and necessary salary for the positions in this controversy. The positions involved were the same as those involved in the Clare County dispute. The responsibilities and duties were the same except for the juvenile probation officer in Gladwin County. The juvenile probation officer in Gladwin County discharged most of his responsibilities relating to the group home on nights or weekends. The juvenile probation officer received approximately $2,400 per year for the additional responsibilities connected with the group home. Gladwin County claimed that an across-the-board five percent increase was awarded to each county employee and that such amount was reasonable. The court’s position was that the five percent increase was not reasonable and was not actually a five percent increase as to all positions. The court also claimed that the county’s method of determining compensation did not take into account the training, responsibilities and duties of each position. Adding to the disagreement were the claims by the court that the juvenile probation officer position in Gladwin County was funded entirely by the State of Michigan and hence Glad-win County paid nothing toward this position, and that Gladwin County was not contributing toward compensating the director of court services for the services rendered by the director at the group home utilized by both Gladwin and Clare Counties. At trial the probate court presented the same witness who had testified at the Clare County trial as an expert in the field of salary administration. The parties stipulated to the expert’s qualifications. Judge Strange again testified on behalf of the court. The county presented no witnesses. At the time of trial, the probate court’s adoption of the recommendations of the expert placed each party in the following position on the compensation question: Position Court Gladwin County Juvenile Probation Officer $17,000 $13,125 Juvenile Register $13,186 $11,812.50 Probate Register $14,300 $13,398 Director of Court Services $22,000 -0- The manner of compensating the court employees in Gladwin County provided the same fertile ground for dispute and disagreement as found in Clare County. The court claimed that the county was reimbursed $16,000 from the state by a grant which was utilized to pay the probation officer’s salary. The court also claimed that, since the county contributed nothing toward the director of court services position, the pay increase for that position was zero and that the five percent pay increase to the juvenile probation officer was based only on the portion of the $16,000 grant allocated toward salary rather than the full compensation the officer received, which would include his work in the group home. The county claimed that, when the salary, fringe benefits, hospitalization and travel of the probation officer are considered, the county contributed in excess of $16,000 for the juvenile probation officer’s salary. According to Judge Strange, the compensation package for the court employees had over the years resulted in ill will between the court and Gladwin County. Every current employee had protested the wage rates and the compensation package. The court had difficulty in attracting and retaining competent juvenile probation officers and had on two occasions for a period of three or four months been without a juvenile officer. Since 1974, the court had a total of six people in the juvenile probation officer position in Gladwin County. When it became apparent in 1983 that the financ ing of the probate court would not be funded by the State of Michigan, the court could no longer placate its employees by holding out the promise of relief through state funding. Plaintiff’s expert witness was O. William Rye, the same expert called in the Clare County case. His charge was to render an opinion as to the reasonable and necessary salaries to compensate the employees of the court who worked in Gladwin County. His method of comparing jobs and arriving at an appropriate salary was the same that he utilized in the Clare County dispute. Rye testified that an inappropriate compensation system would affect court operations by resulting in employee dissatisfaction which potentially leads to turnover problems. He testified also that morale and turnover problems have an effect on productivity in the court performance. He took into account Gladwin County’s ability to pay. The record establishes that Gladwin County had $93,000 in its contingency fund that was transferred to the 1984 budget. The expert’s opinion was that he would not wait for turnover in a particular position to be demonstrated before he took action to remedy what might be inadequacies in the salary program. He testified that the job classification utilized by Glad-win County was not rational because it compared court positions with other positions in the county structure which did not have the same educational requirements, duties and responsibilities of the court positions. Rye testified that awarding a percentage increase to employees who are working in a compensation structure which is inappropriate under the principles of compensation administration would only perpetuate the inappropriate relationships. Rye’s conclusion, which was not rebutted by any evidence, was that the minimum level salary as a reasonable and necessary salary for 1984 for each court position was: Juvenile Probation Officer $17,000 Juvenile Register $13,186 Probate Register $14,300 Director of Court Services $22,000 In a detailed and carefully documented opinion Judge Gillespie implemented the salary structure as determined by the Rye testimony. The court awarded attorney fees to the plaintiff. The Glad-win Board of Commissioners has paid the attorney fees so awarded in the amount of $15,731.23. The court also found that it would be reasonable for the county to pay the judge’s state bar dues, but ruled actual payment of the dues was not necessary for the operation of the court. ISSUES The parties frame the statement of questions presented somewhat differently. However, a fair synthesis discloses four issues, hereinafter discussed. Issues i through hi are common to both cases. Issue iv pertains only to the Gladwin appeal. I. Did the trial court err by holding that plaintiff probate court possessed the inherent power to compel by means of a suit for a writ of mandamus additional appropriations, or is otherwise vested with authority to determine the reasonable and necessary salaries, for probate court employment positions?_ In briefs filed prior to the Supreme Court’s December, 1985, decision in Employees and Judges of the Second Judicial District v Hillsdale Co, supra, defendants argued that the power and authority to set salary schedules for the probate court is by statute vested with the board of commissioners. According to Clare County that authority rests exclusively with the county board and the probate court is without inherent power to establish salaries. Gladwin County argues that, although in certain circumstances probate courts might have an inherent power to compel funding, the exercise of that inherent power is improper where there is an absence of emergency conditions. Relying on Livingston Co v Livingston Circuit Judge, 393 Mich 265, 274; 225 NW2d 352 (1974), Wayne Circuit Judges v Wayne Co (On Rehearing), 386 Mich 1; 190 NW2d 188 (1971), 59 ALR3d 569, and Stanley v City of Ferndale, 115 Mich App 703; 321 NW2d 681 (1982), Judge Gillespie held that the probate court had an inherent power to require the funds reasonably necessary to carry out its assigned function: In this case, the Clare County commissioners in polite and proper language invite this Court to "butt out” of this dispute. Such an offer is personally attractive, but it does not comport with the law and Livingston explains why. The judiciary has the duty, as well as the right to require the personnel and facilities which are reasonably necessary to carry out its assigned functions. We agree. Any doubt as to whether all courts within Michigan’s "one court of justice” system, including the probate court possessed an inherent power to compel adequate funding for necessary judicial functions was removed by the Hillsdale decision. Both the majority and minority agreed that all courts possessed an inherent power to compel expenditures beyond the sums appropriated by the county board. Where the Legislature has by statute granted authority or created a duty, the local funding unit may not refuse to provide adequate funding to fulfill the function. We harmonize the principles outlined above and give effect to each by concluding 1) that the court has the authority to set salaries which, if reasonable and "within appropriations,” must be approved by the control unit, and 2) that where the parties are unable to agree, the court may institute suit and shall bear the burden of proving that the appropriation it seeks is necessary to the performance of its statutorily mandated function. [423 Mich 721-722.] All justices agreed that an administrative order to compel the board of commissioners to provide additional funds was an improper method by which to exercise inherent judicial power. No administrative orders were issued in the instant case. However, the justices declined to define the standard by which the use of inherent judicial power is to be measured, the majority suggesting several possible standards (423 Mich 724, n 9) and the minority suggesting "a reasonable and necessary standard” (423 Mich 744-745). Accordingly, we find no error as to Issue i. II. Were the salary levels implemented by the Clare and Gladwin Boards of Commissioners so inadequate as to unreasonably interfere with the necessary functions of the probate court? Having decided in Issue i that a probate court as a constitutional court possessed the inherent power described in the Hillsdale Co case, we now turn to the unresolved issue in the Hillsdale Co case of when and under what standards the judicial branch of government may compel expenditures beyond those appropriated. We begin our analysis mindful of the exclusive, yet not absolute, domain of the legislative branch over the appropriations of money for governmental functions. We are also mindful of a court’s need to function independently and effectively. We also believe and hold that, in a controversy involving coequal branches of government, proof must be established by clear and convincing evidence. Clare and Gladwin Counties argue that, even if the probate court had the inherent power to establish salary levels, insufficient proofs were presented at trial to show that the funds actually appropriated were so inadequate that they unreasonably interfered with the necessary functions of the court. In support of this argument defendants point to evidence that in 1984, the budget year involved here, Clare County gave a ten percent across-the-board increase to all county employees, including the probate court and that in 1980 court employees received a ten percent increase, in 1981 another ten percent increase, in 1982 a five percent increase and in 1983 a $500 bonus, but no salary increase. Counsel further called attention to the following testimony of Probate Judge Strange upon cross-examination: Q. Did the court function efficiently in 1983? A. I would say so. Q. Effectively. A. Yes, sir. Q. In 1982? A. Yes, sir. Q. And, it currently functions efficiently and effectively, does it not, your Honor? A. I believe it does, sir. Additionally, Gladwin County strongly relies on the statement in Judge Gillespie’s opinion that [t]he court is aware that Gladwin County employs some excellent people. . . . The dispute has not affected efficiency nor loyalty so far as the court can determine. In short, both defendants contend that while the Rye survey and proofs may have disclosed that the countywide payscale was unfair and inequitable because it did not sufficiently take into account the expertise demanded for the four positions in question as compared with other county positions not requiring such expertise, plaintiffs proofs failed to demonstrate that the probate court was not functioning satisfactorily or that the authorized level of funding jeopardized the overall operations of the court. We respectfully disagree. Until a more definitive statement is forthcoming from the Supreme Court as to the standard by which the court’s inherent power is to be measured, we adopt the "financing which is reasonable and necessary” test employed in Livingston Co, supra, and suggested as one of "several possible standards” in Justice Boyle’s majority opinion in Hillsdale. This is the standard followed by Judge Gillespie in the instant case. Contrary to the assertions made by defendants, plaintiffs proofs, when read as a whole, demonstrate that the sums requested by Judge Strange for the four positions were "reasonable and necessary” for the court to carry out its assigned functions. Judge Strange testified that the juvenile register, the probate register, and the juvenile probation officer had protested to him in writing and also orally on a number of occasions. He stated that the present compensation rates had created a morale problem in the court. Plaintiff’s expert witness, O. William Rye, testified that the current compensation structure, which pays most employees at the same rate regardless of position or responsibilities, is not rational. He testified that such a salary structure over a period of time will create employee dissatisfaction and that employee dissatisfaction will affect employee performance and productivity. Under the Rye analysis and proofs, the Gladwin-Clare compensation schedule was not only "unfair and inequitable,” it was totally irrational in the sense that the salaries were not related to responsibilities and duties of the positions. This irrationality was succinctly noted in the summary portion of the trial court’s opinion in the Clare County case: 4. The Supreme Court has used an industrial model in defining positions and setting of salaries. The Supreme Court Administrator uses job analysis for each employee. Clare County uses a military model. The military model is that everyone who carries a rifle is paid the same except for promotions in rank due to experience. Clare County rates everyone who uses a typewriter as a clerk with an extra added for longevity. One example is that the juvenile probation officer who must possess a b.a. degree in psychology or social work and one year on-the-job experience is equated with the juvenile register who needs only a typing course and six months on-the-job experience. The commissioners have not adopted a job study done for them by the Michigan Civil Service Commission which would implement the industrial model. In both trials defendants stipulated that Rye was qualified to testify as an expert witness and that no testimony contradicting Rye’s testimony and salary recommendation was offered by defendants. In summary on Issue n: Our review in the Gladwin County case is from a declaratory action. Our review in the Clare County case is from a suit for a writ of mandamus and a counterclaim for declaratory relief. The review of a declaratory action is de novo. While the review is de novo, great deference is given to the trial court’s findings of fact. In reviewing either type of action, findings of fact made by a trial court shall not be set aside unless clearly erroneous. See GCR 1963, 517.1 and MCR 2.613(C). Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), explained the proper application of the clearly erroneous review standard. [A]n appellate court will set aside the findings of fact of a trial court sitting without a jury when such findings are clearly erroneous. In construing comparable "clearly erroneous” language in Rule 52(a) of the Federal Rules of Procedure, the United States Supreme Court has stated that "[a] finding is 'clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. . . . Appropriately, the "judicial sieve” with which we have sifted the evidence in this non-jury case is "of finer mesh than the one correspondingly employed on review” of a jury’s verdict. For the reasons described at length above, we are unable to find an abuse of discretion, and we find that plaintiff has satisfied the required burden of proof by clear and convincing evidence. III. Did the trial court err by relying on the recommendations of plaintiff’s expert witness, who had utilized a salary and compensation study completed six years earlier, and is plaintiff’s action barred by waiver and equitable estoppel? William Hardwick, an employee of the Michigan Department of Civil Service, testified that in 1978 his office conducted a classification and compensation study for Clare County. Hardwick was the project leader. In that study, Hardwick’s office compared salaries of selected jobs in Clare County with similar jobs in other counties. The report recommended a salary structure for county employees, but the study was never implemented by Clare County. Hardwick testified that the 1978 study needed to be updated and that it should not be used in its present form, since conditions have not remained static. Rye testified that he reviewed the 1978 study as part of his analysis. Defendant Clare County Board of Commissioners now argues that the lower court erred by relying on the recommendations of Rye, who in turn utilized an allegedly invalid 1978 study in reaching his conclusions. The 1978 study was admitted into evidence at the Clare County trial, but was not transcribed. Defendant did not object to the introduction or use of this study by either Rye or the trial court at any time during the trial. Having failed to raise this issue or argument below, defendant Clare County Board of Commissioners has failed to preserve the issue for review by this Court. Unless there is objection at trial, questions relating to evidentiary issues will not be reviewed on appeal. City of Warren v Maccabees Mutual Life Ins Co, 83 Mich App 310, 319; 268 NW2d 390 (1978). In addition, the 1978 study was just one of the documents utilized by Rye. Rye testified that the financial information in the 1978 study was utilized after he had drawn his recommendations. And finally, Hardwick testified that Rye is an expert in the area of salary, compensation and administration and that he could not think of a better person than Rye to conduct an update of the 1978 salary study. Accordingly, we conclude the introduction and utilization of the 1978 salary study did not constitute reversible error. Clare County Board of Commissioners also argues that plaintiff’s action should be barred by the doctrine of waiver and equitable estoppel, since plaintiff failed to initiate a lawsuit with respect to the prior budget appropriations which plaintiff now claims were inadequate. We reject this argument on two grounds: (1) the defenses of waiver and equitable estoppel were not raised in defendant’s answer. A defense not asserted in a responsive pleading is waived. See GCR 1963, 111.3 and 111.7; see also MCR 2.111(F)(3). (2) Plaintiff is not seeking relief for alleged budget deficiencies for years prior to 1984. A court should not be placed in a position where, if a claim is not made the moment a salary dispute or vacancy occurs, the court is deemed to have waived any right to litigate the issue; nor can a court be placed in a position that, as long as employees remain at their jobs, any review of the actions taken by the funding unit in a salary dispute is premature or prohibited by the separation of powers doctrine. To accept either premise is to eviscerate the inherent authority doctrine and would require a court either to file a lawsuit every year or to wait until overall court operations are seriously impaired or stopped before any preventive or remedial measures can be undertaken. We reject such interpretation of the constitutional authority of a division of Michigan’s one court of justice. IV. Did the trial court err by requiring defendant Gladwin County Board to pay plaintiff’s attorney fees? In ordering the payment of the claim of plaintiffs attorneys as submitted, the trial court relied upon MCL 49.73; MSA 5.826. We find that statute inapplicable since that statute applies only where the judge is a defendant, exercising an official act or duty. Here the court is a plaintiff. However, as so clearly stated by Justice Riley in her opinion in Hillsdale, supra: [A] court can employ outside counsel and recover reasonable attorney fees in an inherent power controversy. To hold otherwise would impair the inherent powers of the court. [423 Mich 750.] We further hold, as did Justice Riley, that plaintiff has the burden of proving that the attorney fees are reasonable, and that an itemized bill of costs is not sufficient on its face to establish rea sonable attorney fees. We also hold that any portion of the attorney fees which were necessitated by the presenting of the probate judge’s claim for payment of bar dues and section membership should not be paid by the board of commissioners. That portion of the attorney fees was for the personal pecuniary interest of the judge as opposed to litigation necessary to meet the operational needs of the court. CONCLUSION The judgments and orders of the trial court are affirmed. Since it is unclear from the record and file before us whether Judge Gillespie passed on the reasonableness of the attorney fees submitted to Gladwin County, this matter is remanded to the trial court for proceedings consistent with this opinion. No costs, a question of public importance being involved. Plaintiff’s action against the Clare County Board of Commissioners was for mandamus and injunctive relief. Plaintiff’s action against the Gladwin County Board of Commissioners was a joint petition for declaratory judgment. By order of the Supreme Court both actions were heard in separate trials by Judge Tyrone Gillespie. The State of Michigan provides a grant of up to a total of $30,000 to reimburse the counties for monies extended to operate the group home. The group home is utilized by both counties. Bach county can receive a maximum of up to $15,000 to reimburse the county for expenditures connected with the operation of the group home. This total compensation for the Director of Court Services is greater than the figure proposed by Clare County as its proportionate contribution. This dispute between the counties as to which county was going to contribute what amount to reach the total compensation was not litigated nor decided at triál. Attorney fees for plaintiffs attorneys having been denied as a claim by the Board of Commissioners of Gladwin County, the Court under the authority of MCL 46.72; MSA 5.522, will order the payment of the claim of plaintiffs attorneys as submitted forthwith. Art 6, § 1 of the Michigan Constitution provides: The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house. [Emphasis supplied.] 423 Mich 724.

Cynar, J. The Mutual Life Insurance Company of New York (mony) appeals as of right from a declaratory judgment entered June 8, 1981. The facts in this case were set forth in our prior opinion, 121 Mich App 386, 388-390; 328 NW2d 638 (1982), as follows: Mony is a mutual life insurance company, incorporated in the State of New York and licensed to engage in the insurance business in Michigan. As part of its employee fringe benefit package, mony provides its employees and field underwriters with insurance benefits for death, illness, disability, and medical expenses. The plans constitute "employee welfare benefits plans” under § 3(1) of the Employee Retirement Income Security Act of 1974 (erisa), 29 USC 1001 et seq.; and involve contractual relations of such a nature that they meet the definition of insurance contracts. The benefit plans are participatory, with the bulk of the expenses being borne by mony. The employees’ and field underwriters’ share of the expenses are established by the fringe benefit plans and are generated by payroll deductions. Any employee or field underwriter may terminate participation in these plans and withdraw his authorization for payroll deductions. The portion of the costs borne by mony varies from year to year because mony contributes the difference between the actual annual cost of the benefit plans and the aggregate cost portion borne by its employees and field underwriters. Computation of the cost of the benefit plans is different from the basis on which mony computes the cost of commercially sold insurance providing similar benefits because there is no allocation for mony’s expenses or profit. The Commissioner of Insurance (bureau) is charged with determining and collecting the premium tax under §§ 440-445 of the Insurance Code of 1956, MCL 500.440 et seq.; MSA 24.1440 et seq. The premium tax is a tax imposed on foreign insurers as a condition precedent to the privilege of conducting insurance business with the State of Michigan. The tax is two percent of each insurer’s gross premiums. In 1965, the Attorney General opined that employer and employee contributions to the cost of providing group life insurance for employees of insurance companies constituted gross premiums within the meaning of §§ 440 and 441 and was, therefore, taxable. OAG, 1965-1966, No 4431, pp 61, 66-67 (April 19, 1965). On September 10, 1965, a letter was sent to all insurers, informing them of the opinion and its applicability to computation of the 1965 premium tax. On February 6, 1975, the bureau notified mony that its records indicated the existence of life, accident, and health plans for the insurer’s employees and field underwriters. Mony notified the bureau on February 19, 1975, that neither its portion nor the employees’ portion of the benefit plans had been included as gross premiums for the purpose of computing the premium tax. The bureau sent a tax delinquency notice to mony on March 15,1975. On April 13, 1976, mony initiated a declaratory judgment action. Mony maintained that the premium tax was inapplicable to portions of the costs of benefit plans borne by either itself or its employees and field underwriters. The bureau contended that both portions of the costs were subject to the premium tax. On February 8, 1980, the trial court issued an opinion, holding that the premium tax was applicable only to the contributions made by mony’s employees and field underwriters. Oral arguments were held relative to mony’s motion for reconsideration on August 7, 1980. At that time, the bureau conceded that the trial court was correct in determining that mony’s contributions to the employee benefit plans were not includable in the computation of gross premiums. On October 14, 1980, the court affirmed its earlier opinion. Oral argument was heard on November 19, 1980, regarding the issue of whether erisa pre-empted application of the premium tax in the instant case. A third opinion was issued on December 9, 1980; the trial court held that the State of Michigan was not pre-empted by the federal government from regulating insurance fringe benefit policies of employee benefit plans. The court issued a declaratory judgment on June 8, 1981. We concluded, Allen, J., dissenting, that the contributions of mony’s employees and field underwriters should not be included in the calculation of mony’s gross premiums subject to the premium tax. 121 Mich App 395. The Supreme Court reversed and remanded the case for our consideration of the question as to whether the Employment Retirement Income Security Act, 29 USC 1001 et seq. (erisa), preempts the tax imposed by the Michigan Insurance Code, MCL 500.440 et seq.; MSA 24.1440 et seq. 424 Mich 656; 384 NW2d 25 (1986). We find that it does not. The preemption provision of erisa, 29 USC 1144(2)(A) [§ 514(a)], provides that all state laws that "relate to” employee benefit plans are superseded. The term "relate to” is to be construed in a "broad sense” and applies to any state law which has a connection with or reference to an employee benefit plan. Shaw v Delta Air Lines, Inc, 463 US 85, 96-97; 103 S Ct 2890; 77 L Ed 2d 490 (1983). Even indirect state action bearing upon employee benefit plans may be preempted by the federal provision. Alessi v Raybestos-Manhattan, Inc, 451 US 504; 101 S Ct 1895; 68 L Ed 2d 402 (1981); General Motors Corp v California State Bd of Equalization, 600 F Supp 76 (CD Cal, 1984). However, the sweeping language of § 514(a) is modified by a savings clause which reaffirms the authority of the state to regulate insurance. Wadsworth v Whaland, 562 F 2d 70 (CA 1, 1977). This savings clause § 514(a)(2)(A), states: Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. We find that Michigan’s premium tax, imposed by §§ 440 and 441 of the Insurance Code regulates insurance and thus is excepted from the broad preemptive provisions of erisa. In determining erisa’s preemptive thrust, we must examine how the challenged law relates to the erisa plan. General Motors Corp, supra. Our Supreme Court has characterized the premium tax as a condition precedent to, and in exchange for, the privilege of doing business in Michigan. The tax is levied solely and directly on the gross premiums collected from policies written in the State of Michigan. MCL 500.441; MSA 24.1441. This is distinguishable from franchise or excise taxes which either directly or indirectly tax benefits paid by the employee benefit plan. See General Motors Corp, supra; National Carriers’ Conference Comm v Heffernan, 454 F Supp 914 (D Conn, 1978). These types of taxes may affect the discretion of plan sponsors to use or fund employee benefit plans and thus may actually serve as a means to regulate the plans, contrary to Congress’ intent in enacting erisa. Since the Michigan premium tax is measured strictly by the gross premiums collected by the insurer rather than benefits paid out, no such conflict is posed by the application of the Michigan Insurance Code to the employee benefit plans at issue here. Mony maintains that § 514(a)(2)(B), the "deemer” clause, requires preemption. However, the deemer clause merely provides that a state may not deem an employee benefit plan to be an insurance company, insurer, or in the business of insurance for the purposes of its insurance laws. Wadsworth v Whaland supra. It does not forbid the state from indirectly affecting employee benefit plans by regulating group insurance. Id. Sections 440 and 441 of the Insurance Code are not directed at employee benefit plans provided by noninsureremployers but at insurance companies doing business in Michigan. In our view, the deemer clause is inapplicable. We conclude that the premium tax imposed by §§ 440 and 441 of the Michigan Insurance Code is not preempted by erisa. The decision of the circuit court is affirmed. Affirmed.

D. F. Walsh, P.J. Plaintiffs, New Hampshire Insurance Group, subrogee of Harold Higgerson, and Harold Higgerson, individually, appeal from an order of the circuit court granting summary disposition in favor of defendant, Rosemary La-bombard. MCR 2.116(C)(8). On March 12, 1983, plaintiff New Hampshire Insurance Group was the fire insurance carrier for a building being purchased by plaintiff Higgerson; defendant was a tenant in one of the building’s four rental units. On that date, defendant’s three-year-old daughter was playing with matches and started a fire which rendered defendant’s apartment uninhabitable. Plaintiff Higgerson’s damages totaled $20,808.40. Plaintiff New Hampshire Insurance Group paid Higgerson $20,558.40 and was subrogated to all claims of Higgerson against any person liable for the loss. The record suggests that the insurance proceeds included reimbursement for rental income lost by Higgerson during the repair of defendant’s apartment. In their complaint, plaintiffs alleged defendant’s negligence in allowing her daughter to play with matches. They requested damages in the total amount of Higgerson’s loss. Defendant filed a motion for summary disposition pursuant to MCL 2.116(C)(8). Relying on paragraphs 4 and 9 of the rental agreement, defendant argued that the rental agreement absolved her of liability for fire damage to the rental premises. She also argued that, as a matter of law, a tenant is not liable for fire damage caused by his or her own negligence. Citing Van Wormer v Crane, 51 Mich 363; 16 NW 686 (1883), and noting that any ambiguities in the lease are to be resolved against the draftor/ landlord, the circuit court judge ruled that plaintiffs had failed to state a claim upon which relief could be granted. The court found that paragraph 4 of the rental agreement, which obligated defendant to return the premises in good condition, "reasonable wear and damage by the elements excepted,” absolved defendant of liability for dam age by fire, determined by the court to be one of "the elements.” Summary disposition was granted to defendant and plaintiffs’ complaint was dismissed. A motion for summary disposition under MCR 2.116(C)(8) seeks to test the genuineness of a claim by challenging the legal adequacy of the pleadings. The test which a court applies in considering a motion under MCR 2.116(C)(8) is whether the plaintiffs’ claim, as stated in the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Abel v Eli Lilly & Co, 418 Mich 311, 323; 343 NW2d 164 (1984), reh den 419 Mich 1201 (1984), cert den sub nom Squibb & Sons, Inc v Abel, 469 US 833; 105 S CT 123; 83 L Ed 2d 65 (1984). In addressing a motion under this provision, the trial court accepts as true all well-pleaded facts. Id., p 324. In a negligence case, summary disposition is properly granted pursuant to MCR 2.116(C)(8) if it is determined as a matter of law that the defendant owed no duty to the plaintiff. Fisher v Johnson Milk Co, Inc, 383 Mich 158, 162; 174 NW2d 752 (1970); American States Ins Co v Albin, 118 Mich App 201, 206; 324 NW2d 574 (1982), lv den 417 Mich 955 (1983). In this case, plaintiff insurer, as subrogee of its insured, plaintiff Higgerson, has no greater rights against defendant than does its insured. Northern Ins Co of New York v B Elliott, Ltd, 117 Mich App 308, 324; 323 NW2d 683 (1982), lv den 417 Mich 968 (1983). In Van Wormer v Crane, supra, the Supreme Court was asked to determine the scope of a tenant’s covenant to return leasehold premises in good repair, "damages by the elements excepted.” The leasehold premises in Van Wormer were destroyed by an accidental fire. The Court found that the parties had intended that the covenant exception include "all damages resulting from fire, as much as those attributable to air and water, unless traceable to the agency of man.” 51 Mich 366. The purpose of the exception was to absolve lessees of liability for damages from the elements, including fire which "happened without their fault.” Id. We disagree with the lower court’s reliance on Van Wormer. In this case, plaintiffs claim damages for negligence. Under Van Wormer, only fire damage occurring without lessee fault or negligence comes within the "damage by the elements” exception. We nonetheless affirm in part the entry of summary disposition in favor of defendant. In the rental agreement, defendant agreed to keep the premises in good repair and to return the premises in the same condition as when taken, "reasonable wear and damages by the elements excepted.” She also agreed to observe all fire and other regulations imposed by any government authority, and all regulations and requirements of underwriters concerning the use and conditions of the premises so as to reduce fire hazards and insurance rates. In connection with this latter obligation, she agreed not to permit the accumulation of any waste material on the premises. The agreement provided that, if the premises became wholly untenantable through fire damage not due to defendant’s negligence, the agreement would be void. If the premises were rendered only partially untenantable, the landlord agreed to do the necessary repairs "with all convenient speed”; defendant’s rental obligation would continue if such repairs were completed within forty days. The landlord generally agreed to make any necessary repairs, and reserved the right to enter the apart ment to inspect, repair and maintain the premises and to show it to any insurance agent. The rental agreement did not address the issue of defendant’s liability for fire damage to the premises resulting from her negligence. Cf., Nationwide Mutual Fire Ins Co v Detroit Edison Co, 95 Mich App 62; 289 NW2d 879 (1980), lv den 409 Mich 854 (1980). In similar situations, courts of other jurisdictions have ruled that defendant tenants are entitled to summary judgment. In Safeco Ins Co v Capri, 705 P2d 659 (Nev, 1985), the Nevada Supreme Court affirmed entry of summary judgment for the defendant lessee, rejecting the plaintiff fire insurer’s subrogation claim for damages caused by the defendant’s negligence. The lease provided that the lessee was to maintain the premises and surrender it in good condition, "damage by the elements” excepted. The lessor was expressly required to maintain fire insurance. The Court held that, absent an express lease provision establishing the tenant’s liability for loss for negligently started fires, the tenant is, for the purpose of defeating an insurer’s subrogation claim, an implied coinsured of the landlord. 705 P2d 660-661. The Court found that its holding comported most closely with the reasonable expectations of the lessor, lessee and insurer. Landlords commonly provide fire insurance on leased property and consider the premium in establishing the rental rate. Insurance companies expect to pay benefits for fires caused by their insured’s negligence, and insurance premiums are adjusted accordingly. A negligent tenant, who is in privity with the insured and who has relied on the landlord to provide fire insurance protection for the realty, should be immune from suit, just as a negligent landlord could not be sued by the landlord’s insurer. 705 P2d 661. See also Sutton v Jondahl, 532 P2d 478, 482 (Okla App, 1975): The landlords of course could have held out for an agreement that the tenant would furnish fire insurance on the premises. But they did not. They elected to themselves purchase the coverage. To suggest the fire insurance does not extend to the insurable interest of an occupying tenant is to ignore the realities of urban apartment and single-family dwelling renting. Prospective tenants ordinarily rely upon the owner of the dwelling to provide fire protection for the realty (as distinguished from personal property) absent an express agreement otherwise. Certainly it would not likely occur to a reasonably prudent tenant that the premises were without fire insurance protection or if there was such protection it did not inure to his benefit and that he would need to take out another fire policy to protect himself from any loss during his occupancy. Perhaps this comes about because the companies themselves have accepted coverage of a tenant as a natural thing. Otherwise their insurance salesmen would have long ago made such need a matter of common knowledge by promoting the sale to tenants of a second fire insurance policy to cover the real estate. Among the other cases where courts have found no lessee liability for negligently caused fire damage are Parsons Manufacturing Corp, Inc v Superior Court, 156 Cal App 3d 1151; 203 Cal Rptr 419 (1984); Rizzuto v Morris, 22 Wash App 951; 592 P2d 688 (1979); and Rock Springs Realty, Inc v Ward, 392 SW2d 270 (Mo, 1965). Recognizing that the leases reviewed in the cited cases were not identical to that presented in the instant case, we are persuaded that the analysis contained in those cases is equally applicable here, and we affirm in part the summary dismissal of plaintiffs’ complaint. There was no express agree ment by defendant to be liable to Higgerson for fire damage to the premises resulting from defendant’s negligence. On the contrary, the rental agreement strongly suggests that such liability was not contemplated. The agreement clearly evidences the parties’ mutual expectation that fire insurance would be obtained by the lessor. References are made to defendant’s obligation to observe fire regulations, to follow underwriters’ requirements so as to reduce fire hazards and insurance rates, and to allow the lessor to show the property to insurance agents. The sole reference to fire damage is in paragraph 9, where it is declared that the agreement would be void if the premises were rendered wholly untenantable by fire not caused by defendant’s negligence. In the event of partial fire damage, defendant’s obligation to pay rent would continue if the lessor completed repairs within forty days. The clear implication is that defendant’s obligation to pay rent would continue notwithstanding total destruction by fire, if the destruction resulted from her negligence. Nothing in the rental agreement suggests, however, that defendant agreed to be liable to the lessor, or his insurer, for the full amount of negligently caused fire damage. We are persuaded that a tenant may reasonably expect that his or her rental payments will be used to cover the lessor’s ordinary and necessary expenses, including fire insurance premiums. Tenants reasonably expect that, by effectively contrib uting to the premium payments, they will occupy a position akin to the insured and will be free from tort liability for negligently caused fire damage to the premises. We hold that, absent an express and unequivocal agreement by a tenant to be liable to the lessor or the lessor’s fire insurer in tort for negligently caused fire damage to the premises, the tenant has no duty to the lessor or insurer which would support a negligence claim for such damages. Since there was no such agreement in this case, we affirm entry of summary judgment in favor of defendant to the extent plaintiffs seek recovery for damages to the leasehold premises resulting from defendant’s negligence. We remand to the circuit court for a determination of defendant’s liability, if any, for rental income lost by plaintiff Higgerson while the premises were being repaired. We do not retain jurisdiction. Affirmed in part and remanded. In ¶ 4, defendant agreed: To keep the premises, including the equipment appliances, and fixtures of every kind and nature during the term of this rental agreement in as good repair and at the expiration thereof, yield up same in like condition as when taken, reasonable wear and damage by the elements excepted. ¶ 9 provided: If the premises become wholly untenantable through damage or destruction by fire not occasioned by negligence of the Tenant, this rental agreement shall be void; if partially untenantable, the Landlord shall repair the same with all convenient speed, and the obligation of the Tenant to pay the monthly rental fee shall continue in full force provided such repairs shall be completed within forty days. This Court has held that a lessor’s express agreement to provide fire insurance for the benefit of both the lessor and lessee precludes the lessor’s subrogee’s suit against the lessee for negligently caused fire damage. West American Ins Co v Pic Way Shoes of Central Michigan, Inc, 110 Mich App 684; 313 NW2d 187 (1981). We are not persuaded, however, that lessee nonliability is conditioned on the lessor’s express agreement to carry fire insurance. Such a narrow and technical holding would, in our view, thwart the reasonable expectations and assumptions of both lessee and lessor.

D. F. Walsh, J. Defendant David Eugene Powers was convicted, on his plea of guilty, of the offense of criminal sexual conduct, second degree. MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). He was sentenced to a term of imprisonment of from three to fifteen years. The recommended minimum sentence set forth in the Michigan Sentencing Guidelines was from two to four years imprisonment. On appeal defendant requests us to review his sentence under the abuse of discretion standard of People v Coles, 417 Mich 523; 339 NW2d 440 (1983). We decline to do so. In Coles the Supreme Court authorized appellate review of the severity or leniency of sentences imposed by a trial court. The Court directed, however, that the appellate court "may afford relief to the defendant only if the appellate court finds that the trial court, in imposing the sentence, abused its discretion to the extent that it shocks the conscience of the appellate court.” People v Coles, supra, p 550 (emphasis ours). Although the Sentencing Guidelines adopted and promulgated by the Supreme Court are still in an experimental stage and, although some of the ranges included in the guidelines may need some revision, a trial court which follows the guidelines laid down by the Supreme Court cannot be said to have "abused its discretion to the extent that it shocks the conscience.” Affirmed.

J. M. Batzer, 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 on April 16-18, 1984. Sentenced to a prison term of from four to ten years for armed robbery and two years for felony-firearm, defendant appeals as of right. The first question presented on appeal is whether defendant’s request for an attorney at his arraignment on an unrelated charge bars the admission of his confession on the instant charge, elicited during police interrogation of defendant subsequent to his arraignment without the presence of counsel. On January 10, 1984, defendant was arrested at his home on charges relating to a stolen car. On January 12, 1984, after defendant was arraigned on those charges and requested an attorney, defendant was transported to the state police Northville post for a scheduled polygraph examination on another unrelated charge. At the Northville post, after defendant was read his Miranda rights and questioned about stolen cars by Sgt. Bullen of the state police, Bullen asked defendant if he had been involved in any breaking and enterings, homicides, or armed robberies. Defendant then gave a statement implicating himself in the instant matter. After a Walker hearing, in which the court determined that the statement was voluntarily given, the statement was admitted at trial. Defendant claims that the interrogation following his arraignment and request for counsel on unrelated charges deprived him of his right to counsel. Defendant cites People v Bladel (After Remand), 421 Mich 39; 365 NW2d 56 (1984), aff'd Michigan v Jackson, — US —; 106 S Ct 1404; 89 L Ed 2d 631 (1986), in which the Michigan Supreme Court held that, once a defendant has requested counsel at his arraignment on a charge, no further interrogation can take place until counsel has been made available to the accused unless the accused initiates further communications, exchanges or conversations with the police. In Bladel, the people sought to use the defendant’s incriminating post-arraignment statements to prove the charge in the pending prosecution to which the arraignment related. In the case at bar, defendant was interrogated about crimes for which prosecution had not commenced. We believe Bladel is distinguishable on these facts and hold that defendant was not denied his right to counsel. At the heart of the distinction and our holding is the distinction between a person’s Fifth Amendment and Sixth Amendment rights to counsel. The right to counsel is guaranteed by both the Fifth and Sixth Amendments to the United States Constitution, as well as Const 1963, art 1, §§ 17 and 20. However, these constitutional rights are distinct and not necessarily coextensive. Bladel, supra, pp 50-51, citing Rhode Island v Innis, 446 US 291, 300, n 4; 100 S Ct 1682; 64 L Ed 2d 297 (1980). The Sixth Amendment recognizes the right of an "accused” to the assistance of counsel in "all criminal prosecutions.” This right attaches "only at or after the time that adversarial judicial proceedings have been initiated ...” Kirby v Illinois, 406 US 682, 688; 92 S Ct 1877; 32 L Ed 2d 411 (1972). "It is this point that marks the commencement of the 'criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Id. (Emphasis supplied.) Once adversary judicial proceedings have been initiated, a defendant’s right to counsel extends to every "critical stage” of the prosecution, i.e., every stage where the accused is confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). In short, the Sixth Amendment right to counsel guarantees the assistance of counsel at all stages of a prosecution where counsel’s absence might derogate from the accused’s right to a fair trial. See Wade, supra. The Fifth Amendment on the other hand recognizes a person’s right not to be "compelled in any criminal case to be a witness against himself.” It does not contain an express grant of a right to counsel, but in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), it was recognized that an attorney’s presence at custodial interrogation is one way to secure the right to be free from compelled self-incrimination. 384 US 466. Reference to a Fifth Amendment right to counsel is but a shorthand way for expressing the source of the right to have an attorney at a custodial interrogation and an analytically useful way of examining a claimed right to the presence of an attorney. Defendant’s request for an attorney at arraignment was an invocation of only his Sixth Amendment right to counsel. It was not an invocation of his Fifth Amendment right to counsel. At arraign ment, defendant was not confronted with an atmosphere of coercion nor did anyone seek to gain admissions from him. His invocation of the right to counsel was a matter of routine. See State v Sparklin, 296 Or 85; 672 P2d 1182 (1983), cited in Bladel, supra, p 60. Defendant waived his Fifth Amendment right to counsel when he voluntarily waived his Miranda rights subsequent to arraignment. Miranda, supra, p 444. Cf. Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), People v Paintman, 412 Mich 518; 315 NW2d 418 (1982). Thus, unless the interrogation at bar violated defendant’s Sixth Amendment right, he was not denied his right to counsel. As explained above, defendant’s Sixth Amendment right to counsel is limited by the confines of criminal prosecutions already commenced. Kirby, supra. As such, the Sixth Amendment right to an attorney is specific to the criminal episode in which an accused is charged. Sparklin, supra; Cf. Bladel, supra. Therefore, the interrogation at issue, which was for crimes for which defendant had not been arraigned, was not in derogation of defendant’s Sixth Amendment right invoked at his arraignment on the unrelated charges. In fact, defendant’s Sixth Amendment right for the crimes at issue had yet to accrue. We reject defendant’s argument that, because the crime for which defendant was arraigned and the crime at issue allegedly involved the same accomplice, the statements at issue must be suppressed since defendant could not waive his right to counsel with regard to questioning on facts relating to the former. See, Bladel, supra, p 65; see also Sparklin, supra. Although there might be circumstances where a factual relationship between a crime for which a defendant has been arraigned and an uncharged crime requires exclu sion of statements made with regard to the latter, we find that the record before the Court on this appeal fails to show the factual nexus between the two crimes which would be required to substantiate such a claim. Cf. Sparklin, supra. Defendant was not denied his rights to counsel. Defendant’s second claim on appeal is that he is entitled to be resentenced because of an inaccuracy in the Sentence Information Report. Specifically, defendant claims that an OV 7 (Offender Exploitation of Victim’s Vulnerability) score of 3 was improper. However, defendant failed to object to this alleged inaccuracy below. We therefore find that defendant has waived the right to challenge that scoring on appeal. People v Jones, 147 Mich App 292; 382 NW2d 772 (1985). Nevertheless, because it appears that a claim might be made that defendant and his counsel did not have sufficient opportunity to review the Sentence Information Report, we address defendant’s substantive claim briefly. An OV 7 score of 3 is proper "where the victim lacks substantial opportunity to defend against the offense and the victim’s vulnerability is apparent at the time of the offense.” An example used in the Guidelines to indicate a victim’s vulnerability is "physical restraint (e.g., binding with rope, handcuffs, etc.).” Here, the victim was bound with duct tape after opening the safe and lying down on the floor at the direction of the robbers. Thereafter, the robbers left with approximately $6,000 in cash and $500 in lottery tickets. We find an OV 7 score of 3 is proper in these circumstances. The perpetrators facilited both their robbery and getaway by binding their victim. Affirmed. Miranda v Arizona, 384 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). People v Walker (On Rehearing, 374 Mich 331; 132 NW2d 87 (1965). Bladel was decided by the United States Supreme Court as a companion case to Michigan v Jackson, cited in the text of this opinion. The trial court did not have Bladel to guide its decision below. However, Bladel was given limited retroactivity, making it applicable to the instant case. 421 Mich 68. The Fifth Amendment right against self-incrimination is applicable to the states by virtue of the Fourteenth Amendment. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). The Sixth Amendment right to counsel is applicable to the states by virtue of the Fourteenth Amendment. Powell v Alabama, 287 US 45, 60; 53 S Ct 55; 77 L Ed 158 (1932). In addition to both the corollary right to counsel incident to the Fifth Amendment right against self-incrimination of Miranda, supra, and the Sixth Amendment right to counsel "in all criminal prosecutions,” the due process clause of the Fourteenth Amendment provides a source for a right to counsel when required for fundamental fairness. Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973); see also Betts v Brady, 316 US 455; 62 S Ct 1252; 86 L Ed 1595 (1942), overruled in part by Gideon v Wainwright, 370 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).

Per Curiam. This action arises out of a skiing accident. Plaintiff, Michelle Grieb, was injured when she was struck from behind by an unknown skier while skiing on a slope at defendant Alpine Valley Ski Resort. Plaintiff brought suit against defendant. The trial court granted a motion for accelerated judgment pursuant to MCR 2.116 on the ground that plaintiff’s cause of action against Alpine was precluded under the Ski Area Safety Act, 1962 PA 199, MCL 408.321 et seq.; MSA 18.483[1] et seq. Plaintiff appeals as of right and presents two issues with respect to this statute, its interpretation, and its constitutionality. MCL 408.342(2); MSA 18.483(22)(2) provides as follows: Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment. A statute is not open to construction by the courts unless the language used in the statute is ambiguous or where reasonable minds may differ. Sam v Balardo, 411 Mich 405, 418; 308 NW2d 142 (1981); Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959). The standard of review is easily summarized in Cliffs Forest Products Co v Al Disdero Lumber Co, 144 Mich App 215, 222; 375 NW2d 397 (1985): The cardinal rule of statutory construction is to ascertain and effectuate the Legislature’s intent. Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804 (1959). Statutory language should be construed reasonably and the purpose of the statute and its objective should be kept in mind. Schoolcraft Co Bd of Comm’rs v Schoolcraft Memorial Hospital Bd of Trustees, 68 Mich App 654; 243 NW2d 708 (1976), lv den 397 Mich 838 (1976). A provision should be read in its entirety and in connection with the rest of the statute. Whenever possible the meaning of one section of a statute should be read in harmony with the rest of the statute. Statutes are construed so that their words will have a reasonable meaning. Wyandotte Savings Bank v State Banking Comm’r, 347 Mich 33; 78 NW2d 612 (1956). We have reviewed the above statutory section and find that it clearly and unambiguously provides that an injury resulting from a collision with another skier is an obvious and necessary danger assumed by skiers. The statute says that a skier accepts the obvious and necessary dangers of the sport. The statute goes on to list examples of obvious and necessary dangers. One example is a collision with another skier. Our interpretation is supported by the words "Those dangers include, but are not limited to . . . collisions . . . with other skiers . . . .” Further, this construction is consistent with the Legislature’s intent of promoting safety, reducing litigation and stabilizing the economic conditions in the ski resort industry. Senate Legislative Analysis, SB49, Second Analysis, April 17, 1981. Given our construction of this section of the statute it is necessary to consider the constitutional issues raised. The Michigan Constitution secures the same right of equal protection (Const 1963, art 1, §2) and due process (Const 1963, Art 1, § 17) as does its counterpart in the United States Constitution (US Const, Am XIV). Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), reh den 403 Mich 958 (1978), cert den 442 US 934 (1979). Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967). There are two principal considerations in any judicial review under either the equal protection or due process clause: the role of the courts in constitutional adjudication and the test to be applied. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 665-666; 232 NW2d 636 (1975). This Court must be mindful that certain areas are reserved to the legislative branch. However, all agree that the power of the Legislature is not limitless. As is well established, to ensure that those limits are not exceeded, the courts are entrusted with the responsibility to review legislative acts and, if necessary, to nullify those which are repugnant to the constitution. Therefore, it is fair to say that the Legislature sets policy through statutes and the courts ensure their constitutionality. In this delicate balance between the branches, it is always important to remind oneself that a legislative statute’s appearance of undesirability, unfairness, or unjustness does not in itself empower this Court to override the Legislature and substitute its own solution, thereby acting as a "super-legislature.” Dandridge v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970); Shapiro v Thompson, 394 US 618, 661-662; 89 S Ct 1322, 1346; 22 L Ed 2d 600, 631 (1969); Manistee Bank & Trust Co, supra, pp 666-667. Finally, statutes are presumed valid; the burden of rebutting that presumption is on the person challenging the statute. Shavers, supra, p 614. There is a two-tiered approach used in equal protection cases. Manistee Bank & Trust Co, supra, pp 668-669. Where the legislation discriminates against a "suspect class” or impinges on a "fundamental right,” courts examine it with "strict scrutiny” to identify whether a compelling state interest exists which justifies the classification. Where neither a "suspect class” nor a "fundamental right” is involved, such as with social or economic legislation, the "rational basis” test is applied. Id. Under this level of scrutiny, the legislative classification will only be found invalid where persons are treated differently on the basis of criteria wholly unrelated in a rational way to the objective of the statute. Id. Our inquiry is limited to the issue of whether any state of facts, either known or which could be reasonably assumed, afford support for the statute. Dandridge, supra, p 485; Eastway v Eisenga, 420 Mich 410, 420; 362 NW2d 684 (1984); Manistee Bank & Trust Co, supra, p 668. We have extensively reviewed the legislative history of the act, in particular the 1981 amendment presently in question. The Legislature perceived a problem with respect to the inherent dangers of skiing and the need for promoting safety, coupled with the uncertain and potentially enormous ski area operators’ liability. Given these competing interests, the Legislature decided to establish rules in order to regulate the ski operators and to set out ski operators’ and skiers’ responsibilities in the area of safety. MCL 408.340 et seq.; MSA 18.483(20) et seq. As part of this reform, the Legislature has decided that all skiers assume the obvious and necessary dangers of skiing. This is a rational solution for limiting ski area operators’ liability and promoting safety. Plaintiffs argument that the safety of the citizen is a higher interest than the economic well-being of the ski industry and the state, so that the latter interests must give way to the former, goes to the wisdom of the legislation, not the constitutionality. Judicial review of substantive due process challenges to socioeconomic legislation is essentially the same as that used under equal protection challenges. Shavers, supra, p 612; Johnson v Harnischfeger Corp, 414 Mich 102, 117-118; 323 NW2d 912 (1982). The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. Shavers, supra, p 612; Johnson, supra, pp 117-118. Plaintiff bears the burden of overcoming the presumption of constitutionality by showing that no public purpose is served by the Ski Area Safety Act or that no reasonable relationship exists between the statutory means adopted and the public purpose sought to be achieved by such legislation. Eastway, supra, p 420. The purposes of the legislation include safety, reduction in litigation and economic stabilization of an industry which substantially contributes to Michigan’s economy. The delineation of ski operators’ and skiers’ duties and responsibilities, along with skiers’ assumption of certain expressed inher ent dangers, are reasonably related to obtaining these legitimate state objectives. The safety and economic rationales under the amended act are legitimate state objectives which are accomplished through a reasonable scheme rationally related to the stated legislative purpose. As such, the legislation does not violate the equal protection or due process guarantees of the constitution. Affirmed.

Per Curiam:. Defendant, David Nelson Terrell, was convicted of assault with intent to do great bodily harm less than murder and possession of a firearm during the commission of or attempted commission of a felony contrary to MCL 750.84; MSA 28.279 and MCL 750.227b; MSA 28.424(2). He was sentenced to terms of one year and two years of imprisonment respectively. Defendant was charged with shooting Donell Davis Stallworth in the leg on August 19, 1979. His theory of the case at trial was one of self-defense. Defendant’s appeal of right raises two claims. Defendant contends he was denied a fair trial by the prosecution’s improper arguments to the jury. He challenges the following portion of the prosecution’s closing remarks: "Here the defendant, by his own admission, said that he was the aggressor. He went home to get a gun. The incident that happened a week before with the towel or the bedspread, that’s no grounds for self-defense in this case. As a matter of fact, ladies and gentlemen, when a person like this is really dangerous like this defendant —because he doesn’t think he did anything wrong — can you imagine if people in society went around doing what he did, having altercations and going around shooting somebody in the leg? Permanent disability. Mr. Terrell is a dangerous man.” Since defendant failed to object to the argument at trial, this Court will not reverse defendant’s conviction on this claim. This isolated instance of improper argument could have been cured by a cautionary instruction had defendant objected at trial. People v Rojem, 99 Mich App 452; 297 NW2d 698 (1980). Furthermore, a general instruction was given to the jury that the attorneys’ arguments should not be regarded as evidence. Defendant also claims that the trial court failed to present adequately his defense to the jury because the self-defense instructions were not tailored to the evidence developed at trial. The facts do not support defendant’s argument. Jury instructions must include the defendant’s theory of the case if there is evidence to support it. People v Hoskins, 403 Mich 95; 267 NW2d 417 (1978). Where evidence of an element of self-defense is clear and uncontested, it is error to fail to instruct on that element even in the absence of a request therefor. See People v Kerley, 95 Mich App 74; 289 NW2d 883 (1980). Defendant and the complainant, Stallworth, had been feuding for several years. The two men had had altercations in the past, and defendant claimed that he was afraid of Stallworth and had gone so far as to enlist in the army to get out of Inkster and away from the man. On the day of the shooting, defendant had seen Stallworth at a local park and left the park to go home to get a gun because he was planning on shooting Stallworth. On his way back to the park, he saw the complainant’s car at a traffic light headed the other way. Defendant turned his car around and followed Stallworth to a third person’s house. When Stall-worth got out of his car to go up to the house, defendant approached him and shot him twice in the leg. The trial court gave an instruction on use of deadly force in self-defense similar to CJI 7:9:01. Defendant argues that an instruction on use of nondeadly force in self-defense was required, although he raised no objection at trial. His argument must fail because the uncontroverted evidence presented at trial does not support an instruction on use of nondeadly force. The Michigan Criminal Jury Instructions define a deadly aggressor as one who begins an assault upon another with deadly force or with a dangerous or deadly weapon. CJI 7:9:04. A nondeadly aggressor is defined as one who assaults with fists or a nondeadly weapon. CJI 7:9:05. Defendant admitted on the stand at trial that he was the aggressor on that occasion. Furthermore, the instruction which defendant claims that the trial court should have given, sua sponte, is not supported by the facts since there was no assault on defendant by the complainant. Therefore, the rule in Hoskins, supra, and Kerley, supra, does not apply, and no error requiring reversal occurred. Defendant’s convictions hereby are affirmed.

Per Curiam. On December 5, 1978, defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, and assault with intent to murder, MCL 750.83; MSA 28.278. He was sentenced to two concurrent terms of life imprisonment and appeals as of right. Both crimes resulted from an incident outside of an entrance of the Club Zorba, a nightclub in Kalamazoo, in the early morning hours of March 8, 1978. Larry Martin, testifying under a grant of immunity by the prosecution, stated that he had been drinking with Chris Champion on March 7, 1978. After dinner, at approximately 7 p.m., the two drove to Big Daddy’s nightclub where they met defendant and several other friends. Around 9 p.m., Champion, Martin, defendant, and Karl and Mark Waber drove in Champion’s car to the Club Zorba where defendant’s ex-girlfriend, Karen "Katie” Taylor, was working as a go-go dancer. Martin testified that the five remained at the Club Zorba about one and one-half hours, during which time defendant asked him for a gun. Martin told defendant that he probably could not get one. Then Martin saw defendant talking to Champion. Shortly thereafter, the five left, dropping the Wabers off at Big Daddy’s. Martin testified that Champion then drove defendant and himself to Champion’s parents’ home in Galesburg. Martin stayed in the car while defendant and Champion went in. He remembered hearing the hatchback close when the two returned. Next, the three went to Champion’s residence where Martin saw the shotgun for the first time in Champion’s kitchen. Defendant was wiping it off and then took it outside and test-fired it. Martin testified that the three proceeded back to the Club Zorba in Champion’s car and that defendant mentioned something about scaring Katie Taylor. When the three arrived, they played pool and had several more drinks, remaining until shortly before closing time. Katie Taylor was working that night and defendant talked to her a couple of times. Martin remembered seeing several green shotgun shells. He also stated that Champion had given defendant some surgical gloves when they were at Champion’s house. Around 1 a.m., Martin said, he and Champion returned to the latter’s car. Martin testified that he fell asleep or passed out in the back seat. Defendant was still inside the Club Zorba. Martin awoke when Champion said "There’s Steve”, and the car began to move. Martin, still lying across the back seat, then felt someone reach over him into the back of the car and saw defendant with the gun. The car was parked near the parking ramp of the club and eventually Champion, the driver, pulled up to the front of the club. Martin testified that defendant said, "There’s Katie’s taxi”, and that if he didn’t get her there, he’d follow her to her apartment. Then Martin said he heard two shots and felt the car pull away. He had seen the shotgun barrel sticking out of the passenger window where defendant had been sitting. He also heard defendant say that he "shot the wrong fucking bitch”. The three then returned to Champion’s house and Martin said he later disposed of four spent shotgun shells. Defense counsel attacked this testimony by showing that Martin had consumed at least three gin and tonics, nine beers, part of a pint of peppermint Schnapps, and a marijuana cigaret between noon on March 7, 1978, and the murder at 2 a.m. on March 8. On cross-examination, Martin testified that he was not really sure whether Champion or defendant fired the two shots or where the car was parked at the time. Katie Taylor testified that defendant had previously threatened to kill her. Leaving work on March 8, 1978, át 2 a.m., she was about to enter a taxi when she saw the barrel of a shotgun aimed at her from out of the window of a silver sports car and defendant’s eyes looking down the barrel. Taylor said she began to run back in the bar when she heard three shots. Patricia Williams, a bystander unknown to Taylor,. was hit and died as the result of hér gunshot wounds. Other evidence included the testimony of the club’s doorman who stated that defendant told him not to walk Katie to the cab that night. Several acquaintances of defendant testified that defendant had previously threatened to kill Katie. Defense counsel presented no additional evidence or witnesses but argued that Chris Champion was the murderer. The first question is whether the trial judge abused his discretion in allowing the prior statement of prosecution witness Tobin Djerf, written down by a police officer, to be read to the jury under an exception to the hearsay rule for past recollection recorded. MRE 803(5). The statement contained Djerfs admission that he drove defendant to the airport between February 26 and March 4, 1978, and gave defendant $300 to go to Kentucky to look for a job. After subsequently hearing about the murder from Katie Taylor and news broadcasts, Djerf contacted defendant by telephone in Kentucky. The statement indicated that during their conversation, defendant first claimed he had been in Texas. Djerf said that when he told defendant he knew defendant had shot a girl in Kalamazoo, defendant admitted that he had shot a black girl while attempting to shoot Katie because Katie saw him and pushed the black girl in the way. Djerfs statement indicated that defendant said he had used a double barreled sawed-off shotgun and that Red [Martin] and Chris had been with him. MRE 803(5) provides for an exception to the hearsay rule, whether the declarant is available or not, for a recorded recollection if the following criteria are met: "A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party”. Defendant argues that the trial judge erred in allowing the memorandum to be read into evidence under MRE 803(5) because a review of the statement under MRE 612 would have refreshed the witness’s memory and it was not shown that the witness was totally unable to refresh his recollection from the recorded statement. MRE 803(5) does not require a showing that the witness was totally unable to recall the memorandum’s contents, but only that the witness "now has insufficient recollection to enable him to testify fully and accurately”. This change is reflected in the Committee Note to MRE 803 construing its impact on prior Michigan law: "Exception 803(5). MRE 803(5) is generally consistent with prior Michigan law. Jaxon v Detroit, 379 Mich 405; 151 NW2d 813 (1967); People v Brassell, 64 Mich App 445; 236 NW2d 99 (1975); however, one of the foundational requirements for admission as past recollection recorded was that the witness have exhausted his or her memory on the subject. MRE 803(5) permits admission of a memorandum or record of past recollection recorded on a showing that the witness 'now has insufficient recollection to enable him to testify fully and accurately.’ To this extent MRE 803(5) is inconsistent with prior Michigan law”. Honigman & Hawkins, Michigan Court Rules Annotated (Evidence Rules Supp), p 675. The record below reveals that Tobin Djerf remembered having the conversation with defendant, that defendant had said he had been in Kalamazoo and that a black girl had gotten shot when she got in the way of another girl. Mr. Djerf also recalled that defendant said he used a sawed-off shotgun. However, Mr. Djerf, even after reading the statement to himself to refresh his memory, could not remember specifically how Patricia Williams had gotten shot. Nor could be remember specifically the conversation between defendant and himself. We conclude that the prosecution showed that the witness’s memory was insufficient to allow him to testify fully and accurately. See United States v Williams; 571 F2d 344, 349 (CA 6, 1978), for a similar factual situation analyzed under the identical Federal rule, FRE 803(5). We further find that the prosecution demonstrated that the document pertained to matters which were once within the witness’s knowledge and that the document examined by the witness was found to reflect accurately his knowledge when the conversation was fresh in his mind. See People v Kubasiak, 98 Mich App 529, 536-537; 296 NW2d 298 (1980). Thus, the memorandum was properly read to the jury under the rule. Next, defendant argues that the admission of a witness’s identification of defendant should have been excluded as tainted by his impermissibly suggestive identification at the preliminary examination. Where defense counsel is present at the identification procedure, it is incumbent on him to demonstrate that it was so impermissibly suggestive as to result in irreparable mistaken identification. People v Rivera, 61 Mich App 427, 431; 232 NW2d 727 (1975). At both the preliminary examination and trial, the witness, Daniel Reiss, testified that at 1:40 a.m. on March 8, 1978, he observed a passenger in a silver Toyota with both hands on a shotgun. Although it was fairly dark and Reiss was about 15 feet away, he got a good look at the man, whom he identified as defendant. No lineup or photographic showup was held. At the preliminary examination, defendant was dressed in jail clothes and sitting at the defense table behind a sign labeled "Defendant”. Defense counsel did not object to the identification procedure either a trial or at the preliminary examination. Nor did he request a lineup. As such, this issue has not been preserved for appellate review. People v Moss, 397 Mich 69; 243 NW2d 254 (1976), People v Wilson (On Rehearing), 96 Mich App 792, 797; 293 NW2d 710 (1980), People v Mann, 89 Mich App 511; 280 NW2d 577 (1979). Affirmed. As a result of this incident, Chris Champion was convicted of second-degree murder on September 1, 1978. His conviction and life sentence were affirmed, People v Champion, 97 Mich App 25; 293 NW2d 715 (1980).

J. H. Piercey, J. This case stems from the June 2, 1974, collision between an automobile insured by defendant Frankenmuth Mutual Insurance Company (Frankenmuth) and a bicycle operated by William Prince, a mentally incompetent adult who was seriously and permanently injured in the accident. At the time of the mishap, Prince, who had been committed to the care of the state at an early age by petition of his mother, was living at a private group living facility owned by Mary Baumgarten and operated for profit by her and her husband, Edward Baumgarten, pursuant to a contract with the Center for Human Development, a state agency. Defendant Insurance Company of North America (INA) was the no-fault insurer of automobiles owned by the Baumgartens at the time of the accident. A guardian was appointed for Prince on October 8, 1976, and suit was filed on March 2, 1977, seeking no-fault benefits from INA and Frankenmuth, both of which denied liability. The state intervened on June 26, 1978, averring that Prince had incurred no costs for those medical services paid for by the state and claiming that the state was subrogated to any right of recovery Prince might have for the costs of medical services pro vided through the state’s Medicaid program. A bench trial resulted in judgment on July 9, 1979, in favor of plaintiff against INA for $20,112.29, together with interest through February, 1979, and in favor of the state against INA for $32,408.03, together with interest calculated from April 1, 1977, through March 31, 1979. No damages were assessed against Frankenmuth. INA now appeals, and Frankenmuth cross-appeals. I. Which defendant is primarily responsible to William Prince for payment of personal protection insurance beneñts under the no-fault act? Assuming arguendo that personal protection insurance benefits under the no-fault act would be payable to Prince under either of the two insurance policies involved in this action, it is necessary to determine which defendant has priority in the sense of bearing primary responsibility toward the injured party. In resolving a similar problem, the Michigan Supreme Court in Underhill v Safeco Ins Co, 407 Mich 175, 182; 284 NW2d 463 (1979), stated: "3) A motorcyclist injured in a motor vehicle accident must first look to his own insurer if he has one. If he does not, he looks then to the insurer of a relative domiciled in the same household. It is only when there is no policy issued to anyone in his household that the statute permits him to claim benefits from the insurer of the owner or driver of the motor vehicle involved in the accident.” A careful reading of Underhill compels the conclusion that it is as applicable to bicyclists as to motorcyclists on the issue of priority among insurers. The Underhill Court concluded: "The Legislature might have structured a no-fault act around the involved vehicle and such an act might make more sense to some people. It followed, however, the approach of most states and of the uniform act to make the owner’s or family member’s insurer primary. "We conclude that the owner’s or family member’s insurer is primary and that there may be resort to the insurer of the involved vehicle only when neither the injured person nor a family member in whose household he is domiciled is insured.” (Footnotes omitted.) 407 Mich 175, 192. It is clear that in the case at bar Prince himself owned no policy of automobile insurance. According to Underhill, it is therefore necessary first to analyze the language of INA’s no-fault policy with the Baumgartens to determine whether any coverage exists in favor of Prince as "a relative domiciled in the same household”. Underhill, supra, 182. If so, INA is primarily and exclusively liable for no-fault personal protection insurance benefits. Recourse to Frankenmuth’s policy covering the involved vehicle is proper only if a careful analysis of INA’s policy discloses no coverage for Prince by INA. II. Was William Prince a "ward” of the Baumgartens at the time of the accident, as that term is used in INA’s no-fault policy with its insured, Edward Baumgarten? Defendant INA’s insurance policy with Edward Baumgarten at the time of the accident provided in pertinent part: "Section I "Personal Protection Insurance Benefits "The Company will pay, in accordance with Chapter 31 of the Michigan Insurance Code, to or on behalf of each eligible injured person or his dependent survivors, personal protection benefits consisting of: "(a) allowable expenses, "(b) work loss, and "(c) survivors’ loss "as a result of bodily injury caused by accident and arising out of the ownership, operation, maintenance or use, including loading or unloading, of a motor vehicle as a motor vehicle. "Definitions "When used in reference to this insurance: "* * * 'eligible injured person’ means: "(a) the Named Insured or any relative who sustains bodily injury in an accident involving a motor vehicle; "* * * 'relative’ means a person related to the Named Insured by blood, marriage or adoption (including a ward or foster child) who is a resident of the same household as the Named Insured * * It is apparent that in order to recover under this policy Prince, at the time of the accident, must have been an "eligible injured person”, which is further defined as a "relative”, including a "ward”, of the named insured. Thus, if Prince was a "ward” he was a "relative” and therefore an "eligible injured person” under the policy. The trial judge specifically found that William Prince was a "ward” of the Baumgartens as that term is used in the INA insurance policy, and we agree. In reviewing the trial court’s finding, it should be noted that "language in an insurance policy is to be strictly construed against the insurer”. Nickerson v Citizens Mutual Ins Co, 393 Mich 324, 330; 224 NW2d 896 (1975). Policy language "must be construed in accordance with the ordinary and popular sense of the language used, so as to avoid strained interpretations”. Cora v Patterson, 55 Mich App 298, 300; 222 NW2d 221 (1974). It is obvious that the term "ward” as used in INA’s policy should not be restricted in its definition to include only a person on behalf of whom a legal guardian has been appointed by a court of competent jurisdiction. Rather, a common and ordinary dictionary definition of "ward”, offered by Webster’s Third New International Dictionary (1965), p 2575, is "a person * * * under the protection or tutelage of a person”. It is therefore necessary to examine the factual context of the case at bar to determine whether William Prince was a "ward” of the Baumgartens as that word is used in common parlance. The Center for Human Development contracted with Mrs. Baumgarten for the basic care of individuals placed with her by the Center. Mrs. Baumgarten testified that she considered the "Baumgarten Homes” as a business. At the time of the accident, Baumgarten Homes was caring for 19 men in two buildings, with six paid employees in addition to Mr. and Mrs. Baumgarten. Although her contract with the Center for Human Development required her to provide room, board, supervision, and certain skill training to the men, Mrs. Baumgarten did not consider them to be part of her family. She was not expected to buy clothing for them, provide them with medical care, or to maintain insurance for their benefit. On the other hand, the residents came to the Baumgartens for advice and called them "mom” and "dad”. The Baumgartens took the men on occasional outings and had Christmas parties for them. Mrs. Baumgarten saw to it that the residents bathed, shaved, and changed their clothes; she also administered medicine to Prince as necessary. Prince’s social worker at the time of the accident testified that Prince was placed in the Baumgarten Homes to put him in an atmosphere where he would experience some of the attributes of living with other people in a less restricted setting and could experience as close a relationship to a family as was possible under the circumstances. We hold that under all of the facts and circumstances of this case Prince was a "ward” of the Baumgartens according to the common and ordinary meaning of that term. In accord with this conclusion is the fact that although INA’s agent had actual knowledge at the time he sold the insurance policy to the Baumgartens that they were engaged in the business of caring for handicapped people, and although this knowledge is imputable to INA via the existing agency relationship, INA never undertook to clarify the terminology of its policy — including the term "ward” — notwithstanding its potential risk exposure due to the nature of the Baumgartens’ business. Any ambiguity in the policy must therefore be strictly construed against INA. III. Was William Prince, at the time of the accident, "a resident of the same household as the named insured”, Edward Baumgarten, as speciñed in the policy of automobile insurance issued by INA? In addition to his having been a "ward” and therefore a "relative” of the named insured at the time of the accident, William Prince must also have been "a resident of the same household as the named insured” in order to qualify for personal protection insurance benefits under INA’s insurance policy with Edward Baumgarten. We concur with the trial court’s conclusion that Prince was a "resident” of the Baumgarten household. The standard for determining whether one is a "resident” of an insured’s household has recently been enunciated in Workman v Detroit Automobile Inter-Ins Exchange, 404 Mich 477, 495-497; 274 NW2d 373 (1979), as follows: "Our review of both Michigan opinions and opinions of our sister state courts first reveals the general principle that the terms 'resident’ of an insured’s 'household’ or, to the same effect, 'domiciled in the same household’ as an insured, have 'no absolute meaning’, and that their meaning 'may vary according to the circumstances’. Cal-Farm Ins Co v Boisseranc, 151 Cal App 2d 775, 781; 312 P2d 401, 404 (1957). The 'legal meaning’ of these terms must be viewed flexibly, 'only within the context of the numerous factual settings possible’. Montgomery v Hawkeye Security Ins Co, 52 Mich App 457, 461; 217 NW2d 449 (1974). "Accordingly, both our courts and our sister state courts, in determining whether a person is a 'resident’ of an insured’s 'household’ or, to the same analytical effect, 'domiciled in the same household’ as an insured, have articulated a number of factors relevant to this determination. In considering these factors, no one factor is, in itself determinative; instead, each factor must be balanced and weighed with the other. Among the relevant factors are the following: (1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his 'domicile’ or 'household’ * * *; (2) the formality or informality of the relationship between the person and the members of the household * * *; (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises * * *; (4) the existence of another place of lodging by the person alleging 'residence’ or 'domicile’ in the household * * (Footnotes omitted.) Application of the first Workman factor to the instant facts discloses no meaningful subjective or declared intent on the part of William Prince to remain in the Baumgarten Homes, for the obvious reason that Prince, being mentally incompetent, could not form an intent which would be efficacious in determining his future place of domicile. Rather, this decision was vested in the Center for Human Development which had originally placed Prince with the Baumgartens pursuant to contract. We note that Prince’s social worker testified that at the time of the accident there was no plan to move Prince from the Baumgarten Homes and stated that the Center for Human Development did not put a time limit on a person living in a care facility such as Baumgarten Homes. It thus appears that, as far as the Center was concerned, Prince was to be left with the Baumgartens for an indefinite period. Workman’s second factor, the formality or informality of the relationship between the person and the members of the household, operates in favor of a finding of residency under the present facts. Mrs. Baumgarten testified that she got along well with Prince and that he was very happy in the Baumgarten Homes. Even though the Baumgartens themselves had separate living quarters on the premises and dined alone, the occupants of the homes were free to knock on the door of the Baumgartens’ quarters and then enter to discuss problems they might have. In addition, the Baumgartens arranged fishing and bowling outings for the men and gave Christmas parties for them. The occupants cut the lawn and shoveled snow at the homes and referred to the Baumgartens as "mom” and "dad”. This evidence indicates a friendly and relatively informal atmosphere prevailing at the Baumgarten Homes and thus supports the conclusion that Prince was a "resident” there. Thirdly, it is clear that the place where William Prince lived at the time of the accident was "upon the same premises” as that of the insured. The fact that the Baumgartens had separate living quarters for themselves in the Baumgarten Homes does not negate the essential fact that both they and the men for whom they cared occupied the same house. This fact also indicates that Prince was a "resident” of the insured’s household. Finally, the evidence in the case at bar fails to disclose "the existence of another place of lodging by the person alleging 'residence’ or 'domicile’ in the household”. If Prince was not a resident of the Baumgarten household, he was not a resident anywhere. The trial judge correctly concluded that Prince was "a resident of the same household as the named insured” pursuant to the contract of insurance between INA and Edward Baumgarten. IV. Was plaintiffs suit or the suit by the stateintervenor barred by the one-year no-fault statute of limitations? The accident in which William Prince was injured occurred on June 2, 1974. A guardian was appointed for Prince on October 8, 1976, and suit was commenced by the guardian on March 2, 1977. The initial question to be resolved in light of these facts is whether plaintiffs suit was barred by the one-year no-fault statute of limitations set forth in MCL 500.3145(1); MSA 24.13145(1). It is undisputed that William Prince was mentally incompetent at all relevant times prior to and following the accident. Michigan law is clear that the general saving provisions of the Revised Judicature Act, MCL 600.5851; MSA 27A.5851, apply to causes of action created by Michigan statutes. The insanity saving provision in the Revised Judicature Act thus extends the time during which plaintiff could bring suit on behalf of William Prince under the no-fault automobile insurance act. See Lambert v Calhoun, 394 Mich 179; 229 NW2d 332 (1975), Rawlins v Aetna Casualty & Surety Co, 92 Mich App 268; 284 NW2d 782 (1979). The suit by Prince’s guardian was therefore timely notwithstanding the one-year statute of limitations in the no-fault act. We next examine the propriety of the trial court’s action in allowing the state-intervenor to recover sums expended for Prince’s care from the date of the accident. Although the state’s complaint was not filed until June 26, 1978, the recovery permitted was nonetheless proper under Michigan law. MCL 14.28; MSA 3.181 designates the Attorney General to "intervene in and appear for the people of this state in any * * * court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested”. MCL 14.101; MSA 3.211 provides: "The attorney general of the state is hereby authorized and empowered to intervene in any action heretofore or hereafter commenced in any court of the state whenever such intervention is necessary in order to protect any right or interest of the state, or of the people of the state. Such right of intervention shall exist at any stage of the proceeding, and the attorney general shall have the same right to prosecute an appeal, or to apply for a re-hearing or to take any other action or step whatsoever that is had or possessed by any of the parties to such litigation.” MCL 400.106; MSA 16.490(16) provides that the state shall be subrogated to any right of recovery which a patient may have for medical expenses, not to exceed the amount of funds expended by the state for the patient’s care. The statute also em powers the state to enforce its subrogation right by-intervening or joining in an action or proceeding brought by, inter alia, the patient’s guardian. It is important to analyze these statutes in light of GCR 1963, 209.1, which states: "Intervention of Right. Anyone shall be permitted to intervene in an action "(1) when a statute of this state confers an unconditional right to intervene * * In distinguishing permissive intervention from intervention of right, the authors of 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 620 note: "Sub-rule 209.1, governing intervention of right, does not contain the same qualifying phrase that application for intervention must be 'timely’. In this it differs from Federal Rule 24, which requires timely application for intervention, whether permissive or of right. Since Federal Rule 24 is cited as a source for Rule 209 in the Committee Notes, supra, it must be concluded that the change of wording to drop the word 'timely’ in the Michigan rule was intended. In situations where intervention is of right, the would-be intervenor’s interest in the proceeding is such that he will likely be seriously harmed if he is not permitted to intervene. Therefore, his right to intervene should not be overridden as untimely, even though an application for intervention might be denied if the intervention were merely permissive. "Sub-rule 209.1 provides for intervention as a matter of right in four situations: "(1) Intervention of right is permitted when a statute confers an unconditional right to intervene. Statutes which extend a right to intervene have been collected under 'Statutory Provisions,’ supra. If the language of the particular statute places no condition upon the right of intervention and is not itself merely permissive, a party coming under the statute has standing to intervene of right under sub-rule 209.1, which is to say, that his intervention is not subject to the discretion of the court.” These same authors, at page 618 of their above-cited. work, list MCL 14.28; MSA 3.181 as a statute granting intervention of right to the Attorney General under GCR 1963, 209. Also instructive are the authors’ comments appearing at pages 294-295 of the 1980 cumulative supplement to that volume: "However, as noted above, any restrictions on participation would normally not apply to an intervenor of right. It would be meaningless to give to a party an absolute right to intervene in order to protect his interest, if once in the case he were prevented from raising questions necessary for his own protection.” Careful consideration of the above-cited statutes and court rule compels the conclusion that the state’s intervention in the present action was of right and therefore need not have been "timely” in terms of the one-year statute of limitations in the no-fault insurance act. Since the state’s intervention in this case was not required to be "timely” and since restrictions on participation are normally inapplicable to an intervenor of right, logic compels the conclusion that upon intervention in the present action the state’s right to recover monies expended by it for Prince’s care as a result of the accident related back to the date of the accident. To hold otherwise would be effectively to deny the state full participatory rights, in direct contravention of the letter and spirit of the statutes and court rule discussed above. The trial judge therefore properly allowed the state to re cover sums expended by it for Prince’s care due to the accident, commencing with the date of the accident on June 2, 1974. V. Did the trial court err by awarding plaintiff and the state-intervenor interest on their respective judgment amounts at the rate of 6% per annum from the date of the tiling of plaintiff’s complaint, in addition to interest at the rate of 12% per annum on overdue personal protection insurance benetits from 30 days after the date of tiling of plaintiff’s complaint, for an effective rate of interest on the judgments of 18%? The trial judge in the case at bar awarded plaintiff and the state-intervenor interest on their respective money judgments at the rate of 6% per annum from the date of the filing of plaintiff’s complaint on March 2, 1977, pursuant to MCL 600.6013; MSA 27A.6013, and additionally awarded interest at the rate of 12% per annum on each judgment from 30 days after the filing of plaintiff’s complaint, pursuant to MCL 500.3142; MSA 24.13142. Defendants contend that the cumulation or "stacking” of these two separate interest rates to yield a total effective interest rate of 18% per annum on the money judgments was improper. In Wood v Detroit Automobile Inter-Ins Exchange, 99 Mich App 701, 709; 299 NW2d 370 (1980), this Court addressed the present question as follows: "Finally, defendant claims that the trial court erred in awarding six percent judgment interest, MCL 600.6013; MSA 27A.6013, in addition to the 12 percent penalty interest under the no-fault act, MCL 500.3142; MSA 24.13142. The trial court awarded the 12 percent interest on the overdue wage loss payment from the time it became overdue. The six percent interest was ordered on the entire judgment from the date the complaint was filed. Defendant contends that the overlapping of the interest provisions was impermissible. "The purpose of the six percent interest statute is to compensate the prevaling party for the expenses incurred in bringing an action and for the delay in receiving money damages. Schwartz v Piper Aircraft Corp, 90 Mich App 324, 326; 282 NW2d 306 (1979), Waldrop v Rodery, 34 Mich App 1, 4; 190 NW2d 691 (197[1]). The 12 percent interest provision is intended to penalize the recalcitrant insurer rather than compensate the claimant. See O J Enterprises, Inc v Ins Co of North America, 96 Mich App 271; 292 NW2d 207 (1980) (similar purpose intended under the Insurance Code, MCL 500.2006; MSA 24.12006). We do not consider these statutes to be mutually exclusive. Therefore, the trial court correctly ordered both the six percent and the 12 percent interest.” (Emphasis by the Court.) We concur with the rationale of the Wood decision and affirm the interest awards in the instant case. Affirmed. Costs to plaintiff.

R. M. Maher, P.J. Defendant appeals by leave granted the order of the trial court denying defendant’s motion for accelerated judgment. Pursuant to GCR 1963, 806.3(l)(a)(ii) the trial court certified that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation”. The facts are not in dispute. Plaintiff was employed as a musician with the Woody Herman Orchestra of New York. Defendant, Grand Valley State Colleges, engaged the services of the orchestra as part of a music workshop held at the defendant’s campus in Allendale, Michigan, on May 13, 1977. While the orchestra was performing on that date pursuant to its contract with the defendant, plaintiff walked to the rear of an elevated stage at the colleges’ Louis Armstrong Theater and fell off, apparently tumbling down to a set of concrete steps leading to an unused orchestra pit. As a result of the fall plaintiff sustained various injuries, including serious head injuries. Plaintiff petitioned for workers’ compensation benefits listing Woody Herman as his employer and defendant as his "statutory employer”. The petition also recited that the Woody Herman Orchestra was uninsured for workers’ compensation in Michigan. On September 1, 1977, before a decision was rendered on the petition, plaintiff filed suit against defendant in Federal District Court seeking damages resulting from the fall. Plaintiff filed the instant action in the Court of Claims on February 2, 1979, also seeking damages from the defendant because of the fall. On April 11, 1979, the Federal District Court case was dismissed by stipulation of the parties. The Bureau of Workmen’s Compensation mailed its decision on May 8, 1979. The administrative law judge found that the Woody Herman Orchestra was uninsured and that a principal-contractor relationship existed between Grand Valley State Colleges and the orchestra. Accordingly, plaintiff was awarded benefits against defendant. Defendant appealed this ruling contesting its liability for workers’ compensation benefits, but the present record does not reflect the present status of that appeal. A hearing was held on defendant’s motion for accelerated judgment on June 27, 1979, at which time defendant argued that it was entitled to the immunity afforded by the exclusive remedy provision of the Worker’s Disability Compensation Act (the act) since it had already been found liable for and was paying workers’ compensation benefits to plaintiff. The motion was denied and this interlocutory appeal followed._ The issue on appeal is whether defendant may claim the immunity from suit granted by the exclusive remedy provision of the act. Accordingly, a short recitation of the statutory framework is in order. Under § 171(1) of the act, MCL 418.171(1); MSA 17.237(171X1), whenever an employer who is subject to the act (referred to as the "principal”) contracts with another who is either not subject to the act or who is otherwise uninsured for purposes of workers’ compensation (referred to as the "contractor”), the principal becomes liable for the workers’ compensation benefits due to the employees of the contractor. Section 171(1) further provides that "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 * * *”. The exclusive remedy provision is found in § 131 of the act, MCL 418.131; MSA 17.237(131). This section provides in part that "[tjhe right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer”. An injured worker may still bring suit, however, to enforce the liability of any third party other than a fellow employee. MCL 418.827(1); MSA 17.237(827)(1). Any amount recovered in such a suit must first be applied to reimburse the party paying the workers’ compensation benefits. MCL 418.827(5); MSA 17.237(827X5). If a principal is held liable for benefits under § 171(1), it is entitled to be indemnified by the contractor under § 171(2), MCL 418.171(2); MSA 17.237(171X2). Defendant’s argument on appeal begins with the fact that it has been held liable for benefits as a matter of law under § 171(1) as the "principal”. It then notes that § 171(1) requires that when benefits are paid by a principal references to the principal are substituted for references to the employer in other sections of the act. It then concludes that it is entitled to the immunity provided by § 131 by substituting the word "principal” for the word "employer” in that section. Plaintiff mounts a two-pronged response to this argument. He first claims, on the basis of policy, that the Legislature could not have intended the result for which defendant contends. He next gives these policy arguments a constitutional dimension, and contends that if the act is construed as defendant claims it should be he will be deprived of due process and equal protection of the laws. At the heart of both of plaintiff’s arguments is the claimed unfairness of a situation which would have allowed the injured worker of an insured contractor to receive compensation benefits and to maintain a suit against the principal, while injured workers employed by uninsured contractors must be satisfied with compensation benefits alone. Plaintiff points out that a principal such as the defendant in the instant case can seek indemnification from the contractor for benefits paid under § 171(2), so that, in the end, a principal might give up nothing in exchange for the immunity which defendant claims. Plaintiff also notes that any tort recovery he might realize from the defendant would first go to reimburse defendant for the compensation benefits paid to him under § 827(5) so that there is no danger of defendant having to pay twice. Concerning plaintiff’s first argument, there are circumstances in which a person’s employer may be subject to suit regardless of the fact that the employer is also liable to pay workers’ compensation benefits. These circumstances arise when the employer and the employee share a relationship other than the employer-employee relationship. In an appropriate case the employer may be subject to a suit brought by the employee if that suit is based on the alternative relationship: "An employee may have ties with an employer other than the employer-employee relationship. They may be landlord and tenant; trustee and beneficiary; vendor and vendee and so on. We look to the laws governing the particular relationship involved to determine rights and obligations of the parties. The fact that the parties are also employer-employee does not automatically trigger the operation of the exclusive remedy provision of the WDCA [Worker’s Disability Compensation Act], The exclusive remedy provision applies only to employers where conditions of liability under the WDCA pertain. "The injured person in Mathis is seeking no-fault benefits from an insurer who happens to be his employer. Any liability to pay no-fault benefits is based on the status of being an insurer under the no-fault act. The employer-employee relationship does not determine the status of insurer, but simply fixes priority among those who do have that status. No conditions of liability under the WDCA exist affecting the employer as a self-insurer under the no-fault act. Accordingly we find no reason to apply the exclusive remedy provisions of the WDCA to bar the employee’s cause of action.” Mathis v Interstate Motor Freight System, 408 Mich 164, 184; 289 NW2d 708 (1980). See Peoples v Chrysler Corp, 98 Mich App 277; 296 NW2d 237 (1980), Robards v Estate of Leopold J Kantzler, 98 Mich App 414; 296 NW2d 265 (1980). See also Choate v Landis Tool Co, 486 F Supp 774 (ED Mich, 1980). This concept is not, however, well suited to cases such as that now before us. Almost by definition, suits such as that between the plaintiff and the defendant in the instant case will be based on something other than the employer-employee relationship since the defendant stands in the place of the employer only by operation of law. Application of the dual capacity doctrine would tend to defeat the intent of the Legislature in cases such as this. We believe that the Legislature’s intention has been clearly stated. The attractiveness of plaintiffs policy arguments notwithstanding, the language which the Legislature employed in the act serves to afford the defendant the immunity of § 131. The Legislature has clearly stated that, when a principal becomes liable for the payment of workers’ compensation benefits, references to the principal are to be substituted for references to the employer in other sections of the act. There is no indication that the Legislature intended this to be true everywhere but in the exclusive remedy provision. While the logic of this situation may be questioned after examination of the entire statutory scheme, we are not allowed to substitute our ideas for the Legislature’s. Accordingly, plaintiffs arguments concerning the construction of the act are more appropriately addressed to that forum. This holding does not end matters as plaintiff has also argued that if the act is construed to grant immunity to the defendant it violates his right to the equal protection of law guaranteed by the Michigan and United States Constitutions. Const 1963, art 1, § 2; US Const, Am XIV. In general, when confronted with an equal protection challenge to economic or social welfare legislation, the party attacking the statute has the heavy burden of showing that the classification lacks a reasonable basis. "If a reasonable relationship exists between the governmental classification and a legitimate state interest, no denial of equal protection results.” Forest v Parmalee, 402 Mich 348, 356; 262 NW2d 653 (1978). See In re Kronke Estate, 98 Mich App 249, 255; 296 NW2d 226 (1980). The statute is cloaked with a presumption of validity which is not overcome simply because the classifications employed are not exactly drawn. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 667; 232 NW2d 636 (1975). In the instant case plaintiff asserts that the act unreasonably discriminates between employees of insured contractors, who may still maintain a cause of action against a third party who would qualify as a principal under § 171(1), and employees of uninsured subcontractors, who may not. In Laffoon v Bell & Zoller Coal Co, 65 Ill 2d 437; 3 Ill Dec 715; 359 NE2d 125 (1976), the Supreme Court of Illinois was faced with a similar issue based on a substantially similar workers’ compensation statute. Although the Illinois statute apparently differed from the present Michigan act in that reference to the principal was not statutorily substituted for reference to the employer as it is in § 171(1) of our act, the Court held that, if the statutes were construed to provide the principal with the liability normally granted the employer, an equal protection violation would exist. As both the dissent in Laffoon and Professor Larson point out, however, the classification of injured workers as employees of insured and uninsured contractors is not entirely equal and the two groups may not be so easily compared. The crucial distinction is that, under both the Illinois and Michigan acts, the principal must pay workers’ compensation benefits to the injured employee of the uninsured contractor, while the same is not true in a case where the contractor is insured for workers’ compensation purposes. While it might be argued that this burden means little since the principal can seek indemnification from the uninsured contractor under § 171(2), or can set off workers’ compensation payments against an eventual tort recovery under § 827(5), the fact remains that the principal is burdened with the actual and administrative costs of making the payments in the first place. In addition, while the principal may seek to be indemnified by the contractor for any compensation benefits paid, the principal is still burdened with the costs of litigation in seeking such a recovery and may, for any number of procedural reasons, be ultimately unsuccessful in the attempt._ The primary purpose of the act is "the delivery of sustaining benefits to a disabled employee as soon as possible after an injury occurs, regardless of any traditional tort concepts of liability”. McAvoy v H B Sherman Co, 401 Mich 419, 437; 258 NW2d 414 (1977). This is clearly a legitimate state interest, and it is well served by holding the principal liable for workers’ compensation payments where the contractor is uninsured. In return for imposing such liability without fault, the Legislature has included such principals in the category of employers, thereby granting the principal immunity from liability under traditional tort concepts. Accordingly, we hold that the legislative distinctions between employees of insured and uninsured contractors, when viewed in the context of the entire statutory scheme, are reasonably related to the fundamental purpose of the act. We thus find that plaintiff has not met his burden of showing that an equal protection violation results. We find that this is so even though the principal might seek indemnification from the contractor or might set off the benefits paid against an eventual tort judgment. While the provisions of the act which provide such remedies to the principal might, in the end, compensate the principal for the amount of benefits paid, they do not compensate for the administrative and other costs associated with payment of such benefits in the first place. The Legislature may well have intended that the principal be granted immunity from suit in exchange for the costs and difficulties imposed, and we do not believe that this is unreasonable in the constitutional sense. We note that an ordinary employer might also, under § 827(5), recover the workers’ compensation benefits paid to the worker from any judgment the worker obtains against a third party, and yet this fact does not serve to remove the ordinary employer’s immunity from suit. Plaintiff also argues that, if the act is construed so as to provide defendant with the immunity of § 131, the act unconstitutionally deprives him of property without due process of law. Const 1963, art 1, § 17; US Const, Am XIV. Unlike his equal protection claim, however, plaintiff did not present this substantive due process argument to the trial court. Ordinarily, constitutional challenges may not be raised for the first time on appeal. Universal Life Church, Inc v Comm’r of Lottery, 96 Mich App 385, 389; 292 NW2d 169 (1980), lv den 409 Mich 936 (1980), Falk v Civil Service Comm of Macomb County, 57 Mich App 134; 225 NW2d 713 (1974), lv den 394 Mich 819 (1975). We are, however, cognizant of the fact that this rule is not always applied and that exceptions do exist. Accordingly, we note that plaintiff has failed to demonstrate that the act has deprived him of due process. The test of whether legislative restriction on a common-law cause of action deprives a plaintiff of due process is whether the legislation is reasonably related to a permissible legislative objective. Shavers v Attorney General, 402 Mich 554, 612 and fn 36; 267 NW2d 72 (1978), cert den 442 US 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979). For essentially the same reasons mentioned above in response to plaintiffs equal protection claims, we believe that the deprivation of which plaintiff complains is reasonably related to the legislative goal of providing prompt and sure compensation to injured workers and their families and that no due process violation exists. For the reasons stated, the trial court erred in denying defendant’s motion for accelerated judg ment. Accordingly, the decision of the trial court is reversed and this cause is remanded to the trial court with instructions to hold the matter in abeyance pending final resolution of defendant’s appeal from the award of workers’ compensation benefits. If defendant’s liability for the payment of such benefits is ultimately upheld, the trial court shall enter an order granting accelerated judgment in favor of defendant on the basis of the exclusive remedy provision of the act. If defendant is successful on appeal and absolved from liability for such benefits, plaintiffs action may proceed. Reversed and remanded. Defendant’s liability was premised on § 171(1) of the Worker’s Disability Compensation Act. MCL 418.171(1); MSA 17.237(171X1). Defendant apparently contests its liability on the basis of § 161(l)(a) of the act, MCL 418.161(l)(a); MSA 17.237(161)(l)(a), which provides in part: "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 the contractor is subject to this act.” The trial court’s reasons for denying the motion reflect a concern over the guidance provided by the appellate bench more than they reflect a resolution of the difficult policy and constitutional issues raised in this case: "The Court: Every time I become involved in a case where Workmen’s Compensation is involved, the red flag goes up. I certainly would like to echo the statements caustically made by our Chief Justice Coleman in relation to the state of Workers’ Compensation in the State of Michigan today. I am not sure every panel of the Court of Appeals agrees with every other panel of the Court of Appeals on this particular issue. They have just very recently indicated that Workers’ Compensation is not exclusive in certain other areas in reversing Judge Kallman of this circuit. "To be very candid with you gentlemen, whichever I view this, until we have a substantial change in litigation, or my brethren on the appellate courts decide to commence to review Chief Justice Coleman’s remarks, I am just going to allow all these matters to go up to the Court of Appeals on as broad a base as possible. And when the Court of Appeals begins to commence to reflect some change in feeling in relation to Workers’ Compensation in Michigan, then I as a trial judge will follow what I feel is the reasonable law in Michigan. "To that end motion for accelerated judgment is denied. And I would encourage counsel to take it to the Court of Appeals prior to trying it here. That’s just my reasonable feeling as a trial judge.” Section 171(1) also provides that despite this substitution of the principal for the employer the amount of the injured, worker’s benefits are calculated on the basis of the pay received from the actual employer — the "contractor”. See Funk v General Motors Corp, 392 Mich 91, 111-112; 220 NW2d 641 (1974), Schulte v American Box Board Co, 358 Mich 21; 99 NW2d 367 (1959). Plaintiffs arguments make much of a claimed "duty” on the part of defendant to make sure that its contractors are insured. He then claims that defendant can better its position by violating this duty, based on the assumption that an entity in the position of the defendant would rather be subject to the limited, if absolute liability for compensation benefits rather than the more tentative, but potentially much greater liability resulting from a tort action. We first note that plaintiff has cited no statutory support for the duty which he claims exists. Nor does his citation to Woody v American Tank Co, 49 Mich App 217, 230; 211 NW2d 666 (1973), lv den 391 Mich 766 (1974), support his position. The point being made in Woody was that a principal who does not make sure its contractors are insured does so at the risk of being itself held liable. Defendant has not objected to this notion, but argues that if it is to be held liable it cannot be also sued in tort. As to the relative benefits and detriments of workers’ compensation liability as opposed to tort liability, we note only that defendant does not agree with the plaintiff’s assessment of the situation, and is in this regard supported by the analysis of Professor Larson as found in 2A Larson, Workmen’s Compensation (1980 Cum Supp), § 72.31, p 137. Suffice it to say that we do not need to resolve the question of which situation the principal would prefer, and that, in any event, the present record is insufficient to make an informed decision on the point. It should be pointed out that Professor Larson advocates granting immunity to the principal even when the contractor is insured. Id. The statutory scheme in Michigan does not support such a result at present, even assuming that Professor Larson’s policy arguments do. In any event suits such as that in the instant case which essentially seek to impose liability for an unsafe work place have been considered as invoking the employer-employee relationship more so than any other relationship that exists between the parties. Peoples v Chrysler Corp, supra, 283. The following comments concerning the statutory scheme in question are pertinent: "Although it seems paradoxical, while a general contractor carries the risk of personal injury judgments in common law actions by hiring subcontractors who are covered by the Workmen’s Compensation Act, he is only held to the limited employer’s liabilities under the Act if he lets his work to subcontractors who do not comply with, or who are not covered by, the Act. However, I am not permitted to challenge the wisdom of the Michigan Legislature.” Miller v J A Utley Construction Co, 154 F Supp 138, 140 (ED Mich, 1957). Contrary to defendant’s assertions on appeal, plaintiff did raise this equal protection argument in the trial court in his brief in response to defendant’s motion for accelerated judgment. In Manistee Bank & Trust v McGowan, Justice Levin posited a somewhat stricter test focusing on whether the classification employed bears a fair and substantial relation to the object of the legislation. Manistee Bank & Trust, supra, 668-671. This test was to be used "at least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental”. Id., 671. We do not believe that this test should be applied in the instant case. The Legislature has not specifically carved out a discrete exception applicable to employees of uninsured contractors in the same way that it did for guest passengers, Manistee Bank & Trust, supra, or workers’ compensation insurers, Shwary v Cranetrol Corp, 88 Mich App 264; 276 NW2d 882 (1979), lv den 406 Mich 979 (1979). The classification of which plaintiff complains in the instant case is not affirmatively drawn, but results from the overall statutory scheme. 2A Larson, Workmen’s Compensation (1980 Cum Supp), § 72.31, pp 137-138.

Per Curiam. Plaintiff, Marjorie L. Davey, appeals as of right from an order, pursuant to a judgment of divorce, requiring her to pay one-half of an inheritance to defendant. In the trial court, the parties’ assets were divided between the plaintiff and defendant as follows: Marjorie Davey Marshall Davey Residence $42,036 Cottage $25,000 Pension 7,919 Pension 4,726 Cemetery Lots 1,800 Insurance 800 Inheritance 25,000 Securities 21,630 Auto & Personal Inheritance 25,000 Possessions -0-Auto & Personal Possessions -0- Totals $76,755 $77,156 This division of property (except as it concerned the inheritance) was in accordance with the wishes of the parties. The plaintiff did not want the defendant to share in any part of the $50,000 inheritance she received from her aunt after the filing of divorce proceedings but prior to the judgment of divorce. The trial court found that the breakup of the marriage was caused by the plaintiff and, for purposes of the property settlement, the plaintiff was at fault. As to the division of plaintiff’s inheritance, the trial court stated: "In regards to the inheritance from the estate of Eva Foglesong, this Court is of the opinion that Charlton v Charlton, 397 Mich 84 (1976), is controlling. Applying the two-prong test posited by Charlton, this Court holds that the award as ordered here is insufficient to maintain defendant. Specifically, defendant will need funds to establish a new residence and otherwise maintain the standard of living he enjoyed while married. Therefore, the inherited property shall be divided evenly between plaintiff and defendant.” Notwithstanding Michigan’s no-fault divorce-law, fault is still one of many valid considerations in matters of property division and a trial judge’s consideration of fault in determining a property division will not be disturbed absent an abuse of discretion. Chisnell v Chisnell, 82 Mich App 699, 707; 267 NW2d 155 (1978). A determination of property division necessitates an examination of the following factors: duration of marriage; contributions of the parties to the joint estate; and the parties’ age, health, station in life, necessities and circumstances, and earning ability. Holbern v Holbern, 91 Mich App 566, 569; 283 NW2d 800 (1979). One of the circumstances to be considered in the determination of property division is the fault or misconduct of a party. Chisnell, supra. The marriage in the instant case lasted over 30 years. At the time of the divorce, both parties were enjoying good physical health. The parties had an equal earning capacity, each earning approximately $18,000 annually. Their "station in life” appears to have been a comfortable one. Both of the parties’ children had attained the legal age of majority. The trial court’s division of the plaintiffs separate inheritance was accomplished pursuant to a finding of insufficiency of assets awarded out of the marital estate under MCL 552.23(1); MSA 25.103(1). The trial court concluded that the defendant needed additional funds to establish a new residence and otherwise maintain the standard of living he had enjoyed while married. This Court hears appeals on property division in divorce cases de novo, but does not generally reverse or modify such decisions unless it is convinced that it would have reached another result had it occupied the position of the trial court. McCallister v McCallister, 101 Mich App 543, 549; 300 NW2d 629 (1980). Paul v Paul, 362 Mich 43, 47; 106 NW2d 384 (1960). Although the trial court stated that it felt plaintiff was at fault in the breakdown of this marriage, the court chose to award an equal amount of marital property to each spouse. Apparently, the court found that either plaintiff’s fault was not so grievous or the defendant also bore some fault responsibility. Then, however, based upon its finding that the defendant’s portion of the marital property was insufficient to maintain him in the manner in which he had become accustomed, the trial court awarded defendant one half of the inheritance which the plaintiff had received after filing for divorce but prior to the judgment of divorce. The trial court relied upon MCL 552.23(1); MSA 25.103(1), for the award of half of plaintiff’s separate inheritance to the defendant. That statute states: "Sec. 23. (1) Upon every divorce from the bond of matrimony and also upon every divorce from bed and board if the estate and effects awarded to either party shall be insufficient for the suitable support and maintenance of either party and such children of the marriage as shall be committed to the care and custody of either party, the court may further award to either party such part of the real and personal estate of either party and such alimony out of the estate real and personal, to be paid to either party in gross or otherwise as it shall deem just and reasonable, having regard to the ability of either party and the character and situation of the parties, and all the other circumstances of the case.” The trial court’s determination that the defendant’s award was insufficient for his maintenance under MCL 552.23(1); MSA 25.103(1) should logically have led that court to award the defendant a greater share of the marital estate. Instead, the court awarded each spouse equal shares of the marital estate and then invaded the plaintiff’s separate inheritance to compensate the defendant for what the court found to be an insufficiency. This was error. A thorough review of the record convinces us that the even division of marital assets is equitable in view of the circumstances of both parties. The share of the marital assets awarded to defendant does not appear insufficient. We reverse the court’s award of one half of plaintiff’s inheritance to defendant and affirm the court’s division and award of the marital assets. Reversed in part and affirmed in part.

Bashara, P.J. Defendant General Electric Company (G.E.) filed a hybrid motion for summary/ accelerated judgment asserting that plaintiff had failed to commence an action against it within the three-year statutory limitation for wrongful death actions. The trial court denied the motion, and G.E. was granted leave to appeal. On June 20, 1980, this panel affirmed the trial court’s ruling in an unpublished per curiam opinion, Docket No. 45897. The cause is again before us by way of our August 26, 1980, order granting G.E.’s petition for rehearing. On June 22, 1975, plaintiff’s decedent received an electrical shock when he attempted to plug a Westinghouse electric clothes dryer into an electrical outlet. On September 24, 1975, he died as a result of injuries sustained in the accident. Plaintiff filed the instant wrongful death action on May 2, 1977, against Westinghouse. On January 25, 1978, plaintiff filed her first amended complaint against Westinghouse, alleging a breach of warranty in the manufacture of the electrical cord on the clothes dryer. Plaintiff filed a second amended complaint, again alleging a breach of warranty, against the J. L. Hudson Co., the seller of the clothes dryer, on August 27, 1978. In October, 1978, plaintiff discovered that the electrical motor in the clothes dryer was also defective. This motor had been manufactured by the General Electric Company. On November 14, 1978, plaintiff filed her third amended complaint, adding General Electric as a defendant and alleging a breach of warranty with respect to the manufacturer of the motor. It is well established that the statute of limita tions in a wrongful death action is three years from the decedent’s death. MCL 600.5805(7); MSA 27A.5805(7), Ruhle v Armstrong, 20 Mich App 573; 174 NW2d 292 (1969), aff'd 384 Mich 709; 187 NW2d 223 (1971), Coury v General Motors Corp, 376 Mich 248; 137 NW2d 134 (1965). Plaintiff asserts, however, that since her claim alleges breach of warranty the accrual date established in MCL 600.5833; MSA 27A.5833 is controlling. It states: "In actions for damages based on breach of a warranty of quality or fitness the claim accrues at the time the breach of the warranty is discovered or reasonably should be discovered.” Plaintiff therefore argues that the claim did not accrue until October, 1978, when she learned of the alleged breach of warranty by G.E. through the discovery process. The case most germane to the issue at bar is Stoneman v Collier, 94 Mich App 187; 288 NW2d 405 (1979). Plaintiffs’ decedent in Stoneman had died as the result of carbon monoxide asphyxia while operating a General Motors Corporation vehicle. A timely action was commenced against the manufacturer and installer of the exhaust system. Over three years after the death, plaintiffs attempted to add General Motors as a party defendant. Plaintiffs claimed that the statute of limitations did not begin to run until discovery of the existence of a possible cause of action. The trial court ruled that the discovery rule in products liability cases is not applicable in wrongful death cases. In affirming the trial court’s decision, the Court distinguished Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973), where it was held that the statute of limitations for medical malpractice cases did not begin to run until the plaintiff discovered or should have discovered the existence of the claim. The Court stated: "[M]edical malpractice claims present special problems since it is sometimes difficult to distinguish the injury from symptoms of the condition for which treatment was sought. "Here the factors which may obstruct a patient’s awareness of a malpractice claim are not present. From the outset plaintiffs were aware that decedent Ollie died of carbon monoxide poisoning in a General Motors automobile, and could have proceeded against General Motors accordingly. "As set forth in Sedlak v Ford Motor Co, 64 Mich App 61, 63; 235 NW2d 63 (1975): " 'It would be an extremely dangerous rule of law that the accrual date of a cause of action is held in abeyance indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action. Under such a theory, no limitations period would ever be binding. " 'The Supreme Court summed this all up as follows: "It is not necessary that a party should know the details of the evidence by which to establish his cause of action. It is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim.” Kroll v Vanden Berg, 336 Mich 306, 311; 57 NW2d 897 (1953).’ ” Id., 192-193. Also see, Szlinis v Moulded Fiber Glass Co, Inc, 80 Mich App 55; 263 NW2d 282 (1977), appeal dismissed 407 Mich 893 (1979). Stoneman can arguably be distinguished. This plaintiff did not know that G.E. was one of the manufacturers of the machine until two months before adding it as a party defendant. In Stone-man, plaintiffs immediately knew the decedent died in a General Motors car. However, we find the distinction to be without significance. Plaintiff knew at the date of decedent’s death that the faulty machine caused his injury. At that time, it was incumbent upon her to discover, within three years, the various manufacturers of the possible faulty mechanisms. There is a plethora of case law holding that the statute of limitations is not tolled pending discovery of the identity of the alleged tortfeasor where all the other elements of the cause of action exist. See Thomas v Ferndale Laboratories, Inc, 97 Mich App 718; 296 NW2d 160 (1980), and the cases cited therein. Today’s complex marketing and manufacturing systems commonly result in consumer products bearing one brand name although the components of the product have been manufactured by several enterprises. Our considered judgment is that the public is generally aware of this fact. By holding that the statute of limitations begins to run on the date of death, it is not necessary to hold void the discovery rule established in the breach of warranty statute. Rather, we find as a matter of law that where a product is the instrumentality of death the fact that the product may have been defective has been manifested. It is then incumbent upon the survivors to investigate the product to determine liability. The result reached today is in agreement with an analogous line of cases addressing the question of which of two possible statutes of limitation is applicable. In Rach v Wise, 46 Mich App 729, 731-732; 208 NW2d 570 (1973), the general rule in those cases was succinctly stated: "[W]hen choosing which of several statutes of limitations is applicable to a particular case[,] * * * the nature of damages sought, rather than the form of the action plaintiff has proceeded under is determinative.” In accord, State Mutual Cyclone Ins Co v O & A Electric Cooperative, 381 Mich 318; 161 NW2d 573 (1968). The Court in Rach concluded that the three-year statute of limitations for personal injury cases controlled even though the action was premised on an express contract. In the case at bar, the wrongful death of Mr. Reiterman establishes the nature of the damages sought. Hence, application of the wrongful death accrual results in consistency with the rule cited in Rach. Our previous decision relied heavily upon two cases which hold that the two-year medical malpractice statute of limitations is applicable in wrongful death actions. Weiss v Bigman, 84 Mich App 487; 270 NW2d 5 (1978), and Olijnyk v Harrison Community Hospital, Inc, 80 Mich App 366; 263 NW2d 33 (1977). Upon further reflection, we find that line of cases not. persuasive in this case. We agree with the Stoneman opinion where it distinguishes between medical malpractice and products liability cases due to the notice differences inherent in each type of action. Stoneman, supra, 192. Furthermore, accrual was not the issue in those cases, which turned upon conflict between two statutory periods. Finally, we find that the cases holding that the more specific statute controls where there is a conflict between a general and a specific statute are also not germane to this controversy. Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich 99; 43 NW2d 77 (1950), People v Bernard Smith, 81 Mich App 561; 266 NW2d 40 (1978). The two statutes in this case concern different topics, one a statutory time limitation and the other a time of accrual. Neither is more specific than the other. By holding that the breach of warranty reasonably should have been discovered upon decedent’s death, both statutes are given effect. The Court of Appeals opinion dated June 20, 1980, is vacated. The matter is remanded for entry of accelerated judgment, GCR 1963, 116.1(5), in favor of defendant G.E. Costs to G.E. D. F. Walsh, J., concurred. Section 5805(7) was the residual statute of limitations statute for tort actions for which no specific statute is established at the time this action was brought. By judicial construction, it had been held applicable to wrongful death actions. Ruhle, supra. Effective December 13, 1978, § 5805(8) was added to specifically establish a three-year limitation for commencement of wrongful death actions. 1978 PA 495. Application of either the current or the former subsection leads to the same result. The term “discovery rule” is a commonly used phrase for accruals which commence when the plaintiff discovers or reasonably should have discovered the breach. This decision must not be construed as negating the effect of the breach of warranty accrual provision where wrongful death has not been claimed.

Bashara, J. Defendant appeals from jury convictions of first-degree murder, MCL 750.316; MSA 28.548, and breaking and entering an occupied dwelling with intent to commit larceny therein, MCL 750.110; MSA 28.305. The body of Kenneth Smith was found lying in a driveway in Cass County, Michigan, on the afternoon of November 25, 1978. Medical examination revealed that multiple blows, including a severe crushing injury to the head, had caused Mr. Smith’s death. The home where the body was found had been robbed. Parts of an automobile belonging to Daniel Alexander were found at the scene. The investigation focused on Alexander. However, an eyewit ness informed police that the defendant may have been involved. The Walker hearing transcript establishes the following chronology. On November 29, defendant voluntarily went to the police station at the request of the sheriffs department. No incriminating statements were made at that time. He returned on November 30 for the purpose of taking a polygraph examination. He was arrested and booked on an open murder charge at 6:00 p.m. that day. While in an identification room, the police guard conversed with the defendant under circumstances as follows: "Mr. Bradley was sitting in a chair across from me and the desk. I was sitting there, and he advised me that he didn’t understand how he could be charged with murder, he didn’t kill anyone. He was advised what they normally do is charge everyone until determinations are made and who had actually committed the murder. He sat there for a minute. He then said, 'let’s say a guy was there and the guy he was with killed somebody, would he be charged with murder and would he have to go to prison?’ I advised him that it was, as far as prison, that was up to the Judge in the determination there, and as far as if he could be charged with murder, it would depend on his involvement. He sat there for another minute and he said — refresh my memory here — 'let’s say someone was there. Could something be worked out as far as charges?’ He was advised that this was up to the Prosecutor to make a decision on something like that, and that I was unqualified to answer his question when it got to that. At this point he was asked if he would be willing to talk to the Prosecutor, who could answer his questions better than I could. He said yes, he would.” Subsequently, Detective Bannow came into the room and spoke with defendant. Detective Bannow testified in pertinent part as follows: "A I went back in there and Detective Atkinson asked him if he would tell me what he just told him, and he said, 'yes’. ”Q. And, what, if anything, did he say? "A. The part was that he wanted to know that, he couldn’t understand why he could be arrested for murder when he didn’t do it, and I told him that if a person was along with another person when they did something, they could be charged with it. He says, 'wonder if a man was there and didn’t actually participate in it, what would happen then?’ And, I told him, I said I cannot make no deal with him, that — that would have to be talked with the Prosecutor. I asked him if he would talk with a Prosecutor, and he said, 'yes.’ ”Q. Did he ask you about making any kind of a deal? "A. Just the part that — what would happen if a man was there?” At the request of Detective Bannow, an assistant prosecuting attorney interviewed the defendant that evening. Defendant was fed and received Miranda warnings. Defendant asked the prosecutor if a person could be charged with murder even if he had not actually committed the killing. He was informed that he could be charged with felony murder in that case. Defendant stated that he did not want to discuss it further. He was taken to his cell for the remainder of the evening. At 8:00 the next morning, defendant was again informed of his Miranda rights, which he waived. Defendant denied any involvement in the homicide. After about 30 minutes of questioning, he was returned to his cell at his request. About 9:30 a.m., another officer interviewed de fendant. Defendant again waived his Miranda rights. The officer informed the defendant that the prosecutor’s office had decided to extend an offer to him. The officer described the offer as follows: "[I]t was indicated to me that if Mr. Bradley was not involved in the actual homicide, the actual hitting with the cement block, that he gave a statement on tape or typed, and also testified against Mr. Alexander, that there would be a reduced charge of breaking and entering lodged against him and the original murder charge would be dropped.” Defendant asked about the possibility of bail. The detective informed him that there is no bail for murder but that bail could be set for breaking and entering, although he did not promise it would be. Defendant’s recollection of the above conversation differed from that of the officer. He testified at the hearing that he never agreed to testify against Alexander. He also claimed that the police had tampered with the tape. Finally, he contended that he was on LSD when the confession was given. The officer denied the defendant’s allegations. The confession was transcribed into the Walker hearing record. Defendant was read his rights. The defendant stated, in essence, that he and Danny Alexander robbed a house. The car, driven by Alexander, got stuck in the driveway. The deceased drove up and offered assistance. Alexander and the deceased attempted to push the car by hand. When that method was unsuccessful, Alexander struck the decedent and entered his car. While the victim remained motionless on the ground, Alexander pushed his own car out of the snow using the deceased’s auto. Alexander re sumed his position behind the wheel of his car and they left. Defendant was arraigned within an hour of the confession. The murder charge was dismissed and bond was set on the breaking and entering charge. It was subsequently learned from defendant’s attorney that he would not testify against Alexander. Consequently, the defendant was recharged with murder and ultimately convicted. Initially, defendant alleges that the trial court erred in ruling that his confession was voluntary and admissible at trial. He asserts that he was induced to confess in exchange for promises of leniency. We agree with the trial court’s conclusion that it was the defendant who initiated the chain of events leading to the agreement. For that reason, we find the case cited by defendant, People v Pallister, 14 Mich App 139; 165 NW2d 319 (1968), inapposite. People v Langford, 76 Mich App 197; 256 NW2d 578 (1977), lv den 403 Mich 835 (1978), cert den 440 US 964; 99 S Ct 1512; 59 L Ed 2d 779 (1979), more closely addresses the facts presented. In affirming the trial court’s ruling that the confession was voluntary, this Court held: "The record reveals that defendant initiated discussions concerning the 'plea bargain’. Defendant even demanded that the agreement be in writing. Defendant was fully informed of his Miranda rights several times. Defendant was represented and advised by counsel. There is no claim that defendant was illiterate, of unsound mind, was under coercion or duress, or in any other way deprived of the exercise of free will. Defendant was able to weigh all the circumstances involved. He freely chose to confess and reveal the facts herein. Defendant, however, later changed his mind and refused to live up to his end of the plea bargain and justifiably these charges were then brought. Defendant now argues that his confession was per se inadmissible. Based on the record below, we disagree.” (Footnotes omitted.) Id., 199-200. Also see, People v Coppernol, 59 Mich App 745, 751; 229 NW2d 913 (1975), and People v Sparks, 82 Mich App 44, 51; 266 NW2d 661 (1978). Our review of the record does not lead us to conclude that the trial court erred in holding that the defendant confessed voluntarily. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). At oral argument, this Court requested that the parties brief the issue of the applicability of MRE 410 to this scenario. Rule 410 states: "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 plea guilty or nolo contendere 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 plea guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement.” After careful review of the rule, briefs and record, we conclude that MRE 410 is not applicable to this case because the possibility of a guilty plea was never discussed nor was one offered or accepted. The Supreme Court could have stated that the rule was to apply to cases of reduced charges had the Justices so intended. We are also in disagreement with defendant’s assertion that he was prejudiced by the delay in arraignment. In view of the circumstances, we find that he was arraigned within a reasonable time. In addition, any delay in arraignment was not for the purposes of "extracting” a confession. People v White, 392 Mich 404; 221 NW2d 357 (1974), cert den 420 US 912; 95 S Ct 835; 42 L Ed 2d 843 (1975). Finally, defendant alleges the trial court erred in instructing the jury that malice could be inferred solely from an intent to commit the underlying felony of burglary. Recently, the Supreme Court held that such an instruction is erroneous. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980). However, the opinion explicitly applies only to "trials in progress and those occurring after the date of this opinion”. Id., 734. Since the trial occurred in 1979, Aaron does not require reversal. Prior to Aaron, the members of this Court have differed as to whether the above instruction was erroneous. We agree with the opinion in People v Till, 80 Mich App 16, 23-37; 263 NW2d 586 (1977), which approved of the instruction. Also see, People v Heard, 103 Mich App 571; 303 NW2d 240 (1981). Defendant’s remaining allegation of error is totally without merit. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969). Affirmed. Mackenzie, P.J., concurred. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

Bronson, P.J. Following a jury trial in the Wayne County Circuit Court, defendant was convicted of soliciting another to commit the crime of assault with intent to do great bodily harm less than murder, to-wit: the breaking of the kneecaps of Angelo Comito or members of his family. MCL 750.157b; MSA 28.354(2) and MCL 750.84; MSA 28.279. Defendant was sentenced to a term of three to ten years in prison. His motion for a new trial was denied on July 6, 1979. Defendant appeals as of right. The proofs presented at trial showed that the following occurred. Defendant hired Charles Prebee and Gilbert Richard to break the knees of his father-in-law, Angelo Comito. Defendant blamed Comito for marital difficulties that the defendant was experiencing with his wife. On April 8, 1978, Prebee and Richard entered the home of Isabelle and Angelo Comito. Either Prebee or Richard carried a gun. They announced a holdup. However, the Comitos’ daughter, defendant’s estranged wife, was also on the premises. The pair had not expected her to be at the house and abruptly fled. Prebee and Richard decided defendant might be satisfied with merely obtaining some money from Comito. Consequently, they decided to extort $5,-000 from him. When the pair went to collect the money they were arrested. Each pled guilty to extortion in return for a year’s probation and agreed to testify against defendant. Furthermore, Prebee and Richard were each granted immunity from prosecution on a conspiracy charge to break Comito’s kneecaps. I Defendant first contends that the prosecutor committed reversible error by questioning him concerning his prearrest silence in the face of an incriminating statement made by an accomplice and exacerbated this error in his rebuttal argu ment by asking the jury to infer guilt from this silence. A conversation between defendant (Mr. Bommarito), Richard, and Prebee was played for the jury. One excerpt indicated: "Mr. Bommarito: What do you mean, a lot of money? What did they get you for? "Mr. Prebee: Huh? "Mr. Bommarito: What did they get you for? "Mr. Prebee: Extortion. "Mr. Bommarito: What do you mean, extortion, where do you get extortion from? "Mr. Prebee: We tried, you know, like I say, we tried to set it up so he could meet us there at St. Clair Shores. "Mr. Bommarito: That’s not extortion. "Mr. Prebee: Yeah, but we were going to break his knees, like you said, he came, and we said, we’d try to get him there by luring him away with money, told him we wouldn’t bother him if he gave us some money and when he came there the police got us. "Mr. Bommarito: I didn’t tell you to ask him for any fucking money.” In a later portion of the conversation, defendant vigorously protested any involvement in the extortion attempt. He also corrected Mr. Richard’s use of the term "hit” in relation to the assault on his father-in-law, stating that "hitting means knocking them off”. Defendant subsequently did not respond to Richard’s statement, which was: "Well, okay, breaking his leg, his knees then”. During cross-examination, the prosecutor asked defendant why he did not deny telling Richard and Prebee to break Angelo Comito’s legs. During his rebuttal argument, the prosecutor stated: "Let me conclude with a couple of other thoughts. First of all, as you listen to the second tape, the one from August 31st, you will hear Prebee saying something to the effect: Well, you told us to go break the legs and so and so and so and so. And Bommarito comes back and said: I never had anything to do with the extortion. "Now, it seems to me that most people, if someone said to them: Hey, Charley, you told me to go out and break his legs and if Charley didn’t have anything to do with this leg breaking or it wasn’t his idea at all and he had never heard of it, the first thing he would say is: What in the hell are you talking about? I didn’t tell you to do anything about breaking legs. "A human being’s natural reaction to that kind of suggestion, if the suggestion is false, is to say: I didn’t have anything to do with that, what are you talking about, breaking legs. I never told you to break any legs. I told you to go talk to the guy and scare him a little bit. That’s not what Bommarito does. Bommarito doesn’t say anything about the accusation of breaking legs. He just goes on to say: I didn’t have anything to do with the extortion. "Well, no one said he had anything to do with the extortion.” In People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), the Michigan Supreme Court ruled that a defendant’s silence in the face of accusation— whether prior to or after arrest and whether the accuser is a police officer or a private citizen— cannot be used as evidence consistent with Fifth Amendment guarantees that no person can be compelled to act as a witness against himself. The Court in Bobo held that a defendant’s silence is inadmissible as either substantive or impeaching evidence. Bobo was recently reaffirmed by the Michigan Supreme Court in People v Sain, 407 Mich 412; 285 NW2d 772 (1979). Recent decisions by the United States Supreme Court render Bobo of dubious precedential value relative to the proper construction of the Fifth Amendment. In Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980), the Court ruled that Federal constitutional law did not prohibit the states from allowing impeachment by evidence of prearrest silence. Rather, each of the states could resolve this question as they saw fit through evidentiary rules. In Anderson v Charles, 447 US 404; 100 S Ct 2180; 65 L Ed 2d 222 (1980), the Court held that a defendant who gave his version of the events at trial, but had earlier given police inconsistent statements concerning certain aspects of the transaction and had failed to say anything about other events, could be impeached by both the post-arrest inconsistencies and silence. By so holding in Jenkins and Anderson, the United States Supreme Court took a restrictive view of their decision in Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976). In Doyle, the Court ruled that post-arrest silence is "insolubly ambiguous” due to the requirement that defendants be given Miranda warnings. Doyle was distinguished in Jenkins on the basis that no governmental action induced defendant to remain silent, since prearrest nonutterances were involved. Doyle was distinguished in Anderson on the theory that, once defendant has made some post-arrest statements, he has not chosen to remain silent. Thus, the questioning is fair since defendant voluntarily spoke after receiving Miranda warnings. Since the prosecutor in the instant case used defendant’s silence as substantive evidence of guilt, rather than for mere impeachment purposes, Jenkins and Anderson do not dispose of the consti tutional issue. Moreover, even had evidence of the statements been used solely for impeachment, it is not obvious that the Michigan Supreme Court would renounce Bobo as a matter of state constitutional law. Numerous decisions from this Court provide that Bobo is inapplicable where defendant does make a statement and the questioning concerns omissions from the statement. The majority of these opinions, however, involve the use of silence for impeachment purposes where some statement has been made. See, People v Richendollar, 85 Mich App 74, 82; 270 NW2d 530 (1978), lv den 405 Mich 820 (1979), People v Whitty, 96 Mich App 403, 420; 292 NW2d 214 (1980), People v Gerald Wells, 102 Mich App 558; 302 NW2d 232 (1980). Here, the prosecutor used silence as both substantive and impeachment evidence. The tape recording of the conversation was introduced during the prosecution’s case in chief, and the prosecutor urged the jurors to infer guilt from defendant’s failure to deny hiring Prebee and Richard to break his father-in-law’s knees. The prosecutor, then, wanted the jury to use defendant’s silence as an adoptive admission. Two recent decisions from this Court have broadly stated that tacit admissions or adoptive admissions through silence are not applicable in criminal cases. People v Washington, 100 Mich App 628, 630; 300 NW2d 347 (1980), People v Hurd, 102 Mich App 424; 301 NW2d 881 (1980). Another panel of this Court held in People v Dietrich, 87 Mich App 116, 130-131; 274 NW2d 472 (1978), that while adoptive admissions are not favored in criminal cases, they may be admissible where it unambiguously appears defendant assented to the statement made. We believe that the blanket rule adopted by Washington and Hurd inaccurately states current Michigan law. MRE 801(d)(2)(B) provides that adoptive admissions are admissible subject to the rule of Bobo, supra. Thus, the key to understanding to what extent adoptive admissions may be used in criminal cases turns on how Bobo is to be construed. We are convinced that Bobo was not intended to preclude the use of adoptive admissions in all situations. Bobo involved true nonutterances. That is, Bobo remained absolutely silent after receiving Miranda warnings. Here, defendant vehemently denied an intent to extort money from or to kill his father-in-law, but did not deny that he desired Comito’s knees broken. If, as this Court has held, nonutterances can be used to impeach where they concern omissions from affirmative statements, given that Bobo, itself, does not distinguish the use of nonutterances for impeachment and substantive evidence of guilt, it must also be proper to use such nonutterances as substantive evidence where total silence is not maintained. In light of Bobo, either both or neither must be permissible. Dietrich, supra, implicitly recognizes this fact. We also agree with Dietrich, supra, 130, fn 1, that it is significant that defendant’s initial silence was not indicative of an intent to exercise the right to remain silent. At the time that defendant failed to deny hiring Prebee and Richard to break his father-in-law’s knees, it is apparent that he believed he was merely conversing with faithful accomplices engaged in a joint criminal venture. This is not really a case of silence or partial silence in the face of accusation because defendant apparently did not feel accused. The case of People v Bigge, 288 Mich 417; 285 NW 5 (1939), is not applicable to this case because here it is a certainty that defendant heard the statement concerning his hiring of Prebee and Richard to break Comito’s knees. This statement was repeated more than once, and, while defendant was careful to deny certain inaccuracies in the conversation, the hiring of Prebee and Richard was never denied. We conclude that the following principles can be derived from the Michigan cases considering this issue: (1) that the absolute silence of a defendant is never admissible in a criminal case for substantive or impeachment purposes; (2) that, where a defendant has made some statement and the questioning concerns omissions from the statement, the questions are proper for impeachment; and (3) that, where from the circumstances surrounding a statement it is clear that a defendant’s nonutterance reflects an admission of wrongdoing, it may be used as substantive evidence. We find no error in the use of the nonutterance on the facts of this case. II Defendant also contends that the trial court abused its discretion in allowing his impeachment by evidence of a 1969 conviction under the federal firearm act for being an ex-felon in possession of a firearm. Prior to trial, defense counsel moved to suppress from evidence his client’s criminal record. This motion was denied, except for convictions prior to January 29, 1969. This was apparently done to comply with the ten-year rule of MRE 609(b). Trial was originally scheduled for January 29, 1979. Thus, the prosecution was allowed to impeach defendant with evidence of two federal firearm violations, making false application to purchase a pistol and falsely representing employment in an application for a license as a security guard. Apparently, the 1969 firearm conviction was vacated in 1972. This was known by neither defense counsel nor the prosecutor at the time of trial. We have held in the past that permitting cross-examination of a defendant concerning a vacated conviction constitutes error. People v Wilson, 43 Mich App 459, 463; 204 NW2d 269 (1972), lv den 393 Mich 813 (1975). However, in Wilson the status of the conviction was known prior to questioning. Since we agree with defendant that allowing impeachment via the 1969 firearm conviction constituted an abuse of discretion pursuant to People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), we do not reach the issue of when, if ever, the use of a vacated conviction constitutes error on facts like those of the instant case. In Crawford, supra, 39, this Court set forth the standards which must be considered prior to allowing evidence of prior convictions to be used for impeachment. The Court said: "The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a 'bad man’ or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudical means of impeaching the defendant?).” Considering the first factor, possession of a firearm has very little bearing on the question of a witness’s veracity and credibility. The second factor does not cut heavily either way. The firearm charge was not substantially similar to the charged offense. At the same time, jurors might have speculated that defendant’s possession of the firearm was for the purpose of effecting some violent act. As to the third factor, had defendant failed to testify, his version of the events would not have been told. Moreover, considering that the two charges involving false statements were more directly applicable to credibility, a less prejudicial means of impeachment existed. Finally, since de fendant had two federal firearm convictions, given their minimal value as evidence of veracity, at most, only one of the two convictions should have been used. We are not unmindful of decisions which state that absent an affirmative misapplication of the Crawford factors, this Court will not find an abuse of discretion. People v Roberson, 90 Mich App 196, 202; 282 NW2d 280 (1979), lv den 407 Mich 908 (1979), People v Wakeford, 94 Mich App 249, 251; 288 NW2d 381 (1979). On this proposition, however, the various members of this Court have differing views. Some cases have been reversed where there has been no affirmative misapplication of the Crawford factors on the record. People v Bennett, 85 Mich App 68, 72; 270 NW2d 709 (1978) , lv den 405 Mich 835 (1979), People v Featherstone, 93 Mich App 541, 544; 286 NW2d 907, (1979), People v Henry, 101 Mich App 585; 300 NW2d 639 (1980). See, also, Roberson, supra, 204-208 (D. C. Riley, J., dissenting). We are convinced that the recent addition of subsection 2 to MRE 609(a) envisions a more active appellate review of the trial court’s exercise of discretion relative to the admission of evidence of prior convictions than is recognized by Roberson or Wakeford. Although we conclude that the trial court abused its discretion in allowing evidence of the 1969 federal firearm conviction to be used, this error is subject to the harmless error test. Thus, in People v Tucker, 86 Mich App 608; 273 NW2d 498 (1978), lv den 406 Mich 964 (1979), we found harmless error where the trial court ruled that the prosecutor could use evidence of two void convictions for impeachment purposes, where the prosecutor still had evidence of five valid and more recent larceny convictions which could be permis sibly used to impeach. We are convinced that, in light of the fact that the prosecution still could have permissibly used evidence of three convictions to impeach defendant and given that defendant chose to testify, the error was harmless. In light of defendant’s other convictions, it is not reasonable to. conclude that the improper use of evidence of the one conviction affected the outcome of the case. Affirmed. N. J. Kaufman, J., concurred. The Michigan Supreme Court was also construing Const 1963, art 1, § 17 in Bobo. It is possible that even in light of the United States Supreme Court precedent, the Michigan Supreme Court would continue to adhere to Bobo as a matter of state constitutional law. 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). To whatever extent Bobo has been undermined by Jenkins and Anderson, supra, as to the interpretation it gives the Fifth Amendment, the Michigan Supreme Court explicit adoption of Bobo as a limitation on the use of adoptive admissions continues to give that decision evidentiary significance. It is important to understand the difference between nonutterances admissible pursuant to the second and third principles. Suppose defendant made a statement to the police denying his involvement in the crime and said he was at his home when the incident occurred. If, at trial, defendant presented an alibi defense and testified that X, Y, and Z were all with him when the offense was supposedly committed, the prosecution could permissibly cross-examine defendant about his failure to mention X, Y, and Z in his initial statement. This nonutterance, however, would manifestly not provide substantive evidence of guilt. Instead, it would merely cast doubts on defendant’s initial statement and credibility. This would be the use of silence where a statement has been made pursuant to principle two. It would be clear error for the prosecutor to urge the jury to infer guilt due to the inconsistency between defendant’s trial testimony and the omission from his statement to the police. However, in cases such as the one at bar, where defendant denies involvement in one crime or type of wrongdoing, while remaining silent about his involvement in other wrongdoing in which he has also been implicated, the prosecutor can urge that the nonutterance be considered substantive evidence of guilt. Of course, prior to use of the nonutterance as substantive evidence it must be clearly establishd that defendant assented to the accuracy of the statement made by his silence. Dietrich, supra.

Per Curiam. Plaintiff appeals of right from a judgment of divorce entered January 15, 1980, dissolving the marriage of 18 years between the parties. Plaintiff appeals only the division of property and the amount of alimony awarded. Except for defendant’s Federal Railroad Retirement Act pension, no part of which was awarded to plaintiff, the trial court basically divided the property on a 50-50 basis. He ordered support at $37.50 per week for each of the two children born of the marriage until the child became 18 years of age or graduated from high school, whichever comes later. In January, 1980, the children were 16 and 15. He noted that plaintiff was employed part time at wages ($50 per week) below the minimum wage but thought her income would soon improve. Accordingly, he ordered alimony at $30 per week for 75 weeks, in order to give plaintiff a period of adjustment and time to seek better employment. The parties stipulated that the value of the marital home was $34,650 less the value of land at $2,400 on which the house was built and which was donated by plaintiff’s parents. Each party had a $15,175 equity in the home, but, since defendant had withdrawn certain sums from a joint savings account, the court reduced defendant’s equity to $14,425 and provided that said "net equity of $14,425 shall become a lien upon the property and payable upon the youngest child’s becoming 18 years of age or graduating from high school, whichever is later, or further order”. The household furnishings were awarded to the wife, but the 1973 Buick, guns, rings and a snow-blower were awarded to the husband. In the year of the divorce, defendant’s gross income would appear to be about $25,000, though the income fluctuated due to lay-off or overtime. If defendant continued working for the railroad, he could retire at age 60 with benefits of $900 a month for himself and $300 a month for his spouse. If he dies after age 60, the spouse receives $900 a month, but, if divorced, the wife receives nothing. Initially, we must decide whether defendant’s retirement benefits may be considered by the trial court as part of the marital assets to be apportioned among the parties. The question is of first impression in Michigan. The Federal Railroad Retirement Act expressly precludes retirement benefits from legal process by the states. That statute was construed in Hisquierdo v Hisquierdo, 439 US 572; 99 S Ct 802; 59 L Ed 2d 1 (1979), to preclude awarding the wife any portion of such retirement benefits or their monetary equivalent. Further, state courts which have considered Hisquierdo have held that railroad retirement benefits are not part of the marital estate and cannot be considered "directly or indirectly” in the distribution of property. In re Marriage of Knudson, — Mont —; 606 P2d 130 (1980), Larango v Larango, 93 Wash 2d 460; 610 P2d 907 (1980), In re Marriage of Hunt, 78 Ill App 3d 653; 34 Ill Dec 55; 397 NE2d 511 (1979), In re Marriage of Milhan, 27 Cal 3d 765; 166 Cal Rptr 533; 613 P2d 812 (1980), In re Marriage of Schissel, 292 NW2d 421 (Iowa, 1980). Thus, we cannot fault the trial court for not awarding the plaintiff any portion of such pension rights. Nor may we even consider the retirement benefits in our disposition of this case. The trial court is invested with wide discretion in adjusting the property rights of the parties to a divorce. Abadi v Abadi, 78 Mich App 73; 259 NW2d 244 (1977). The test to be applied on appeal is whether the division of property is fair and equitable under all the circumstances. Mixon v Mixon, 51 Mich App 696; 216 NW2d 625 (1974). Ordinarily, a division of property made by the trial court is not set aside or modified unless, upon review of the entire record and history of the marriage, an appellate tribunal is convinced it would have reached a different result had it occupied the position of the trial judge. Czuhai v Czuhai, 30 Mich App 208, 211; 186 NW2d 32 (1971). After reviewing the transcript and the briefs at length, and totally disregarding retirement rights as part of the marital estate, we find that had we been the trial judge we would have reached a different result. The trial court did not sufficiently consider the disparity in the parties’ income. We are not as confident as the trial judge that plaintiff will be able to obtain employment which will make her self-sufficient without more education or training. Plaintiff’s share of marital property is not sufficient to ensure that she will enjoy the same stan dard of living she would have enjoyed had she not been divorced. Defendant’s expendable income will easily exceed that available to plaintiff and their two children for living expenses. To truly allow plaintiff a chance to acquire job training and "rehabilitate” herself would require that defendant support her and pay for the training. Even then, plaintiff will never have the opportunities which were foreclosed because she spent her early adulthood raising the parties’ children and caring for the marital home. After deducting child support and alimony, defendant’s take-home pay for the support of himself only is $273.72 per week based on his earnings for the six months preceding trial. In contrast, plaintiffs household income, including wages, alimony and child support, is $155 per week for support of three persons. Although plaintiff is furnished a house, she must pay the monthly mortgage installments, taxes and utilities. Defendant is fourth in seniority among the 30 conductors employed by the railroad and is not generally subject to lay-off. In Tigner v Tigner, 90 Mich App 787; 282 NW2d 481 (1979), the trial court awarded the wife the house valued at $45,500 plus a Chevrolet Impala and household furnishings and awarded the husband a 1973 Jeep, a boat, motor tools, and pension rights valued at $5,400. The property division, though clearly unequal, was affirmed on appeal on grounds that, because the disparity in earnings was approximately $17,000 to $3,000, the wife should receive a larger share of the marital assets. In the instant case, the disparity in earnings is $25,000 to $2,600. The disparity in the instant case is greater than in Tigner, supra, and is a persuasive reason for awarding plaintiff more than 50% of the property. Stating that defendant’s work record disproved plaintiff’s claim that defendant had an alcohol problem, the trial court found no substantial fault. We agree that alcohol was not a problem but disagree that there was no substantial fault. Plaintiff testified that the breaking point in the marriage was defendant’s relationship with other women. Defendant testified that he spent much of his nonwork time in local bars "drinking, dancing and having fun” and that shortly after his wife had undergone a hysterectomy he had been "unfaithful”. Fault is a consideration in matters of property division and justifies granting a smaller share to the party at fault. Chisnell v Chisnell, 82 Mich App 699, 707; 267 NW2d 155 (1978). Having carefully reviewed the judgment of divorce and the circumstances of this case and given full consideration to the respective earning abilities and obligations of the parties, this Court deter-. mines that plaintiff’s share of the marital asserts and provision for her support should be substantially increased. It is our opinion, and we so order, that the judmgent of divorce be modified in two respects. First, the current period for payment of alimony shall be extended for one year commencing at the expiration of the 75-week period contained in the judgment of divorce, and during said one year period of extension the amount of alimony shall be $40 per week. Any further continuation of alimony thereafter shall be subject to determination by the trial court on petition. Second, defendant’s lien of $14,425 on the marital home is cancelled and plaintiff is awarded the entire net equity in said home. She shall continue to make all mortgage payments due thereon. Remanded to the lower court with direction to modify the property settlement in accordance with this opinion. No costs. The judgment as entered does not conform to the trial court’s written opinion. The judgment was prepared by defendant’s attorney and reads that said equity of $14,425 "shall be paid upon the youngest child becoming 18 years of age or graduating from high school, or upon Plaintiffs voluntary sale of the home or Plaintiffs remarriage whichever event occurs later”. Read literally, if plaintiff never remarried, the husband’s equity would not be due until plaintiffs death. "Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated * * 45 USC 231m. The 75-week period for payment of alimony expires approximately June 23, 1981. The oldest child attained age 18 on March 9, 1981.

C. L. Horn, J. This is an appeal as of right by defendant Fisher Contracting Company of a judgment, after a bench trial, finding it liable to plaintiff in the amount of $26,765.24 plus costs. At trial, defendant Municipal Contractors, Inc. was in default. The trial court required plaintiff to choose to proceed either against defendant Fisher or defendant Municipal Contractors, Inc. Plaintiff elected to proceed against Fisher, and plaintiff’s action against Municipal was dismissed. If the judgment against defendant Fisher is reversed, plaintiff appeals the directed verdict granted to defendant Clinton County and requests reinstatement of its claim against the county. No further proceedings involve defendant United States Fidelity & Guaranty Company. The facts indicate that defendant Fisher was awarded a general construction contract by defendant Clinton County to construct a sanitary sewer disposal system. Fisher was authorized by the county to use defendant Municipal as a subcontractor. Fisher and Municipal made a joint venture agreement for the purposes and terms set forth in that agreement. They subsequently executed a subcontract agreement incorporating the provisions of the joint venture agreement for construction of the sewer project. Plaintiff furnished material and equipment to Municipal for the project. Plaintiff was unaware of any joint venture agreement between Municipal and Fisher when it extended credit to Municipal. Municipal failed to pay plaintiff and defaulted in performance of its obligations under the subcontract with Fisher. Fisher completed the project. There is no dispute that the amount due plaintiff on open account is $26,765.24. Under the contract between Fisher and the county, payment of the disputed funds has been withheld. It is defendant Fisher’s position that the joint venture agreement was intended to provide a vehicle only for securing contracts and not for their performance. The trial court found as a fact that the joint venture agreement contemplates both acquisition and performance of construction contracts, and that Fisher is therefore responsible for Municipal’s debt to plaintiff as a party to the joint venture. We respectfully reverse the trial court because, after a review of the entire evidence, we find a mistake has been committed in the finding of that fact. Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976). The trial court correctly stated the definition of a joint venture as it is set forth in Hathaway v Porter Royalty Pool, Inc, 296 Mich 90, 102-103; 295 NW 571 (1941): "It can be said that a joint adventure contemplates an enterprise jointly undertaken; that it is an association of such joint undertakers to carry out a single project for profit; that the profits are to be shared, as well as the losses, though the liability of a joint adventurer for a proportionate part of the losses or expenditures of the joint enterprise may be affected by the terms of the contract. See 17 Ann Cas 1022, 1025; 24 Ann Cas 202, 203, and 39 Ann Cas 1210, 1214. There must be a contribution by the parties to a common undertaking to constitute a joint adventure (see Anno: 63 ALR 909, 910); and a community of interest as well as some control over the subject matter or property right of contract. Griffiths v Von Herberg, 99 Wash 235 (169 P 587); Darling v Buddy, 318 Mo 784 (1 SW [2d] 163, 58 ALR 493).” This definition is repeated in Denny v Garavaglia, 333 Mich 317; 52 NW2d 521 (1952), and Summers v Hoffman, 341 Mich 686; 69 NW2d 198 (1955). In Hathaway, supra, 102, the Court also said: "The Courts have not laid down an exact definition of what constitutes a joint adventure nor is it possible to enunciate a general rule by means of which the question as to what amounts to a joint adventure can be answered, because such an answer depends largely on the terms of the particular agreement in controversy, upon the construction which the parties have given it, upon the nature of the undertaking, as well as upon other facts. See 30 Am Jur p 680.” We also find applicable the principle that, "the liabilities incurred by way of contract are more or less expressly fixed by the agreement of the parties concerned”. Holmes, The Common Law. In this controversy, there is no dispute that a joint venture agreement was made. However, after reviewing the trial testimony and examining the joint venture agreement and the construction contract between Fisher and Municipal, we find that the bidding transactions were the single business venture intended by Fisher and Municipal. This is the stated purpose in paragraph 3 of the joint venture agreement. Paragraphs 3 and 6 of the joint venture agreement refer to future subcontracts between the parties which would govern performance of contracts awarded. The subsequent construction contract defines the performance that Municipal undertakes and clearly precludes any continuing joint venture between Fisher and Municipal. Further, looking at the factors constituting a joint venture as defined in Hathaway, supra, it does not appear that profits were to be shared. According to the subcontract, Fisher received the entire amount, kept 5% and gave Municipal 95%. Depending upon its own business dealings with third parties, Municipal could either make a profit or suffer losses. No loss was shared. Also, as previously stated, it does not appear that Fisher and Municipal intended to create a joint venture for the construction of the sewer disposal system. The intent of the parties was to secure projects through bidding. Defendant Fisher also claims error, if a joint venture is found to exist for the performance of the contract, in the trial court’s legal conclusion that Fisher is liable for Municipal’s debt to plaintiff when plaintiff did not have knowledge of or rely upon the joint venture agreement in extending credit to Municipal. Although our present finding disposes of plaintiff’s claim against Fisher, we also respectfully reverse the trial court’s said conclusion. American Mutual Liability Ins Co v Hanna, Zabriskie & Daron, 297 Mich 599; 298 NW 296 (1941), sets forth the rule that an undisclosed joint venturer is not liable to a third person when the parties to the joint venture have made an agreement which restricts the authority and liability of the undisclosed joint venturer. This rule is an exception to the usual rule of partnership law that a member of a joint venture can bind his associate, whether disclosed or undisclosed, by such. contracts as are reasonably necessary to carry on the venture. The subcontract between Fisher and Municipal provides that Municipal agrees to make payments for material, such as the payments due plaintiff. Fisher never consented to paying any such accounts, and neither Fisher nor Municipal had the authority to bind the other for such payments under the subcontract. Finally, we review plaintiffs claim against defendant Clinton County, now renewed because plaintiff’s judgment against defendant Fisher has been set aside by this decision. Plaintiff first claims that under the authority of MCL 600.1405; MSA 27A.1405, and Hub Electric Co v Aetna Casualty, unpublished memorandum opinion and order, No. 74-10048, U.S. District Court, Eastern District of Michigan, Northern Division (1976), it is a third party beneficiary of the contract between Fisher and the county and that it, therefore, has a claim as to the funds owed by the county to Fisher. The trial court correctly found that plaintiff did not have such a claim against the county. While plaintiff could be a third party beneficiary to the contract between the county and Fisher, plaintiff is asserting the claim against the wrong party. Any such claim would have to be asserted against the promisor. In this case, the county is the promisee and Fisher and the bonding agency are the promisors. Plaintiff also argues that a constructive trust or an equitable lien should be imposed upon the funds withheld from Fisher by the county. We affirm the trial court’s decision to deny this relief. As stated by the trial court, there is a statutory procedure which governs proceedings of the nature involved in this cause. See .MCL 129.201 et seq.; MSA 5.2321(1) et seq. Although equity may impose a constructive trust even where a legal remedy exists, it must be based upon a breach of a fiduciary or confidential relationship, misrepresentation, concealment, mistake, undue influence, duress or fraud. Grasman v Jelsema, 70 Mich App 745; 246 NW2d 322 (1976). None of these factors exist in this case. We have reviewed the exhaustive opinion in Warren Tool Co v Stephenson, 11 Mich App 274; 161 NW2d 133 (1968), cited by plaintiff, and do not find it applicable under the test set forth above. Reversed. Any provisions of the circuit court judgment not specifically referred to in this opinion are affirmed. No costs in view of the public question.

Bronson, P.J. This is an appeal from a judgment adverse to plaintiff in her suit for declaratory relief. On May 11, 1973, plaintiff’s deceased was the owner of a 1967 Mercury automobile which was insured by defendant Detroit Automobile Inter-Insurance Exchange (hereinafter DAIIE or defendant). On that date, James Jarrell, the deceased, was struck and fatally injured by his own car which was driven by Yvonne Belcher. A dramshop action is currently pending in the Wayne County Circuit Court naming Ms. Belcher and others as defendants. Yvonne Belcher had no insurance policy in her own name at the time of the fatal accident. It is unknown whether she was driving with or without Mr. Jarrell’s permission. On February 21, 1979, plaintiff moved for partial summary judgment. Plaintiff argued that, if Ms. Belcher was driving with permission, then Ms. Belcher was an insured driver under the liability section of the policy. Plaintiff further argued that, if Ms. Belcher was driving without permission, then Ms. Belcher was an uninsured motorist, in which case recovery could be had pursuant to the uninsured motorists’ section of the policy. DAIIE argued, however, that it would not be liable if Ms. Belcher was driving without permission. The circuit court rendered two opinions. The first held that DAIIE would be liable if Ms. Belcher had consent to drive. The second held that, if Ms. Belcher was driving without consent, DAIIE would not be liable. Leave to appeal was granted only as to the finding that DAIIE would not be liable if Ms. Belcher was driving without consent. The starting point of our analysis is the relevant provisions of the insurance policy in dispute. The uninsured motorists’ coverage portion of the policy provides: "All sums which the insured shall be legally entitled to recover as damages, including damages for care and loss of service, from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile * * *.” The policy defines "uninsured automobile” thusly: "(1) a motor vehicle with respect to the ownership, maintenance or use of which there is, with respect to Part (1), no bodily injury liability insurance policy or bond, or, with respect to Part (2), no property damage liability insurance policy or bond, applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle. * * * "(e) an uninsured automobile shall not include (1) a motor vehicle owned by the insured or any resident of the same household.” The liability protection section of the policy defines "insured” as: "(a) with respect to the owned automobile, (1) the named insured and any relative (2) any other person using such automobile, provided the actual use is with the permission of the named insured and is within the scope of such permission * * DAIIE contends that, if Belcher was driving without permission, it is not liable to pay benefits. DAIIE notes that the uninsured motorists’ coverage portion of the policy applies only to an. "uninsured automobile” and that pursuant to the policy definition of "uninsured automobile”, the deceased’s car cannot be construed as uninsured. We agree with defendant that, as the policy is written, plaintiff is not entitled to recover if Ms. Belcher was driving without permission. Despite the language of the policy, we still must consider whether, as plaintiff argues, DAIIE is impermissibly attempting to provide less uninsured motorist coverage than state statute requires. At the time of the accident, the relevant statutory provision appearing in the Insurance Code of 1956 provided: "No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in section 3009 under provisions approved by the commissioner of insurance, for the protection of persons insured there under who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, including owners or operators insured by an insolvent insurer, because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured rejects such coverage in writing as provided herein. All such policies shall contain a notice, displayed prominently on the front page of the policy, in at least 8-point type that such protection coverage was explained to him and that he can reject such coverage by notice in writing. Unless the named insured requests such coverage in writing, it need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.” 1971 PA 210, § 3010; MCL 500.3010; MSA 24.13010. While the above-quoted provision does not definé the term "uninsured motor vehicle”, the Motor Vehicle Accident Claims Act, MCL 257.1101 et seq.; MSA 9.2801 et seq., does. The Insurance Code and Motor Vehicle Accident Claims Act are in pari materia and to be construed together. See Oatis v Dairyland Ins Co, 20 Mich App 367, 372; 174 NW2d 35 (1969), and the concurring opinion of Levin, J., in Collins v Motorists Mutual Ins Co, 36 Mich App 424, 434; 194 NW2d 148 (1971), lv den 388 Mich 812 (1972). MCL 257.1102(d); MSA 9.2802(d) defines "uninsured motor vehicle”, insofar as is relevant here, as "a motor vehicle to which there is not in force a liability policy meeting the requirements” of MCL 500.3009; MSA 24.13009. We agree with plaintiff that this provision is correctly interpreted as meaning that, if the operator of a motor vehicle is not covered by a policy of insurance at the time the car is being driven and the owner’s policy is not in effect, then the automobile is an uninsured motor vehicle within the meaning of the statute. Pursuant to MCL 500.3010; MSA 24.13010, DAIIE is required to provide uninsured motorists’ coverage enabling its insureds to recover those amounts they are legally entitled to from owners or operators of an uninsured motor vehicle. The only exception to this requirement, also embodied in MCL 500.3010; MSA 24.13010, is if the insured rejects uninsured motorists’ coverage in writing. This is not the situation in the case at bar. Both this Court and the Michigan Supreme Court have held on numerous occasions that an exclusionary clause attempting to limit liability to less than that mandated by statute is void as against public policy. Inter alia: Pappas v Central National Ins Group of Omaha, 400 Mich 475; 255 NW2d 629 (1977), State Farm Mutual Automobile Ins Co v Sivey, 404 Mich 51; 272 NW2d 555 (1978), Roach v Central National Ins Co of Omaha, 60 Mich App 40; 230 NW2d 297 (1975), Allstate Ins Co v DeFrain, 81 Mich App 503; 265 NW2d 392 (1978), lv den 406 Mich 859 (1979), Detroit Automobile Inter-Ins Exchange v Irvine, 92 Mich App 371; 284 NW2d 535 (1979), lv den 407 Mich 963 (1980). Defendants seek to distinguish the above cases on the basis that they all involved attempts by the insurer to exclude from uninsured motorists’ coverage persons whom they were legally obligated to insure for liability. Here no such attempt is being made. In the case of Ruesing v Aetna Casualty & Surety Co, sub nom Bradley v Mid-Century Ins Co, 409 Mich 1, 39; 294 NW2d 141 (1980), the Michigan Supreme Court rejected the analysis defendants now advance. There, Ruesing, Jr., took his father’s car without permission and allowed a friend to drive. The friend’s negligence caused an accident in which Ruesing, Jr., was killed. The liability portion of Ruesing, Sr.’s, policy did not apply because the vehicle was being driven without his permission. While the Supreme Court also ruled that the uninsured motorist coverage did not apply in that case, it additionally stated: "Ruesing, Sr., advances two reasons why the limitation on portability is violative of the uninsured motorist amendment, notwithstanding that Ruesing, Jr., was not a liability insured: "i) Where the facts altered slightly the exclusion would lead to unacceptable results. If Ruesing, Sr.’s vehicle were stolen and he was run over by the thief, the exclusion would bar his recovery. If that were the case, we would no doubt void the exclusion since Ruesing, Sr., is a liability insured and within the intendment of the amendment. "Boettner’s [Boettner v State Farm Mutual Ins Co, 388 Mich 482; 201 NW2d 795 (1972)] conclusion that an owned vehicle exclusion is void as to 'persons insured thereunder’ does not mean that such a clause is a nullity and cannot be applied to persons not so insured. While in Pappas we said '[w]here a policy of insurance does not offer statutorily required uninsured motorist coverage, conforming language must be read into the terms of the policy’, we are not here presented with a case where statutorily required coverage is denied. If the exclusion were used to deny coverage to a liability insured — Ruesing, Sr., or one using the vehicle with his permission — we would reform the insurance policy.” Id., 40-41. (Footnotes omitted.) It is apparent from the above excerpt that plaintiff must prevail in this case. In Ruesing, plaintiff was attempting to recover uninsured motorists’ benefits for his son’s death despite the fact that his son had taken his car without permission. There fore, the son was not entitled to collect under the policy because of his nonpermissive use, and those claiming through him were also barred from recovery. Here, however, plaintiffs decedent was "a liability insured and within the intendment of the amendment”. As such, it is apparent that DAIIE is using the policy languagé to deny the required uninsured motorists’ coverage. Reversed. Costs to plaintiff. Repealed by 1972 PA 345, January 9, 1973, effective October 1, 1973.

Per Curiam. This original mandamus action concerns the impact of the rule set forth in two consolidated cases: People ex rel Oakland County Prosecuting Attorney v Bureau of Pardons and Paroles and Trudeau v Oakland Circuit Judge, 78 Mich App 111; 259 NW2d 385 (1977), generally known as the Trudeau decision. The essential issue before this Court is the reach of Trudeau. Plaintiff James David Lamb pled guilty to a supplemental information charging him as a third-felony offender, MCL 769.11 et seq.; MSA 28.1083 et seq., in Detroit Recorder’s Court. A sentence of five to ten years imprisonment was imposed. At the commencement of sentence, on April 28, 1977, the Department of Corrections gave plaintiff a "time sheet” indicating that with regular and special good-time credit, he would be eligible for parole on October 2, 1980. Thereafter, this Court handed down its decision in Trudeau, which was to be effective 60 days from the date of publication of the opinion in the Advance Sheets of Michigan Appeals Reports. Trudeau, supra, 119. Accordingly, the rule announced was effective on February 4, 1978. In complying with the Trudeau decision, defendant recomputed the minimum sentence of plaintiff Lamb as well as all persons convicted under the habitual offender statutes and incarcerated on the effective date of the Trudeau decision. Defendant notified the inmates that good-time credits were no longer to be applied to minimum sentences. Inmates who had already been granted parole prior to the effective date of Trudeau were not subject to the parole revocation procedures. That is, the only habitual offenders to whom Trudeau was not applied were those who had been paroled at the "net minimum” or prior to their calendar minimum before February 4, 1978. On February 28, 1979, plaintiff Lamb filed a complaint for writ of mandamus, seeking restoration of his good-time credit. Plaintiff Robert R. Crawford is presently serving a 6 to 14 year sentence from his nolo contendere plea to a charge of forgery, MCL 750.248; MSA 28.445, and to being a second-felony offender, MCL 769.10; MSA 28.1082. The date of the forgery offense was December 28, 1977. Plaintiff Crawford entered his plea on March 16, 1979, and was sentenced on April 18, 1979. He was credited with 220 days for time previously served. With accumulated good-time computations, plaintiff Crawford’s first parole eligibility date would, prior to Trudeau, have been July 1, 1981. However, defendant in this case notified plaintiff Crawford that, in light of the rule set forth in Trudeau, he will not earn any good time to reduce his minimum sentence and, thus, will not be eligible for parole until September 5, 1984. On October 31, 1979, plaintiff Lamb moved to amend his complaint to add Robert R. Crawford and all others similarly situated as party plaintiffs. On December 13, 1979, this Court granted the motion and appointed the State Appellate Defender Office to represent plaintiffs in the instant matter. We believe that the plaintiffs and the Department of Corrections have fundamentally misconstrued the holding of the Trudeau decision. This error has resulted in the adoption of a policy by the Department of Corrections that was unnecessary under Trudeau and has further led to doubts about the correctness of that decision. In general, the defect lies in the fact that the issue in Trudeau was not, as many have suggested, whether persons sentenced under the habitual offender statutes are entitled to receive good-time credits on their minimum sentences. Instead: "The issue is whether a prisoner sentenced under the habitual offender statute may be released on parole after the expiration of his calendar year minimum sentence less good time and special good time without the written consent of the sentencing judge or his successor. In other words, does the parole board obtain jurisdiction to exercise its unfettered discretion at net minimum expiration or at calendar year expiration?” Trudeau, supra, 114. (Footnote omitted.) The Court’s holding similarly made no mention of the denial of good-time credits: "Applying these canons to the present case leads us to the conclusion that a prisoner sentenced under the habitual offender statute may not be released on parole prior to the expiration of the calendar year minimum sentence imposed by the court without the written consent of the sentencing judge or his successor.” Trudeau, supra, 119. As will be more fully demonstrated below, this is not a distinction without a difference. At issue in Trudeau was an apparent conflict between statutory provisions governing the grant of paroles. Under the interpretation of these statutes followed by the Department of Corrections, no distinction was made between regular prisoners and those prisoners who had been sentenced as habitual offenders so far as the grant of a parole was concerned. The Court in Trudeau rejected, this interpretation and held that the statutes in question did provide for significant differences between regular prisoners and habitual offenders in the grant of paroles. Plaintiffs in the instant case begin by asserting that Trudeau was wrongly decided and urge that we reject Trudeau in favor of the Department of Corrections prior interpretation. Accordingly, it is logical to begin this analysis with an examination of the basis for the Department’s prior interpretation, and the grounds for its rejection in Trudeau. At the outset it must be stated that all prisoners, including those sentenced as habitual offenders, are entitled to good-time credits. MCL 800.33(2); MSA 28.1403(2). A prisoner then be comes eligible for parole pursuant to MCL 791.233(b); MSA 28.2303(b), which provides: "A parole shall not be granted to a prisoner until the prisoner has served the minimum term imposed by the court less allowances for good time or special good time to which the prisoner may be entitled to by statute, except that prisoners shall be eligible for parole prior to the expiration of their minimum terms of imprisonment whenever the sentencing judge or the judge’s successor in office gives written approval of the parole of the prisoner prior to the expiration of the minimum terms of imprisonment. ” (Emphasis added.) This statute has been interpreted to allow the grant of a parole at the "net minimum” sentence (calendar minimum less accumulated good time), and the grant of a "special parole” at any time prior to the net minimum if the sentencing court gives written approval. See People v Haggitt, 33 Mich App 95, 102; 189 NW2d 842 (1971), sentence vacated on other grounds, 388 Mich 773 (1972). Accordingly, as used in this particular statute, the phrase "minimum term imposed by the court” found in the first part of the statute refers to the calendar minimum sentence, while the phrase "minimum terms of imprisonment” found in the second part of the statute refers to the net minimum sentence. Special reference to the parole of habitual offenders is found in the habitual offender statutes, which provide in part: "Offenders sentenced under [the habitual offender statutes] * * * shall not be eligible for parole before the expiration of the minimum term ñxed by the sentenc ing judge at the time of sentence without the written approval of the sentencing judge or a successor.” MCL 769.12(3); MSA 28.1084(3). (Emphasis added.) Plaintiffs argue that the phrase: "before the expiration of the minimum term fixed by the sentencing judge at the time of sentence” found in the habitual offender statute must be interpreted in the same manner as the phrase: "prior to the expiration of their minimum terms of imprisonment” found in the second part of MCL 791.233(b); MSA 28.2303(b). Because the phrase "minimum terms of imprisonment” has been interpreted to mean net minimum, plaintiffs argue that the phrase "minimum term fixed by the sentencing judge at the time of sentence” should also be interpreted to mean "net minimum”. Based on this same argument the Department of Corrections, prior to Trudeau, held that the habitual offender statute requires approval of the sentencing judge only for a special parole, that is, a parole prior to the expiration of the net minimum. In support of this interpretation is the principle of legislative acquiescence. See Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513, 520; 158 NW2d 473 (1968). As plaintiffs point out, the language in question from the habitual offender statute was originally enacted at a time when habitual offenders were statutorily restricted in their eligibility for good time. To the extent that no good time could be accumulated by a habitual offender, the language requiring the approval of the sentencing judge of necessity involved only "special” paroles because there was no net mini mum. The limitations on the good time allowed habitual offenders were later removed, and, as noted above, the Department of Corrections interpreted that move as allowing the parole of habitual offenders at the net minimum in the same manner as other prisoners; without the approval of the sentencing judge. The language remaining in the habitual offender statute requiring approval before calendar minimum was interpreted to still refer to "special” parole situations. Plaintiffs now argue that, because the habitual offender statute has been amended several times since the adoption of this interpretation by the Department of Corrections and because no change was made in the material language, the Legislature must be presumed to have acquiesced in the department’s interpretation. Several arguments may also be advanced against the department’s interpretation and against the applicability of the legislative acquiescence principle. While good time for habitual offenders was restricted at the time of the enactment of the habitual offender statutes, it was not totally denied second offenders. Accordingly, at least as to second offenders, the requirement of the sentencing judge’s approval must have applied in situations other than "special” parole. Because of the indirect nature of the support it provides, the legislative acquiescence principle, even when applicable, is not alone controlling. Magreta, supra, 520. In light of this fact, and in light of the clear language of the statute, we believe the Court in Trudeau was correct in rejecting the department’s interpretation. Although the language in the second part of MCL 791.233(b); MSA 28.2303(b) might be considered ambiguous when examined in isolation, comparison with the language in the first part of that section, as well as the language in MCL 791.234(1); MSA 28.2304(1) granting jurisdiction to the parole board at the expiration of the net minimum, goes far in resolving any possible ambiguity. No such ambiguity exists in the language of the habitual offender statute. We are not left to resolve the issue of whether "minimum terms of imprisonment” means the calendar minimum or the net minimum as was true of MCL 791.233(b); MSA 28.2303(b). Instead, we are told in no uncertain terms that the "minimum term” referred to is that "fixed by the sentencing judge at the time of sentence”. To the extent that any comparison with MCL 701.233(b); MSA 28.2303(b) is germane in interpreting the language used in the habitual offender statutes, it is much more helpful to look to the first part of the statute rather than the second, as plaintiffs suggest. Since the phrase "minimum term imposed by the court” is much closer to the language used in the habitual offender statutes, and since that phrase clearly refers to calendar minimum, it is more reasonable to conclude that the language used in the habitual offender statutes also refers to the calendar minimum sentence. The concept of approval by the sentencing judge before parole may be granted prior to the calendar minimum is not foreign to the system. Such approval is also specifically required before the parole of most prisoners serving a life sentence: "A parole shall not be granted a convict so sentenced and so imprisoned until after a public hearing held in the manner prescribed for pardons and commutations in sections 44(c) to (e) and 45. Notice of the public hearing shall be given to the sentencing judge, or his successor in office, and parole shall not be granted if the sentencing judge, or his successor in office, ffies written objections to the granting of the parole, which written objections shall be made part of the hearing.” MCL 791.234(4); MSA 28.2304(4). (Emphasis added.) It should be clear that the issue in Trudeau, which is reexamined here, is only whether the approval of the sentencing judge is needed before a habitual offender is paroled at any point prior to the calendar minimum sentence. For this reason, plaintiffs’ arguments concerning the denial of good-time credits are misplaced insofar as they relate to the Trudeau decision itself. While the history and language of the good-time statutes require that a defendant sentenced as a habitual offender receive good-time credits on his or her sentence, Trudeau did not hold that such credits must be denied. To this extent the Department of Corrections had misconstrued Trudeau. Under the good-time statutes, a defendant sentenced as a habitual offender should continue to receive good-time credits on his or her sentence. At the expiration of the net minimum sentence a habitual offender would come under the jurisdiction of the parole board, MCL 791.234(1); MSA 28.2304(1), which could then consider parole. In its discretion the parole board could decide to grant parole, subject to the approval of the sentencing judge. While "[t]he action of the parole board in releasing prisoners shall not be reviewable if in compliance with law”, MCL 791.234(5); MSA 28.2304(5), failure to obtain such approval before paroling a habitual offender would not be in compliance with the law. Summarizing to this point, we hold that those sentenced as habitual offenders are entitled to good-time credits pursuant to the statute and that the Department of Corrections has erroneously interpreted Trudeau in denying such credits. We further hold that Trudeau, properly understood, was correctly decided and that a defendant sentenced as a habitual offender may not be paroled prior to the calendar minimum sentence without the approval of the sentencing judge. All parties agree that the interests of justice call for this Court, in the exercise of its discretion, to in some manner limit the application of Trudeau as it concerns those defendants alredy involved in the criminal justice process when Trudeau was decided. The question that remains is what sort of limitation on the Trudeau decision is appropriate. At oral argument, plaintiffs and defendant both suggested that the date of the offense for which the defendant is subsequently sentenced as a habitual offender should be used to distinguish between those to whom Trudeau applies and those to whom it does not. We agree. The Trudeau decision, while correct, was certainly unanticipated and required a substantial departure from prior practice (even as properly construed). The Supreme Court was recently faced with a similar question in State Appellate Defender v Director of Elections, 405 Mich 815 (1979). At issue in that case, inter alia, was the extent to which the initiative law (Proposal B), prohibiting parole before the calendar minimum for certain offenses, applied to defendants involved in the criminal justice process prior to the effective date of the new law. The Court held that the new law applied "exclusively to persons who have committed the certain enumerated offenses on or after its effective date”. Id. The instant case requires the same treatment. We, therefore, hold that the change announced in Trudeau should apply only to those who committed the offenses for which they are subsequently sentenced as habitual offenders on or after February 4, 1978, the effective date of Trudeau. Although Trudeau did not theoretically work a change in the law, it upset established practice so that, practically speaking, a change did take place. Cf., Weaver v Graham, — US —; 101 S Ct 960; 67 L Ed 2d 17 (1981) To reiterate, Trudeau did not require that good time be denied those sentenced as habitual offenders. It merely held that the law placed an additional condition on the parole of habitual offenders prior to the calendar minimum sentence. Thus, all defendants sentenced as habitual offenders are entitled to good time. Those defendants who committed the crimes for which they were sentenced as habitual offenders prior to February 4, 1978, may be paroled at their net minimum sentence without the approval of the sentencing judge. A defendant who commits such a crime On or after February 4, 1978, should be subject to Trudeaii and should not be paroled prior to the calendar minimum sentence without the approval of the sentencing judge. Plaintiffs Lamb and Crawford and all others similarly situated are eligible for parole at their net minimum sentences without the approval of their sentencing judges, as in each case their offenses were committed prior to the effective date of Trudeau. Mandamus granted. MCL 769.10 et seq.; MSA 28.1082 et seq. This Court’s order granting plaintiffs’ motion for order to show cause directed the parties to address three specific issues. Because these issues were requested to be addressed "inter alia", plaintiffs’ arguments requesting us to rule contra to Trudeau are properly before the Court. MCL 791.234(1); MSA 28.2304(1) provides that a prisoner is subject to the jurisdiction of the parole board at the expiration of the net minimum sentence. The current version of the statute, quoted here, contains some minor changes made after the decision in Trudeau. See 1978 PA 77 (effective September 1, 1978). The changes are not material to any of the issues discussed in Trudeau. For the same reasons, we do not believe that the result reached in Trudeau was tainted by a failure to accord sufficient weight to the interpretation of the Department of Corrections. While long-standing interpretations of administrative agencies are to be given considerable weight, see Magreta, supra, they are not conclusive. While the Court in Trudeau may not have been entirely correct in proclaiming the practice is not precedent, it is true that incorrect practice, just as incorrect precedent, should be discarded. The passage of "Proposal B”, MCL 791.233b; MSA 28.2303(3), will affect the parole eligibility of those serving life sentences for crimes committed on or after its effective date. State Appellate Defender v Director of Elections, 405 Mich 815 (1979). In light of this limitation on the Trudeau decision, it is unnecessary to consider plaintiffs’ constitutional challenges to its application.

Bashara, J. Defendant appeals his jury conviction of three counts of first-degree murder, MCL 750.316; MSA 28.548. Initially, defendant asserts that his confession, in which he admitted killing the victims because "they were stealing his job”, was not voluntary. The trial court ruled the confession was voluntary and admissible into evidence following a Walker hearing._ In reviewing the findings of a Walker hearing, this Court is required to examine the whole record and make an independent determination of the ultimate issue of the voluntariness of defendant’s statement. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972). Reversal is required only where a definite and firm belief exists that a mistake has been committed. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974). The record reveals that defendant was arraigned on March 23, 1979, a Friday. At the arraignment, the magistrate advised the defendant that he would appoint an attorney for him. The judge strongly recommended that defendant say nothing until consulting with counsel. Defendant entered a plea of not guilty. Apparently, the form requesting appointed counsel was completed by defendant either at that time or later that day. On Monday, March 26, 1979, defendant confessed to the murders without the assistance of counsel. The contents of the conversation precipitating the confession were in dispute at the Walker hearing. Defendant claimed that he told the officers he wished to' see an attorney. He felt that he had to confess even though counsel was not present. On cross-examination, defendant admitted that he had been advised of his rights on numerous occasions and that he understood them. He had been convicted of past felonies in which he had both retained and appointed counsel. The officers testified that defendant was given his Miranda warnings before the interrogation. A waiver form, signed by defendant, was submitted into evidence. One officer testified, in pertinent part, as follows:_ "A. Mr. Bladel at that time stated that he had requested an attorney at his arraignment, but he hadn’t seen him, seen the attorney yet, but he would talk to us, and he said he would talk to us, and he said he didn’t need his attorney there while he was talking to us. ”Q. Was there any mention of an attorney at that time? 'A. I asked him if he desired his attorney present and he stated he did not need one. "Q. What, if anything, further took place then? "A. In addition to the last statement that Mr. Bladel said, when I asked him if he needed his attorney present he stated, 'I don’t need him present. I am going to plead guilty anyway.’ ” Defendant attacks the confession as being taken without the benefit of counsel. Miranda, 384 US 436, 474. First, defendant contends that he asked for an attorney during the interrogation, but was refused by the police officers. He explains the signature on the waiver form as being the result of confusion. A review of the record, including the conduct and background of the defendant, leads us to conclude no reversible error has occurred. We agree with the trial court’s obvious conclusion that the police officer’s testimony, coupled with the signed waiver form, is more believable than defendant’s rendition of the facts. Alternatively, defendant asserts that, once an attorney has been requested, interrogation can never occur before he has had the opportunity to confer with counsel. Defendant relies primarily upon New York State cases which impose a per se involuntariness rule in these situations. Cf., People v Arthur, 22 NY2d 325; 239 NE2d 537 (1968), and People v Cunningham, 49 NY2d 203; 400 NE2d 360; 424 NYS2d 421; 26 Cr L 2418 (1980). While no case addressing this issue with a three-day time span between the request and the confession can be found in Michigan case law, there is authority which rejects the so-called per se rule in analogous situations. In People v Parker, 84 Mich App 447; 269 NW2d 635 (1978), the Court interpreted Michigan v Mosley, 423 US 96; 96 S Ct 321; 46 L Ed 2d 313 (1975), as rejecting a blanket prohibition of interrogation once an attorney has been requested. The Court stated: "We hold that a person who has invoked his right to counsel may later waive that right without an attorney.” Id., 453. The Court proceeded to caution the bar that a waiver made after assertion of the right to counsel will be viewed with skepticism. It was held that the 1/2 to 1-1/2 hour lapse between the request and waiver was insufficient to allow the defendant to seek the aid of counsel. Consequently, the Court ruled that the prosecutor had failed to meet his burden. Also see People v Lytal, 96 Mich App 140; 292 NW2d 498 (1980), lv den 409 Mich 884 (1980). Further authority against adoption of the per se rule can be found in Blasingame v Estelle, 604 F2d 893 (CA 5, 1979), where the defendant also requested an attorney at arraignment. Several hours later, he signed a waiver of his Miranda rights and confessed to the police. Having failed in his challenge to the confession in Texas courts, he sought a writ of habeas corpus in the federal system. The Circuit Court of Appeals affirmed the district court’s denial of the writ and rejected defendant’s suggestion that the waiver was per se invalid. The Court stated: "In evaluating this argument, the crucial inquiry is whether defendant asserted his right to counsel in such a manner that later police inquiry 'has impinged on the exercise of the suspect’s continuing option to cut off the interview.’ Nash v Estelle, 597 F2d 513, 518 [CA 5, 1979] (en banc). In Nash, this Court declared that when the suspect expressed his desire to continue the interview without the presence of counsel, along with his desire to have an attorney appointed, the questioning official could make further inquiry to clarify the suspect’s indecisive expression. See Thompson v Wainwright, 601 F2d 768 [CA 5, 1979] (further inquiry may not be an attempt to dissuade suspect from exercising right to counsel). 'Nash recognizes that some defendants may well wish to have an attorney to represent them in legal proceedings, yet wish to assist the investigation by talking to an investigating officer without an attorney present, 'while the suspect has an absolute right to terminate station-house interrogation, he also has the prerogative to then and there answer questions, if that be his choice.’ Nash, 597 F2d at 517. To hold that a request for appointment of an attorney at arraignment would bar an investigating officer from later finding out if defendant wishes to exercise this prerogative would transform the Miranda safeguards, among which is the right to obtain appointed counsel, 'into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.’ Michigan v Mosley, 423 US 96, 102; 96 S Ct 321, 326; 46 L Ed 2d 313 (1975). "Therefore, we hold that the request for an attorney at arraignment does not prevent subsequent station-house interrogation where the request at arraignment is not made in such a way as to effectively exercise the right to preclude any subsequent interrogation.” Id., 895-896. Noting that defendant’s signature on the waiver form is "usually strong proof’ of the voluntariness of the waiver, North Carolina v Butler, 441 US 369; 99 S Ct 1755, 1757; 60 L Ed 2d 286 (1979), the Supreme Court held that the circumstances in that case indicated the waiver was voluntary. Thus, the question of knowledgeable waiver af ter the right to counsel has once been asserted requires review of the individual circumstances. We agree with People v Parker, supra, that the subsequent waiver should be viewed with suspicion. The prosecutor carries a heavy burden in proving that the defendant made a knowledgeable and voluntary waiver. Defendant claims that the police action in obtaining the confession was unethical. Although there is some merit to this contention, standing alone, it is not cause for invocation of the exclusionary rule. People v Green, 405 Mich 273; 274 NW2d 448 (1979). We find that the prosecutor has met the burden in this case. The magistrate clearly warned the defendant not to talk to the police until he had met with counsel. Defendant was experienced in these matters and has demonstrated an understanding of his rights. Defendant signed the waiver form. The trial court found, and we have earlier agreed, that defendant did not reassert the right at the interrogation. On these facts, we find that the waiver was valid. Defendant contends that the four-day "delay” between his arraignment and the first meeting with counsel tainted the confession. The fact that one and one half work days passed before defendant met with counsel does not convince us that a delay occurred. Furthermore, there is no proof that defendant was kept from seeing an attorney in an attempt to extract a confession. Consequently, we find this argument without merit. United States v Pheaster, 544 F2d 353, 358 (CA 9, 1976). Defendant’s remaining allegation of error was not preserved at trial, precluding review absent manifest injustice. People v Flood, 25 Mich App 518, 520; 181 NW2d 608 (1970). We find no such injustice on the record. Affirmed. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

Per Curiam. On January 23, 1979, defendant was convicted by a jury of assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to consecutive terms of five to ten years on the assault conviction and two years on the felony-firearm conviction and appeals as of right. Defendant initially attacks the constitutionality of the statutory procedure whereby a nonattorney magistrate made a finding of probable cause and issued a warrant for defendant’s arrest. MCL 600.8507; MSA 27A.8507. Defendant contends that this procedure not only deprived him of due process of law, but violated Const 1963, art 6, § 19, by allowing a person not licensed to practice law to perform a judicial function. The result, according to defendant, was that the court lacked jurisdiction ab initio to try defendant for the offenses charged. In support of his argument, defendant cites People v Colleton, 59 Mich 573; 26 NW 771 (1886). In that case, not only was the arrest warrant issued by the clerk of the police court, but the trial and conviction were had before the clerk as well. Faced with those facts, the Michigan Supreme Court held: "We think the position taken by defendant’s counsel is correct upon both grounds: Section 1, Art 6, Const; Pub Acts 1885, p 125, §5; How Stat §§2280, 7093; People v Lynch, 29 Mich 27[4] [1874]; Morton v Crane, 39 Mich [526] 530 [1878], "The prosecution of the defendant, for the offense charged, could only be had in some court of competent jurisdiction, the existence of which is authorized by the Constitution, and the taking of the complaint, and the examination of witnesses, and the determination therefrom whether or not the offense has been committed, preliminary to issuing the warrant, involve judicial action, which can only be taken by a court, and which cannot be performed by a clerk; neither can the power to perform it be conferred upon that officer. "The verdict in the case must be set aside, and the proceedings dismissed, and the defendant discharged.” People v Colleton, supra, 575-576. In the case at bar, defendant attacks only the authority of the magistrate to make a determina tion of probable cause and issue a warrant for defendant’s arrest. Such a claim is not considered timely unless asserted prior to the swearing of the jury. People v Curran, 191 Mich 583; 158 NW 212 (1916), People v Vurrill, 391 Mich 124; 214 NW2d 823 (1974). Although defendant attempts to avoid this defect by ingeniously arguing that the court lacked jurisdiction ab initio, Curran, supra, 588-589, is authority for the proposition that jurisdiction is obtained by the appearance of a defendant before a proper tribunal at trial: "We do not deem it necessary to pass upon the question whether such recital may or may not be contradicted. We think that the question of the jurisdiction of the examining magistrate was not a proper issue upon the trial of the case upon its merits. After the arraignment of the defendant, the entry of the plea of not guilty, and the impaneling and swearing of the jury, it was too late to raise a question of the jurisdiction of the justice. The issue before the jury was the guilt or innoncence of the defendant. The impropriety of going into such a collateral question as the jurisdiction of the justice is clearly shown by the examination of the justice himself, who, at the most, is uncertain as to whether he swore the man Aldrich himself, or whether the clerk swore him. The jurisdiction of the circuit court, obtained in the manner above stated, could not be destroyed because the complaining witness testified that he did not have personal knowledge of all the facts stated in the complaint. To permit this would be to allow oral testimony taken, as in this case, long after the complaint was made, to oust the court of jurisdiction given in the manner provided by the statute. We are therefore clearly of the opinion that this motion, even if there were any merit in it, ought to have been made before the jury were sworn. This entire subject-matter was outside the merits of the case. After the jury had been sworn and the trial of the issue as to the guüt of the defendant had been begun, it was too late to raise the objection as to the proceedings before the justice. This has been so often ruled by this court that it hardly seems necessary to cite cases. The real merit of the matter is, that all preliminary questions about the jurisdiction of the justice should have been settled before the jury were sworn. It was not a matter which went to the merits of the trial. People v Schottey, 66 Mich 708 (33 NW 810) [1887]; People v Haas, 79 Mich 449 (44 NW 928) [1890]; People v Payment, 109 Mich 553 (67 NW 689) [1896].” Similarly, we reject defendant’s argument that the use of magistrates to determine probable cause and issue arrest warrants violates the Fourth Amendment to the United State Constitution. In Shadwick v City of Tampa, 407 US 345; 92 S Ct 2119; 32 L Ed 2d 783 (1972), the Court refused to invalidate an arrest warrant issued by a municipal court clerk where there was no showing that the clerk lacked neutrality or the ability to deduce probable cause to believe the offense had been committed based on the facts before him. Though Shadwick concerned the offense of impaired driving, we do not find that defendant has shown that magistrates are unable to make a knowing determination of probable cause for the offenses charged herein. Further, Shadwick and its progeny suggest that the remedy for such a defect is to quash the warrant and suppress any evidence obtained as a result of issuance of the warrant. As defendant does not argue that any evidence was illegally obtained due to the arrest warrant, he is not entitled to relief. Next, defendant argues that the trial court erred in refusing to suppress evidence of a .22-caliber revolver found by police under the front seat of a car in which defendant had been a passenger. Defendant asserts neither a property nor a possessory interest in the automobile nor in the gun seized. The mere fact that defendant was in a car with the owner’s permission immediately prior to the search did not endow him with a reasonable expectation of privacy in the area searched. Defendant, thus, lacks standing to attack the search and seizure. Rakas v Illinois, 439 US 128, 148-149; 99 S Ct 421; 58 L Ed 2d 387 (1978). In Rakas, where the factual scenario paralleled that of the case at bar, the United States Supreme Court rejected the defendants’ argument that their legitimate presence "on the premises” vested them with standing to attack the search. "But here petitioners’ claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy. Supra, at 142.” Id. Defendant also argues that admission of the pistol into evidence was erroneous because a sufficient connection between the crimes charged and the weapon was not established. The thrust of defendant’s position is that the evidence should have been excluded as irrelevant, MRE 401, as more unfairly prejudicial than probative, MRE 403, and as tending to show an unrelated crime or wrongful act, MRE 404(b). At the hearing on defendant’s motion to suppress the gun as evidence Sergeant David Clark of the Kalamazoo Township Police testified that the gun was found five days after the assault in a vehicle which had been occupied by defendant and five other individuals. Prior to the search of the vehicle a rifle had been discovered after it apparently fell out of the front window of the car; additionally, in a Terry patdown search, the officers found several .22-caliber bullets on defendant’s person and a clip for a rifle on the person of another occupant. Because the officers concluded that the clip could not be used with the rifle which had been found, they searched the car for other weapons. The .22-caliber pistol was found under the front seat on the right (passenger) side of the vehicle. The testimony indicated that the area was inaccessible from the front seat due to blockage by a power unit used to adjust the seat. Sergeant Clark testified that the gun was positioned about one foot under the front seat (measured from the back seat), pointing toward the dashboard with its handle toward the right rear door. The testimony also indicated that the rounds of ammunition on defendant’s person would fit the gun. Sergeant Clark stated that when the vehicle was stopped, defendant, one of three persons in the back seat, had been closest to the right side and that the gun was most accessible to him. Neither the car nor the gun was identified by both persons whom defendant was charged with assaulting. We find that the testimony of both complainants that they had seen the gun used in the assault from only several feet away and that it had a very similar appearance to the gun introduced into evidence was sufficient to overcome any objection on the basis of lack of relevance. MRE 401. Whether the gun was actually the weapon used in the assault was a question of weight for the jury. Moreover, as the people argue, "it is a well-established rule that where weapons or tools were used to commit a crime, weapons or tools that might have been used to commit the crime found in the accused’s possession at the time of arrest may be introduced without proof that they were the very weapons or tools in fact so used”. (Footnote omitted.) People v Hall, 19 Mich App 95, 98; 172 NW2d 473 (1969). Evidence that the gun was found in an area of the vehicle most accessible to defendant, although not conclusive, allowed the jury to draw the reasonable inference that the gun had been in defendant’s possession. Under these circumstances, we decline to interfere with the discretion of the trial judge. See People v Triplett, 68 Mich App 531, 536-537; 243 NW2d 665 (1976), rev’d on other grounds 407 Mich 510; 287 NW2d 165 (1980), People v Howard, 391 Mich 597, 603; 218 NW2d 20 (1974). Subsequent to his trial and conviction defendant learned that one of the members of the jury was, at the time of trial, endorsed as a res gestae witness and later testified in an unrelated murder trial where the victim’s death was caused by gunshots. Defendant’s trial counsel has since filed an affidavit averring that had he been apprised of the juror’s status as a witness at voir dire he would have exercised a peremptory challenge. Recently, in Hoffman v Monroe Public Schools, 96 Mich App 256; 292 NW2d 542 (1980), one panel of this Court considered the question of whether an affidavit of a juror or a third party should be allowed to impeach the verdict of the jury. We agree with the panel’s choice in favor of the "Iowa rule” which can be summarized as follows: "Under this standard, affidavits are inadmissible to dispute matters which inhere in the verdict, such as juror thought processes and interjuror inducements, but are admissible if they pertain to outside or extraneous influences”. Hoffman, supra, 259, citing Mattox v United States, 146 US 140, 148-149; 13 S Ct 50; 36 L Ed 917 (1892), Mueller, Juror’s Impeachment of Verdicts and Indictments in Federal Court Under Rule 606(b), 57 Neb L Rev 920 (1978). Applying the Iowa rule, an attack on the impartiality of a juror by showing that he was a prosecution witness in a similar criminal case at the time of trial consists of revealing an undisclosed extraneous influence rather than attempting to interfere with the mental processes of the jury. Whether such a relationship requires reversal and a new trial does not depend on the juror’s possible intentional as opposed to his inadvertent nondisclosure. Rather, as stated by the Court in People v Graham, 84 Mich App 663, 668; 270 NW2d 673 (1978), "The party moving for a new trial must present proof of actual prejudice or must establish to the satisfaction of the trial court that the moving party would have successfully challenged for cause or otherwise dismissed the juror in question had the truth been revealed prior to trial. Citizens Commercial & Savings Bank v Engberg, 15 Mich App 438; 166 NW2d 661 (1968), Gustafson v Morrison, 57 Mich App 655; 226 NW2d 681 (1975).” In Graham, the Court found that actual prejudice had been established because the juror had filed an affidavit admitting his acquaintance with a prosecution witness and resulting bias in favor of the prosecution. In People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948), where the defendant had been charged with raping his 13-year-old stepdaughter, the failure of two jurors to reveal their blood relationship to one who had been convicted of a similar crime was held to require reversal. The Court intimated that the normal person would be revolted by the thought of a father raping his child and that the aforesaid relationship of the two jurors "deprived them of the capacity to act impartially”. DeHaven, supra, 334. In People v Hannum, 362 Mich 660, 666-667; 107 NW2d 894 (1961), a juror’s nondisclosure of his position as township police officer and special deputy sheriff of the county was also held to require reversal. Citing the DeHaven case, the Hannum Court asked: "Would any experienced trial lawyer, or, for that matter, the public generally, feel differently as to the capacity of a local police officer to set as a juror and consider impartially the case of a defendant charged with a crime committed in the community? We think not. That the lack of disclosure of the pertinent fact can be attributed to failure to expressly ask the prospective juror about it can hardly be thought to have insured an impartial trial any more so than in DeHaven, merely because there the panel members denied such disqualification”. Id. Certainly, if a juror’s acquaintance with a witness or relationship to a defendant in a similar crime could deprive him of his ability to act impartially so could his status as a witness in a similar crime. However, since it is unclear whether the juror in question was aware at the time of trial that he would be called as a witness in the other case, we feel that the proper procedure is to remand this matter for an evidentiary hearing in the trial court. At that hearing, the trial judge should determine whether (1) the juror’s status as a witness deprived him of his ability to act impartially in the case at bar; (2) defendant could have successfully challenged the juror for cause; or (3) defendant would have "otherwise” dismissed the juror by exercising a peremptory challenge had the truth been revealed. See Graham, supra. Defendant argues that the prosecutor’s injection of evidence of marijuana use by defendant and defense witnesses requires reversal. The prosecutor’s argument that defense counsel actually introduced the issue of marijuana use is not borne out by the record. In fact, on cross-examination of Rufus Jackson, the first defense witness to testify, the prosecutor asked whether defendant ever smoked marijuana. Because the witness responded in the negative and because the court admonished the prosecution that the question was improper, the line of questioning was dropped as to Rufus Jackson. On cross-examination of Sherman Jackson, the prosecutor elicited that the witness, defendant, and Terry Traylor had together smoked two marijuana cigarets on the afternoon prior to the assault which occurred between 1 and 2 a.m. The witness also testified that he and defendant had each consumed approximately one quart of beer on the evening preceding the assault. Defense counsel objected, and following a discussion off the record, the court stated: "Again, I tell the jury: the fact that they may have used marijuana has nothing to do with the guilt or innocence of the Defendant. You have a right to take it into consideration, just as you have a right to take into consideration whether somebody was drinking, only as it might affect their ability to observe or remember. Other than that, it’s not to be used”. Following this testimony, defendant testified on direct examination that he "did smoke a joint” with Sherman Jackson and Terry Traylor that day and had consumed some beer, but that he was not drunk. The prosecutor’s questioning of defendant’s alibi witnesses and defendant regarding marijuana and alcohol consumption on the the evening of the assault was relevant to impeach their credibility by attacking their memory and perception of the criminal episode. MRE 607. The trial judge properly controlled the evidence by limiting the questioning to the afternoon and night preceding the crime, apparently concluding that its relevance outweighed its prejudicial effect, and in cautioning the jury to consider it only in weighing credibility. Moreover, due to the fact that assault and felony-firearm were charged, we do not believe that there was a reasonable likelihood that defendant was convicted because of his knowledge or association with drugs. Contrast People v McKinney, 410 Mich 413; 301 NW2d 824 (1981). Defendant concedes that his final contention, that his convictions of both felony-firearm and assault for only one assault violate the Double Jeopardy Clause, has been resolved to the contrary. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). Remanded for proceedings in accordance with this opinion. We retain jurisdiction. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

Per Curiam. Defendant appeals from a judgment of divorce entered on October 15, 1979, following trial on July 27, 1979. The parties were married on August 22, 1970. Two children were born: Brett, born June 30, 1972, and Renee, born October 20, 1974. The family resided in St. Clair County until the fall of 1976, when they moved to Cheboygan, Michigan, where defendant began the practice of architecture. In the summer of 1978, marital problems developed, and the couple separated. Plaintiff took the children and returned to St. Clair County. On June 30, 1978, she filed a complaint for divorce in St. Clair County Circuit Court. Defendant also filed one in Cheboygan County Circuit Court, but the jurisdictional problem was eventually resolved in favor of St. Clair County. On December 28, 1978, the friend of the court’s report was filed, recommending custody in plaintiff and child support of $90 per week. On January 8, 1979, defendant filed objections to the report. Defendant also filed a countercomplaint for divorce and a request for custody of the two children. After trial, the court, in a written opinion and judgment, granted the divorce and gave custody of the two children to plaintiff. Defendant appeals from the judgment. Defendant claims that the judge’s opinion was against the great weight of the evidence and that the trial court erroneously refused to appoint a behavioral scientist to assist in making the child custody determination and improperly considered a report prepared by the friend of the court. The trial judge, in a carefully written opinion, reviewed the entire proceedings, including his interviews with both children, and made findings of fact in accordance with the Child Custody Act. Defendant had sought joint custody, but the court determined that it "would not be in the best interest of the children”. It should be noted that the award of custody in the case at bar antedated the recent joint custody amendment to the Child Custody Act of 1970, MCL 722.26a; MSA 25.312(6a). The court granted defendant visitation rights for four weeks during the summer vacation, monthly weekend visits from Friday to Sunday, alternate Thanksgiving weekends (four days), and equal time during spring and Christmas breaks. This Court reviews divorce matters de novo upon the record; however, where, as here, the trial judge saw the witnesses and heard the testimony, we give great weight to his findings of fact. Bowler v Bowler, 351 Mich 398, 403-404; 88 NW2d 505 (1958), McCarthy v McCarthy, 74 Mich App 105, 108-109; 253 NW2d 672 (1977). Moreover, a cus tody award must be affirmed on appeal "unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue”. MCL 722.28; MSA 25.312(8). The trial court’s findings of fact and conclusions of law are supported by the evidence in the case. Two weeks before the trial date defendant filed a motion requesting that a behavioral scientist be appointed to submit a report to the court to assist in determining the best interests of the children. The motion was heard on the day set for trial, and the court in its discretion denied the motion. Defendant concedes that the appointment of such a person is within the discretion of the court, and this Court finds no error in the denial of the motion. This Court is further of the opinion that the consideration by the trial judge of a supplemental report by the friend of the court was not error in this case, even though the parties did not agree to its admission into evidence. "Such a report is authorized by statute for the consideration of the circuit judge.” Krachun v Krachun, 355 Mich 167, 169; 93 NW2d 885 (1959), MCL 552.253; MSA 25.173. "The trial judge may consider the report in reaching his decision, but the report is inadmissible as evidence unless all of the parties agree otherwise.” McCarthy, supra, 109. The trial judge remains "in duty bound to exercise his own judgment on properly received evidence”. Brugel v Hildebrant, 332 Mich 475, 484; 52 NW2d 190 (1952). We hold that the trial judge in the case at bar fulfilled his duty. Defendant’s remaining allegations of error are unpersuasive. Affirmed. Costs to plaintiff.

J. H. Piercey, J. On December 7, 1978, defen dant was convicted by a jury of felony murder, MCL 750.316; MSA 28.548. The victim, Mitchell Lechtanski, was killed during a burglary of his home. Although there apparently were no eyewitnesses, the prosecution presented other evidence linking defendant directly to the crime. Defendant had told an investigating officer that he did not know the victim and had never been to his house, yet defendant’s fingerprints were found at the scene of the crime. An analysis of defendant’s blood revealed properties which corresponded positively to those of bloodstains found at the scene. One of defendant’s friends testified that, on the day before the crime was committed, defendant told him that he planned to perpetrate a robbery on the north side of town. The witness further testified that on the same day that the offense was committed defendant told him that he had killed Lechtanski. Defendant argues that the trial court committed reversible error when it admitted expert testimony concerning the comparison, by use of the technique of electrophoresis, of bloodstains found at the scene of the crime to a sample of defendant’s blood. Defendant contends that the prosecutor’s expert was not disinterested and impartial and that he failed to establish at trial that the technique he used had gained general acceptance in the scientific community. Mark Stolorow, a forensic serologist working for the Michigan State Police, was the only expert witness to testify regarding the blood analysis performed by the use of electrophoresis. Stolorow testified that he had a master’s degree in forensic chemistry, that he taught criminalistics at a college, and that he had been active in the research and development of electrophoresis as a technique for comparing blood samples. Stolorow testified that electrophoresis is a method used for the biochemical analysis of enzymes and proteins in blood. A blood sample is placed into a gel and an electrical charge is applied. The electrical charge causes the enzymes and proteins to move into a pattern. A type of photograph is taken then. Information about the blood factors that the blood contains can be derived according to the patterns that form. The blood sample can then be classified into a particular population grouping according to the particular factors found therein. Stolorow testified that he had directed a research project involving 1,000 persons in the Detroit area for the purpose of determining the frequency that certain blood factors would be found in the general population. The results were checked internally for their statistical significance and were also compared to figures that had been established in other parts of the United States and around the world. Stolorow testified that the technique of electrophoresis is simple and dates back many years in the field of biology. He further testified that only recently had the technique been adapted for use with very small samples of bloodstains, but that the techniques developed were, at the time of trial, employed routinely in case work. Stolorow stated that he had testified regarding the results of electrophoresis analysis in circuit courts in six Michigan counties and in Detroit Recorder’s Court over the past several years. He further stated that electrophoresis is used in Red Cross clinics, in hospitals, at universities, in medical schools, and wherever studies in genetics are performed, as well as in crime laboratories, and that he personally knew of half a dozen people in Michigan, not associated with crime laboratories, who performed electrophoresis analysis on a routine basis. Regarding the specific testing he performed in the present case, Stolorow testified that the blood factors that he was able to detect in a bloodstain found on the sidewalk outside the victim’s home occurred in only 1.3 percent of the population and that the blood factors detected in a bloodstain found on the victim’s porch occurred in only 1/2 of 1 percent of the general population. He further testified that the blood factors detected in the above bloodstains were also found to be present in the blood sample taken from defendant. The initial question that must be addressed is what is the proper test to be applied in determining the admissibility of the scientific evidence presented here. In People v Barbara, 400 Mich 352, 357; 255 NW2d 171 (1977), the Michigan Supreme Court discussed the standard for admitting polygraph results, stating: "The Michigan test presently applied to determine the admissibility of polygraph testimony is that which we enunciated in People v Becker, 300 Mich 562, 566; 2 NW2d 503 (1942), and repeated with approval in People v Davis, 343 Mich 348, 370; 72 NW2d 269 (1955), that there be: " 'testimony offered which would indicate that there is at this time a general scientiñc recognition of such [polygraph] tests. Until it is established that reasonable certainty follows from such tests, it would be error to admit in evidence the result thereof.’ ” (Emphasis added.) The Barbara Court further indicated, in accordance with Frye v United States, 54 US App DC 46; 293 F 1013 (1923), that the scientific technique used must be accepted in the particular field in which it belongs and that such acceptance can be established only by testimony of disinterested and impartial experts in the field. The Barbara Court did not state that the Davis/ Frye standard was applicable in determining the admissibility of scientific evidence other than polygraph results. In the subsequent case of People v Tobey, 401 Mich 141; 257 NW2d 537 (1977), the Supreme Court applied the Davis/Frye test in determining the admissibility of voiceprint comparison evidence. Nonetheless, both Tobey and Barbara involved scientific devices the accuracy of which was hotly disputed. Thus, we do not view the Tobey case as extending the Davis/Frye rule to apply to all cases in which scientific evidence is sought to be admitted. The applicability of the Davis/Frye test to the admission of scientific evidence other than polygraph results has been criticized in McCormick, Evidence (2d ed), §203, p 491, as being too strict and preventing the admission of probative evidence which the jury should be given the opportunity to weigh in light of any opposing testimony. The Barbara Court recognized this criticism at 379-380, and seemed to recognize that the strict Davis/Frye rule did not apply to scientific evidence in general. Barbara, supra, 380, 383, 404. Although the Barbara Court stated that it had applied the Davis/Frye rule in the past to the admission of scientific testimony where the jury was asked to determine the accuracy of scientific devices "in the face of a difference of scientific opinion as to their accuracy”, see People v Morse, 325 Mich 270, 274; 38 NW2d 322 (1949), it also indicated that it had not applied the strict Davis/Frye rule in People v Kenney, 354 Mich 191, 196; 92 NW2d 335 (1958), "where evidence of a speedwatch was admitted when defendant offered no evidence that the instrument was mechanically and scientiñcally inaccurate”. Barbara, supra, 365. (Emphasis added.) We conclude that because, in the present case, defendant offered no evidence that the electrophoresis technique used to compare the blood samples was scientifically inaccurate and because defendant has not convinced us that the accuracy of electrophoresis is seriously disputed the trial court did not abuse its discretion in admitting Mark Stolorow’s testimony without first requiring that the Davis/Frye standard be met. In the recently decided case of People v Powell, 97 Mich App 287; 294 NW2d 262 (1980), this Court was asked to determine whether error had been committed when the trial court permitted a radiologist to testify regarding his identification of a corpse after a comparison of chest X-rays was performed. Defendant objected that the prosecution had not shown that this was a scientifically accepted and reliable method of identification. The Powell Court distinguished Tobey and Barbara on the ground that those cases concerned an unproven or disputed scientific instrument and it accordingly held that the prosecutor was not required to demonstrate general scientific acceptability of the X-ray procedure. The Court concluded that the technique of identification by X-ray comparison was a question of opinion testimony typically within the competence and province of an expert witness and that the testimony presented by a qualified expert was properly placed before the jury to be weighed by them as to its probative value. The present case is similar to Powell, supra, in several respects. In Powell, there was no question that the use of X-ray equipment was establishd and áccepted within the medical profession. In the present case, Mark Stolorow testified that electrophoresis was a simple technique that dated back many years in the field of biology and was employed widely in medical facilities and universities. The reasonable inference is that electrophoresis is a proven scientific technique. The present case is also similar to Powell in that there is no problem of deceptive efforts that might interfere with the accuracy of the scientific technique, as has been thought to be possible in the case of polygraph or voice print analysis. In Powell, the principal issue was the employment of the X-ray technique for the purpose of identifying a corpse, as opposed to the underlying scientific acceptability of the X-ray procedure itself. Similarly here, the principal question involves the use of the electrophoresis technique to compare bloodstains found at the scene to known blood samples rather than the underlying acceptability of the electrophoresis technique itself. Therefore, the question was properly one of opinion testimony within the competence and province of an expert witness and, although the testimony in the present case was presented by an arguably interested witness, the witness was clearly qualified in the fields of chemistry and blood analysis and the jury was entitled to hear his testimony and weigh its probative value. Defendant also argues that the testimony of the prosecution’s expert witness was inadmissible because it merely included defendant in a class of possible defendants. In People v Sturdivant, 91 Mich App 128, 134; 283 NW2d 669 (1979), this Court found that blood test evidence indicating that the complainant’s attacker was a nonsecretor, that the attacker thus possessed a trait found in 20 percent of the general population and that the defendant was a nonsecretor was inadmissible. The Court held: "We find that * * * blood type evidence, when used solely for the purpose of including a defendant in a class of possible defendants, has no probative value. Therefore, we hold that the trial court erred in admitting such evidence.” However, the Court distinguished the case of People v Gillespie, 24 Ill App 3d 567; 321 NE2d 398 (1974), wherein the test used limited the inclusive group to 2.7 percent of the relevant population, a much more specific group than that which was involved in Sturdivant. In People v Horton, 99 Mich App 40; 297 NW2d 857 (1980), vacated on other grounds 410 Mich 865 (1980), the Court went further and held that the admission of blood analysis results including a defendant in a class of possible defendants was not restricted by the size of the group but instead should be permitted in accordance with the rules for the admission of other physical evidence and that the weight of such evidence was for the jury to determine. We find no error. Defendant’s other claim of error is without merit. Affirmed. M. F. Cavanagh, P.J., did not participate in the decision. The Davis/Frye rule has also been applied in reviewing the admissibility of scientific evidence other than polygraph results in People v Watkins, 78 Mich App 89; 259 NW2d 381 (1977), lv den 406 Mich 954 (1979), which involved the admissibility of results of a microscopic comparison of hair samples, and in People v Wesley, 103 Mich App 240; 303 NW2d 194 (1981), which involved the admissibility of evidence of fingernail analysis and comparison. Application of the Davis/Frye rule to the admission of scientific evidence other than polygraph results was also criticized in 18 Wayne L Rev 1365, 1383-1398 (1972).

J. H. Gillis, J. Plaintiff, Bruce H. Schwartz, appeals from a February 13, 1980, order of the Saginaw County Circuit Court granting defendant summary judgment. Plaintiff had alleged that he was wrongfully and unjustly discharged from de fendant’s employ on September 20, 1978, after working for defendant for 28 years. Plaintiffs complaint can be broken down into three claims. First, he alleges the existence of an implied contract of employment to continue until age 65, absent termination for just cause. Second, plaintiff claims that his discharge was in retaliation for his effective performance as company safety director and that defendant thereby violated the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq.; MSA 17.50(1) et seq. Finally, plaintiff argues that, as a long-term employee, by law he could only be discharged for just cause. Neither defendant’s motion nor the subsequent opinion and order specified whether the summary judgment was based on GCR 1963, 117.2(1) or 117.2(3). Although defense counsel argued that plaintiff had failed to "state a claim upon which relief can be granted”, the parties and court relied on various depositions and documents recorded with the court. Further, defendant’s motion and accompanying memorandum argued that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. The lower court’s opinion concluded: "The court finds that under Michigan law that a contract of employment for an indefinite period, or a contract for permanent employment, is a contract for employment at will, and the employee involved may be terminated by the employer at any time, for any cause, or without cause. The court further finds that if the termination is in retaliation for actions of the employee on the job, or for attempting to 'do too good a job’, the cases are uniform that the employer still retains the right to discharge the employee.” Out of necessity, we consider each of plaintiffs claims under GCR 1963, 117.2(1) and 117.2(3). Cf., Partrich v Muscat, 84 Mich App 724, 728-729; 270 NW2d 506 (1978). A motion for summary judgment under GCR 1963, 117.2(1) tests the legal sufficiency of the plaintiffs pleadings, which for purposes of the motion are considered to be true. Weckler v Berrien County Road Comm, 55 Mich App 7, 9; 222 NW2d 9 (1974). The appropriate test is whether the plaintiffs claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972). A motion for summary judgment under GCR 1963, 117.2(3) tests the factual sufficiency of the plaintiff’s claim. The court is to consider affidavits, pleadings, depositions and other documentary evidence submitted by the parties. Sanders v Clark Oil Reñning Corp, 57 Mich App 687, 692; 226 NW2d 695 (1975). Thé court is to give the benefit of any reasonable doubt to the party opposing the motion and thereafter grant the motion only if it is impossible for the claim to be supported at trial because of a deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). Contracts for permanent employment are generally considered to be indefinite hirings terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). Nonetheless, a contract providing that the employee shall be discharged for cause only is enforceable. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598, 609-610; 292 NW2d 880 (1980). Enforceable contractual rights of this nature may result from statements of company policy and procedure. Id. For example, in Toussaint, the employer’s personnel policy manual stated that it was company policy to release employees "for just cause only”. Id., 597-598. Moreover, the plaintiff in that case inquired as to job security upon hiring and was told he would remain as long as he did his job. Id. In the instant case, there were no such statements of employee policy or procedure. Plaintiff readily conceded in his deposition that he was never told he would be employed until the age of 65, absent termination for cause. Furthér, he admitted that his superiors never made statements that would have led him to believe as much. He argues, however, that the circumstances of his employment require that such a contractual agreement be implied in fact. The requirements for a contract implied in fact were discussed in Erickson v Goodell Oil Co, Inc, 384 Mich 207, 211-212; 180 NW2d 798 (1970): "A contract implied in fact arises under circumstances which, according to the ordinary course of dealing and common understanding, of men, show a mutual intention to contract. In re Munro’s Estate (1941), 296 Mich 80. A contract is implied in fact where the intention as to it is not manifested by direct or explicit words between the parties, but is to be gathered by implication or proper deduction from the conduct of the parties, language used or things done by them, or other pertinent circumstances attending the transaction. Miller v Stevens (1923), 224 Mich 626.” Thus, an employer’s conduct and other pertinent circumstances may establish an unwritten "common law” providing the equivalent of a just cause termination policy. Rules and understandings, promulgated and fostered by the employer, may justify a legitimate claim to continued employment. Toussaint, supra, 617-618, quoting Perry v Sindermann, 408 US 593, 601-603; 92 S Ct 2694; 33 L Ed 2d 570 (1972). Nonetheless, a mere subjective expectancy on the part of an employee will not create such a legitimate claim. Perry, supra. A review of plaintiffs deposition testimony reveals that his claim of an implied contract for continued employment was based on his own subjective expectancy regarding his relationship with the company. Plaintiff based his belief on the fact that the company was originally a closeknit family operation, not known for its high salaries, with virtually no employee turnover. The company, though it had no established sick leave policy, usually paid sick employees for extended periods of time. Further, literature on the company’s pension plan indicated that all employees would be eligible unless the particular employee "was injurious or detrimental to the interests of the company”. Plaintiff concluded that it was a "foregone conclusion that if you perform your job competently and are an asset to the company, the natural expectation is that you will continue to be employed by the company”. These circumstances do not evidence a common understanding or mutual intent to contract that employment be continuing but for cause. The pension plan condition does not manifest an employment guarantee, but evidences that pension benefits can be lost through detrimental employee actions. For example, a long-term employee could be precluded from receiving a pension if he took employment with a competing firm. Plaintiff conceded that he attached no independent significance to the brochures. Likewise, although the company paid relatively low salaries, that was not perceived as a tradeoff for continued employment. Plaintiff indicated that each year a Mr. Rennert would conduct a salary review. In some years plaintiff’s salary increase would keep up with the rising cost of living and in other years it would not. In the bad years, Rennert would be apologetic and say that the company was ready to "take off”, insinuating that plaintiff had a "terrific future” with the company. However, plaintiff never viewed Rennert’s representations as an agreement for continued work but for cause. Rather, he saw Rennert as "a Pollyanna type of fellow that promised you things were going to be better tomorrow”. Plaintiff’s deposition testimony made it clear that he felt he could only be discharged for cause not because of any representations or policies promulgated, but because of his own personal belief that an employee doing competent work would be retained as a company asset. Plaintiff considered this "a convenience in almost any company”. Such a subjective belief is insufficient to establish a contract implied in fact. Thus, although plaintiff’s complaint sufficiently pled a cause of action on this theory, in fact, plaintiff’s basis for the claim is not the objective circumstances of his employment, but his own personal view of what the law should be. Plaintiff’s second theory is that he was discharged because of his effective performance as safety director. In effect, plaintiff contends that his rigorous enforcement of MIOSHA regulations precipitated his dismissal. We agree that a termination in contravention of a strong public policy is wrongful and an exception to the general rule that such employment contracts are terminable at will. Cf., Trombetta v Detroit, T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978), Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976). In pertinent part, §65(1) of MIOSHA, MCL 408.1065(1); MSA 17.50(65)(1) provides: "A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under or regulated by this act or has testified or is about to testify in such a proceeding or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.” It is apparent that the Legislature intended to protect employees, like plaintiff, allegedly discharged in an employer’s attempt to avoid the MIOSHA restrictions. If plaintiffs allegations are correct, his termination contravened the policy evidenced by the subsection. Nonetheless, plaintiffs action must fail since he declined to pursue the administrative remedies contained in MIOSHA itself prior to resorting to this legal action. Judges of the 74th Judicial Dist v Bay County, 385 Mich 710, 727-728; 190 NW2d 219 (1971), School Dist of the City of Benton Harbor v State Tenure Comm, 372 Mich 270; 126 NW2d 102 (1964). In this instance, the time period for filing a complaint with the Department of Labor has passed. MCL 408.1065(2); MSA 17.50(65)(2). Still, plaintiffs failure to proceed does not make the administrative remedy itself inadequate. Jamison v Stetson, 471 F Supp 48, 54-55 (ND NY, 1978). Summary dismissal of plaintiffs second theory was appropriate. Plaintiffs final theory for recovery is that the law now prohibits discharge for malicious or retal iatory reasons, that is, that even when an employment contract is terminable at will any discharge must be in good faith. Monge v Beebe Rubber Co, 114 NH 130, 133; 316 A2d 549, 551-552 (1974). This issue was recently before the Michigan Supreme Court in Prussing v General Motors Corp, 403 Mich 366; 269 NW2d 181 (1978), where the Court declined to rule on the specific question. Because we consider such a doctrine a radical departure from the common law and Michigan precedent, we believe that if it is to be judicially mandated that change should come from the Supreme Court. We, therefore, affirm the lower court dismissal of plaintiff’s complaint under that theory as well. Affirmed. C. L. Bosman, J., concurred. See MCL 408.1065(2)-(8); MSA 17.50(65)(2K8).

Per Curiam. On November 16, 1979, defendant pled guilty to larceny in a building contrary to MCL 750.360; MSA 28.592 and of being a second-time felony offender contrary to MCL 769.10; MSA 28.1082. The pleas were given pursuant to a bargain whereby the prosecutor agreed not to charge defendant as a four-time felony offender. MCL 769.12; MSA 28.1084. On December 6, 1979, defendant was sentenced to a straight six-year term of imprisonment. He now appeals as of right. Defendant first contends that the trial court erred in not carrying out the inquiries mandated by GCR 1963, 785.7 twice: once for the larceny charge and once for the habitual offender charge. We disagree. The purpose of the court rule requiring the trial judge to apprise a defendant of the rights he is giving up by pleading guilty is to ensure that the plea is knowing and voluntary. Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975). We are convinced that this purpose was fulfilled by the plea-taking procedure used in this case. The trial court first established the factual basis for the larceny charge and then the factual basis for the habitual offender charge. Thereafter, the court carefully complied with GCR 1963, 785.7, specifically asking defendant if he understood that he was waiving his rights in respect to both charges wherever applicable. The method of taking the pleas was straightforward and not in the least bit confusing. It was not necessary for the court to waste its time and that of the attorneys by going through GCR 1963, 785.7 twice. Defendant relies on People v Stevens, 88 Mich App 421; 276 NW2d 910 (1979), for the proposition that the procedure utilized here was improper. All we said in Stevens was that before a plea of guilty to an habitual offender charge could be accepted, GCR 1963, 785.7 must be complied with. This was done in the instant case. Defendant was fully informed of all the rights he would be giving up should he choose to plead guilty to being a two-time felony offender, as well as the maximum sentence he could receive on the charge. This case is totally unlike Stevens where the defendant was allowed to plead guilty without being informed of the maximum sentence he could receive or of any of the rights he would be giving up by his plea of guilty. Defendant next argues that the trial court was required to advise him that he had a right to withdraw his plea prior to its acceptance. While it’s true that GCR 1963, 785.7(6)(a) gives a defendant this right, there is no requirement that he be so informed. GCR 1963, 785.7 only requires the court personally to carry out subrules GCR 1963, 785.7(l)-(4) prior to accepting the plea. The Supreme Court, by not including the right to withdraw the guilty plea prior to acceptance in GCR 1963, 785.7, subrules (l)-(4), has impliedly indicated that this is unnecessary. The prosecution agrees with defendant that this matter must be remanded for resentencing. Effective September 1, 1978, MCL 769.10; MSA 28.1082 was amended to provide that an indeterminate sentence be given pursuant to the penalty enhancement provisions of the statute. We agree with defendant and the prosecution that due to this amendment defendant must be given a new sentence. Upon remand, an indeterminate sentence is to be imposed. The minimum term of this sentence permissibly cannot exceed two-thirds of the maximum term to comply with the rule of People v Tanner; 387 Mich 683; 199 NW2d 202 (1972). Remanded for proceedings consistent with this opinion.

T. M. Burns, P. J. Defendant appeals as of right his February 26, 1979, guilty plea convictions of armed robbery and possession of a firearm during the commission of a felony. MCL 750.529; MSA 28.797, MCL 750.227b; MSA 28.424(2). On March 19, 1979, defendant was sentenced to the two-year mandatory term of imprisonment for the felony-firearm conviction and given a consecutive 4-1/2- to 15-year sentence for the armed robbery conviction. Defendant’s convictions arose out of an incident in which he and his wife robbed a savings and loan association. According to the facts stated on the record at the plea proceeding, defendant and his wife robbed the Downriver Federal Savings and Loan in Southgate, Michigan, on October 24, 1978. Defendant’s wife was carrying a shotgun at the time of the robbery. This weapon had been prepared by defendant in such a manner so that it could be operated by his wife, who had never fired a gun before. While his wife held the shotgun on various persons in the bank, defendant entered the tellers’ cages and took money out of drawers that were there. Defendant raises one issue in this appeal that we feel is dispositive of this matter. He claims that he was denied effective assistance of counsel because the attorney who was appointed to represent him was also appointed to represent his wife. Defendant argues that this situation gave rise to a conflict of interest on behalf of the attorney and that this prejudiced him. We agree. In cases where one attorney represents multiple defendants, a trial judge has an affirmative duty to explain the risks of joint representation to the defendants and to advise them of the alternatives regarding separate counsel. People v Edward Villarreal, 100 Mich App 379; 298 NW2d 738 (1980). Unless defendants are informed of the potential prejudice that they might suffer by joint representation, they cannot give a voluntary and informed waiver of their right to separate counsel. People v Bentley, 402 Mich 121; 261 NW2d 716 (1978). In the case at bar, the attorney who represented both defendant and his wife was not retained by either of them. Rather, he was appointed by the court. Thus, defendant was involuntarily put in a position of potential prejudice and the record reflects that he was never informed of the dangers of joint representation despite the fact that at a February 23, 1979, suppression hearing he indicated that he was not satisfied with the attorney appointed to represent him and that he wished to retain another. On this record then, we cannot say that defendant validly waived his right to separate counsel. Joint representation of defendants, however, does not always lead to a conflict of interest of such magnitude as to warrant reversal. Where an attorney has represented two or more codefendants at one trial, this Court has required a showing of actual prejudice as a prerequisite for finding reversible error. People v Jones, 64 Mich App 659; 236 NW2d 531 (1975), People v Hilton, 26 Mich App 274; 182 NW2d 29 (1970). One criterion to which this Court has looked to determine the existence of prejudice is whether the defendant has lost the benefit of argument stressing the codefendant’s link to specific evidence as mitigating the culpability of the defendant. People v Bentley, supra, People v Edward Villarreal, supra. Further, our Supreme Court has ruled that, where testimony portrays different degrees of culpability between the defendants and thus requires counsel to distinguish the relative culpability of his clients, prejudice exists even though the defenses are not necessarily inconsistent. People v Gardner, 406 Mich 369; 279 NW2d 785 (1979). In the instant case, a problem arose with the taking of defendant’s wife’s plea to the felony-firearm charge because she could not affirmatively testify that the shotgun was operable. In order to place evidence to this effect on the record, defendant testified as to his actions in preparing the gun so that it could operate and instructing his wife on how to shoot it. This testimony, as well as other evidence produced so that his wife’s plea could be taken, put defendant in the light of being the ringleader for the armed robbery. These inculpatory statements by the defendant were in no way beneficial to himself. Rather, they were for the convenience of producing a sufficient factual basis for his wife’s plea. Thus, the record does reflect a sufficient showing of prejudice to warrant a finding that defendant was prejudiced by his joint representation with his wife. As a consequence, we vacate defendant’s convictions and remand this case for further proceedings. Defendant raises one other issue in this case that merits comment. He argues that he cannot be convicted of violating the felony-firearm statute inasmuch as he did not personally possess a firearm during the commission of the armed robbery. On remand defendant’s argument shall be considered and ruled upon by the lower court in a manner consistent with the opinion of our Supreme Court in People v Johnson, 411 Mich 50; 303 NW2d 442 (1981). Remanded for further proceedings consistent with this opinion.

Per Curiam. The defendant, Edward Stockwell, was convicted by an Oakland County jury of second-degree murder, MCLA 750.317; MSA 28.549, and appeals as of right. The defendant was previously convicted on the same charge and appealed to this Court which reversed his conviction, People v Stockwell, 52 Mich App 394; 217 NW2d 413 (1974), because of instructional errors. The second trial has now produced a second conviction and the defendant once again appeals on the basis of an alleged instructional error. The defendant has a history of mental illness dating back to his early childhood. After two violent incidents, he was formally adjudicated mentally ill in probate court on the petition of his parents and was committed to the Pontiac State Hospital in 1957 at the age of 15. While still institutionalized, the defendant fatally stabbed a female patient on May 31, 1968. At both of his trials, the defendant admitted the stabbing but argued that he was insane at the time of the offense and, therefore, not criminally responsible. At his second trial, the defendant submitted a written request for jury instructions which included statements that a defendant who had previously been involuntarily committed to a mental institution was entitled to a "presumption of continuing insanity”. The trial judge rejected the proposed instruction and instead told the jury that: "[T]here is a presumption that the defendant was sane, but as soon as evidence is offered by the defendant to overthrow this presumption, the burden shifts and it then rests upon the People to convince you jurors beyond a reasonable doubt of the defendant’s sanity”. So instructed, the jury found the defendant guilty of second-degree murder. We have reviewed the defendant’s requested instruction and the one actually given and have concluded that there was no error. The people are correct in their contention that there is a distinction between "insanity” for purposes of civil commitment and "insanity” for purposes of obviating criminal responsibility. See People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974). It does not follow that a civil commitment for mental illness should give rise to a presumption of "insanity” for purposes of obviating criminal responsibility for anti-social acts. The question of insanity in a criminal trial is presented for inquiry and determination by a jury or the trier of the facts. In re Cawley, 369 Mich 611, 617-618; 120 NW2d 816, 819 (1963). The only Michigan case we can find which considered defendant’s argument is People v Plummer, 37 Mich App 657; 195 NW2d 328 (1972). In Plummer, the defendant’s argument was rejected with the simple statement that: "It was not error to refuse to give defendant’s requested instruction on presumption of continuing insanity. The sanity issue presented related only to defendant’s mental state at the time of the offense.” 37 Mich App 657, 661. While that statement may be correct, there is another, more fundamental, reason for rejecting the defendant’s argument. The defendant is arguing that he was entitled to a "rebuttable presumption” of insanity. Instead, the trial judge instructed the jury that the prosecution was required to prove sanity beyond a reasonable doubt. It appears to this Court that the instruction given was, if anything, more favorable to the defendant than the ones he requested. This conclusion is reinforced by an examination of the cases cited in the defendant’s brief. At the point in history when those decisions were released, the jurisdictions involved required criminal defendants to carry the burden of proof on the insanity issue. One of the cases involved a defendant under sentence of death who was contending that an instruction on a presumption of insanity should have been given. The court stated: "The defendant was under sentence of death, and the consequences of a possible miscarriage of justice should weigh heavily in the scales against considerations of the niceties of trial practice. Either the instruction as requested, or a technically correct instruction involving its principle, should have been given; to refuse it was reversible error. We are more inclined to this view because of the harshness of the statute which imposes on the defendant the burden of proving his insanity beyond a reasonable doubt.” State v Garver, 190 Or 291, 307-308; 225 P2d 771 (1950). If that were now the rule in Michigan, the defendant would have some cause for arguing that his proposed instructions were necessary to mitigate the harshness of such a rule. However, as the trial judge in this case instructed the jury, it is the prosecutor — not the defendant — who bears the burden in Michigan of proving its position on the sanity question beyond a reasonable doubt. People v English, 29 Mich App 36; 185 NW2d 139 (1970), lv den, 384 Mich 823 (1971), People v Woody, 380 Mich 332; 157 NW2d 201 (1968). The jury was apprized of the defendant’s mental health history clearly and at length. The trial judge allowed the defense broad latitude in presenting this history to the jury. Thus, it is clear that the jury was well aware of defendant’s mental illness. The trial judge laid down for the jury very clear guidelines in his instructions concerning possible verdicts. The judge’s instructions were clear and correctly stated the law as it is in Michigan. We find no error. Affirmed.

M. J. Kelly, J. Plaintiffs Edward G. Wynn and Victoria M. Wynn, husband and wife, appeal by right from the entry of summary judgment in favor of defendants in an action for libel in Gene-see County Circuit Court. The oft-amended complaint alleged that plaintiff wife, Victoria M. Wynn, a registered nurse, enjoyed a good professional reputation until the pub lication of the alleged libel and that she has never been guilty of any of the acts charged in the alleged libel; that defendant Verna Cole, in her capacity as executive director of the Flint Visiting Nurses Association (VNA) and subsequently as director of the City of Flint Department of Public Health, maliciously published false statements concerning the plaintiff wife in evaluations of her work performance in order to cause injury. The first evaluation was prepared by defendant Cole on February 26, 1970, when she was with the VNA; the date of the second is unclear except that it was late 1970 or early 1971. Both statements were published, for purposes of this litigation, on January 16, 1973, when they were supplied to an inquiring employer, the Flint Branch of the American Red Cross. The complaint purports to quote the exact wording of the statements contained in the employee evaluations. It is alleged that defendant Cole knew or should have known that these evaluations would eventually be divulged should the plaintiff ever list these employers as references. Plaintiff wife alleges injury as a result of mental distress and loss of earnings. Plaintiff husband is alleged to have suffered loss of consortium. The complaint prays for monetary damages and an injunction ordering defendants to retract the libel and refrain from further libelling of the plaintiff. On September 19, 1974, a motion for summary judgment and accelerated judgment in accordance with GCR 1963, 117.2G) and GCR 1963, 116.1(5) was filed on behalf of defendant Verna Cole. The motion listed as grounds, among others, that the said statements fell within a qualified privilege and that the action was brought beyond the statutory limitations period. On September 20, 1974 a similar motion was filed on behalf of defendant city, this time under GCR 1963, 117.2(2) claiming governmental immunity. On appeal defendants have abandoned the statute of limitations defense. The court ruled (October 21, 1974) in favor of both defendants; it held the city entitled to governmental immunity and defendant Cole entitled to the benefit of the statute of limitations. It further held that the pleadings failed to satisfy the requirements of GCR 1963, 111.1. Plaintiffs raise five assignments of error. First we consider issues relating to immunity: (1) whether the public health service of the City of Flint is immune from suit because of the governmental immunity statute; (2) whether defendant Verna Cole, while an employee of a governmental agency, was immune from suit under the governmental immunity statute; and (3) whether the governmental immunity statute exempts a governmental body from suit for injunctive relief. It is not apparent from the record whether defendant Cole prepared the employee evaluation of the plaintiff in her capacity as an employee of the city before or after August 1, 1970, the effective date of 1970 PA 155 amending the title of 1964 PA 170 so as to provide governmental agencies with immunity from tort liability while they are engaged in the exercise and discharge of a governmental function. However, the trial court noted that the plaintiffs attorney had conceded that defendant Cole did not become the plaintiffs supervisor for the city until after the effective date of the immunity statute. The plaintiff makes no claim on appeal attacking the propriety of this fact-finding by the trial court. The city’s immunity is based on MCLA 691.1407; MSA 3.996(107). This Court has specifically declined in recent cases to hold this amended statute unconstitutional, leaving the question to the Supreme Court. Lockaby v Wayne County, 63 Mich App 185; 234 NW2d 444 (1975), Knapp v Dearborn, 60 Mich App 18, 21; 230 NW2d 293 (1975), In re Jones Estate, 52 Mich App 628; 218 NW2d 89 (1974). We reject plaintiff’s claim that the statute abridges the constitutional right to petition for redress of grievances as provided in the First Amendment to the United States Constitution. The United States Supreme Court has said: "It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.” Thomas v Collins, 323 US 516, 530; 65 S Ct 315, 323, 89 L Ed 430, 440 (1945). The plaintiffs have failed to cite a single case from any jurisdiction holding that this amendment protects the right of a citizen to sue the government for damages caused by tortious conduct of governmental employees. The right to petition for redress of grievances is included with the right of assembly and right of freedom of speech in the First Amendment. Thus the rights protected by that amendment would seem to be political rights. Plaintiffs next argue that governmental immunity does not extend to all employees. In Lovitt v Concord School District, 58 Mich App 593; 228 NW2d 479 (1975), it was held that while governmental immunity would protect a school district or a board of education, and also individual school officials or board members, where the duty breached is one imposed on the entity and not the individual, a particular employee would not be immune from liability for injuries attributable to his individual tort or negligence. There plaintiffs were not barred by governmental immunity from collecting damages from the teacher-coaches who were alleged to have violated a private duty to avoid negligently injuring the particular students. The duty which defendant Cole is alleged to have violated is a private, common-law duty not to libel the plaintiff rather than a duty imposed upon her in her official capacity. Thus, governmental immunity alone would not bar plaintiffs from claiming damages against defendant Cole. Next, plaintiffs allege, that the trial court erred in holding that the pleadings did not state a claim against the defendant Verna Cole because they did not reasonably inform the defendant and the court of plaintiffs’ claims as required by GCR 1963, 111.1. A motion based on GCR 1963, 117.2(1) relating to failure to state a claim upon which relief can be granted is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). On such a motion, all well-pleaded material allegations must be taken as true. Martin v Fowler, 36 Mich App 725, 729; 194 NW2d 524 (1971). All that is required for a complaint to resist a motion for summary judgment testing the sufficiency of the complaint is that the complaint reasonably inform the defendants of the nature of the cause they must defend. Durant v Stahlin, 374 Mich 82, 87-88; 130 NW2d 910 (1964). This complaint would seem clearly sufficient under that standard. A complaint in libel must include the contents of the libelous statement and must also show where the alleged libel was published. MacGriff v Van Antwerp, 327 Mich 200; 41 NW2d 524 (1950), De Guvera v Sure Fit Products, 14 Mich App 201; 165 NW2d 418 (1968). The plaintiffs’ complaint met these requirements. Defendants respond that the plaintiffs’ complaint was insufficient to state a claim against defendant Cole because her communications were qualifiedly privileged. The trial court did not specifically state that it based its grant of summary judgment upon this ground, but since a prima facie case was alleged in the plaintiffs’ complaint, the defect, if any, must relate to the issue of qualified privilege. Qualified privilege was defined by the Supreme Court in the case of Bacon v Michigan C R Co, 66 Mich 166, 170; 33 NW 181 (1887): "Qualified privilege * * * extends to all communications made bona ñde upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.” Where the facts are undisputed, it is for the court to decide whether such a privilege justifies a publi cation. Lawrence v Fox, 357 Mich 134, 139-140; 97 NW2d 719 (1959), Harrison v Arrow Metal Products Corp, 20 Mich App 590; 174 NW2d 875 (1969). Where there is a qualified privilege, the presumption is that the defendant acted in good faith and with a proper motive. See Raymond v Croll, 233 Mich 268, 274; 206 NW 556 (1925): " 'When the court holds the communication to be entitled to the privilege, the jury should be instructed to consider and determine whether or not the defendant used the occasion for the sole reason and purpose which conferred the privilege upon his statement; and if the jury find from the surrounding circumstances, as shown by the evidence, that he did so use it solely for such reason and purpose, the verdict will be for the defendant. But if, on the other hand, they find that he employed the occasion in bad faith, to gratify or to further some indirect or malicious motive, or for some other improper reason, the verdict will be for the plaintiff. Where the communication is entitled to the privilege, the burden of proof is then upon the plaintiff to show actual malice in the sense of oblique design or bad faith.’ Newell, Slander & Libel (4th Ed), § 346.” (Emphasis added.) Thus malice negates or cancels the privilege. Michigan recognizes that there may be a qualified privilege where, as here, a former employer informs a prospective employer about the applicant’s qualifications, morals and habits. Carroll v Owen, 178 Mich 551; 146 NW 168 (1914). We assume, for the purposes of further discussion, that the court below found a qualified privilege. To support summary judgment then, the court would have had to find plaintiffs’ allegations of malice insufficient. Defendants contend that plaintiffs’ allegations of malice were general and therefore insufficient to defeat a presumption of good faith. They rely on Nuyen v Slater, 372 Mich 654; 127 NW2d 369 (1964). That case, which also involved criticism of a nurse, does not support defendant’s position. First of all defendants relied on a minority opinion signed by three justices. The majority opinion, signed by five jutices, held: "Nothing contained in defendant’s letter to the health department defamed plaintiff within the commonly accepted meaning of the word. See 3 Restatement, Torts, § 559.” 372 Mich at 662 (fn omitted). Furthermore the minority agreed that the letter was not defamatory. In the instant case plaintiffs have alleged that defendant Cole made the statements knowing them to be false and for the sole purpose of damaging plaintiffs. If believed by the jury, those allegations would support a finding of malice so as to overcome the qualified privilege. We hold that whether the plaintiffs were required to allege specific facts from which malice could be inferred, or whether a general allegation (see GCR 1963, 112.2) was sufficient, the complaint adequately stated a cause of action. The trial court’s judgment in favor of defendant city is affirmed; the judgment in favor of defendant Cole is reversed. Costs to plaintiffs against defendant Cole only. In the pleadings this motion was denominated as one brought under GCR 1963, 117.1(1). However it is clear from the defendant’s memorandum that a motion under GCR 1963, 117.2(1) was intended, and the trial judge ruled as though the motion had been brought under GCR 1963, 117.2(1). The injunctive aspect below was a request to direct defendant Cole to refrain from defaming the plaintiff in the future and to correct information contained in employment records. It does not appear that the trial court made any ruling concerning the applicability of governmental immunity to the plaintiff’s request for injunctive relief. Thus this issue should not be reviewed. Enyart v Enyart, 7 Mich App 328, 333-334; 151 NW2d 849 (1967).

Bashara, J. Defendant bank appeals a jury verdict of $225,000 entered against it in Oakland County Circuit Court. Defendant alleges the trial judge erroneously denied its summary judgment motion, improperly issued a directed verdict on liability in plaintiffs favor, and mistakenly severed from the main suit its third-party complaint. The facts precipitating this law suit are readily stated. Plaintiff claimed serious injury occurred on December 31, 1972, when he attempted to prevent the apparent repossession of his automobile. Defendant had financed the purchase of the car and had authorized Midwest Auto Recovery to repossess the car after plaintiff fell behind in payments. Four persons who allegedly identified themselves to plaintiff as Midwest employees — but who were not produced at any of the proceedings below— allegedly ran over the plaintiff as they drove off with the repossessed auto. In April, 1973, plaintiff filed a complaint against the bank, Midwest, and the Michigan Secretary of State seeking damages for his extensive injuries. Subsequently the claim .against the Secretary of State was dismissed. Plaintiff and Midwest reached an out-of-court settlement, in which plaintiff received $50,000 and agreed not to sue Midwest directly, or to enforce any indirect rights in the event plaintiff successfully sued the bank, and the bank recovered indemnification or contribution from Midwest. There followed a blizzard of pleadings: amended complaints, amended answers, and cross claims. At the conclusion of the pleadings, plaintiff had advanced a hodgepodge of theories under which the defendant was alleged to be liable: (1) the bank and Midwest were joint venturers and hence joint tortfeasors; (2) the bank was negligent in selecting Midwest to repossess plaintiffs car; (3) the bank was liable under a res ipsa loquitur theory; (4) the bank was liable because Midwest, as an independent contractor, negligently performed the inherently dangerous activity of auto repossession; and (5) the bank was vicariously liable for the acts of its agent, Midwest. Defendant denied liability under all of these theories, asserting that Midwest was an independent contractor performing a delegable duty that was not inherently dangerous and asserting that the release barred plaintiff from suing the bank. The bank filed a cross claim against Midwest, seeking indemnity and contribution in the event that plaintiff recovered from the bank. The bank then filed a motion for summary judgment claiming that plaintiffs release of Midwest barred plaintiffs action against the bank. The judge denied the motion, allowing plaintiff to proceed on all his theories. After a seven day trial, the trial judge issued a directed verdict as to liability, holding that the issues presented no question of fact. He instructed the jury to consider only the amount of damages. At the same time, he severed the bank’s cross claim against Midwest from the case, on the grounds that plaintiff would be prejudiced were the jury to consider the cross claim. The jury returned a verdict of $225,000 against the bank. The trial court denied defendant’s motion for a new trial. I Summary judgment ruling It is our opinion the trial judge erred in allowing plaintiff to proceed on all of his theories. The court should have granted partial summary judgment for defendant, weeding out any theory that, given the existence of the release, was untenable as a matter of law. Under common law, the release of one joint tortfeasor released all other joint tortfeasors. See McBride v Scott, 132 Mich 176; 93 NW 243 (1903). At least one Michigan case extended this principle by stating the release of one tortfeasor releases all concurrently negligent tortfeasors. Lindsay v Acme Cement Plaster Co, 220 Mich 367, 374; 190 NW 275 (1922). In Lindsay the Court found that two railroads had independent and separate duties to maintain railroad tracks in a safe and operable condition. Both railroads breached their independent duties to maintain the tracks, which constituted concurrent negligence, resulting in the death of the plaintiffs decedent. The Court erroneously concluded that concurrently negligent tortfeasors were joint tortfeasors, and therefore, incorrectly applied to the Lindsay factual situation the doctrine that the release of one joint tortfeasor released all joint tortfeasors. However, as explained in Prosser on Torts (4th ed), § 49, p 301, 302, at common law the release doctrine was not intended to apply to concurrently negligent tortfeasors: "[A] release to one of two tortfeasors who had acted in concert necessarily released the other, since there was in the eyes of the law but one cause of action against the two, liable for the same acts, which was surrendered. But as to independent wrongdoers, not acting in concert, who were liable for the same loss, there seems to be no reason to conclude that a release of one would release the others, except in so far as it was based upon actual satisfaction of the claim. "[C]auses of action against mere concurrent tortfeasors not acting in concert have always been separate, and their separate character should not be affected by the possibility of joinder for procedural convenience. A surrender of one therefore should not on any logical or reasonable basis discharge the other, except to the extent that there has been full compensation. Even as applied to cases of concerted action, the rule seems at best an antiquated survival of an arbitrary common law procedural concept, arising out of long forgotten semi-criminal forms of action; and it has no reasonable application at all to cases of mere concurrent negligence. The fear of double recovery is meaningless, since the amount paid under, the release must be credited to the second tortfeasor in any case; and the argument that the plaintiff should not be permitted to make piecemeal collections from different defendants is quite pointless when he is allowed to do precisely that after judgment.” (Footnotes omitted.) The next important historical progression was the enactment of PA 1941, No. 303; 1948 CL 691.562; MSA 27.1683(2). It provided in material part: "Sec. 2. It shall be lawful for all persons having a claim or cause of action against 2 or more joint tortfeasors to' compound, settle with, and discharge, at any time prior to rendition of a judgment in said action, any and everyone or more of said joint tort-feasors for such sum as such person may deem fit, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the remaining joint tort-feasors, against whom such person, or persons, has such claim or cause of action, and not so released.” (Emphasis supplied.) In Conover v Hecker, 317 Mich 285; 26 NW2d 774 (1947), the Court relied on the above statute in holding that the release of one independent concurrently negligent tortfeasor did not release the other similar tortfeasors. Apparently, the Court believed a "joint tortfeasor” included an independent concurrently negligent tortfeasor. One year later the Michigan Supreme Court had occasion in Geib v Slater, 320 Mich 316; 31 NW2d 65 (1948), to consider the definition of joint tortfeasor, as it appeared in the aforementioned statute on release. In Geib the defendant left his car at a garage for repair. An employee of the garage negligently backed the car into the plaintiff seriously injuring him. The plaintiff reached a settlement with the garage owner, and released both the garage owner and his employee. The plaintiff proceeded against the defendant on the basis, of the owner’s liability statute. The Court relied on Frye v Detroit, 256 Mich 466; 239 NW 886 (1932), which determined whether the common law definition of "joint tortfeasor” included persons concurrently committing two separate torts. Frye had quoted approvingly Dickson v Yates, 194 Iowa 910; 188 NW 948; 27 ALR 533 (1922), as follows: " 'It is not the injury, but the wrongful act, which creates the liability. If the acts of the different persons are different and separate when done, they may not be called joint acts because they happen to occur at the same time or at different times and affect the same person, neither party having any design in the matter or any control or influcence over the acts of the other.’ ” 256 Mich 466, 471. The Court determined the defendant was not a joint tortfeasor because his liability arose by operation of law, that is the owner’s liability statute. Since the defendant’s liability was merely derivative, release of the negligent garage employee operated to release the defendant. Moreover, Geib called attention to the frequently careless use of the term "joint tortfeasor”. The Court pointed to Conover v Hecker, supra, as neither presenting nor considering the definition of joint tortfeasor. The implication is that Con- over’s reliance on the release statute, 1948 CL 691.562; MSA 27.1683(2), was incorrect. If Geib left any doubt that the release statute only applied to joint tortfeasors, the matter was resolved by Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970). Moyses was a contribution case which dealt with the definition of joint tortfeasors. Contribution and release are contained within different sections of the same statute. MCLA 600.2925; MSA 27A 2925. Moyses said of the joint tortfeasor: "In general it was, and still is, that where two (or more) persons owe to another the same duty and by their common neglect of that duty such other is injured, the two (or more) have committed a joint tort and therefore are joint tortfeasors.” 383 Mich 314, 329. (Emphasis supplied.) The Court continued: "When one speaks specifically of joint tortfeasors, he does not refer (a) to wrongdoers the liabilities of whom arise out of variant legal positions, the concurrently applied but legally different derelictions of whom make them severally responsible to the plaintiff in damages, or (b) to the acts or omissions of several who act independently rather than in concert, or (c) to those who may — under present rules of court — be joined as defendants, by the plaintiff (see GCR 1963, 206), and held responsible to him for damages sustained on account of their causally cooperating but non-joint acts or omissions, say by the negligence of one, the violation of a statute like the dramshop act by another, and the breach by still another of (an express or legally implied warranty.” 383 Mich 314, 331-332. (Emphasis supplied.) Since contribution and release are provided for in the same statute, the definition of joint tortfeasors necessarily affects release as well as contribution. The statute only abrogates the release doctrine as it applies to common law joint tortfeasors, that is, the release of one joint tortfeasor does not release other joint tortfeasors. The application of the statute to independent concurrently negligent tortfeasors in Conover v Hecker, supra, was erroneous. Moreover, Moyses applied the common law definition of "joint tortfeasor” to the statute, thus restricting any Michigan common law that had expanded joint tortfeasor to include independent concurrently negligent tortfeasor. Therefore, Lindsay was overruled sub silentio by Moyses. The result is that the common law before Lindsay is revived, that is, the release doctrine does not apply to independent concurrently negligent tortfeasors. There is, nonetheless, a more recent release doctrine that must be considered. Drinkard v William J Pulte, Inc, 48 Mich App 67, 72; 210 NW2d 137 (1973), states this doctrine: " 'In a situation where several persons are not actively joint tort-feasors but one person commits the tort and is primarily liable while the liability of the other person is derivative or secondary, as where it arises under the doctrine of respondeat superior, the releasor’s acceptance of satisfaction from one, discharges the other as well, as in the case of master and servant or principal and agent ***.’” 48 Mich App 67, 72, citing 76 CJS, Release, § 50, p 689. Given this legal principle and the undisputed existence of the release, we must determine if any of the plaintiff’s theories of liability should have been summarily dismissed under the Drinkard rule. Certainly the bank’s liability as a principal responsible for the torts of its agent-servant is eliminated. Drinkard, supra. That is the sole theory which should have been dismissed. Denial of summary judgment on the other theories of liability was proper, as the release did not affect the remaining theories. We believe that any liability for injuries resulting from "inherently dangerous” activities of Midwest as an independent contractor properly remained in the case. Although the "inherently .dangerous” doctrine is not without some confusion, see Funk v General Motors Corp, 392 Mich 91, 128-129; 220 NW2d 641 (1974), (Coleman, J., dissenting), we believe that an essential element of the doctrine is the failure of the principal to see that all appropriate precautions are taken by the one to perform the inherently dangerous task. The doctrine, in short, says that the principal is negligent, and hence liable, because it has allowed the independent contractor to be negligent in performing the job. There is a nondelegable duty to see that the work is done with the requisite degree of care; when the contractor fails in fulfulling its duty of care, the principal has breached its own precautionary duty. Because the "inherently dangerous” theory requires the principal’s own negligence, the release of the independent contractor Midwest would not release the principal bank. As was stated in Drinkard: " 'The above [release] rule is of course inapplicable where the master is guilty of some independent or concurring act of negligence.’ ” 48 Mich App 67, 73, citing Mid-Continent Pipeline Co v Crauthers, 267 P2d 568, 571 (Okla, 1954). Our deciding that the release did not warrant dismissal of plaintiff’s "inherently dangerous” theory does not mean that we accept that repossession is an inherently dangerous activity or there is a nondelegable duty to repossess peacefully. De-fendant based his summary judgment motion only on the effect of the release and did not argue that as a matter of law repossession is not inherently dangerous. We determine only that the release of Midwest did not prevent plaintiff from proceeding against defendant on this theory. Plaintiff’s theory that defendant was negligent in choosing Midwest to effectuate repossession similarily survived the summary judgment motion. This theory asserts defendant’s independent negligence and avoids the Drinkard, supra, rule. Plaintiff’s joint venture theory and plaintiff’s res ipsa loquitur theory also survive this particular summary judgment motion, as both require that defendant bank be independently or concurrently negligent. II Directed verdict Our permitting the plaintiff to argue that defendant was independently and/or concurrently negligent is one matter; the lower court’s determining that defendant was liable as a matter of law is quite another. The defendant was denied an opportunity to argue several important points in dispute. Was plaintiff injured by someone other than Midwest employees? Was plaintiff injured solely or partially through his own fault? Was the bank reasonable in selecting Midwest to repossess? Is repossession inherently dangerous? Was Midwest negligent, reckless, or intentionally tortious in performing the task? Were Midwest and defendant joint venturers? The defendant was unable to pose these questions and argue its answers , before the jury. The only theories that should have been available to the plaintiff require that plaintiff prove that the bank was negligent. It is well settled that: " 'As a general rule, it can not be doubted that the question of negligence is a question of fact and not of law.’ ” Miller v Miller, 373 Mich 519, 524; 129 NW2d 885 (1964), citing Detroit & Milwaukee R Co v Van Steinburg, 17 Mich 99, 118 (1868). Our examination of the record convinces us that reasonable men could differ concerning the bank’s negligence under any of plaintiff’s theories. A directed verdict was therefore improper. See Andrews v Insurance Co of North America, 60 Mich App 190, 202; 230 NW2d 371 (1975), remanded 394 Mich 464; 231 NW2d 645 (1975), and cases cited therein. Accordingly we remand for a new trial. It is unfortunate that these proceedings need be repeated. It would be even more distasteful were we to deny a party the right to argue its defense before a jury. III. Severance of cross claim Defendant claims that the trial court erred in severing defendant’s cross claim against Midwest from the trial of plaintiffs claim against defendant. We believe that the cross claim’s request for indemnification is moot. Indemnification question should not arise in the new trial, as the only theories of liability which will properly be considered involved defendant bank’s own negligence, thus ruling out common law indemnity. See Husted v Consumers Power Co, 376 Mich 41; 135 NW2d 370 (1965). However, the issue of contribution will still be very much alive if defendant is found liable under any of plaintiffs theories. We believe that the proper approach is to try all claims together. There will be no prejudice to plaintiff if the bank is allowed to introduce proofs of Midwest’s negligence. Plaintiff must show Midwest to be negligent in order to recover under any of the theories thus far pled. Given the absence of prejudice and the added convenience and economy resulting from one trial, we instruct the court on retrial to refrain from severing the cross claim for contribution. See Nanasi v General Motors Corp, 56 Mich App 652; 224 NW2d 914 (1974). Reversed, costs to await results of new trial. The exact release language follows: "It is further understood that should plaintiff prevail in the pending action against PRESQUE ISLE BANK, A State Banking Corporation, and should PRESQUE ISLE BANK or any other Defendant or any other party by virtue of this pending action obtain judgment against MIDWEST AUTO RECOVERY AND ADJUSTMENT SERVICE, INC., that Plaintiff will execute any documents or take any necessary step to relieve MIDWEST AUTO RECOVERY AND ADJUSTMENT SERVICE, INC. from any obligation to satisfy or pay such judgment on such cross-claim. "It is expressly agreed that in the event Plaintiff obtains judgment against PRESQUE ISLE BANK, A State Banking Corporation, and that PRESQUE ISLE BANK obtains a judgment for contribution against MIDWEST AUTO RECOVERY AND ADJUSTMENT SERVICE, INC., that Plaintiff will seek to execute or collect only such sums of money from PRESQUE ISLE BANK as represent the liability of PRESQUE ISLE BANK over and above that which PRESQUE ISLE BANK has obtained judgment against MIDWEST AUTO RECOVERY AND ADJUSTMENT SERVICE, INC. "It is further agreed that in the event Plaintiff obtains judgment against PRESQUE ISLE BANK, a State Banking Corporation, and if PRESQUE ISLE BANK should obtain judgment on its cross-claim for indemnity against MIDWEST AUTO RECOVERY AND ADJUSTMENT SERVICE, INC., that Plaintiff shall not seek execution or collection against PRESQUE ISLE BANK, A State Banking Corporation.” We note, in passing, that defendant bank’s motion for summary judgment was made under GCR 1963, 117.2(3), which requires an affidavit. The defendant’s motion in this case was accompanied by an affidavit from defendant’s attorney, a practice that is condemned in certain instances. E.g. Jones v Shek, 48 Mich App 530, 533; 210 NW2d 808 (1973). However, we believe that the knowledge of the release was properly sworn to by the affiant-attorney. Moreover, there was no objection to a lack of conformity with GCR 1963, 117.2(3). See Polite v Michigan Tae Kwon Do Association, Inc, 17 Mich App 580, 582 n 4; 170 NW2d 184 (1969). A more difficult question concerning the motion is its classification as a summary judgment motion. A motion that claim is barred because of a release is properly filed as a motion for accelerated judgment. GCR 1963, 116.1(5). See, e.g. Malone v SCM Corp, 63 Mich App 11, 14; 233 NW2d 872 (1975). However, mislabeling of the motion will not prevent our consideration of the question, particularly in the absence of an objection to the mislabeling. See Van Liere v State Highway Department, 59 Mich App 133, 136 n 1; 229 NW2d 369 (1975). The release statute was redrafted without significant change by PA 1961 236, MCLA 600.2925(2); MSA 27A.2925(2). Because the plaintiff and defendant bank had a contract, and because MCLA 440.9503; MSA 19.9503, requires that, as a part of the contract the repossession not result in a breach of the peace, the bank’s duty may be nondelegable because of contract principles rather than a policy determination arising solely from tort principles. We are not certain if plaintiff has pleaded a contractual cause of action. The implied terms of the contract might nonetheless be considered in assessing, under tort principles, whether repossession is "inherently dangerous”. See Parker v The Associates Discount Corp, 44 Mich App 302, 304; 205 NW2d 300 (1973). Under Vannoy v Warren, 15 Mich App 158; 166 NW2d 486 (1968), lv den, 382 Mich 768 (1969), reh 26 Mich App 283; 182 NW2d 65 (1970), aff'd 386 Mich 686; 194 NW2d 304 (1972), the determination of whether an activity is inherently dangerous was said to be a question of fact for the jury. But see Funk v General Motors Corp, 392 Mich 91, 136; 220 NW2d 641 (1974) (Coleman, J., dissenting). As we have stated above, liability for injuries resulting from inherently dangerous activities requires negligence of both the principal and the independent contractor. Liability under the "negligent-selection-of-a-known-to-be-careless-repossessor” theory also requires a negligence of both the principal and the agent. Similarly, liability under a "joint tortfeasor” theory calls for concurrent negligence of both the bank and Midwest — they are alleged to be joint tortfeasors. Contribution is therefore available under MCLA 600.2925(1); MSA 27A.2925(1). See Moyses, supra. Finally, under the res ipsa loquitur theory contribution would be available because both the bank and Midwest are alleged to be negligent. See Moyses, supra.

D. E. Holbrook, J. Defendant appeals by leave granted from an order of the court below denying his motion to suppress certain evidence. The concise statement of proceedings and facts, certified by the court below, states: "Defendant, Harold J. Morse, was involved in an automobile collision on February 14, 1974 in Orion Township, Oakland County. The driver of the other automobile was killed and defendant was seriously injured and rendered unconscious. Defendant was removed to Crittendon Hospital in Rochester, where he remained in an unconscious state. While thus unconscious, defendant was subjected to a blood alcohol test by hospital personnel, acting at the direction of the police. No consent to said test had been given nor had any arrest been made. "Defendant was subsequently charged with the crime of manslaughter. Defendant’s Motion to Suppress the results of the blood test was denied by Circuit Judge Thorburn in an Order entered December 5, 1974.” The sole question before us is whether or not the results of a blood alcohol test taken from an unconscious person without his consent and prior to arrest are admissible in a criminal prosecution for manslaughter in the State of Michigan. We agree with the court below and hold that, in this case, the results of the blood alcohol test are admissible. As a preliminary matter, we point out that the implied consent embodied in MCLA 257.625a; MSA 9.2325(1) and MCLA 257.625c; MSA 9.2325(3), does not apply in this case. People v Keen, 56 Mich App 84; 223 NW2d 700 (1974). Defendant next argues that the search and seizure should have been suppressed since it was not incident to a valid arrest. We first note that it would be ridiculous to require a police officer to perform some formal ritual of arrest over the unconscious body of a critically injured person who was a party to a fatal automobile accident. At any rate, the validity of a warrantless search and seizure is not dependent upon the existence of a prior valid arrest, as defendant seems to argue. The test is whether under all the circumstances, the search and seizure was reasonable. People v Evans, 3 Mich App 1; 141 NW2d 668 (1966). A warrantless search is proper if the officer had probable cause to believe that a crime had been committed and probable cause to believe that evidence of the crime in question will be found. If there is probable cause to believe that a search would disclose evidence of a crime, then the officer must have probable cause to believe that an immediate, warrantless search is necessary in order to (1) protect himself or others, (b) prevent the destruction or loss of evidence, or (c) prevent the escape of the accused. People v Frank Smith, 43 Mich App 400; 204 NW2d 308 (1972), People v Character #1, 32 Mich App 40; 188 NW2d 12 (1971). The lower court ruling on the motion to suppress was based upon evidence introduced by the prosecution which tended to show that the officer who directed that the blood sample be taken had probable cause to believe that a crime had been committed, and probable cause to believe that evidence of the crime in question could be found in the defendant’s blood stream. It is a well-known fact, of which we hereby take judicial notice, that, given time, the alcohol content of a person’s blood will sharply decline once the person ceases his intake of alcohol. It was argued below that for this reason the officer had probable cause to believe than an immediate search was necessary without obtaining a warrant in order to prevent the loss of evidence. Defendant does not contest the fact that the above-mentioned evidence was sufficient for the lower court to uphold the reasonableness of the search. He rather asserts that, as a matter of Michigan constitutional law, such a search can never be upheld. He bases this argument on the case of Lebel v Swincicki, 354 Mich 427; 93 NW2d 281 (1958). Lebel was a negligence action stemming from a fatal automobile accident. In that case, the defendant was removed from the scene of the accident and transported to a hospital in Cadillac, Michigan. While the defendant was unconscious a sample of his blood was taken at the direction of the attending physician. The sample was placed in a vial and given to a state trooper who then transported it to the state police post in Cadillac. The vial of blood eventually was analyzed by the state crime laboratory in Lansing, where it was established that the blood had a .15 percent alcohol content. The defendant never consented to the taking of the blood nor was he ever arrested or charged with any crime connected with the accident. The Michigan Supreme Court held that the results of the blood analysis were not admissible into evidence because they were in violation of Const 1908, art 2, § 10. In so holding, the Michigan Supreme Court discussed the case of Breithaupt v Abram, 352 US 432; 77 S Ct 408; 1 L Ed 2d 448 (1957). The Michigan Supreme Court read the Breithaupt case to say that the blood sample taken under circumstances somewhat analogous to those present in Lebel would have been a violation of the US Const, Am IV. Reasoning that the Fourth Amendment of the U.S. Constitution and art 2, § 10 of the Constitution of 1908 were identical in substance, the Court stated at 354 Mich 437; 93 NW2d 286, that: "The conclusion would therefore seem to follow that in accord with the opinion in the Breithaupt case testimony taken in a criminal case in Michigan in disregard of the above-quoted provision of the State Constitution should be held inadmissible.” For several reasons, we do not agree with defendant’s contention that the Lebel case compels reversal here. First, Lebel was a civil case which involved no arrest, no criminal charges, and no determination of probable cause. Secondly, we are mindful of a certain interpretation of Breithaupt which is evidenced by the following quote from Lebel, supra, 437; 93 NW2d at 285-286: "It was stated in the majority opinion that the evidence against Breithaupt, having been obtained in violation of the 4th Amendment to the Federal Constitution, would be subject to exclusion in a criminal prosecution in a Federal court. However, the majority declined to hold that the conviction in the State court should be held improper under the due process clause of the 14th Amendment.” We are also aware that another panel of this Court has read the Breithaupt case the samé way, Gilbert v Leach, 62 Mich App 722, 725; 233 NW2d 840, 842 (1975), hut a close reading of the Breithaupt opinion reveals to us no instance wherein the Court stated that the conduct in that case violated the Fourth Amendment. The opinion stated that, even if the conduct did violate the Fourth Amendment, this would be of no avail to the defendant since at that time the Fourth Amendment did not operate to exclude the fruits of unreasonable searches and seizures from state courts through the Fourteenth Amendment. The Court stated: "Therefore, the rights petitioner claims afford no aid to him here for the fruits of the violations, if any, are admissible in the state’s prosecution.” (Emphasis added.) Breithaupt, supra, 352 US 434; 77 S Ct 410; 1 L Ed 2d 450. Third, however Breithaupt was read at that time, the issue is now controlled by the case of Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). Schmerber held that a warrantless, nonconsensual seizure of a blood sample from a defendant was not violative of the Fourth or Fourteenth Amendments where there were exigent circumstances and where the seizure was con ducted in a reasonable manner. Thus, to the extent Breithaupt is read as advocating prohibition of seizures of blood samples under the Fourth Amendment, it has been overruled by Schmerber. Finally, Lebel can be read as a case where a warrantless search was conducted without one of the exceptions to the warrant requirement being present. So read, Lebel is readily distinquishable from facts such as those present in this case. For, as previously indicated, the evidence introduced below was sufficient to support a finding that the officer who requested the extraction of the blood sample from defendant had probable cause to believe a felony had been committed and had probable cause to believe that defendant’s blood contained evidence thereof. The officer was excused from obtaining a warrant by virtue of his knowledge that crucial evidence, the alcohol in defendant’s blood, would be forever lost if action was not taken immediately. We therefore hold that the facts of this case do not indicate a violation of the search and seizure provision of either the state or Federal constitutions. The results of the blood alcohol tests taken from defendant while he was unconscious and prior to his arrest are therefore admissible in his criminal prosecution. Affirmed. D. E. Holbrook, Jr., J., concurred.

Per Curiam. This is an appeal from a condemnation award by a Detroit Recorder’s Court jury. On May 25, 1972, plaintiff, City of Detroit, filed a complaint seeking condemnation for public purposes of approximately 41 (separately owned) parcels of land. Proceedings were initiated pursuant to 1945 PA 344, MCLA 125.71 et seq; MSA 5.3501 et seq., in conjunction with Detroit Charter, Title 8, ch 1, et seq. The 41 parcels were reduced to 20 before trial. A jury trial was held on January 5, 1973. The jury found the date of taking on the two parcels involved in this appeal to have been January 2, 1972, and awarded compensation to appellants in the amount of $16,525.78 for parcel 5-C and $14,511.79 for parcel 125-A. Appellants’ motion for a new trial was denied on March 9, 1973, and the verdict of the jury was confirmed. Appellants assert three claims of error on appeal. First, they claim that the trial court committed reversible error in denying their motion for a new trial. Appellants based this motion on a claim that the jury was confused by the complexity and length of the proceeding, which took over a month to complete and which involved 20 other contested parcels, diverse theories of damages and different witnesses for each party. Appellants had ample time to seek a severance prior to trial. A motion should have been made at or soon after the September 13, 1972, pre-trial conference. As this Court recently held in Detroit v Weber, 62 Mich App 565; 233 NW2d 653 (1975), neither this Court nor a trial court shall countenance such a delay when the movants had sufficient opportunity to ascertain what theories would be advanced and to move for a severance while one is still feasible. Second, appellants contend that reversible error occurred when the jury considered an evaluation by plaintiff’s appraiser which was made two months after the date on which the jury decided the taking had occurred. The only testimony at trial was that of Edward Stanley, the city’s appraiser, and both sides stipulated that Mr. Stanley was fully qualified to testify as an expert witness. He appraised parcel 5-C at $9,800 and parcel 125-A at $13,300 as of March 1, 1972. However, the jury later returned a special verdict that the date of taking was January 2, 1972. The only testimony by either side relating to the appraised value on or before January 2, 1972, was the city’s assessed valuation of the property. As to parcel 5-C, the high figure as tax assessment was $65,334 and as to parcel 125-A, $48,906. The parties stipulated that the buildings had deteriorated and had been vandalized after they had been vacated in preparation for condemnation. The ultimate jury verdict was within the range of the parties’ estimates. Appellants rely on In re Medical Center Rehabilitation Project, 50 Mich App 164; 212 NW2d 780 (1973). In Barak, the condemnee claimed a specific date of taking and introduced evidence of value as of that specific date, $18,200. The jury returned a special verdict which adopted the condemnee’s date of taking but also returned a general verdict which set the award at $10,335, a figure other than the only estimate introduced for that date. This Court held that this combination of general and special verdict was violative of GCR 1963, 514. It remanded for entry of an award in the amount of $18,200, the only value established for the date of taking. We find Barak distinguishable for two reasons. First, the jury in the instant case did not adopt a date of taking propounded by either party. Second, in the instant case, there was no evidence as to the precise property value as of the date of taking. There was no showing as to the precise date of the assessed valuation on which appellants rely. In such a case, the tax assessment value is not dispositive of the jury’s own determination of value, but may be considered in connection with all other evidence of value which shall be liberally received. In re Memorial Hall Site, 316 Mich 215, 220; 25 NW2d 174 (1946). Notwithstanding our distinction of Barak, appel lants argue that a jury should not be permitted to consider evidence of value estimated as of a date later than the date of taking. We find this argument impractical and inconsistent with the general principle that evidence relating to value be liberally received. In re Memorial Hall Site, supra. It would be impossible to limit evidence of value presented at trial to dates prior to the date of taking because the date of taking is not yet established. Where, as here, the date of taking established by the jury is one not propounded by either party nor one for which a specific value has been set, it is entirely proper for the jury to consider any estimates of value made reasonably close to the ultimately determined date of taking. Here, plaintiffs estimate was made two months after the date of taking. The parties stipulated that no changes had occurred during that time period. Indeed, the jury apparently felt that the significant deterioration of the property after the tax assessment was determined may have made the later evaluation by plaintiff’s appraiser the more reliable figure. Appellants’ final claim of error is that the jury’s award should be reversed because it was rendered in disregard of the evidence. It is not within the province of the court on appeal of condemnation proceedings to review questions of fact further than to see that the verdict is supported by the evidence. State Highway Commissioner v Schultz, 370 Mich 78; 120 NW2d 733 (1963). An appellate court should not disturb a condemnation award which was within the maximum and minimum appraisals presented by the witnesses. Detroit v Yellen, 28 Mich App 529; 184 NW2d 563 (1970). The instant verdict was within the evidence. Affirmed. Costs to plaintiff.

F. C. Ziem, J. This case has been in process for several years. It has previously been before this Court and the Supreme Court. It began with the killing of an off-duty police officer, Alonzo Marshall, during the course of a robbery on September 1, 1971. These defendants were eventually arrested and tried for first-degree murder under a felony murder theory. MCLA 750.316; MSA 28.548. Defendant Johnson’s first trial resulted in a hung jury and declaration of mistrial May 5, 1972, before Recorders Court Judge Evans. Subsequently, a prosecution motion to consolidate these cases for trial was granted on June 14, 1972. At Johnson’s second trial, Love’s first, the jury returned a verdict of guilty of murder in the first degree. The verdict was returned on July 28, 1972, after 17 days of testimony and deliberation. Recorders Court Judge George Crockett presided at this trial. Upon defense counsel’s motion, the trial court granted a new trial because "justice [had] not been done”, MCLA 770.1; MSA 28.1098. The prosecution appealed from this grant of new trial. The Court of Appeals in an opinion written by Judge O’Hara reversed the trial court’s grant of a new trial and reinstated the verdict rendered by the jury. People v Rayford Johnson, 52 Mich App 385;217 NW2d 417 (1974). The Supreme Court granted leave, sua sponte, reversed the Court of Appeals and remanded to the trial court for a new trial. People v Rayford Johnson, 391 Mich 834; 218 NW2d 378 (1974). On August 28, 1974, the people moved before Judge Crockett for the judge to disqualify himself from the retrial under GCR 1963, 405.1(3)(8). Judge Crockett refused asserting that the rule relied upon was not applicable to these circum stances. At that point the assistant prosecuting attorney asked that no other matters in this case be heard until the trial court’s decision not to disqualify itself could be reviewed by this Court. The trial court refused the assistant prosecuting attorney’s request. The trial court immediately considered and granted defendant Johnson’s motion for dismissal. Judge Crockett granted defendant Love’s motion to dismiss on September 5, 1974. The court adopted the opinion rendered in Johnson’s motion as controlling in Love’s situation also. The prosecution’s claim of appeal, filed October 21, 1974, challenged Judge Crockett’s decision not to disqualify himself and to dismiss the charges against these defendants. The first issue presented is whether the trial court erred in failing to disqualify itself from consideration of motions to dismiss where it had previously expressed doubt as to defendant’s guilt and granted a motion for new trial on that basis. The trial judge in effect expressed his belief that the people failed to prove the defendants’ guilt beyond a reasonable doubt. The prosecutor asserts that the statements made show a predisposition in favor of the defendants and bias against the people’s case and that Judge Crockett should have disqualified himself from consideration of the motions to dismiss and a new trial ordered by the Supreme Court. GCR, 1963, 405.1 provides in part: "The judge shall be deemed disqualified to hear the action when the judge: * * * (3) is personally biased or prejudiced for or against any party or attorney; * * * ” Tbo people place sole reliance upon this subdivision of the rule to support the claim that Judge Crockett should have disqualified himself or have been disqualified by Judge Gardner. No cases have been cited by the people to support this proposition. No Michigan case has been found in which the people have sought to disqualify a judge from sitting on the retrial of a case in these circumstances. It has been held that a judge’s expression of his belief in defendant’s guilt will not cause him to be disqualified upon a retrial of a defendant. Kolowich v Ferguson, 264 Mich 668; 250 NW 875 (1933), People v Mexicott, 288 Mich 671; 286 NW 121 (1939). It has been held universally in the cases that if a party is relying on the alleged prejudice or bias of the trial judge for disqualification, that prejudice or bias must in fact be shown. Crowley Milner & Co v Macomb Circuit Judge, 239 Mich 605; 215 NW 29 (1927), Wayne County Prosecutor v Doerfler, 14 Mich App 428; 165 NW2d 648 (1968), People v Moran, 36 Mich App 730; 194 NW2d 555 (1971), People v Irwin, 47 Mich App 608; 209 NW2d 718 (1973), Irish v Irish, 59 Mich App 635; 229 NW2d 874 (1975). Actual bias has only rarely been shown. Auto Workers Flint Federal Credit Union v Kogler, 32 Mich App 257; 188 NW2d 184 (1971), People v Donald Lobsinger, 64 Mich App 284; 235 NW2d 761 (1975). The fact that the trial court has previously ruled against the party cannot be alleged in support of a showing of prejudice. Irish v Irish, supra. The Supreme Court has phrased the point even more broadly. In Mahlen Land Corporation v Kurtz, 355 Mich 340, 350; 94 NW2d 888 (1959), the Court stated: "Every court, and every member of every appellate court, must form an opinion as to the merits of the matter before him, often, as to the bona fides of the parties. This opinion, pro or con, cannot constitute bias or prejudice.” See also Crowley Milner & Co v Macomb Circuit Judge, supra, at 613. The statements relied upon by the people here were all given during the course of legal proceedings in this case either at sentencing or at hearings on the various motions. There is no allegation that they were made in bad faith or based on anything other than the trial court’s perception of the evidence presented by the people. The people have failed to show that the judge was "personally biased or prejudiced for or against any party or attorney”. GCR 1963, 405.1(3). Prejudice has been defined as "an opinion or leaning adverse to anything without just grounds or before sufficient knowledge”. Webster’s New Collegiate Dictionary (8th Edition), p 907. The people have not cited anything in the record which shows that Judge Crockett expressed an opinion about the quality of the people’s proof until after all the evidence had been presented. We are therefore of the opinion that the people have not met the burden of establishing that Judge Crockett should be disqualified in this matter. On the second issue, to wit: whether Judge Crockett had the power to dismiss following the remand by the Michigan Supreme Court, the writer of this opinion happens to agree with the reasoning of Judge O’Hara in his opinion reversing Judge Crockett and holding that the grant of a new trial was improper and reinstating the jury verdicts. People v Rayford Johnson and People v Love, 52 Mich App 385; 217 NW2d 417 (1974). However, that is of little importance, because that decision was reversed and the matter remanded for a new trial by the . Supreme Court, 391 Mich 834; 218 NW2d 378 (1974). We are bound by that decision and must follow it, and so must Judge Crockett. Did Judge Crockett follow the Supreme Court’s mandate or did he lack the power to dismiss under the facts and circumstances here involved? Appellant asserts that the trial court’s decision to dismiss encroaches on the doctrine of separation of powers and that the prosecutor has the exclusive right to dismiss cases if sufficient evidence can be produced; trial courts have no inherent power to do so, citing People v Stewart, 52 Mich App 477; 217 NW2d 894 (1974). Appellant asserts that in this case sufficient evidence was produced to convince a jury of defendant’s guilt; and that the Supreme Court in this case ordered a new trial, not a dismissal. In the present case, although there is "sufficient evidence” to support a conviction, the trial court has ruled that some of the testimony was not worthy of belief and is in that sense insufficient. The Supreme Court has affirmed the grant of a new trial on that basis. Judge Crockett originally granted the new trial because he was unconvinced of defendants’ guilt. Another trial before the same judge would result in another motion for new trial if a jury convicted or in acquittal if tried before the court alone, because the people admittedly will not introduce new evidence at a retrial. The Supreme Court reversed the Court of Appeals and remanded for a new trial. Upon the remand, it is conceded there will not be any new or different evidence to be presented upon the retrial of these causes. Judge Crockett had already set aside the verdicts of guilty based upon this same evidence. Was he bound by the Supreme Court’s order to go through this same procedure again and if there was another verdict of guilty by the jury, to be then presented with the same issue in the same cases with same parties that had already been ruled upon by him in 1972, and which decision had been reversed by the Court of Appeals, which was then in turn reversed by the Supreme Court? We think not. Judge Crockett has already set aside the verdicts of guilty in these cases. There is no new evidence to be presented. It would be a useless waste of time to start another series of proceedings consisting of another trial (with or without jury) and if there was a jury verdict of guilty, the trial judge setting it aside for the same reasons, followed by another round of appeals on the same issues which have already been decided one way (reversal) by the Court of Appeals, and decided another way (reversal of the reversal) by the Supreme Court. This could go on forever. The situation presented here, a dismissal after grant of new trial because the court was not satisfied that the people had proved defendants’ guilt beyond a reasonable doubt and an admission by the people that no new evidence will be presented upon retrial has not previously been passed upon by appellate courts of this state. In Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972), the prosecutor appealed the trial court’s action of accepting a plea of guilty to an added count not charged in the information over the prosecutor’s objection. Justice Williams, writing for the Court, framed the issue in terms of who decides under what statute criminal charges will be brought. Thus phrased, the Court held that the trial court could not act as "prosecutor, judge, and jury” and was encroaching on the executive function of determining what crime was to be charged. Genesee was truly a separation of powers case. No evidence had been produced on any charge, unlike the present case where the same judge ruling on the motion to dismiss had heard the people’s entire case. We are, thus, of the opinion that Judge Crockett did follow the Supreme Court’s mandate and that he did have the power to dismiss these cases under the unusual facts and circumstances here involved. For the foregoing reasons the trial court is affirmed.

Allen, J. Defendant appeals by right from his conviction of involuntary manslaughter, MCLA 750.321; MSA 28.553, and assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279. Defendant, a juvenile, took an automobile, and was spotted by police with his headlights off. A high speed chase ensued, joined by state troopers. Defendant made several attempts to block police from passing him. He eventually drove the state police car off the road and into a tree. One trooper was killed and the other seriously injured. At defendant’s preliminary examination on a complaint charging premeditated murder, murder during the perpetration of a larceny, and assault with intent to murder, the district court found, among other things, the proofs were insufficient as to premeditated murder but, as to felony murder, it ruled: "The Court specifically finds that the People have proven a felony here, under [MCLA] 750.413 [MSA 28.645], and that it is not necessary to establish specific intent to permanently deprive the owner of possession of a motor vehicle in order to establish the crime of auto theft in terms of that statute. People have estab lished the less specific intent of larceny and have shown the classic elements of a larceny of the motor vehicle in question, as an asportation of, with felonious intent without the owners’ consent, and against his will. "The auto theft felony statute, [MCLA] 750.413 [MSA 28.645], is still a statutory crime and the question remains, is that a larceny under the language of [MCLA] 750.316 [MSA 28.548], making a First Degree Murder to kill and murder one Darryl Rantanen, in the course of a larceny? "The Court finds that the larceny, the elements established in the auto theft would amount to a larceny. It says a larceny of any kind. That these are the common law elements and that that has been established.” Defendant’s pretrial motion in circuit court to quash the amended information as to felony murder was denied on the grounds that intent to permanently deprive another of his property is not an essential element of either larceny or a violation of MCLA 750.413; MSA 28.645. Subsequently, the court corrected itself, acknowledging that intent to permanently deprive one of his property is an essential element of larceny. Nevertheless, the court denied defendant’s motion for a directed verdict on the grounds that the question of intent was for the jury. On appeal, defendant claims error in binding him over on a charge of felony murder since unlawfully driving away an automobile under MCLA 750.413; MSA 28.645, is not an enumerated felony. He argues that the circuit court erred in not quashing the information or directing a verdict of acquittal on the count. The people maintain that defendant’s conduct might be interpreted as larceny of an automobile plus murder, that it was within the discretion of the prosecutor to so charge, and that Count II of the complaint and Count I of the amended information did so charge. MCLA 750.316; MSA 28.548 defines first-degree murder in pertinent part: "All murder * * * which shall be committed in the perpetration, or attempt to perpetrate * * * larceny of any kind.” In resolving the initial issue whether the statutory crime of unlawfully driving away a motor vehicle constitutes a "larceny of any kind”, we note the principle that penal statutes are to be strictly construed. People v Goulding, 275 Mich 353, 360; 266 NW 378 (1936). The essential elements of a larceny are: "(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or the personal property of another, (5) the taking must be without the consent and against the will of the owner.” People v Wilbourne, 44 Mich App 376, 378; 205 NW2d 250 (1973). The felonious intent required for larceny, animus furandi, is an intent to permanently deprive the owner of his property.* The elements of unlawfully driving away a motor vehicle contrary to MCLA 750.413; MSA 28.645, consist of (1) taking posses sion of a vehicle, (2) driving or taking it away, (3) willfully, and (4) without authority. People v Limon, 4 Mich App 440, 442; 145 NW2d 287 (1966), People v Talley, 67 Mich App 239; 240 NW2d 496 (1976). It is evident, and our Supreme Court has so ruled, that unlawfully driving away an automobile does not require proof of an intent to permanently deprive the owner of his property and is therefore not larceny. People v Stanley, supra. Also see, People v Lerma, 66 Mich App 566; 239 NW2d 424 (1976), People v Davis, 36 Mich App 164; 193 NW2d 393 (1971). Granting the district court erred in determining that unlawfully driving away a motor vehicle equals larceny for the purpose of felony murder, we are persuaded that the district court did not abuse its discretion in binding defendant over on a charge of murder during perpetration of a larceny. The prosecution is not required at the preliminary examination to prove that a defendant is guilty beyond a reasonable doubt. The prosecution must show that the charged offense was committed and there is probable cause defendant committed it. People v Asta, 337 Mich 590, 609; 60 NW2d 472 (1953). However, to bind one over "there must be evidence on each element of the crime charged or evidence from which those elements may be inferred. People v Oster, 67 Mich App 490; 241 NW2d 260 (1976). An intent element "may be inferred from the act itself’. People v Medley, 339 Mich 486, 493; 64 NW2d 708 (1954). In cases involving the taking of an automobile, the prosecution will often charge unlawfully driving away a motor vehicle in lieu of larceny so as to dispense with the need to prove "intent to steal”. If the prosecution believes the evidence so warrants it has the discretion to charge one with either crime. Cf. People v Sanford, 65 Mich App 101; 237 NW2d 201 (1975). In the case at bar the preliminary examination transcript contains evidence that a motor vehicle belonging to one Meyer in Escanaba was taken without his consent and against his will. There is evidence of an asportation, evidence that shortly after the taking, the driver of the vehicle killed a police officer by running the latter’s vehicle off the road during a chase, and evidence that the driver abandoned the vehicle after the tragic event. From the above evidence, it could be inferred that whoever took the automobile did so with felonious intent to steal. Prosecution witness Joseph Dahn testified at the preliminary examination that while he and the defendant were in Escanaba, defendant suggested that they steal a car. They found a vehicle with keys and drove to the witness’s residence in nearby Gladstone. He testified that they intended to abandon the vehicle, but when they arrived in Gladstone, defendant said he desired to ride around a little longer. On cross-examination Dahn testified that they took the automobile because they were too tired to hitchhike and that before driving away defendant indicated to him that he would leave the vehicle somewhere in Gladstone. Admittedly, witness Dahn’s testimony was conflicting. However, "it is not the function of the examining magistrate to carefully weigh the evidence and discharge the accused when the evidence conflicts or raises a reasonable doubt of his guilt; such questions should be left for the jury”. People v Oster, supra, at 496. When circumstantial evidence supports an inference with regard to intent, should other testimony tending in part to negate the intent necessarily preclude a magis trate from binding the defendant over on the charge? We do not believe it should. A jury has the right to disregard all or part of the testimony of a witness. People v Berthiaume, 59 Mich App 451; 229 NW2d 497 (1975). Of course, "[m]ere disbelief in a witness’s testimony does not justify a conclusion that the opposite is true without other sufficient evidence supporting that conclusion”. People v O’Connor, 48 Mich App 524, 529; 210 NW2d 805 (1973). We believe that the conduct of the defendant coupled with the testimony of witness Dahn that defendant suggested they steal an automobile was sufficient to bind defendant over on the charge even though other testimony pointed to the conclusion that defendant did not intend to permanently deprive Mr. Meyer of his property. Defendant also contends that it was error to bind appellant over on a charge of felony murder for yet another reason, viz.: there was no finding that the trooper’s death was murder rather than homicide. We acknowledge that a death (homicide) in the course of a felony enumerated in the first-degree felony murder statute is not, without more, felony murder. People v Carter, 395 Mich 434; 236 NW2d 500 (1975). But we do not agree that the district court bound defendant over on the felony murder count based on larceny of an automobile (the felony) and homicide. Instead, the record discloses defendant was bound over on a charge of felony plus homicide plus malice. The element of malice is adequately record supported. Driving a vehicle at approximately 100 m.p.h. while repeatedly swerving the vehicle to block passage of the pursuing police car, striking the vehicle in which the officers were riding, and running them off the road, is conduct which obviously tended to cause either death or great bodily harm. Where the conduct complained of naturally tends to result in death or great bodily harm, malice may be implied. People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), People v Geiger, 10 Mich App 339; 159 NW2d 383 (1968). Findings of an examining magistrate will only be reversed for an abuse of discretion. People v Paille #2, 383 Mich 621 178 NW2d 465 (1970). Given the facts in th< instant case we find no abuse of discretion as t< the finding of malice. For identical reasons we d< not agree with appellant’s related claim of erro that the trial court erred reversibly in bindin¡ defendant over on a charge of second-degree muí der. Nor was error committed by the circuit cour when it refused to direct a verdict for defendan on the charges of felony murder and murder ir. the second degree. Defendant claims that he was twice placed in jeopardy when tried on an information separately charging him with the crimes of felony murder and second-degree murder for the death of a single victim. Our Supreme Court recently ruled that "there are lesser included offenses to first-degree felony-murder” and that "[sjecond-degree murder is always a lesser included offense of first-degree murder”. People v Carter, 395 Mich 434, 437; 236 NW2d 500 (1975) (emphasis added). Had defendant been convicted of first-degree murder as well as second-degree murder, it is evident that his conviction for the included offense would be set aside as constituting double punishment. People v Anderson, 62 Mich App 475; 233 NW2d 620 (1975). Since the remedy for multiple punishment for one offense is to expunge the lesser charge, People v Guidry, 67 Mich App 653; 242 NW2d 461 (1976), there is nothing for the Court to rectify where, as here, defendant has been convicted of neither charge. This Court finds no miscarriage of justice resulted from the introduction of testimony by the prosecution in its case in chief, and absent objection by the learned trial counsel, which showed defendant used marihuana on the day of the crime. Defendant maintains that the verdicts of involuntary manslaughter and assault with intent to do great bodily harm are reversibly inconsistent. In this jurisdiction, inconsistent verdicts cannot stand unless they can be explained on any rational basis. People v Fields, 66 Mich App 347; 239 NW2d 372 (1976). People v Ames, 60 Mich App 168; 230 NW2d 360 (1975), People v Willie Johnson, 58 Mich App 165; 227 NW2d 272 (1975), People v Widgren, 53 Mich App 375; 220 NW2d 130 (1974), People v Phillips, 43 Mich App 581; 204 NW2d 250 (1972). The death of one police officer and injury of another arose out of the single action by defendant of forcing their vehicle off the road. There is no rational basis for explaining the verdicts under the evidence. Hence, this Court reverses the conviction of assault with intent to commit great bodily harm and remands the case back to circuit court with the direction to enter a conviction on the lesser offense of felonious assault, and to resentence defendant on the modified conviction. The conviction and sentence for manslaughter are affirmed. Affirmed in part; reversed in part. At the time of the taking of the automobile defendant had a companion with him. However, defendant had dropped him off before the tragic incident took place. Count II: did feloniously while in the perpetration or attempted perpetration of a larceny or attempted larceny, to wit: theft of a 1964 Chevrolet automobile License #BCW-307 and/or use of that automobile, did kill and murder one Darryl Rantanen; contrary to Sec. 750.316 C.L. 1948, as amended, MSA 28.548.” In the amended information, Count II of the complaint became Count I but the wording thereof remained unchanged. MCLA 750.413; MSA 28.645. People v Stanley, 349 Mich 362; 84 NW2d 787 (1957), People v Cummins, 47 Mich 334; 11 NW 184 (1882), United States v One 1941 Chrysler Brougham Sedan, 74 F Supp 970 (ED Mich, 1947). Also see Clark & Marshall, Crimes (6 ed), § 12.04, p 730, 2 Wharton’s Criminal Law & Procedure, § 452, p 80, 15 Mich Law & Practice, Larceny, § 2, p 371, 50 Am Jur 2d Larceny § 36, pp 194-197. Compare Wetzel v Cadillac Mutual Insurance Co, 17 Mich App 57, 60; 169 NW2d 128 (1969). It is for the trier of fact to determine if the prosecution has 'negate[d] every reasonable theory consistent with defendant’s innocence of the crime charged’.” People v Fuller, 395 Mich 451, 455; 236 NW2d 58 (1975). At the preliminary examination the examining magistrate found insufficient evidence of the charge of premeditated murder but did find evidence of second-degree murder and the information was amended to include a count of second-degree murder. We note that after January 1, 1976, the prosecution will be unable to charge separate counts of murder in the first-degree and murder in the second-degree for the same killing. "[I]n every trial for first-degree murder, including felony murder, the trial court is required to instruct the jury sua sponte, and even over objection, on the lesser included offense of second-degree murder.” People v Jenkins, 395 Mich 440, 442; 236 NW2d 503 (1975).

Mallett, J. We granted leave to determine whether an employer, who implements an affirmative action plan that has not been formally approved by the Civil Rights Commission pursuant to MCL 37.2210; MSA 3.548C210) is guilty of discrimination as a matter of law. We hold that such conduct is not itself discriminatory. We therefore reverse the decision of the Court of Appeals and remand to the circuit court for further consideration. FACTS Richard Victorson, a high school graduate, began his employment with the Department of Treasury as an auditor in 1967. In 1982, Victorson took the Professional Managers and Administrators examination on which he received a "highly qualified” rating. This rating made him eligible for any position within the department for which he was qualified. In May of 1983, he applied for a promotion from an Auditor vii to an Auditor ix position available in Ann Arbor, Michigan. Victor-son was given a structured oral interview and received the highest score of all applicants interviewed. As a result of both his score on the pma examination and his oral interview^ Victorson was initially recommended for the position. Ms. Joan Siegla, a Certified Public Accountant and the holder of a master’s degree in accounting, began her career as an auditor in 1974. Siegla received a "qualified” rating on the pma examination. Initially, Siegla did not apply for the Auditor ix position because she thought it would require relocating her residence. After the oral interviews were completed, Siegla was informed by the Department of Treasury’s equal employment opportunity officer that relocation was not necessary. Siegla indicated she would be interested in the position and an interview was scheduled. She was interviewed by Mr. Victorson’s interviewers, but was not given a score. Recommended by the oral interviewers, Siegla was appointed to the Auditor ix position over Victorson. Ms. Siegla’s promotion was made pursuant to the Department of Treasury 1979 voluntary affirmative action plan. The 1979 affirmative action plan under which Siegla was promoted was not approved by the Civil Rights Commission. Richard Victorson .brought suit in the Oakland Circuit Court, alleging among other things that the affirmative action plan under which Siegla was promoted was void because it had not been approved by the Civil Rights Commission. On cross motions for summary disposition, the circuit court granted partial summary disposition in favor of Victorson. The court found that the department’s failure to obtain prior approval from the Civil Rights Commission rendered the plan void. The court further found that implementation and utilization of the affirmative action plan constituted sex discrimination in violation of the Civil Rights Act, MCL 37.2202; MSA 3.548(202), and awarded Victorson more than $14,000 in damages. Further proceedings were stayed pending the Department of Treasury’s appeal to the Court of Appeals. The Court of Appeals affirmed the decision of the circuit court. Victorson v Dep’t of Treasury, 183 Mich App 318; 454 NW2d 256 (1990) (Shepherd, J., dissenting), holding that § 210 clearly and unambiguously provides that a voluntary affirmative action plan which has not been approved by the.Civil Rights Commission is invalid. This Court granted leave to appeal by order dated March 22, 1991. 437 Mich 925. I We are called upon to determine whether the absence of Civil Rights Commission approval renders employment decisions made pursuant to unapproved voluntary affirmative action plans discriminatory as a matter of law in violation of Michigan’s Civil Rights Act. Resolution of this issue will depend upon construction of § 210, which provides: A person subject to this article may adopt and carry out a plan to eliminate present effects of past discriminatory practices or assure equal opportunity with respect to religion, race, color, national origin, or sex if the plan is filed with the commission under rules of the commission and the commission approves the plan. [MCL 37.2210; MSA 3.548(210).] It is a fundamental rule of statutory construction that where the language of a statute is clear and unambiguous, no judicial interpretation is warranted. City of Livonia v Dep’t of Social Ser vices, 423 Mich 466, 487; 378 NW2d 402 (1985). However, judicial construction is permitted where the language of a statute is unclear and susceptible to more than one interpretation. State Treasurer v Wilson, 423 Mich 138, 144; 377 NW2d 703 (1985). When construing a statute, this Court is obligated to ascertain and give effect to the intention of the Legislature. Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986). Legislative intent may be determined by considering the language and general scope the act seeks to accomplish or the evil it seeks to remedy. Longstreth v Gensel, 423 Mich 675; 377 NW2d 804 (1985). Our courts have come to conflicting conclusions regarding § 210. In Van Dam v Civil Service Bd of Grand Rapids, 162 Mich App 135; 412 NW2d 260 (1987), the Court of Appeals addressed the issue whether the Civil Rights Act required submission of affirmative action plans in order for the plan to receive protection under the act. The trial court granted the defendant’s motion for summary disposition, finding that MCL 37.2210; MSA 3.548(210) was void of any language indicating the absolute necessity of submitting an affirmative action plan for approval. The Court of Appeals reversed. Finding that the language of § 210 was clear and unambiguous, the Court of Appeals stated that "[o]nly the decision whether or not to initiate an affirmative action plan is discretionary. . . . Clearly, once a plan is initiated, submission of the plan to the commission becomes mandatory.” Van Dam at 139. The Court of Appeals came to a contrary conclusion in Ruppal v Dep’t of Treasury, 163 Mich App 219; 413 NW2d 751 (1987). At issue in Ruppal was whether the defendant had been discriminated against on the basis of sex in violation of MCL 37.2202(1)(a); MSA 3.548(202)(1)(a) because the promotion of a female employee was made pursuant to an unapproved affirmative action plan in violation of § 210. The trial court granted the plaintiff’s motion for summary judgment. Reversing, the Court of Appeals found that § 210 did require plans to be filed with and approved by the Civil Rights Commission, but held that failure to obtain commission approval does not result in summary disposition in favor of the plaintiff. Citing J F Cavanaugh & Co v Detroit, 126 Mich App 627; 337 NW2d 605 (1983), the Court of Appeals opined that an employer’s failure to obtain commission approval precludes the employer from invoking the act’s protection. These opposite interpretations lead us to conclude that § 210 is at least arguably ambiguous and therefore subject to judicial construction. 2A Sands, Sutherland Statutory Construction (4th ed), § 46.04, p 87. Originally, § 210 provided that voluntary affirmative action plans could be adopted if the plan was filed with the commission and the commission did not disapprove the plan. HB 4055, § 20. We agree with the Court of Appeals in the present case that the current § 210 contemplates an active role for the commission. We also agree that this active role indicates that the implementation only of approved plans was contemplated by the Legislature. Similarly, a review of the original and current versions of § 705, which construes the act, further supports our conclusion that § 210 requires prior approval. Section 705 originally provided: Nothing in this act shall be interpreted as restricting the implementation of affirmative action programs to eliminate discrimination and the effects thereof when appropriate. [HB 4055, § 68(2).] There is no reference to approved plans. The current version of § 705 was slightly modified, and provides: This act shall not be interpreted as restricting the implementation of approved plans, programs, or services to eliminate discrimination and the effects thereof when appropriate. [MCL 37.2705(2); MSA 3.548(705)(2). Emphasis added.] We believe that by enacting the Civil Rights Act, specifically § 210, it was the intention of the Legislature to encourage persons subject to the act to voluntarily take steps toward assuring equal opportunity in employment and to be free from charges of discrimination by requiring such plans to be filed with and approved by the Civil Rights Commission before implementation. We also believe that the Legislature, by requiring preapproval, intended to be sure that these plans did not unnecessarily trammel the rights of nonminority employees. II Although we find that commission preapproval is required by § 210, we are not persuaded that employment decisions made pursuant to unapproved plans constitute, as a matter of law, discrimination violative of Michigan’s Civil Rights Act. The act does not make reference to unapproved plans, nor does the act indicate the possible consequences for utilizing unapproved affirmative action plans. To assert that the Legislature intended the use of unapproved plans to constitute discrimination as a matter of law is not supported by the legislative history. Such a narrow construction negates the purpose of civil rights legislation and the liberal construction afforded such remedial legislation. Eide v Kelsey-Hayes Co, 431 Mich 26, 34; 427 NW2d 488 (1988), citing 3 Sands, Sutherland Statutory Construction (4th ed), § 60.01, p 55. MCL 37.2202(1); MSA 3.548(202)(1) is Michigan’s parallel to title VII, § 703(a), 42 USC 2000e-2. Since Michigan’s act is silent regarding the effect noncompliance with § 210 has on alleged discriminatory employment practices, we will look to analogous federal case law as an aid in our construction. MSEA v Dep’t of Management & Budget, 428 Mich 104, 117; 404 NW2d 606 (1987), citing Kestenbaum v Michigan State Univ, 414 Mich 510; 327 NW2d 783 (1982). In McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), the United States Supreme Court established the order of proof in a title VII case. The following include the steps set forth by the Supreme Court in McDonnell Douglas: First, the plaintiff must establish a prima facie case of discrimination; then the burden shifts to the employer to articulate a nondiscriminatory, legitimate reason for its employment decision. Finally, should the employer successfully rebut the plaintiff’s prima facie case, the plaintiff is afforded an opportunity to demonstrate that the employer’s articulated nondiscriminatory reason is merely pretext. Id. at 804. The plaintiff bears the burden of proving the invalidity of an affirmative action plan at all times. Wygant v Jackson Bd of Ed, 476 US 267; 106 S Ct 1842; 90 L Ed 2d 260 (1986). We believe that the order of proof for title VII cases established in McDonnell Douglas is the appropriate order of proof for cases arising under the Civil Rights Act. MSEA v Dep’t of Management & Budget, supra. Thus, under the Civil Rights Act, the plaintiff must first establish a prima facie case of discrimination. This will require a showing that race or sex has been considered in the employer’s employment decision. This requirement may be satisfied by establishing the employer’s use of an unapproved affirmative action plan. However, the inquiry does not end here. After the plaintiff’s prima facie case, the defendant is then afforded an opportunity to rebut the presumption of discrimination. The absence of an approved plan does not mean that the employer is precluded from articulating a nondiscriminatory reason for its employment decisions. Thus, use of an unapproved plan will not entitle the plaintiff to succeed on a motion for summary disposition. Instead, we believe that allowing an employer an opportunity to demonstrate that, the unapproved affirmative action plan is otherwise valid is consis tent with the purpose of the Civil Rights Act and the intention of the Legislature. The United States Supreme Court articulated several factors to be considered when determining the validity of an affirmative action plan. United Steelworkers of America v Weber, 443 US 193; 99 S Ct 2721; 61 L Ed 2d 480 (1979). Those factors include: (1) whether the purposes of the employer’s plan is similar to the purposes of title VII, (2) whether the employer’s plan unnecessarily trammels the rights of nonminorities, and (3) whether the plan is temporary in nature. Id. at 208. At issue in Weber was whether a private employer could implement a voluntary affirmative action plan designed to eliminate the racial stratification in its work force. Using the factors listed above, the Court upheld the employer’s affirmative action plan which required that fifty percent of the employees selected for the in-plant training program be black. The United States Supreme Court applied the Weber factors to an affirmative action plan implemented by a public employer in Johnson v Santa Clara Co Transportation Agency, 480 US 616; 107 S Ct 1442; 94 L Ed 2d 615 (1987). In Johnson, the Santa Clara transportation agency adopted and implemented an affirmative action plan designed to eliminate the underutilization of women and minorities. The plan authorized the agency to consider the ethnicity or sex of a qualified applicant seeking a promotion to a traditionally segregated job classification. Petitioner Johnson and a female applicant were considered qualified and were subsequently interviewed. Johnson scored a seventy-five on his interview and was tied for second place. The female applicant ranked third with an interview score of seventy-three. Johnson was ultimately recommended for the promotion, but the female applicant received the promotion because of the agency’s affirmative action plan. The Court used the factors established in Weber as a guide in assessing the affirmative action plan utilized by the agency. First, the Court considered whether the agency’s plan addressed concerns similar to the concerns addressed by title VII. The Court found that the statistical work force imbalance in traditionally segregated jobs justified the agency’s promotion of the female applicant over Johnson. The next Weber factor the Court considered was whether the plan unnecessarily trammeled the rights of male employees. Noting that the agency’s affirmative action plan did not set aside any positions for women or minorities, unlike the fifty percent set aside in Weber, the Court found that the plan did not trammel the rights of male workers, or create an absolute bar to their advancement. Moreover,, the Court was satisfied with the trial testimony of the agency’s director that sex was only one of many factors he considered when he decided to offer the promotion to the female applicant. Finally, the Court found that the agency’s plan was temporary in nature because it was designed to eliminate a manifest imbalance in the workplace. Furthermore, the Court found that the plan itself only made reference to attaining a balanced work force and no references to maintaining a balanced work force. Consequently, the Court concluded that, the agency’s consideration of sex was permissible and its affirmative action plan did not violate title VII. We believe that fashioning a test similar to that established in Weber and used in Johnson is an appropriate means by which to resolve the present and similar cases. Finally, if the defendant successfully rebuts the plaintiff’s prima facie case, then the plaintiff is permitted to demonstrate that defendant’s proffered nondiscriminatory reason is a pretext. CONCLUSION We reverse the decision of the Court of Appeals and remand the case to the circuit court. We suggest that the circuit court follow the orders of proof outlined above. When faced with the existence of an unapproved voluntary affirmative action plan, summary disposition does not automatically follow. Instead, the defendant is to be afforded an opportunity to show that the plan is otherwise valid. This may be accomplished by showing that (1) the unapproved plan is similar in purpose to the Civil Rights Act, (2) . the plan does not unnecessarily trammel the rights of nonminorities, and (3) the plan is temporary in nature. Cavanagh, C.J., and Levin and Boyle, JJ., concurred with Mallett, J. MCL 37.2101 et seq.; MSA 3.548(101) et seq. In 1976, the Civil Service Commission changed the educational requirement for the auditor class which required a bachelor’s degree and either twenty-one semester hours or thirty-two term credits in accounting. Those employed by the department in 1976 who did not have educational requirements were "grandfathered” into the class. "Grandfathered” people stand on equal footing for promotions with those who possess the educational requirement. Persons taking the pma examination are graded either highly qualified, which means they score ninety or above, or qualified, which indicates a score of seventy to eighty-nine on the examination. Defendants had an affirmative action program which allowed protected group members in the qualified group to be. added to the candidate pool if there were not three candidates in the highly qualified group. The rule of three limits promotions to those in the highly qualified group, provided there are at least three in the highly qualified group. Before the 1983 promotion, Victorson had applied for three Auditor ix promotions, all of which went to other men. Subsequent to the Siegla promotion, Victorson applied for an Auditor x position, which went to another male, and two Auditor ix positions, which also went to men. The 1979 affirmative action plan under which Siegla was appointed provides: The Department of Treasury’s statewide goals and progress for the 1979 fiscal year are as follows: (Handicapped persons are not reflected in the goals because guidelines for reporting requirements have not been established by M.E.E.O.C.) Professional Classes (i.e. Governmental Auditor, Data Systems Analysts, Tax Collection Representative and Revenue Executive) at levels 07 through 11: Goals: 8 Females, 9 Blacks, 1 Hispanic and 1 undesignated minority Hired to date: 5 Females and 7 Blacks Technical Classes (i.e. Computer Operator and Computer Programmer) at levels 05 through 10: Goals: 2 Females, 1 Black Hired to date: 2 Females, 1 Black, 1 Hispanic Clerical Classes (i.e. General Clerk, Calculations Clerk, Typist, Secretary and Data Coding Machine Operator) at the levels I through VIII: Goals: 15 Blacks, 7 Hispanics Hired to date: 15 Blacks, 5 Hispanics Professional Classes at levels 12 through 14: Goals: 2 Females, 1 Black Hired to date: 2 Blacks Technical Classes at levels 11 through 14: Goals: 2 Females, 1 Black Hired to date: None Administrator Classes at levels 15 through 20: Goals: 1 Female, 1 Black Hired to date: None While the Civil Rights Commission did not approve the 1979 plan, the record indicates that the Equal Employment Opportunity Council did approve the plan. Membership in the council consisted of the Governor, Directors of the Departments of Civil Rights, Management and Budget, and Civil Service, and the Attorney General. MCL 37.2101 et seq.; MSA 3.548(101) et seq. Section 202(1)(a) provides: An employer shall not . . . [flail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition) or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. Our conclusion is supported by a review of the state’s long-established policy requiring "equal employment opportunity in state government.” In 1971, Governor Milliken issued Executive Directive 1971-8, requiring state agencies and departments to implement the state’s policy of providing equal employment opportunity in state employment. The directive was the result of a study conducted by the Civil Rights Commission and the Civil Service Commission, which, among other things, found that women were underrepresented in higher level positions within the Department of Treasury. The directive also made the head of each department and agency responsible for establishing and maintaining affirmative action programs to effectuate the state’s policy. In 1975, Governor Milliken issued Executive Directive 1975-3, establishing the Michigan Equal Employment Opportunity Council. While noting that progress had been made following the issuance of Executive Directive 1971-8, the Governor recognized that more needed to be done to make state governmental positions open to all. The meeoc, subsequently the Michigan Equal Employment and Business Opportunity Council (meeboc), was charged with the responsibility of reviewing affirmative action progress and developing guidelines to assure that the affirmative action plans were consistent with the intent of the directives. In 1983 and again in 1985, Governor Blanchard affirmed the state’s policy of equal employment opportunity and charged the Civil Rights Commission and the Civil Service Commission with the responsibility of prereviewing all state departmental and agency affirmative action plans. See Executive Orders 1983-4 and 1985-2. We are persuaded that the executive directives issued by Governor Milliken and the executive orders issued by Governor Blanchard recognize two very important principles. First, the issuance of the directives and orders indicates that both Governors realized the state’s policy of equal employment opportunity within state government was not being realized. Second, affirmative action was the primary means by which Michigan citizens would realize equal opportunity in state governmental employment. While Executive Order 1983-4 required the Civil Rights Commission and the Civil Service Commission to prereview departmental affirmative action plans, the order is silent regarding whether preapproval was also required. Moreover, the directives and orders demonstrate gubernatorial concern over the dearth of minority and female representation in state employment. This Court stated the purpose of civil rights legislation in Miller v CA Muer Corp, 420 Mich 355, 362-363; 362 NW2d 650 (1984): Civil rights acts seek to prevent discrimination against a person because of stereotyped impressions about the characteristics of a class to which the person belongs. The Michigan civil rights act is aimed at "the prejudices and biases” borne against persons because of their membership in a certain class, Boscaglia v Michigan Bell Telephone Co, 420 Mich 308, 316; 362 NW2d 642 (1984); Freeman v Kelvinator, Inc, 469 F Supp 999, 1000 (ED Mich, 1979), and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. It shall be an unlawful employment practice for an emloyer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. See n 9 supra.

The stay granted pursuant to MCR 9.122(C) is to remain in effect until twenty-one days after the effective date of this order.

Boyle, J. We granted leave in this case to determine whether the amended statute of limitations set forth in MCL 767.24(2); MSA 28.964(2) applies to the prosecution of a charge of criminal sexual assault involving a minor where the alleged acts were committed prior to, yet were not time-barred on, the effective date of the amendment. The prosecution’s cross appeal was granted to answer the question whether the warrant authorizing the search of the defendant’s home was supported by an affidavit establishing probable cause if the amended statute governs prosecution. We find that the extended limitation period for criminal sexual conduct involving a minor was intended by the Legislature to apply to formal charges of offenses not time-barred on the effective date of the act filed after its effective date. This application is not a violation of the Ex Post Facto Clauses of the United States and Michigan Constitutions. In response to the second question, we hold that the supporting affidavit provided the magistrate a substantial basis to conclude that there was probable cause to believe that the evidence to be seized would be found in the place to be searched._ We affirm the decision of the Court of Appeals on the statute of limitations issue and reverse its decision on the search and seizure issue. I FACTS AND PROCEEDINGS The defendant was charged with three counts of criminal sexual conduct in the first degree, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and three counts of criminal sexual conduct in the second degree, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). The counts involved, one child victim under the age of thirteen. On April 25, 1989, the Grand Rapids Police Department received information from the victim, then age sixteen, that over a four-year span between the time she was five and ten years old, she had been sexually assaulted by the defendant every other weekend. The assaults allegedly occurred between the fall of 1978 and August, 1982. On April 27, 1989, a warrant was issued for a search of the defendant’s residence on the basis of an affidavit, the details of which are set forth below. An abundance of homemade and commercial child pornography tapes, sexually explicit photographs, pornographic magazines, sexual paraphernalia, video, television and camera equipment, letters, drawings, and a list of 192 children’s names were seized during the execution of the search warrant. The evidence seized included sexually explicit videotapes and photographs of the victim. As a result of the seizure, the defendant was arrested on April 28, 1989, and charged with criminal sexual assaults of the child. The statute of limitations in effect at the time of the alleged acts was six years. It is undisputed that, under the previous limitation period, the charges made would have been barred as of August, 1988. However, before the running of the then-applicable six-year period of limitation, the Legislature amended the statute. 1927 PA 175, as amended by 1987 PA 255, MCL 767.24(2); MSA 28.964(2), provides in part: Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense under section 145c or 520b to 520g of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.145c and 750.520b to 750.520g of the Michigan Compiled Laws, may be found and filed within 6 years after the commission of the offense or by the alleged victim’s twenty-first birthday, whichever is later. The amendment became effective on March 30, 1988, five months before the previous statute of limitations would have expired. The defendant filed a motion to suppress the evidence and to dismiss the charges, claiming that the action was barred by the statute of limitations and that the warrant was defective. The trial court granted both motions, agreeing that the amended statute could not be applied to crimes committed before its effective date and that the information supporting probable cause to search was "stale.” The trial court ordered that the charges against the defendant be dismissed. The people appealed of right the trial court’s rulings on the statute of limitations and the search and seizure issues, and the Court of Appeals reversed in part and affirmed in part. The Court held that the Legislature intended the amendment to apply to offenses not time-barred on the effective date of the act. Regarding the search and seizure issue, the Court of Appeals agreed that probable cause did not exist and affirmed the lower court’s ruling that the search warrant was defective and the resulting seizure was illegal. We granted the defendant’s application for leave to appeal the statute of limitations issue, and the cross-application for leave to appeal the search and seizure issue. 437 Mich 925 (1991). ii STATUTE OF LIMITATIONS The Legislature amended the Code of Criminal Procedure to provide: [I]f an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense . . . may be found and filed within 6 years after the commission of the offense or by the alleged victim’s twenty-first birthday, whichever is later. [1987 PA 255, MCL 767.24(2); MSA 28.964(2).] The prosecution asserts that the extended limitation period applies to those offenses that were committed before the amendment, but were not yet time-barred under the previous statute of limi tations. The defendant contends that because the amendment does not specifically state that it applies to offenses arising before its effective date, the amendment is not applicable. The defendant also submits that the rules of statutory construction and the prohibition against ex post facto laws proscribe its application to this case. Dealing with the claims in inverse order, we hold that neither ex post facto analysis nor application of the general statute of limitations requires dismissal. The United States Supreme Court has consistently held that the Ex Post Facto Clause, US Const, art I, § 10, cl 1, was intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit legislative control of remedies and procedure that do not affect matters of substance. In Dobbert v Florida, 432 US 282, 292-293; 97 S Ct 2290; 53 L Ed 2d 344 (1977), the Court stated: "It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. For example, in Hopt v Utah, 110 US 574 [4 S Ct 202; 28 L Ed 262] (1884), as of the date of the alleged homicide a convicted felon could not have been called as a witness. Subsequent to that date, but prior to the trial of the case, this law was changed; a convicted felon was called to the stand and testified, implicating Hopt in the crime charged against him. Even though this change in the law obviously had a detrimental impact upon the defendant, the Court found that the law was not ex post facto because it neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict. Id. at 589. An enactment will not escape a court’s scrutiny under the Ex Post Facto Clause merely because a legislature has given it a procedural label. However, legislation will not be found violative of the clause simply because it works to the disadvantage of the defendant. Well-settled principles require the conclusion that applying the extended statute of limitations to the then-not-yet-time-barred alleged sexual assaults is not ex post facto. The sexual assaults were not innocent when committed, the quantum of punishment is unchanged, and the defendant has not been deprived of any defense available to him at the time the acts were committed. The statute of limitations defense was not available to the defendant at the time the assaults were committed or at the time the amendment became effective. The Legislature amended the statute of limitations five months before the defendant had any substantive right to invoke its protection. The statute of limitations defense remained available to the defendant after the amendment, just as it did immediately before the amendment went into effect. Therefore, finding no violation of the Ex Post Facto Clause, we turn to the issue of legislative intent. The general rule of statutory construction in Michigan is that a new or amended statute applies prospectively unless the Legislature has expressly or impliedly indicated its intention to give it retrospective effect. This rule applies equally to criminal statutes. However, an exception to the general rule is recognized where a statute is remedial or procedural in nature. Statutes that operate in furtherance of a remedy already existing and that neither create new rights nor destroy rights already existing are held to operate retrospectively unless a different intention is clear. Historically, there was no limitation period on the prosecution of common-law crimes. Statutes of limitation develop out of public policy and are acts of legislative will. There is no vested right in the running of a statute of limitation except when it has completely run and the action is barred. In re Straight Estate, 329 Mich 319, 325; 45 NW2d 300 (1951). A statute of limitation "shelter has never been regarded as what now is called a 'fundamental’ right . . . [h]e may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.” In Michigan, statutes of limitations are generally regarded as procedural and not substantive in nature. Lothian v Detroit, 414 Mich 160, 166; 324 NW2d 9 (1982); Forest v Parmalee, 402 Mich 348, 359; 262 NW2d 653 (1978). This concept also has been applied to changes in criminal procedure. People v Foster, 261 Mich 247, 255; 246 NW 60 (1933). Extending the length of , time allowed to bring a criminal prosecution that is not time-barred is a procedural change and fails to alter either the rights of a defendant or any substantive elements of the crime charged. Ultimately, however, we rely not on the specific rules of statutory construction, which are merely aids to interpretation, but, rather, as Chief Justice Riley observed in In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989), we look to "the object of the statute, the harm which it is designed to remedy, and apply a reasonable construction which best accomplishes the statute’s purpose.” We are persuaded that the charge made here is not time-barred by what we perceive as the clear protective purpose and a reasonable construction of the language of this amendment. The legislative goal in enacting the criminal sexual conduct statute, MCL 750.520a et seq.; MSA 28.788(1) et seq., was to clarify definitions relating to criminal sexual conduct to delineate precisely the conduct proscribed and to remove major obstacles in the reporting and prosecution of sexual assaults. People v Johnson, 406 Mich 320, 327, 330; 279 NW2d 534 (1979). Similarly, the obvious purpose for lengthening the statute of limitations in sexual crimes involving minors was to provide added protection to such victims. The Senate Bill Analysis observed that frequently the six-year limitation has run by the time the child speaks out, thereby making prosecution impossible. Thus, the legislative purpose in enacting both the original criminal sexual conduct statute and the extended limitations amendment for children was to facilitate the prosecution of such offenses. The apparent purpose of the amendment is to extend protection to a class of presently existing victims, a purpose confirmed by a comparison of the language in the general statute of limitations with that in the subsection extending the limitation period. The statute of limitations in MCL 767.24(1); MSA 28.964(1), expressly states that "[ejxcept as otherwise provided in subsection (2), all other indictments shall be found and filed within 6 years after the commission of the offense.” Subsection (2) provides: Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense . . . may be found and filed within 6 years after the commission of the offense or by the alleged victim’s twenty-first birthday, whichever is later. [Emphasis added.] Thus, while the general perspective of the statute of limitations looks forward from the time the offense is committed, the amendment looks backward, and requires inquiry whether the victim was under eighteen years at the time the offense "was” committed. The purpose as well as the words of the statute indicate that the amendment applies to' victims who were under eighteen years at the time of the offense. In sum, no reason has been advanced persuading us that the Legislature’s purpose to remedy what it saw to be a serious problem was to be reserved to crimes not yet committed. As this Court long ago observed in another context, to give the amended statute of limitations solely prospective effect, would render "this section . . . useless and the effective date of the act would be postponed 30 years. We do not think that such a result was the intention of the legislature . . . .” Austin v Anderson, 279 Mich 424, 428; 272 NW 730 (1937). We affirm the decision of the Court of Appeals. Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it. III SEARCH AND SEIZURE The warrant was supported by an affidavit stating that the victim reported that, while between the ages of five and ten years old, she had been sexually abused by the defendant at his home every other weekend over a four-year period, beginning in the fall of 1978 and ending in August, 1982; the victim described being photographed by the defendant "naked or in various stages of undress” and having been videotaped alone or with the defendant involved in sexual activity; and she reported being shown the photographs and videotapes numerous times by the defendant during her visits to his home, and that she was familiar with the different locations within the home where the defendant stored the material and his method of securing the piles of photographic material with "string or rubber bands.” The Court of Appeals upheld the trial court’s finding that the search warrant was defective and that the evidence seized must be suppressed in essence because the passage of time negated an inference of probable cause. For the reasons that follow, we reverse the decision of the Court of Appeals. A Attendant to the emergence of sexual exploitation of children as a crime of previously unknown proportion, inquiry regarding the life cycle of child pornography has been addressed by extensive investigation of the subject. In 1984, a study by a subcommittee of the United States Senate, evaluated thousands of documents, the results of numerous personal interviews, and testimony at public hearings and concluded that pornography plays a central role in child molestation. The documents examined were arrest reports, victim statements, pedophile correspondence, newsletters, child pornography catalogs, films, videotapes and magazines. More than two hundred people were interviewed, including convicted child molesters, por nographers, pro-pedophilia activists, molestation victims, investigators, judges, prosecutors, psychiatrists, and child protection workers. The subcommittee determined in relevant part that the collection and retention of such items is a recurring pattern for some persons whose sexual gratification is obtained through and with children. Pornography functions for this offender as a method of justification that the behavior is not abnormal, serving not only as a means of contact with others of like interest but as reinforcement for the belief that, because so many others engage in the same activity, it must not be as wrong as society believes. These offenders are frequently victims of child sexual abuse themselves and combat negative feelings of their own victimization by regarding their sexual offenses as an expression of caring for children, rather than the using of their victims to meet personal unsatisfied needs. The committee evaluated the phenomena of exhibiting child pornography that we have observed in record review of cases in our own jurisprudence, see, e.g., People v Engelman, 434 Mich 204; 453 NW2d 656 (1990); People v Sundling, 153 Mich App 277; 395 NW2d 308 (1986), lv den 428 Mich 887 (1987); People v Osborn, 122 Mich App 63; 329 NW2d 533 (1982), concluding that pornography is used in connection with child molestation, for arousal and fantasy and as a means of lowering the intended victim’s inhibitions through peer pressure effects. The committee’s findings suggest that a reluctant child can sometimes be convinced to engage in sexual activity by viewing other children having “fun” in the activity, and that for offenders whose sexual preference is children, photographs guarantee that there will always be an image of the child at the age of sexual preference because the photograph preserves the child’s youth forever. The retention of the photographs may also serve to ensure that the child keeps the secret, thereby permitting the offender to continue molesting children, and as a medium of exchange with other pedophiles in order to gain access to other child victims. Finally, on a smaller scale, child pornography is used for sale and profit. The subcommittee’s findings document the basis for the common-sense inference that the life cycle of child pornography may be extensive. The subcommittee concluded that the single most persuasive characteristic of pedophilia is the obsession for, and the collection of, child pornography. As one of the leading experts on child molestation testified: "They (pedophiles) typically collect books, magazines, articles, newspapers, photographs, negatives, slides, movies, albums, drawings, audio tapes, videotapes, personal letters, diaries, sexual aids, souvenirs, toys, games, lists, paintings, ledgers, etc., all relating to children in either a sexual, scientific or social way. Not all pedophiles collect all these items. Their collections vary in size and scope. However, the maintenance and growth of their collections becomes one of the most important things in their life. . . . They may hide their collections, move them, or even give them to an other pedophile, but they almost never destroy them.”[ ] [Emphasis added.] B We review the magistrate’s decision under the standard adopted in People v Landt, 439 Mich 870 (1991). The Court of Appeals in Landt noted that there was a split of authority concerning the applicable standard of review for the issuance of a search warrant. 188 Mich App 234, 240; 469 NW2d 37 (1991). Some panels of the Court of Appeals followed the "abuse of discretion” standard, according deference to the magistrate’s decision. Other panels followed the "substantial basis” standard articulated in People v Gleason, 122 Mich App 482, 489; 333 NW2d 85 (1983), which, while recognizing that "a magistrate’s finding that an affidavit establishes probable cause is entitled to deference in marginal cases,” essentially embraced de novo review of a magistrate’s decision. Using the standard of review set forth in Gleason, the Court of Appeals held in Landt that the facts in the affidavit were sufficient to establish probable cause to search for the delivered contra band, but were not sufficient to establish probable cause to search for other evidence of drug trafficking. This Court unanimously reversed, adopting the standard of review set forth in Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). We stated: Search warrants and the underlying affidavits are to be read in a common-sense and realistic manner. . . . Inasmuch as the affidavit underlying the search warrant in this case established probable cause as to the contraband that was delivered to the defendant at the address where the search warrant was executed, the magistrate did not err in finding probable cause as to other items incident to drug trafficking. Thus, appellate scrutiny of a magistrate’s decision involves neither de novo review nor application of an abuse of discretion standard. Rather, the preference for warrants set forth in Gates, supra, United States v Ventresca, 380 US 102; 85 S Ct 741; 13 L Ed 2d 684 (1965), and Brinegar v United States, 338 US 160; 69 S Ct 1302; 93 L Ed 1879 (1949), requires the reviewing court to ask only whether a reasonably cautious person could have concluded that there was a "substantial basis” for the finding of probable cause. In Gates at 236-237, the Court held: [W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s "determination of probable cause should be paid great deference by reviewing courts.” "A grudging or negative attitude by reviewing courts toward warrants,” is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrants] by interpreting affidavits] in a hypertechnical, rather than a commonsense, manner.” . . . [T]he traditional standard for review of an issuing magistrate’s probable-cause determination has been that so long as the magistrate had a "substantial basis for . . . concluding]” that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable-cause determinations of magistrates than is the "two-pronged test.” [Citations omitted.] In sum, a search warrant and the underlying affidavit are to be read in a common-sense and realistic manner. Affording deference to the magistrate’s decision simply requires that reviewing courts ensure that there is a substantial basis for the magistrate’s conclusion that there is a "fair probability that contraband or evidence of a crime will be found in a particular place.” Gates at 238. C We turn then to the crux of the inquiry in this case, the difficult question of the degree of certainty that "probable cause” requires. Specifically, we must determine whether a reasonable magistrate could have found a substantial basis to infer that the evidence sought was still in the defendant’s home six and one-half years after it was last seen. The answer to the question turns on whether "it [is] necessary that the particular matter under consideration (i.e., that a crime has been committed, that a particular person has committed it, that evidence of crime is to be found in a particular place, or that a particular object is evidence of crime) be more probable than not, or [that] something short of this [will] suffice.” 1 LaFave, Search and Seizure (2d ed), § 3.2(e), p 587. The threshold inquiry looks at the life cycle of the evidence sought, given a totality of circumstances, that includes the criminal, the thing seized, the place to be searched, and, most significantly, the character of the criminal activities under investigation. 2 LaFave, Search and Seizure (2d ed), § 3.7(a), pp 75-87. Probable cause to search is concerned with whether certain identifiable objects "are probably to be found at the present time in a certain identifiable place.” 2 LaFave, supra, § 3.7, p 75. Once established, probable cause to arrest, which is concerned with historical facts, is likely to continue indefinitely, absent the discovery of contrary facts. By contrast, it cannot be assumed that evidence of a crime will remain indefinitely in a given place. Thus, "staleness” is not a separate doctrine in probable cause to search analysis. It is merely an aspect of the Fourth Amendment inquiry. Time as a factor in the determination of probable cause to search is weighed and balanced in light of other variables in the equation, such as whether the crime is a single instance or an ongoing pattern of protracted violations, whether the inherent nature of a scheme suggests that it is probably continuing, and the nature of the property sought, that is, whether it is likely to be promptly disposed of or retained by the person committing the offense. People v Sundling, supra at 286. See also 2 LaFave, supra, § 3.7(a), pp 78-87. The matter must be determined by the circumstances of each case. People v Smyers, 47 Mich App 61, 73; 209 NW2d 281 (1973), aff’d 398 Mich 635; 248 NW2d 156 (1976); Sgro v United States, 287 US 206; 53 S Ct 138; 77 L Ed 260 (1932); 2 LaFave, § 3.7(a), p 77. Accordingly, Professor LaFave quotes approvingly Andresen v Maryland: The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.[ ] [See 2 LaFave, supra, § 3.7(a), pp 77-78.] D It is settled law that probable cause to search must exist at the time the search warrant is issued, Sgro v United States, supra at 210; People v Siemieniec, 368 Mich 405, 407; 118 NW2d 430 (1962), and that probable cause exists when a person of reasonable caution would be justified in concluding that evidence of criminal conduct is in the stated place to be searched. People v Sundling, supra at 286; MCL 780.652; MSA 28.1259(2). However, despite longstanding scholarly debate regarding the need for bright-line rules in Fourth Amendment analysis and an occasional endorsement of that approach, the United States Supreme Court has not adopted a unitary definition of probable cause as more probable than not. In Illinois v Gates, supra at 235, the Court rejected a definition of probable cause as more probable than not, stating that probable cause requires " 'only the probability, and not a prima facie showing, of criminal activity ....’” More recently, the Court has reiterated that the degree of probability required for issuance of a search warrant is not subject to a numerical quantification and that " '[f]inely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision,’ ” New York v PJ Video, Inc, 475 US 868, 876; 106 S Ct 1610; 89 L Ed 2d 871 (1986). To further focus the inquiry regarding the probability of "probable cause” that the evidence sought was still in the defendant’s possession, we reiterate the core factual representations of the affidavit: (1) on April 25, 1989, the affiant inter viewed the girl, and she reported that she was sexually abused by the defendant at his home every other weekend over a four-year period, beginning in the fall of 1978 and ending in August, 1982, while she was between the ages of five and ten years old; (2) the girl described having been photographed by the defendant "naked or in various stages of undress” and having been videotaped alone or with the suspect involved in sexual activity; and (3) she reported being shown the photographs and videotapes "numerous times” by the defendant during her visits to his home and that she was familiar with the different locations within the home where the defendant stored the material, and the fact that the photographs were "bound in piles held together by string or rubber bands.” Illinois v Gates, supra at 238, holds that a judge is to examine the totality of circumstances to determine whether a "fair probability” exists that evidence of crime will be found. The issue in Gates was whether the affidavit sufficiently demonstrated "probable cause” that the defendants were involved in criminal activity. In rejecting the preponderance standard for probability, the Court relied on the arrest provisions of the Model Code of Pre-Arraignment Procedure which permits arrest " 'without requiring that at the time of the arrest the guilt of the person to be arrested be more probable than not.’ ” 1 LaFave, supra, § 3.2(e), pp 590-591. The United States Supreme Court has not directly spoken to the standard of probability regarding presence of the evidence. However, Professor LaFave suggests that because the probable cause test is a compromise accommodating the " 'often opposing interests’ of privacy and law enforcement,” variable views of how probable is probable, are appropriate depending on the nature of the crime, the interest intruded, the focus on the individual, the alternative investigative techniques available, and whether the place to be searched is that of a third person or that of the suspect. 1 LaFave, supra, § 3.2(e), p 596. While LaFave would not always employ a more probable than not standard when the uncertainty involves the identity of the person who committed a known crime, he would require a more demanding standard of more probable than not where the question is whether a crime has been committed. However, when the issue is a probability determination with respect to certain specific items being in a particular place, LaFave does not disagree with the Gates majority that probable cause does not require a more probable than not definition of probable cause. LaFave observes that it is a fair statement of the law that the "more probable than not” standard has not been actually applied and that [t]o the extent such rulings permit searches to be made upon something less than a 50% probability as to any one particular place, they do not appear objectionable. The fact remains that it is unlikely that the privacy of an innocent person will be disturbed under such circumstances. [1 LaFave, supra, § 3.2(e), pp 598-599.] Other jurisdictions have recognized that the underlying facts of a child sexual assault, when viewed in light of the propensity to save the pornographic pictures of the victim, may establish probable cause. In People v Hernandez, 225 Cal Rptr 230 (withdrawn by order of the court, 1986), the California Supreme Court affirmed a lower court’s ruling that the defendant’s admission of criminal sexual conduct was valid. The confession resulted from the seizure of a collection of sexually explicit photographs pursuant to a warrant based on information three years old. The lower court refused to reach the staleness of probable cause issue, finding that the defendant had failed to sustain his burden of proof by relying only on the passage of time. Additionally, in State v Woodcock, 407 NW2d 603 (Iowa, 1987), the Iowa Supreme Court upheld the validity of a search of a pedophile’s residence to confiscate homemade child pornography on the basis of information that was one and a half years old. And in State v Young, 37 Ohio St 3d 249, 257; 525 NE2d 1363 (1988), rev’d on other grounds, sub nom Osborne v Ohio, 495 US 103; 110 S Ct 1691; 109 L Ed 2d 98 (1990), the Ohio Supreme Court, while not specifying the entire time lapse involved, upheld the seizure of photographs of nude boys pursuant to a warrant based in part on an affidavit reciting that "psychological profiles of pedophiles reveal that they do not destroy their child pornography, but rather relive their sexual experiences through photographs of previous partners.” Moreover, the Model Code of Pre-Arraignment Procedure relied on in Gates, also specifically rejects the more probable than not standard for searches. Gates, supra at 235. Other than the authority cited, we have not been directed to, nor have we located, cases or commentary which provide clear guidance regarding the standard for "probability” that evidence of this type is still present years after it was initially created. Nevertheless, Professor LaFave’s analysis is instructive and supports our conclusion that the magistrate had a substantial basis for issuance of the warrant. First, it is not and could not be disputed that the affidavit contained allegations setting forth more than a possibility that criminal activity had been engaged in by a particular individual. This case, therefore, does not involve the "slippery slope” of applying probability analysis to multiple arrests where the police suspect that ten persons are guilty of a crime but have no way of distinguishing between them. Nor is this a situation in which there is uncertainty about whether a crime has occurred in which more than a fifty percent proba bility might be required "because of the risk that the privacy of innocent persons will be intruded upon.” 1 LaFave, supra, § 3.2(e), p 604. Second, it is not apparent that there were alternative investigative techniques available to update the probability that the evidence was presently in the defendant’s possession. Thus, it cannot be concluded that "the magistrate acted outside the zone of reasonableness in concluding that further investigation was not warranted.” Additionally, while the interest invaded was most significant, the type of material and the use to which it was put, made it highly unlikely that it would be kept anywhere but in the home. Third, since possession of the tapes and photographs was not in itself criminal, but, rather, mere evidence of defendant’s activity, the passage of time without complaint would tend to negate the anxiety that would counteract the demonstrated propensity to retain the material. In this instance, the passage of time might be inversely proportional to the likelihood that the defendant still had the material. Fourth, unlike the possession of contraband or the situation in which the criminal activity incidentally and sometimes unwittingly creates evidence of crime, where the reasonable inference is that a person will get rid of incriminating evidence, the case at bar' involves a situation in which the individual intentionally created evidence of his criminal activity and displayed it over the course of years. Moreover, the evidence was not simply created and used, it was stored with a degree of care indicative of its continuing value to the defendant. Finally, it is possible to infer that the items might have ceased to have value for the defendant when his molestation of the victim ceased. But just as the possibility that there was an innocent explanation for the behavior of the defendants in Gates did not negate the majority’s finding that there was a fair probability that they were engaged in criminal activity, we think that the magistrate here could conclude that there was a "fair probability” of the presence of evidence which had sexual, historical, and perhaps even sentimental, significance for its possessor and creator. Although the particular stimulus may not be within our common experience, the allure of sexual fantasy made real is as familiar as daytime talk shows, soap operas, and rented movies. In balancing the interests involved, we conclude that the search was not constitutionally unreasonable. We have found no authority directly on point. However, we are left with the firm conviction that in the facts of this case there were only two possible courses of action, to secure a search warrant or to forgo the possibility of obtaining the evidence. While reasonable people could reasonably disagree with the assessment made by the magistrate, we have not found reason to conclude that in this situation the United States Constitution and common sense are at war. Mapp v Ohio, 367 US 643, 657; 81 S Ct 1684; 6 L Ed 2d 1081 (1961). This is not a situation in which the government claims that simply because a person has indicated interest in possessing pornographic material he is likely to be in present possession of it. United States v Weber, 915 F2d 1282 (CA 9, 1990). Nor is this a situation in which the government seeks a search warrant on the basis of a single incident of photographing child victims. State v Woodcock, supra. Most importantly, this is not a situation in which the government claims the right to invade the sanctity of the home on the basis of a profile that suggests: once a collector of child pornography, always a possessor. Washington v Smith, 60 Wash App 592; 805 P2d 256 (1991), lv den 116 Wash 2d 1031 (1991). We hold only that where suspicion of criminal activity has focused on a specific individual by a standard more probable than not, and it is alleged that the evidence sought was created, retained, and employed in ongoing criminal activity over a four-year period, the magistrate could reasonably conclude that there was a "fair probability” that the evidence would be retained in the residence of the accused. Affording deference to the magistrate’s conclusion, we conclude that there was a substantial basis to infer a fair probability that the items still were present. Accordingly, we reverse the decision of the Court of Appeals. IV CONCLUSION In sum, the Legislature intended that the extended statute of limitations set forth in MCL 767.24(2); MSA 28.964(2) was to apply to formal charges filed after the effective date of the amendment. Because no charge had been filed against the defendant, nor had the previous statute of limitations expired before the limitation period was amended, the extended statute of limitations applies. We find that such an application is not a violation of Ex Post Facto Clauses of the United States and Michigan Constitutions. Affording deference to the magistrate’s determination, a reviewing court simply must ensure that the magistrate had a substantial basis for concluding that probable cause existed at the time the search warrant was issued. In this case, the affidavit recounted the facts uncovered during the investigation that provided the magistrate a substantial basis to make an independent judgment that probable cause currently existed and to believe there was a fair probability that the items sought would still be present in the defendant’s home. Therefore, we affirm the decision of the Court of Appeals regarding the statute of limitations issue and reverse its decision with respect to the search and seizure issue. We remand this case to the trial court for proceedings consistent with this opinion. Riley, Griffin, and Mallett, JJ., concurred with Boyle, J. Michigan has adopted a dual system of charging by indictment or information. MCL 767.1; MSA 28.941. We treat the term indictment here as also referring to charges made by the filing of an information. US Const, art I, § 10, cl 1; Const 1963, art 1, § 10. A review of the seized videotapes enabled police officers to identify a second victim. The prosecutor conceded, however, that the last sexual assault on this child occurred in 1978 and that the limitation period had expired before the Legislature amended the statute of limitations. Accordingly, the charges against the defendant relating to the sexual assault of the second victim were dismissed. 185 Mich App 422; 463 NW2d 138 (1990). In People v Chesebro, 185 Mich App 412; 463 NW2d 134 (1990), a different panel of the Court of Appeals also held that MCL 767.24(2); MSA 28.964(2) applied to crimes committed before the amendment not time-barred on the effective date. The defendant in Chesebro appealed, and this Court held that case in abeyance pending our decision in the instant case. The people do not contend that the extended statute of limitations may revive offenses that were barred at the time the amended statute became effective. US Const, art I, § 10, cl 1 provides that "No State shall . . . pass any Bill of Attainder, ex post facto Law . . . .” Const 1963, art 1, § 10 provides that "No bill of attainder, ex post facto law . . . shall be enacted.” See Collins v Youngblood, 497 US 37; 110 S Ct 2715; 111 L Ed 2d 30 (1990); 16A Am Jur 2d, Constitutional Law, § 646, pp 607-609; 16A CJS, Constitutional Law, §§ 420-421, pp 372-374. Collins, n 8 supra at 45. Selk v Detroit Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984). People v Osteen, 46 Mich App 409, 413; 208 NW2d 198 (1973), lv den 390 Mich 760 (1973). Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 485; 124 NW2d 286 (1963). Chase Securities Corp v Donaldson, 325 US 304, 314; 65 S Ct 1137; 89 L Ed 1628 (1945). See also 21 Am Jur 2d, Criminal Law, § 224, pp 410-411; 22 CJS, Criminal Law, § 197, pp 242-243. The general rule may not apply when a new statute abolishes an existing cause of action. In re Certified Questions, 416 Mich 558; 331 NW2d 456 (1982). Although one principle of Foster not on point here was later overruled, People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), we have not retreated from the proposition that changes in criminal procedure may be retroactively applicable. Amendments of an existing statute may expand or restrict its regulation but must be read with consistency of purpose. 2A Sands, Sutherland Statutory Construction (5th ed), § 45.10, pp 46-48. 1987 PA 255 expressly amended the statute of limitations governing § 145c and §§ 520b to 520g of the Penal Code, 1931 PA 328. Thus, the amending act became part of the criminal sexual conduct statute. The amended statute of limitations, then, must be read consistently with the purpose of the criminal sexual conduct statute. Senate Bill Analysis, SB 430, November 4, 1987. Judge Learned Hand, while on the United States Court of Appeals for the Second Circuit, aptly summarized in Falter v United States, 23 F2d 420, 425-426 (CA 2, 1928), cert den 277 US 590 (1928), our conclusion when he stated: In so ruling, we align ourself with the majority of state and federal jurisdictions which have confronted the applicability of extended criminal statute of limitation periods and have resolved the issue in favor of affecting cases not already time-barred without violation of the Ex Post Facto Clause. Falter v United States, n 18 supra; United States ex rel Massarella v Elrod, 682 F2d 688 (CA 7, 1982), cert den 460 US 1037 (1983); Clements v United States, 266 F2d 397 (CA 9, 1959), cert den 359 US 985 (1959); State v Creekpaum, 753 P2d 1139 (Alas, 1988); People v Sample, 161 Cal App 3d 1053; 208 Cal Rptr 318 (1984); Holland v Douglas Co Dist Ct, 831 F2d 940 (CA 10, 1987), cert den 485 US 977 (1988); Marks v State, 581 So 2d 1182 (Ala Crim App, 1990); Scharfschwerdt v Kanarek, 553 So 2d 218 (Fla App, 1989), lv den 563 So 2d 633 (1990); State v Nunn, 244 Kan 207; 768 P2d 268 (1989); Commonwealth v Bargeron, 402 Mass 589; 524 NE2d 829 (1988); State v Casaretto, 818 SW2d 313 (Mo App, 1991); State v Nagle, 226 NJ Super 513; 545 A2d 182 (1988); State v O’Neill, 118 Idaho 244; 796 P2d 121 (1990); Commonwealth v Johnson, 520 Pa 165; 553 A2d 897 (1989); State v Petrucelli, 592 A2d 365 (Vt, 1991); State v Hodgson, 108 Wash 2d 662; 740 P2d 848 (1987), cert den 485 US 938 (1988). The prosecution raises for the first time the good-faith exception to uphold an invalid search warrant which was enunciated in United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984). The issue was not raised in the lower courts or in the prosecution’s application for leave to appeal. Therefore, pursuant to MCR 7.302(F)(4)(a), the issue is not properly before this Court. The Department of State Police reported that in Michigan in 1990, there were 2,743 known victims of sexual contact or penetration between the ages of zero and nine, and 3,938 known victims of sexual contact or penetration between ten and nineteen years of age. Michigan Department of State Police Victimization Report — 1990. However, researchers indicate that the incidence of child sexual exploitation may be five to ten times greater than reported. Burgess, Child Pornography and Sex Rings (Lexington, Mass: DC Heath & Co, 1984), P 1. The Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United States Senate, reported that the extraordinary rise in child sexual abuse statistics reflect increased efforts to discover and investigate such crimes, rather than a sudden increase in the molestation of children. S Rep No 99-537, 99th Cong (2nd Sess), Child pornography and pedophilia, p 2 (hereinafter Report). Report, n 22 supra at 4. The term pedophile is defined as a preferential child molester whose major characteristics include "1) [a] long-term and persistent pattern of behavior, 2) children as preferred sexual objects, 3) well-developed techniques in obtaining victims, and 4) sexual fantasies focusing on children.” Lanning, Child Molesters: A Behavioral Analysis (Quantico, Va: National Center for Missing & Exploited Children, 1987), p 11. Groth, Hobson & Gary, The Child Molester: Clinical Observations, Social Work and Child Abuse (Haworth Press, Inc., 1982), pp 138-139. Report, n 22 supra at 10. See also Osborne v Ohio, 495 US 103, 111, n 7; 110 S Ct 1691; 109 L Ed 2d 98 (1990) (citing 1 Attorney General’s Commission on Pornography, Final Report [1986], p 649;' Campagna & Poffenberger, Sexual Trafficking in Children [1988], p 118; O’Brien, Child Pornography [1983], p 89), and Tyler & Stone, Child pornography: Perpetuating the sexual victimization of children, 9 Child Abuse & Neglect 313, 316-317 (1985). Report, n 22 supra at 11. Mid. Mid. at 9. Id. at 9-10, quoting Lanning’s testimony in front of the Subcommittee on Juvenile Justice, United States Senate. See also Campagna & Poffenberger, n 26 supra at 30-31. See People v White, 167 Mich App 461; 423 NW2d 225 (1988); People v Goins, 164 Mich App 559; 417 NW2d 499 (1987); People v Queenan, 158 Mich App 38; 404 NW2d 693 (1987), cert den 484 US 1076 (1988); People v Sundling, supra; People v Reed, 121 Mich App 286; 329 NW2d 23 (1982); People v Dinsmore, 103 Mich App 660; 303 NW2d 857 (1981); People v Heiler, 97 Mich App 636; 296 NW2d 10 (1980); People v Atkins, 96 Mich App 672; 293 NW2d 671 (1980); People v Price (On Remand), 91 Mich App 328; 283 NW2d 736 (1979); People v Thomas, 86 Mich App 752; 273 NW2d 548 (1978). See People v Jackson (On Remand), 180 Mich App 339; 446 NW2d 891 (1989); People v Kort (On Remand), 162 Mich App 680; 413 NW2d 83 (1987); People v Williams, 139 Mich App 104; 360 NW2d 585 (1984); People v Gentry, 138 Mich App 225; 360 NW2d 863 (1984); In re Search Warrant on 5000 Northwind Dr, 128 Mich App 564; 341 NW2d 141 (1983). Landt, 188 Mich App 241. The affidavit stated that the affiant police officer had experience and specialized training in the recognition of controlled substances and the paraphernalia associated with the controlled substances, as well as such transactions. On the basis of his experience and training as a narcotics enforcement team investigator, the affiant believed that additional evidence of drug trafficking would be found in the home along with the delivered contraband. Landt, 439 Mich 870. Andresen v Maryland, 24 Md App 128, 172; 331 A2d 78 (1975); 427 US 463; 96 S Ct 2737; 49 L Ed 2d 627 (1976). See, for example, Alschuler, Bright line fever and the Fourth Amendment, 45 U Pitt L R 227 (1984). Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979); Michigan v Summers, 452 US 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981); New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981). The defendant challenged the first statement in the affidavit concerning the county protective services worker’s statement that the victim had been sexually assaulted within the past two and one-half years. The prosecutor stipulated that no sexual assaults had in fact occurred during this period of time. The defendant claimed that the statement was submitted without regard to truth and that suppres sion was the appropriate remedy for false statements which mislead a magistrate in his determination of probable cause to issue a search warrant. The defendant failed to preserve the falsity claim because he failed to request a Franks hearing. See Franks v Delaware, 438 US 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978); People v Reid, 420 Mich 326; 362 NW2d 655 (1984). However, in light of the prosecutor’s concession, we examine only the remaining facts in the affidavit to determine whether there was basis for the magistrate to conclude that probable cause existed. Hernandez, supra, 225 Cal Rptr 234. The victim and the investigating police officer later testified at the Senate Subcommittee Hearings, n 22 supra, regarding this pedophile’s method of producing and using pornography to molest children. See also State v Kasold, 110 Ariz 563; 521 P2d 995 (1974), where the information supporting the warrant was five months old. The decision of the Arizona Supreme Court in Kasold was reversed by the United States District Court for the District of Arizona in Kasold v Cardwell, 393 F Supp 197 (D Ariz, 1975). The federal court based its decision on the fact that the defendant had moved his place of residence after the witness had observed the collection of pornography and before the warrant was issued. Professor LaFave questioned the federal court’s conclusion as failing to give sufficient weight to the nature of the evidence seized. 2 LaFave, supra, § 3.7(a), p 87, n 48. The provision remained the same in the 1975 Proposed Official Draft. See Model Code of Pre-Arraignment Procedure, § 210.1(7) at 121 (Proposed Official Draft, Complete Text and Commentary Í975). The commentary to this section explicitly rejects a more probable than not standard. Id. at 499-500. We cannot agree with the dissent that the victim of these sexual assaults is subject to the same scrutiny of veracity, reliability, and basis of knowledge as an informant. Post, p 618, n 3. Neither the United States Supreme Court nor this Court has ever held that there is a constitutional requirement that a police officer verify specific allegations of criminal acts alleged by a named citizen outside the informant milieu. See, generally, 1 LaFave, supra, § 3.4, pp 712-749. Grano, Probable cause and common sense: A reply to the critics of Illinois v Gates, 17 U Mich J L Ref 465, 498 (1984). Grano, n 43 supra at 478, n 74. Justice Stevens’ dissent focused on possible innocent explanations in rejecting a finding of probable cause. Gates, supra at 291-292 (Stevens and Brennan, JJ., dissenting).

On order of the Court, the petition for relief is considered and, by stipulation of the parties, Lyle H. Parr (P 18663) is enjoined from practicing law until December 31, 1992, or until further order of the Supreme Court, whichever is first. The clerk is directed to seal the file in this matter, except that this order is to remain public.

On order of the Court, this Court having received the decision of the Judicial Tenure commission and its recommendation for an order of discipline, and having received the respondent’s stipulation to the commission’s findings and his consent to the recommended discipline, we adopt the following findings of the commission: 1. The respondent is now, and at all pertinent times has been, judge of the Mason County Probate Court. 2. On April 23, 1991, the respondent participated in a telephone interview with a newspaper reporter who solicited his views on the Parental Rights Restoration Act. MCL 722.901 et seq.; MSA 25.248(101) et seq. 3. As a result of that interview, a newspaper article appeared on April 24, 1991. In it, the respondent expressed his displeasure with the enactment of the act. He also stated that one of the circumstances in which he might permit a minor to have an abortion would be the rape of a white girl by a black man. These remarks were widely disseminated in the news media, and were subsequently criticized as insensitive and racist. 4. Several grievances were filed with the commission. In reply, the respondent acknowledged making the statements in question, but indicated that it had not been his intention to speak in a racially insensitive manner. He expressed regret for his remarks, and stated that he had not, and would not, base any decision about abortion on the race of the persons involved. 5. Respondent’s remarks were offensive, improper, and constituted misconduct in office. They called into question the impartiality of the judiciary, and exposed the judicial system to contempt and ridicule. Such erosion of public confidence in the judiciary is clearly prejudicial to the administration of justice. Canon 2A of the Code of Judicial Conduct; MCR 9.104(2); MCR 9.205(C)(4). We agree with the commission and the respondent that a public censure is an appropriate response to the respondent’s remarks. This order shall stand as this Court’s censure.

D. L. Sullivan, J. This matter comes before us pursuant to an order of the Supreme Court remanding the case to this Court in lieu of leave to appeal, 408 Mich 854 (1980). Defendant employer and its insurance carrier appeal from the decision of the Workers’ Compensation Appeal Board awarding compensation to plaintiff for a slip and fall injury occurring in a parking lot between the employer’s premises and a public bus stop. On October 25, 1970, plaintiff, Mary Tedford, was employed as a maid for Stouffer’s Northland Inn. At about 6 a.m. that day, she had just gotten off a bus and was walking across a large parking lot toward the hotel. On the way, she fell on some broken bricks near a drive-in bank. Although the parking lot was not a part of the employer’s premises, and sidewalks were available, the route through the parking lot provided the shortest distance to the hotel. The fall necessitated an operation on and continuing medical treatment of her right ankle. Mrs. Tedford is in pain when she walks and is no longer able to work. On October 29, 1976, an administrative law judge denied compensation, holding that plaintiffs injury did not arise out of and in the course of her employment. The WCAB reversed on April 19, 1979. On October 15, 1979, a panel of this Court denied leave to appeal. On March 6, 1980, the Supreme Court reversed that decision and remanded the case to the Court of Appeals in lieu of leave to appeal. Appellants raise several issues on appeal. However, our conclusion that plaintiffs injury did not arise out of and in the course of her employment is dispositive of the case. Compensation under the Worker’s Disability Compensation Act is limited to employees receiving "personal injury arising out of and in the course of’ their employment. MCL 418.301(1); MSA 17.237(301X1). This rule is ameliorated by the "coming-and-going” provision of MCL 418.301(2); MSA 17.237(301X2), which states: "Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment.” The subsection was added to the act by 1954 PA 175. Literally applied, the statute requires that the injury occur on the employer’s premises. However, the meaning of the work "premises” as a limitation has gradually been eroded by case law. In interpreting the coming-and-going rule below, the WCAB relied on Lasiewicki v Tusco Products Co, 372 Mich 125; 125 NW2d 479 (1963), and Fischer v Lincoln Tool & Die Co, 37 Mich App 198; 194 NW2d 476 (1971). In Lasiewicki, the plaintiff was injured after slipping and falling on ice in a parking area used by employees. The area was publicly owned, lying between the street and the employer’s building, but it was maintained by the employer. In affirming an award of compensation, the Court held that inasmuch as the area was used and maintained by the employer, it constituted "premises” within the meaning of the statute. Id., 130-131. The Court relied on Hills v Blair, 182 Mich 20, 27; 148 NW 243 (1914): " 'In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment. One of the tests sometimes applied is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazards, as to be in effect at the place and under the protection of the act.’ (Emphasis supplied.)” Lasiewicki, supra, 131. Hills v Blair was decided well before the 1954 amendment. Although the language of the opinion refused to consider the premises test as conclusive, it was viewed as a relevant factor. Interestingly, the case denied compensation to the widow of a worker who was killed while on his employer’s premises, a train line running from his workplace. The worker had left the sphere of his employment and was on his way home for lunch. The Court relied on the fact that the decedent was not under the employer’s direction or control when the accident took place, and, in fact, could have proceeded home by a safer route. Id., 28-29. The "zones, environments and hazards” principle was also utilized in Fischer, supra. In Fischer, we affirmed an award of compensation to an employee injured on an icy sidewalk adjacent to his place of employment. The injury occurred after the employee had parked his car on the street on his way to work. The employer provided no alternative parking area. The Court considered Lasiewicki and determined the sidewalk to be part of the employer’s premises. Id., 202. The opinion went on to state: "From the above, we can conclude that an employee is protected by the act when he is within said 'zone, environments, and hazards’, while arriving at, departing from, or during the time of his employment by travelling his usual, customary and direct route.” Id., 203. In the instant case, the WCAB applied the "zones, environments and hazards” test in determining that plaintiff was on the hotel’s premises, noting that she was travelling her usual, customary and direct route from the bus stop to her place of employment. 1979 WCABO 967, 971. Other cases have extended the premises rule to parking lots and adjacent areas. In Jean v Chrysler Corp, 2 Mich App 564; 140 NW2d 756 (1966), compensation was awarded to the widow of an employee killed while crossing a public highway between his employer’s parking lot and his place of work. The case is representative of the increas ingly liberal interpretation given to the premises rule. "Defendant in its brief states an ingenious hypothetical situation as a counter to the decision of the appeal board: assume two employees had left the actual premises of the employer and were crossing the public highway. Assume further that one of these employees was going to catch a bus on the corner of the highway, the other was going to a parking lot on the far side of the street. The parking lot was owned by the employer. Assume further that both employees were struck by the same automobile and both injured. Can it be said that under these circumstances that employee A, the one who was catching the bus, suffered a rioncompensable injury while employee B, who was going to the parking lot go get his car, suffered a compensable one? "We could, of course, say 'this is not the case before us’ and utilize the old saw, 'that which is not before us we do not decide.’ Instead, we prefer to utilize the considerably older saw: 'Sufficient unto the day is the evil thereof,’ appending, however, this admonition: no statute is static; it must remain constantly viable to meet new challenges placed to it. Recovery in a proper case should not be suppressed because of conjectural posture which may never arise and which, if it does, will be decided in the light of then-existing law.” (Footnote omitted.) Id., 571-572. See also Adair v Metropolitan Building Co, 38 Mich App 393; 196 NW2d 335 (1972). Plaintiff seeks a further relaxation of the premises limitation. The present situation is otherwise distinguishable from the earlier cases. There is no claim here that defendant owned, leased or maintained the parking lot where the injury took place. Defendant had no control over the route Mrs. Tedford walked from the bus stop or, for that matter, over where the bus stop itself was located. The injury did not take place while Mrs. Tedford traversed between two separate areas under the hotel’s control. Plaintiff argues that Fischer is controlling. The claimant in Fischer was injured on a public sidewalk while walking to work after parking his car on a public street. The employer had no control or authority over the street or sidewalk. The Court compared the situation with that in Jean, supra, and concluded that it would be poor public policy to hold liable an employer who provides an employee parking lot while relieving from liability a less concerned employer. Fischer, supra, 202-203. Here, plaintiff walked from a public bus stop instead of from an automobile parked on a nearby public street. Plaintiff contends that it would be inconsistent to favor employees who drive to work over those who utilize public transportation. However, the Fischer decision was premised on the fact that the defendant expected its employees to park on the public street. No similar expectation is evident in this case. Although plaintiff’s analogy is not unreasonable, the present situation is distinguishable. Furthermore, we are convinced that the manner in which plaintiff seeks to extend coverage should be avoided by this Court. Plaintiff ignores the fact that the premises rule is in the nature of a limitation. Undoubtedly, "[a] line must be drawn at some point”. McClure v General Motors Corp (On Rehearing), 408 Mich 191, 226; 289 NW2d 631 (1980) (Levin, J., concurring). To the extent we bootstrap successive factual situations onto one another under the guise of liberally interpreting the compensation statute, we avoid such line drawing to the detriment of the sound and efficient administration of the compensation apparatus. Indeed, the Fischer decision has been criticized for that very reason. "The Dinardo (New Jersey) and Fischer (Michigan) cases supply classical examples of the phenomenon * * * of making law by measuring only the distance to the last precedent while completely losing sight of the essential principle involved in the rule. Here we see the first step in the direction of the erosion of the premises rule by this treacherous technique of selecting some past expansion and then exclaiming over how unfair it is to draw a distinction between two situations that seem so much alike. Have the intermediate New Jersey and Michigan courts really thought through where this process will end? In Dinardo, the comparison is between walking to a parking lot and walking to public transportation. Now suppose claimant has parked his car in the public street six blocks from the school. Can walking to this parking space be distinguished from walking to a bus stop? Michigan, in Fischer, has already given an answer. Indeed, suppose claimant is not walking to a car or bus at all, but simply walking home. Assuming the distance is no greater than that to the bus stop, how can this claimant be denied compensation merely because he did not happen to need vehicular transportation? Next suppose that the walking distance is a little longer than that to public transportation — is the court going to draw some imaginary line and say that only the first six blocks are covered? If a seven-block case comes up, will the court have the audacity to issue a denial, when only one b[l]ock separates the two cases? Is Michigan going to distinguish between a sidewalk adjoining the employer’s property and a sidewalk a block away, when this is the nearest street parking available? * * * In short, there is no stopping the process started by these decisions short of complete demolition of the premises rule, with all the impossible questions this brings in its wake. Every night millions of people will emerge from factory gates, office buildings, and school yards. Some will go straight home; some will go shopping; some will head for a tavern. Hundreds of them will be involved in accidents at varying distances from the premises and at varying degrees of deviation from the direct route home. Two things are certain: first, in the great majority of cases, no one will ever be able to prove whether the claimant was really going straight home at the time of the accident; and second, the source of the hazard will almost never be one distinctly associated with the employment, although here again by gradual extension of the 'arising’ cases the court might well end by covering all traffic accidents, falls on ice, and the like. "The real flaw in these opinions is that they ignore the special doctrine that accounts for extension of the premises rule to the trip to parking lots. This is the principle that travel between two parts of the employer’s premises is compensable. By establishing or sponsoring a parking lot not contiguous to the working premises, the employer has created the necessity for encountering the hazards lying between these two portions of the premises. No such considerations apply to a trip to some bus stop or railway terminal or to some parking location on a public street over which the employer has no conceivable control.” 1 Larson, Workmen’s Compensation Law, § 15.12, pp 4-8 — 4-10. The implicit trend in this manner of decision-making is a steady dilution of the legislative limitations on compensation. The Supreme Court has specifically disapproved of such judicial "reform” of the compensation act. McClure, supra, 204. While the statutory coming-and-going rule does not directly limit coverage to on-premises injuries, id., 222-223 (Levin, J., concurring), it must be remembered that the rule is an exception to the basic requirement that compensable injuries arise out of and in the course of the employment. Off-premises injuries should, only be compensated when they satisfy that test or occur in circumstances which logically justify an expansion of the premises concept. In Lasiewicki, such an expansion was justified by the fact that the parking areá, though publicly owned, was under the control of the employer. Likewise, in Jean, the employer created the necessity of traversing the highway by providing a parking lot so separated from the workplace. Here the defendant did not designate or control the plaintiffs route to or from work. We are not convinced that off-premises injuries should be compensated merely because the employee is in the process of arriving at the workplace by travelling his or her usual, customary and direct route. We do not believe that the "zones, environments and hazards” test of Hills and Lasiewicki was originally intended to permit such a result. In the present situation, defendant had no control over or responsibility for the route taken by plaintiff or the condition of the parking lot in question. There is no logical justification for expanding the premises concept to this situation. We are not unaware of the long-standing policy that the compensation statute be interpreted in a liberal and humanitarian manner. See e.g., Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), lv den 391 Mich 780 (1974). However, that policy does not call for a construction that is judicially and administratively unmanageable or which calls for compensation far beyond that envisioned by the Legislature. Reversed. Dinardo v Newark Board of Education, 118 NJ Super 536; 289 A2d 259 (1972).

Per Curiam. The decedent, Olga Peekus, willed her estate to the appellants and Edmond Piekus, a/k/a Imant Piekus, a resident of Latvia. The appellants filed a motion in the probate court to have funds held in escrow pending a determination of the nonresident alien’s right to share in the personal property of the estate. That motion was denied by order entered February 6, 1980, in the Macomb County Probate Court. The claim of appeal was filed pursuant to MCL 600.861; MSA 27A.861, which provides inter alia that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust”. Recognizing that a substantial question existed as to the jurisdiction of this Court to entertain an appeal from this probate court order, this Court ordered the parties to file separate briefs on this jurisdictional question. Since the order in question clearly was entered in a decedent’s estate, the issue is whether or not the order was a "final” order and therefore appealable to this Court rather than the circuit court. Since there is no statutory or rule definition of the term "final” as used in MCL 600.861; MSA 27A.861, the determination of which probate court orders are "final” and which are not, for purposes of determining the appellate jurisdiction of this Court, has to be made on a case-by-case basis. In re Swanson Estate, 98 Mich App 347; 296 NW2d 256 (1980). The test of finality of a probate court order is whether it affects with finality the rights of the parties in the subject matter. Equitable Trust Co v Bankers Trust Co, 268 Mich 394, 397-398; 256 NW 460 (1934), In re Swanson Estate, supra. The order of the Macomb County Probate Court denying the motion to hold funds in escrow is not dispositive of any of the rights of the parties. We therefore conclude that this order is not a final order appeal-able as a matter of right to this Court under MCL 600.861; MSA 27A.861. This appeal is therefore dismissed without prejudice to the filing of a motion for leave to appeal in the circuit court for the County of Macomb, pursuant to GCR 1963, 703. In the Matter of Antieau, 98 Mich App 341; 296 NW2d 254 (1980). The appeal is dismissed. It is ordered that the time for filing a proper motion for leave to appeal in the circuit court shall commence with the release date of this opinion. This section is part of the new Chapter 8 added to the Revised judicature Act by 1978 PA 543, which took effect July 1, 1979.

J. H. Gillis, J. Plaintiff appeals as of right from the lower court’s denial of injunctive relief to prevent the defendants from proceeding with a mortgage foreclosure. The property in question was originally the principal asset of T & T Land Development, a partnership formed on May 3, 1974, by Duane L. Tinkis and Howard L. Tessman. On April 18, 1975, Tinkis sold his interest in the partnership to defendant Gene B. Slachta. The sale was approved by Tessman, who executed a new partnership agreement with Slachta. On July 10, 1975, T & T Land Development gave a first mortgage on the property to the Second National Bank of Saginaw to secure repayment of $99,700. Eventually, that mortgage was found to be in default, and the property was purchased by the bank at a December 20, 1978, mortgage sale. On July 20, 1978, the partnership interests in the property were conveyed to Robert J. Stroebel and Frank Polasky, the principals of the plaintiff company. Stroebel and Polasky redeemed the property from the sheriff’s deed by payment of $105,796.30. On October 1, 1976, Slachta sold his interest in T & T Land Development to Victor Dominguez for $52,000. Dominguez paid for the purchase in part with a promissory note for $37,500. The note was secured by a purchase money security agreement and financing statement and a second mortgage on the property. Slachta and Tessman terminated their partnership agreement, and Tessman entered into a like agreement with Dominguez. Tessman was present when Slachta and Dominguez executed the mortgage but voiced no objections. The defendants commenced foreclosure proceedings on August 9, 1979. At that time, $29,609.44 was due and owing on the mortgage. Shortly afterward, plaintiff filed the present suit, alleging that the mortgage from Dominguez was null and void as an assignment of partnership property. The lower court denied injunctive relief on the grounds that plaintiff stood in the shoes of Tessman, who had evidently approved of the mortgage. This case requires us to determine the effect of a mortgage of partnership property given to secure the personal debt of one of the partners. Plaintiff argues that the mortgage was a nullity, citing § 25(2)(b) of the Uniform Partnership Act, MCL 449.25(2)(b); MSA 20.25(2)(b). Defendants insist that the mortgage be given full effect, pointing to copartner Tessman’s implicit consent to the transaction. Pursuant to the Uniform Partnership Act, a partner is co-owner of partnership property as a tenant in partnership. MCL 449.25; MSA 20.25. Defendants contend that the mortgage was not an "assignment” by Dominguez, prohibited by MCL 449.25(2)(b); MSA 20.25(2)(b), but rather the use of the property for a nonpartnership purpose, permissible with the consent of the other partner. MCL 449.25(2)(a); MSA 20.25(2)(a). Defendants point out that while an assignment constitutes an absolute transfer of property, a mortgage is merely a conditional transfer through which the mortgagor retains an equity of redemption. While a mortgage is obviously a limited transfer of property, we believe such transfers are included within the term "assignment” as used in the partnership act. An assignment is generally defined as a "transfer or setting over of property, or of some right or interest therein, from one person to another, and unless in some way qualified, it is properly the transfer of one’s whole interest in an estate, or chattel, or other thing”. Allardyce v Dart, 291 Mich 642, 644-645; 289 NW 281 (1939). (Emphasis supplied.) A mortgage of partnership property can have the same detrimental effect on partnership operations and interests as an unconditional transfer. It is apparent that MCL 449.25(2)(b); MSA 20.25(2)(b) prohibits the transaction to the extent that it is an assignment of Dominguez’ rights in the specific property. Nonetheless, it does not follow that the attempt should be considered void and without effect. Instead, we view the mortgage as effecting a transfer of that interest in the property that Dominguez could have transferred. In the Matter of Decker, 295 F Supp 501, 511 (WD Va, 1969), Shapiro v United States, 83 F Supp 375, 377 (D Minn, 1949). A partner is free to convey his interest in the partnership itself, defined as his share of the profits and surplus. MCL 449.26-449.27; MSA 20.26-20.27. Therefore, defendants have a security interest in the mortgaged property to the extent that it represents that interest. As stated in 9 Thompson on Real Property (1958), § 4685, p 140: "A mortgage made by a partner of his interest in partnership real estate, to one who knows it to be such, is not a mortgage of the partner’s undivided interest in such real estate but of his interest in the portion mortgaged after the payment of the firm debts upon a settlement of the partnership accounts. The mortgage is not available until the partnership debts have been paid and the partnership accounts have been discharged, if the other partner chooses to assert his equity, or if subsequent partnership mortgagees assert their priority, or if creditors of the partnership attach the property or levy an execution upon it as belonging to the partnership.” (Footnotes omitted.) Here, the portion of property effectively mortgaged is one-half of its value after the settlement of partnership accounts. We do not construe co-partner Tessman’s consent as an agreement that the entire partnership interest in the property be mortgaged, but rather that the debt be secured by Dominguez’ interest. This is consistent with the context of the transaction as part of Dominguez’ acquisition of Gene Slachta’s half of the partnership. Further, had defendants desired to bind the entire partnership, the mortgage could have been executed in such a fashion. This interpretation of the transaction is consistent with the purposes behind the prohibition of MCL 449.25(2)(b); MSA 20.25(2)(b). The section is designed to prevent outside interference in partnership affairs, to protect the interests of other partners and creditors to have firm assets applied to firm debts, and to avoid the problems inherent in assigning a value to a partner’s beneficial interest in the property in question. In the Matter of Decker, supra, 512, Goldberg v Goldberg, 375 Pa 78; 99 A2d 474 (1953). Here, it cannot be said that the partnership has been unduly interfered with since the initial purpose of the security agreement was to permit the continuation of the partnership following Gene Slachta’s withdrawal. Further, the construction adequately protects potential creditors by making the mortgage subject to a settlement of partnership accounts. Finally, while valu ation of the interests involved may present some difficulty and may require dissolution, that alone should not deprive defendants of their security interests. Plaintiff, by the nature of its acquisition of the property in question, stands in the same position as Dominguez and Tessman would had they retained the premises. Therefore, their ownership is subject to the defendants’ interest in one-half of the value of the property after the settlement of partnership accounts. Defendants’ security interest, however, is subordinate to the interests of all other creditors of the partnership, regardless of whether those interests arose before or after the recording of the purported mortgage. Defendants do not have the status of a typical mortgagee. As noted above, Dominguez did not have the power to assign his interest in the property. Instead, he transferred his interest in the partnership as represented by the property. Defendants’ security interest in the property is no better than Dominguez’ interest in the partnership itself, which in turn is inferior to that of partnership creditors. See MCL 449.15; MSA 20.15, MCL 449.40; MSA 20.40. Nonetheless, the countervailing interests of creditors should not prevent defendants from proceeding with foreclosure. The lower court properly denied injunctive relief. Affirmed._ There was no evidence submitted that Dominguez was acting as an agent of the partnership in executing the mortgage. MCL 449.9-449.10; MSA 20.9-20.10. MCL 449.25; MSA 20.25 provides in part: "(1) A partner is a co-owner with his partners of specific partnership property holding as a tenant in partnership: "(2) The incidents of this tenancy are such that: “(b) A partner’s right in specific partnership property is not assignable except in connection with the assignment of the rights of all the partners in the same property.” Arguably, subsequent creditors should have been on notice of the recorded mortgage. However, the records of the mortgage would only reveal that it was granted by Dominguez and not by the partnership. A potential creditor might well have considered the mortgage invalid under MCL 449.25; MSA 20.25.

Per Curiam. Plaintiff appeals by leave granted from an order entered in the Ingham County Circuit Court denying plaintiffs motion to disallow the taking of a deposition in Lansing, Michigan, of its officer, Tony Schwartz. Apparently, plaintiff, New Sounds, Inc., is wholly owned by Schwartz. In May, 1976, plaintiff entered into an agreement with Robert Carr and the Bob Carr for Congress Committee to make campaign spot commercials for use in Carr’s 1976 congressional election campaign. In December, 1977, plaintiff filed suit against defendants in the District of Columbia, seeking amounts allegedly due on the contract for the campaign spots. The action was dismissed upon the ground of forum non conveniens. In June, 1978, plaintiff reinstituted the action in the Ingham County Circuit Court. A pretrial conference was held on July 19, 1979, at which time defendants served plaintiffs counsel with a notice demanding Schwartz’s deposition. The place for the taking of the deposition was specified as Lansing. On July 24, 1979, plaintiff filed a motion for a protective order, disallowing the taking of the deposition in Lansing for the reason that Schwartz was unable to travel due to his medical condition. On August 13, 1979, the trial court denied the motion. On August 15, 1979, plaintiff moved for a rehearing. The rehearing petition was accompanied by affidavits from Tony Schwartz and his psychiatrist, Manuel D. Zane. Dr. Zane’s affidavit provided in relevant part: "Tony Schwartz, the plaintiff in this action, is phobic. He has been my patient since March of 1957. I have treated him continuously for a period of more than twenty-two years. "Mr. Schwartz suffers from a variety of phobias among which are agoraphobia and acrophobia. Agoraphobia is an all embracing term including the fear of public gatherings in open spaces such as the streets, theatres, restaurants, rail, air and bus terminal, etc. Acrophobia is a fear of heights. Both of these phobias are obsessively persistent in Mr. Schwartz and make it virtually impossible for him to travel more than a few miles from his home and place of business or to function in an alien or elevated environment. "In my professional medical opinion Tony Schwartz is individually incapable of travelling beyond the Island of Manhattan. Further, if he were compelled to make such a trip the consequential disturbance could be so severe as to physically endanger his life.” Moreover, Mr. Schwartz’s affidavit provided as is pertinent; "9. Congressman Robert Carr and his former campaign manager, Bernard Schroeder, were both made aware of my inability to travel by me and by Mrs. Jeannette Prussak, the Corporate Secretary of New Sounds, Inc. Congressman Carr and Mr. Schroeder agreed to and did come to my New York City offices to make the commercials at issue in this action as well as those which were made in the Congressman’s successful campaign two years previously.” During arguments on the motion, plaintiffs counsel indicated that the deposition could be taken in Schwartz’s offices in New York City or that interrogatories could be used for discovery purposes and that Schwartz was not attempting to obstruct discovery. Nonetheless, on September 17, 1979, the trial court denied the motion for rehearing. Subsequently, delayed application for leave to appeal an interlocutory order was granted by this Court on June 17, 1980. GCR 1963, 305.2 provides in part: "The court may, in an action pending in this state, order a nonresident plaintiff or an officer or managing agent thereof to appear at a designated place in this state or elsewhere for the purpose of having his deposition taken, upon any terms and conditions that may be just, including payment by defendant of the reasonable expenses of travel, meals, and lodging incurred by the deponent in so attending.” Further, GCR 1963, 306.2 states as is applicable: "Upon motion seasonably made by either party or by the person to be examined and upon reasonable notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated time or place other than that stated in the notice, or that it may be taken only on written interrogatories, * * * or the court may make any other order which justice requires to protect the party or witness from annoyance, undue expense, embarrassment, or oppression.” The gist of plaintiffs argument is that under the circumstances' of this case the trial court abused its discretion in ordering Mr. Schwartz’s deposition in Lansing. We find plaintiff’s argument persuasive in light of the affidavits submitted by Schwartz and his psychiatrist. In combination, GCR 1963, 305.2 and 306.2 give the trial court broad powers to fashion a remedy which would be reasonable and just to all. The trial court should have used the powers conferred upon it to provide for an alternative means of obtaining Mr. Schwartz’s deposition. Defendants assert that Mr. Schwartz should be compelled to have his deposition taken in Lansing because he would have to be a witness at trial as he negotiated the contract in issue. On the record at hand, we do not know to what extent Schwartz’s testimony is needed. Defendants contend that Schwartz’s testimony is imperative if plaintiff is to succeed. If this is true, then plaintiff will not prevail, and Mr. Schwartz’s failure to appear will inure to defendants’ benefit. Defendants also assert that since plaintiff chose the forum, it should not be allowed to thrust Schwartz’s disability onto them. This argument is not persuasive for several reasons. First, given GCR 1963, 305.2 and 306.2 the court has very broad powers to create an alternative plan for discovery, as noted above. The trial court could easily have formulated a plan so that the disability was not "thrust” upon defendants. Second, at the hearings below there were statements made by the attorneys suggesting that the case was ultimately brought in Lansing as a convenience for defendants. Third, defendants’ representatives were aware of Schwartz’s condition prior to their decision to contract with New Sounds, Inc. As such, it might be more aptly stated that defendants are now trying to use Schwartz’s disability to avoid litigating this matter. By choosing to contract with New Sounds, Inc., with full cognizance of Mr. Schwartz’s psychiatric problems, defendants may be said to have assumed the risk of some minimal inconvenience should litigation ultimately arise out of the contract. To insure that defendants will not be injured by our holding, however, we fashion the following remedy to dispose of this matter. The deposition will be held in Schwartz’s New York office on condition that plaintiff agrees to reimburse defendants for round trip airfare between Lansing and New York City for one attorney, the cost of hotel accommodations, if any, and all incidental expenses, along with compensation at the actual hourly rate normally charged by that attorney for periods of travel. As defendants would have been liable for their attorney fees incurred during the deposition, even had Mr. Schwartz come to Lansing, no fees are awarded for the time actually spent by defendants’ counsel during the interrogation of Schwartz. If plaintiff refuses to pay the expenses, then its action is dismissed. GCR 1963, 313.2(2)(c). Reversed and remanded for proceedings consistent with this opinion. Costs to plaintiff-appellant. In fact, if, as defendants state, plaintiff cannot prevail without Schwartz’s testimony, it would probably be a tactical error to take his deposition. MRE 804(a)(4) would make Schwartz an unavailable witness due to his mental illness. Consequently, his deposition would constitute former testimony which is not excluded by the hearsay rule. MRE 804(b)(1).

Per Curiam. Defendant was convicted by a jury of voluntary manslaughter, MCL 750.321; MSA 28.553, and felony-firearm, MCL 750.227b; MSA 28.424(2). On appeal, defendant raises four allegations of error. Initially, he contends that reversible error occurred when his girlfriend’s prior inconsistent statement was admitted as substantive evidence at trial. Defendant failed to object to the manner in which the evidence was utilized. However, he contends the trial court was required sua sponte to instruct the jury that the evidence was to be considered for impeachment purposes only. We have thoroughly reviewed the record and briefs and find no error. The witness professed a lapse of memory throughout her testimony. She was a key witness, indeed, the only eyewitness to the shooting. When the prosecutor attempted to refresh her memory with the prior statement, she still claimed a failure of memory. The police officer took the statement within hours of the incident. The witness admitted signing the statement. Under these circumstances, we find that the prior statement was properly read to the jury under the past recollection recorded exception to the hearsay rule, MRE 803(5): "The following are not excluded by the hearsay rule, even though the declarant is available as a witness: "(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit by an adverse party.” The foundational requirements for admission of the prior statement were satisfied. People v Kubasiak, 98 Mich App 529, 536; 296 NW2d 298 (1980), Jaxon v Detroit, 379 Mich 405, 413; 151 NW2d 813 (1967). The cases cited by defendant are distinguishable because the statement was not inconsistent with her trial testimony, the witness having claimed a lack of memory throughout the proceedings. Defendant challenges other evidentiary rulings. During trial, defendant sought introduction of three medical experts. The first psychiatrist would testify that the girlfriend was on medication which could affect her ability to remember and perceive. The trial court ruled that the psychiatrist could testify that he had prescribed medication for her but that he could not testify concerning her attentiveness at the time of the murder because the psychiatrist was not there and could not personally know if she had taken the medication. The defendant also requested introduction of testimony of the doctors at the jail and Detroit General Hospital. Apparently, defendant went through the "DT’s”, withdrawal of alcohol, during the next few days after the murder. The trial court ruled that this evidence was irrelevant. Bearing in mind defendant’s defense was accident, the fact defendant went through withdrawal the next day does not mean defendant was intoxicated the day before. Even if the defendant was intoxicated at the time of the crime, the trial court ruled second-degree murder is a general intent crime. Also, if defendant was arguing diminished capacity, the lack of notice to the prosecutor of that defense precluded its use. The trial court did not abuse its discretion in ruling that the excluded testimony was irrelevant. MRE 401, 402; People v Strickland, 78 Mich App 40, 54; 259 NW2d 232 (1977). Defendant’s failure to object to the prosecutor’s questions concerning his financial status precludes reversal absent manifest injustice. People v Jackson, 77 Mich App 392; 258 NW2d 89 (1977), lv den 402 Mich 830 (1977). We find no manifest injustice in the record. Defense counsel opened the door to the allegedly improper examination by asking the girlfriend if she and the defendant had a drinking problem and by referring to the "checks”. People v Allen, 351 Mich 535; 88 NW2d 433 (1958). Finally, defendant alleges error in the jury instructions. It is argued that the court impermissibly interfered with jury deliberations as follows: "If the evidence does not convince you beyond a reasonable doubt that the defendant intended to kill, you must consider whether he acted with an unreasonable disregard for human life. It is sufficient for Murder of the Second Degree if the defendant consciously created a very high degree of risk of death, and if he had knowledge of the probability of those consequences. However, if you find that the defendant’s acts did not amount to such a criminal purpose aimed against life, you must find the defendant not guilty of Murder and consider whether or not he is guilty of involuntary manslaughter.” We find no error in the unobjected-to instructions. The trial court was clearly attempting to assist the jury in distinguishing between manslaughter and second-degree murder. At no time did the court require the jury to find the defendant not guilty of murder before considering the manslaughter charge, as prohibited by People v Mays, 407 Mich 619; 288 NW2d 207 (1980), People v Hurst, 396 Mich 1, 10; 238 NW2d 6 (1976), and People v West, 408 Mich 332; 291 NW2d 48 (1980). The Court in Mays stated: "It is not error to suggest an order of consideration of offenses. The jury probably should be reminded to consider the charged offense first and it probably would be helpful to suggest that consideration be given to offenses with a 'greater’ number of elements before considering those with a 'lesser’ number. "In this respect an instruction will not be deemed erroneous unless the instruction or manner of giving it conveys the impression that there must be acquittal on one charge before consideration of another.” Mays, supra, 623. We conclude that the jury was not led to believe it must find defendant not guilty of murder before considering the lesser included offense. Rather, the instruction was a proper delineation of elements and a direction to consider the offense with the greater offenses first, as permitted by the Court in Mays. The remaining allegation of error is without merit. People v Nichols, 391 Mich 813 (1974). Affirmed.

D. L. Sullivan, J. Plaintiffs and defendants are next-door neighbors. They own cottages along the St. Cfair River in Cottrellville Township, St. Clair County. Prior to this dispute, the cottages were served by a two-track dirt strip leading to Highway 29 and straddling the boundary line between the two parcels of land. In the past, the driveway has been subject to obstruction by mud and undrained surface water during the winter and spring and even after ordinary rains. In 1976, the defendants desired to improve the state of the driveway, but their offer for a cooperative project to do so was refused by plaintiffs. Defendants then decided to build the driveway on their own property and, in May of 1977, began to construct a fence along the boundary line. Before the construction, feelings of ill will, apparently existed between the parties. Leo Soltys testified that Allen Reed’s careless driving along the track caused damage to Soltys’ car and near-injury to his granddaughter. Soltys returned from a weekend in Detroit to find a completed section of his fence torn up. Undeterred, defendants proceeded with work on the driveway and fence. Plaintiffs commenced suit on August 16, 1977, requesting temporary and permanent injunctive relief against construction and maintenance of the fence and further improvements to the driveway. Plaintiffs claimed a prescriptive easement in that part of the driveway on defendants’ property and argued that improvements to the road had changed the natural flow of the surface water, causing it to pool up on their property. Subsequently, plaintiffs amended their complaint to request damages with regard to the surface water problem. They also sought damages for defendants’ alleged interference with a common seawall and for other trespasses. Defendants counterclaimed for damages to their property from plaintiffs’ continual trespass, and demanded a jury trial. Defendants later amended their counterclaim to seek compensation for damages to their automobiles, personal property and real estate. The trial court granted a preliminary injunction on November 7, 1977, restraining defendants from further construction of the driveway or fence and directing defendants to remove certain fence posts and stones already placed along the boundary. On May 8, 1978, defendants were found in contempt of court for failing to obey the preliminary injunction. Following a bench trial of the equitable issues, a permanent injunction was granted in favor of plaintiffs. The lower court concluded that a pre scriptive easement had arisen when the parcels were held by previous owners, noting that the common driveway had been used for upwards of 50 years and that the defendants had failed to prove that the mutual use was always permissive. Defendants appeal from this judgment as well as the earlier contempt ruling. This Court reviews equitable matters de novo, with due deference being given to the findings of the trial court. This Court is required to sustain those findings unless convinced that had it heard the evidence in the first instance it would have been compelled to rule in a contrary manner. Emerson v Arnold (After Remand), 92 Mich App 345, 357-358; 285 NW2d 45 (1979). Upon review, we are convinced that the findings of the lower court are clearly erroneous and we therefore reverse. A prescriptive easement is founded on the supposition of a grant. It arises from the open, notorious, continuous and adverse use across the land of another for a period of 15 years. Outhwaite v Foote, 240 Mich 327, 331; 215 NW 331 (1927), Hopkins v Parker, 296 Mich 375, 376; 296 NW 294 (1941). Mutual or permissive use of an area will not mature into a prescriptive easement unless the period of mutuality ends and adverse use continues for the statutory period. Hopkins v Parker, supra, Wood v Denton, 53 Mich App 435, 441; 219 NW2d 798 (1974). However, when use has been in excess of the prescriptive period by many years, a presumption of a grant arises and the burden shifts to the servient estate owner to show that use was merely permissive. Beechler v Byerly, 302 Mich 79, 83; 4 NW2d 475 (1942), Haab v Moorman, 332 Mich 126, 144; 50 NW2d 856 (1952). The testimony established that the common drive has been in use upwards of 50 years, although there was no evidence of its status when first created. In 1936, defendants’ lot passed to Margaret Hingelberg, who constructed the cottage now occupied by defendants. The property subsequently passed to Mrs. Hingelberg’s daughter before being acquired by defendants. The lot now owned by plaintiffs was originally held by Wesley and Florence Densmore, who later deeded it to Roy and Kathryn Nicholson. The Nicholsons quit-claimed the property to their children, who sold it on land contract to plaintiffs. The driveway has been used by the Densmores, Nicholsons and plaintiffs. The lower court concluded that this extended period of use placed upon defendant the burden of proving that it was permissive in nature. The court found that defendants failed to present such proof. Edwin Hingelberg, the grandson of Margaret Hingelberg, testified to his familiarity with both parcels, indicating that he had spent his summers at his grandmother’s cottage during the time period it was held by the family. Hingelberg stated that his grandmother and the Densmores were good friends and that each used the driveway as needed with mutual permission. The permissive use continued while the adjacent property was owned by the Nicholsons. Even plaintiff Allen Reed testified that he believed that he had mutual ownership of the driveway with defendants. The cumulative effect of the testimony was to establish that use of the driveway has been mutually permissive up until the present dispute. The lower court’s conclusion to the contrary was without justification. Acquiescence for a long term of years between adjoining owners in mutual use of a driveway does not create title in either party for the reason that the use is not hostile or adverse. Wilkinson v Hutzel, 142 Mich 674, 676-677; 106 NW 207 (1906). This principle was applied in Milewski v Wolski, 314 Mich 445; 22 NW2d 831 (1946), a case factually similar to the present situation. In Milewski, the plaintiff claimed to have a prescriptive easement in a cement driveway centered on the boundary line between the parties’ respective properties. The Court refused to recognize an easement, noting that because the right of way rested on permission, permission could be withdrawn at any time. Id., 450. Likewise, in Hopkins v Parker, supra, the Court denied the existence of a prescriptive easement in a driveway following an extended period of mutual use. The Court wrote: "It is evident that this driveway originated as a convenience common to the needs of both properties and without thought on the part of the users of any claim of exclusive right thereto. We are unable to discover any change in such mutual user. A prescriptive easement does not arise out of a mutual use of a driveway until mutuality ends and adverse user commences and continues for the period essential to the fastening of such a right. If the user was permissive at inception, such permissive character will continue of the same nature and no adverse user can arise until there is a distinct and positive assertion of a right hostile to the owner and brought home to him. 9 RCL, p 778; Village of Manchester v Blaess, 258 Mich 652.” 296 Mich 375, 379. The Court’s reasoning is applicable to the present case. Defendants provided proof that the use of the easement was permissive; adverse use did not commence until the time of this dispute. The judgment below also prohibited defendants from any earth-fill activities which would interfere with the natural run-off of surface waters. Plaintiffs had claimed that the improvements to the driveway caused water to pool on their property. Under Michigan law, one owning property higher in elevation has a right to discharge surface waters onto the property of one owning lower lying land. Robinson v Belanger, 332 Mich 657, 662; 52 NW2d 538. (1952). The natural flowage of surface water from an upper estate is a servitude which the owner of the lower estate must bear, and he cannot hold it back by dikes or dam its natural channels of drainage to the injury of the owner of the upper estate. Id., Crane v Valley Land Co, 203 Mich 353, 359; 169 NW 18 (1918). Nonetheless, the record reflects that plaintiffs failed to establish in any manner that they were the owners of an upper estate with natural drainage across defendants’ property. Although one witness testified that defendants’ work on the driveway caused the flooding, plaintiffs’ own photographs showed standing water on the property long before any improvements began. Defendants and all of the owners of neighboring property who testified stated that their land flooded as well, even when drainage tile was utilized to remedy the problem. It is apparent that flooding from surface water was common to all of the nearby owners of low-lying riverfront property. In the total absence of proof that defendants interfered with water runoff from plaintiffs’ land, the restriction against the earth-fill activities was erroneous. Although our conclusions require that the injunction be vacated, we must, nevertheless, affirm defendants’ contempt citation. The preliminary injunction of November 7, 1977, directed that defendants remove obstructions already placed on the driveway and return it to a usable condition. Defendants were found in contempt for noncompliance on May 8, 1978, and were again directed to comply or face a $300 fine. The $300 fine was imposed on March 10, 1980, when plaintiffs presented evidence that compliance had not been made. Defendants argue and we agree that the injunction was improperly granted. However, an individual may not collaterally attack the propriety of an injunctive order during contempt proceedings brought against him for failure to comply with the order. Absent a lack of jurisdiction, the order must be obeyed until overturned on direct appeal. State Bar of Michigan v Cramer, 56 Mich App 176, 180; 223 NW2d 713 (1974), Berry Pontiac, Inc v Burke, 19 Mich App 648, 652; 173 NW2d 243 (1969). There is no suggestion that the lower court lacked jurisdiction. Defendants argued below that they were prevented from complying because the ground was frozen and could not be moved. Failure to comply with an injunction may be excused by severe weather, ill health and poverty. Scott v Layng, 59 Mich 43; 26 NW 220 (1886). However, the record reflects that defendants had two and one-half years to comply with the original injunction, including nearly two years following the initial contempt citation but prior to the imposition of the fine. The trial judge was correct in rejecting the defense asserted. The injunction entered below is hereby vacated; defendants’ contempt citation is affirmed. Remanded for jury trial of the remaining legal issues. No costs, neither party prevailing in full.

T. M. Burns, P.J. Defendant Pyramid Human Services, Inc., appeals as of right a lower court order granting summary judgment in favor of plaintiff and permanently enjoining defendants from using a house located in Leland Acres Subdivision as a foster care facility for six mentally disabled persons. We reverse. Plaintiff is a Michigan nonprofit corporation whose members are the residents in the Leland Acres Subdivision in Northfield Township, Washtenaw County. Defendant R. T. Partnership is a Michigan limited partnership which purchased a lot in the Leland Acres Subdivision, built a house on it and leased it to defendant Pyramid Human Services, a Michigan nonprofit charitable corporation that operates foster care facilities for developmentally disabled individuals at several locations. Defendants proposed to place six individuals between the ages of 17 and 35 in the subdivision home. Their treatment and supervision would be provided by a professional staff on a 24-hour basis. The building and use restrictions that apply to each home in Leland Acres Subdivision, including the one in question, state: "Each lot will be used for providing residential purposes only and no house trailers or building of any kind whatsoever shall be erected, re-erected, moved or maintained thereon except a private dwelling house. Such dwelling shall be designed and erected for occupation by a single private family and a private attached two-car garage for the sole use of the respective owner or occupant of the lot upon which such garage is erected He * * 99 The single issue raised in this appeal is whether a valid restrictive covenant excluding buildings other than single family residences from a subdivision proscribes the use of a leased subdivision house by a nonprofit corporation for use as a group home by six developmentally disabled adults supervised by a professional staff. Consideration of this issue necessitates our review of three recent opinions of this Court that have interpreted such restrictive covenants in nearly identical situations. In Bellarmine Hills Ass’n v The Residential Systems Co, 84 Mich App 554, 556-557; 269 NW2d 673 (1978), this Court reversed a lower court injunction that enjoined the defendant in that case from using a subdivision house as a home for six or fewer retarded children and a foster parent. The defendant was a charitable organization that had leased the subdivision home from a private owner. As described by this Court in its opinion, the defendant was acting pursuant to the following plan: "The facility with which this litigation is concerned is licensed by the Department of Social Services pursuant to the child care organizations act. At the time this action was initiated, four mentally retarded children and one foster parent lived in the residence on a permanent basis. Other personnel would visit the home during the day to render care and treatment to the children. The children also attend special classes at the local public schools. "At such time as a child has sufficiently responded to treatment that he can return to the care of his parents, his residency at the facility terminates, and another child is assigned to the home by the Department of Social Services.” The restrictive covenant in Bellarmine provided: "Residential Lots. All lots in said subdivision shall be known and described as. residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential lot other than one single private family dwelling with attached private garage for not less than two (2) cars, except as herein otherwise provided.” 84 Mich App 554, 557, fn 3. In considering the problem before it, the Court accepted the argument that the language of this restrictive covenant, which by its terms prohibited only the erection in the subdivision of anything other than a single family dwelling, also limited the dwelling to use by a single family. Nonetheless, the Court found in favor of the defendant on the grounds that the proposed use was strongly favored by public policy and that the structure of the affiliation of the proposed residents of the home, a foster parent and six or fewer mentally disabled children, was legally equivalent to that of a biological family. Soon after Bellarmine was decided, this Court with one dissent upheld a lower court grant of summary judgment enjoining the use of a house as a foster care home by six elderly women in violation of a restrictive covenant. In that case, Jayno Heights Landowners Ass’n v Preston, 85 Mich App 443, 445; 271 NW2d 268 (1978), the restrictive covenant stated: "Jayno Heights Subdivision No. 1, shall be used for residential purposes exclusively, and no more than one single family dwelling house, with usual outbuilding for use in connection therewith, shall be erected or constructed on any lot in said subdivision and any residence so constructed shall be occupied by not more than one single family unit.” One defendant in the Jayno Heights case had built a house and leased it to two other defendants who proposed to have it licensed under the Adult Foster Care Facility Licensing Act, MCL 331.681 et seq.; MSA 16.610(1) et seq., and used as a home for elderly women. The Court found that the restrictive covenant before it prescribed not only the type of structure that could be built in the subdivision but also the type of persons who could occupy the structure. In this respect, the Court distinguished the covenant before it from that considered by the Michigan Supreme Court in Boston-Edison Protective Ass’n v The Paulist Fathers, Inc, 306 Mich 253, 256; 10 NW2d 847 (1943), which provided that residents "shall not use or occupy said lots except for a single dwelling house and dwelling house purposes only”. The Court found that the restrictive covenant in the Boston-Edison case did not concern itself with who should occupy a dwelling; it limited only the type of dwelling that could be constructed. Further, the Jayno Heights Court specifically noted that the house in the case before it was being used for a commercial purpose while that in the Boston-Edison case was not. The majority opinion in Jayno Heights did not consider the prior opinion of this Court in Bellarmine. However, the dissenting Jayno Heights opinion did consider Bellarmine and, relying principally upon it, the dissent would have held that the group of six elderly women was a "family” for purposes of the restrictive covenant and that enforcement of the covenant would violate public policy. The last opinion of this Court to consider this issue was Malcolm v Shamie, 95 Mich App 132, 133; 290 NW2d 101 (1980). In that case, plaintiffs sued to enjoin five mentally retarded adult women from living in a supervised home in violation of a restrictive covenant that provided: "No structures or buildings shall be erected, altered, placed or permitted to remain in any of the lots numbered 37 to 56 inclusive, 73 to 94 inclusive, 167 to 188 inclusive, and 203 to 224 inclusive, other than one detached single family dwelling not to exceed two stories in height and a private garage for not more than 2 cars.” Comparing the factual situation before it to that in Bellarmine and Jayno Heights, the Malcolm Court held that the covenant before it specifically applied to the type of dwelling and not to who could live in such dwelling. The Court noted that the defendant before it operated a nonprofit corporation, unlike the situation in Jayno Heights, and that: "Five mentally retarded women living with a foster parent in an environment therapeutically designed to emulate a more conventional family environment should also be considered a family, and such use of the property, an appropriate family residential use. The residents are more than a group of unrelated individuals sharing a common roof. They do not have natural families on which to rely, and, due to their unique circumstances, it is unlikely that these women will ever rejoin their parents or marry and form independent families. The substitute family provided by the group home allows the residents to lead more normal and meaningful lives within the community than would be feasible were they institutionalized. This Court weighed the importance of normalization through community based services for retarded individuals in Bellarmine, supra. The only difference between the two cases is that the residents in the instant case are adults. The public policy arguments of Bellarmine apply equally to all retarded individuals regardless of chronological age.” 95 Mich App 132, 136. Reflecting upon these three cases, we glean three factors that were considered by the Court in each of them. First, in each opinion the Court considered the specific language of the covenant. Second, it considered the nature of the operation with particular regard as to whether it was commercial or nonprofit. Finally, the Court in each case considered the basis of the affiliation of the residents in the home. In the instant case, the specific language of the restrictive covenant is more like that in Bellarmine and Malcolm than that in Jayno Heights. That is, the present restrictive covenant states that "[s]uch dwelling shall be designed and erected for occupation by a single private family”. Thus, by its terms, the covenant applies to the type of structure and not the use of the dwelling. In this respect, it is unlike the covenant in Jayno Heights, which provided "any residence so constructed shall be occupied by not more than one single family unit”. 85 Mich App 443, 445. This factor then weighs in favor of defendants. Similarly, the second factor also dictates in favor of defendants. The operation of the home in this case is to be similar to that in Bellarmine and appears to be like that in Malcolm in that the present home would be operated by a nonprofit, charitable corporation. The operation of the home in Jayno Heights can be distinguished in that it was commercial in nature. Finally, the basis of affiliation in this case cannot be distinguished from that in Malcolm which involved a substantially identical home for six or fewer developmentally disabled adults. Although a residential foster parent was present in the home in Malcolm, and it is not clear from the facts of the case at bar whether one would be present in the instant home, we do not deem this distinction to be a significant one. The precept that a parent is the essence of a family does not seem to have been of any importance in either Bellarmine or Malcolm. In any event, 24-hour supervision is to be provided in the instant home. Thus, comparing the facts of this case to those in Bellarmine, Jayno Heights and Malcolm, we hold that they more closely resemble Bellarmine and Malcolm. The present deed restriction prescribes only the building of a single family dwelling in the subdivision, it does not limit its use. However, be that as it may, the residents of defendants’ home would constitute "a family” under the holdings of this Court in Bellarmine and Malcolm. The lower court order granting plaintiffs motion for summary judgment is vacated. This cause is reversed and remanded and the lower court is instructed to enter an order granting defendants’ motion for summary judgment.

Per Curiam. Plaintiff appeals a decision of the Workers’ Compensation Appeal Board granting defendants control over his medical and convalescent care and denying his petition for an increase in compensation benefits. Plaintiff is totally and permanently disabled as a result of an injury arising out of his employment at defendant Top Notch Fence Installers. Plaintiff worked as a laborer installing fences for Top Notch at the time of the accident. Benefits are being paid by the former employer. Supplemental benefits are paid by defendant Second Injury Fund. In 1974, defendants petitioned the Bureau of Workmen’s Compensation for an order authorizing their control over plaintiff’s medical care. Plaintiff sought an increase in weekly benefits. The administrative law judge concluded: "It is found that defendants have provided reasonable care in established nursing homes. It is further found that types of facilities sought by plaintiff have produced negative results. It is therefore ordered that defendant shall continue to provide reasonable and adequate convalescent nursing care and the selection of facilities shall be under the control of the defendants. "Plaintiff petitions for an adjustment of plaintiff’s rate of payments under the provisions of Chapter 3, 359 of the Act. It is found that Plaintiff, by work history, experience and education, or lack thereof, does not come within the intent and meaning of 359. Plaintiff’s petition is, therefore, denied.” The Workers’ Compensation Appeal Board affirmed the decision, with one member dissenting. Initially, plaintiff asserts the Board erred in holding that he was not entitled to increased benefits. Plaintiff relies upon MCL 418.359; MSA 17.237(359), which states: "Whenever an employee who has not attained his twenty-fifth birthday is injured so that he is entitled to compensation as permanently and totally disabled as defined in this act, if it is established that the injured employee was of such age and experience when injured that, under natural conditions, his wages or position would be expected to increase, that fact, subject to the statutory minimum and maximum weekly payments, may be considered by a hearing referee in determining his weekly payments.” In affirming the administrative law judge’s denial of an increase, the Board made the following findings of fact: "Plaintiff did not complete the 10th grade in regular schooling (he did receive a GED certificate post-injury); his military service included training in parachuting and weaponry, and when he was sent to cook school he had to take 6th grade mathematics and reading concurrently, admitting T can’t read that good;’ [sic] he was injured in Viet Nam and left with a limp; upon returning to Michigan after service discharge he did lawn work at a trailer court; immediately before going to work for defendant he labored at $1 per hour doing yard work for an aunt. "His employer had described him as a good employee, but not one of the best. He went on to say that even the 'best’ that he hired would get a little money in their pockets and disappear for a week at a time. Obviously, the best in that field (itself the best job plaintiff testifies to having had) are marginal laborers. Notwithstanding his stated (and unrealistic) goals of becoming a soybean farmer on 800 acres in Indiana, or patenting synthetic food, or buying out his former employer, we agree with the referee that plaintiffs prospects at age 24 did 'not come within the intent and meaning of 359.’ ” The Board concluded that the plaintiff "would probably have remained on society’s fringes performing common labor near the minimum level being earned at the time of the injury had he not been disabled”. One member of the Board dissented due to the employer’s testimony that plaintiff could have earned nearly twice his last wage had he been a good fence installer. The employer testified that plaintiff had been only recently hired when he was hurt but that he was a good employee. The dissenter concluded that plaintiff’s work history showed signs of improvement, thereby rendering denial of the increase under the statute improper. Plaintiff admits that the statute is permissive, not mandatory. However, he asserts that since the Worker’s Disability Compensation Act of 1969, MCL 418.101 et seq.; MSA 17.237(101) et seq., is remedial, it should be liberally construed. Consequently, the Board erred in not finding in his favor on such a close issue. We disagree with plaintiff’s interpretation of the standard of review. Although the act is to be liberally construed, Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1, 33-35; 268 NW2d 1 (1978), this rule pertains to legal interpretation of the statute. Where the statute can be applied to either grant or deny benefits, the issue should be resolved in favor of the claimant. This is an entirely different standard than that employed in reviewing findings of fact of the Board. Appellate courts are required to review findings of fact for fraud and to determine whether there is any competent evidence in the record to support the findings of fact made by the Board. MCL 418.861; MSA 17.237(861), Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978). We believe that whether plaintiffs experience and age when injured indicate that his wages would have increased had he not been injured is a fact question. There is no allegation of fraud. The findings of the administrative law judge and the Board are supported on the record. This issue is without merit. Plaintiff claims that he is entitled to increases in compensation each year pursuant to MCL 418.521(2); MSA 17.237(521X2), which requires an annual increase in minimum benefits due to inflation. The Board ordered payment of benefits as follows: "Upon issuance of the Board’s accompanying Order in this case, defendant’s and Second Injury Fund’s obligation shall be to pay basic and incremental benefits pursuant to our factfindings, application of minimum rates (Jolliff v American Advertising Co, 49 Mich App 1), application of the two-thirds average weekly wage maximum (Kunde v Teesdale Lumber Co, 55 Mich App 546; and Wemmer v National Broach and Machine, 89 Mich App 312 (1979), until such maximum is reached or surpassed by the annually-increasing mínimums (Wemmer, supra). The employer/carrier’s basic rate of compensation for the 1972 injury, pursuant to our findings, is $64, with Second Injury Fund increments flowing from the above findings of fact and applications of law.” According to plaintiff, he is still receiving only $64 per week, as originally established. The Second Injury Fund disputes that fact, claiming that Top Notch is currently paying plaintiff $64 per week and the Fund is paying him a differential of $70 per week. This differential is based upon the difference between the minimum benefit payable in 1980 ($134) and the amount being paid by Top Notch ($64). At oral argument, defendant Second Injury Fund’s counsel presented the panel with a payment schedule verifying that fact. On the record before us, we cannot determine whether plaintiff is, in fact, receiving the differential payment. Plaintiff failed to argue this point below. A reading of the Board’s order indicates it is in conformity with the law. If plaintiff is not receiving the differential payment, he may petition the Bureau for enforcement of the order. Plaintiff challenges the order giving defendants control over his medical and convalescent care. The Board affirmed the administrative law judge’s opinion as follows: "Plaintiff has been difficult to deal with since his injury, has left convalescent facilities and been removed from others, with additional costs generated for emergency treatment thereafter. "Initially, we agree with the propriety of the referee’s unusual order directing that medical care be under the control of defendants. Upon review of plaintiff’s occasionally bizarre testimony and the deposition of Joseph Schaeffer, M.D., it is clear that plaintiff himself is not capable of evaluating what attendance might be in his best interests. We have been advised at oral argument that no current dispute exists over care being provided, and this affirmance should not be construed as precluding plaintiff from petitioning for medical care or attendance in the future which he believes more appropriate than what is being provided. The burden shall be on him, however, to justify same in the face of our affirmance of the referee’s decision.” The dissenting member disagreed on the grounds the act does not allow the remedy awarded. In addition, he voted that the issue was moot since plaintiff had found a place of convalescence in which he could act rationally. He also felt that plaintiff’s previously "bizarre” behavior was a normal response of a young person suddenly turned invalid. The majority relied on MCL 418.315; MSA 17.237(315), which in pertinent part states: "The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of his employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed. After 10 days from the inception of medical care as herein provided, the employee may treat with a physician of his own choice by giving to the employer the name of the physician and his intention to treat with the physician. The employer or his carrier may file a petition objecting to the named physician selected by the employee and setting forth reasons for the objection. If the employer or carrier can show cause why the employee should not continue treatment with the named physician of the employee’s choice, after notice to all parties and a prompt hearing by a hearing referee, he may order that the employee discontinue treatment with the named physician or pay for the treatment received from the physician from the date the order is mailed * * * » We agree with the dissent in its conclusion that the statute does not authorize the Board to take the choice of care from the claimant and place it in the discretion of the employer or Second Injury Fund. The statute allows the employer to challenge individual doctors. Assuming without holding that the provision inherently provides the employer with the right to challenge other types of medical care, e.g., convalescent services, it does not place the initial decision with the employer. We hold that the Board exceeded its statutory authority in granting this admittedly unusual power to defendants. The remaining allegation of error is without merit and was not properly raised below. Affirmed in part; reversed in part.

Per Curiam. Plaintiffs appeal as of right a decision of the trial court, which directed a verdict of no cause of action as to defendant Dr. John O’Sullivan, GCR 1963, 515.1, and granted defendant University of Michigan Medical center’s motion for summary judgment. GCR 1963, 117.2(3). The plaintiffs raise four issues, which we hold do not require reversal. Plaintiffs brought an action for damages against defendants based on allegations of medical. malpractice. The action against defendant University of Michigan Medical Center was properly dismissed by the circuit court and brought in the Court of Claims. The two cases were consolidated and heard in the Washtenaw County Circuit Court, with a jury sitting in the case against defendant O’Sullivan and the judge sitting as trier of fact in the Court of Claims case. At the close of plaintiffs’ proofs, the judge directed a verdict of no cause of action in favor of Dr. O’Sullivan and granted summary judgment of no cause of action for defendant UMMC. The allegations of malpractice concern departures from the proper standard of care in the prenatal care and delivery of the infant son. Plaintiffs also alleged the breach of a contract under which defendant O’Sullivan allegedly agreed to perform a Caesarean section delivery. The contract claim was dismissed for failure to satisfy the statute of frauds, MCL 566.132(g); MSA 26.922(g), and plaintiffs proceeded to trial on the malpractice claims. As part of their case in chief, plaintiffs sought to introduce the testimony of Dr. George Miller concerning the standard of care applicable to defendant O’Sullivan, an obstetrician-gynecologist. Dr. Miller testified that he was familiar with the practice and standard of care of specialists in obstetrics and gynecology and his qualifications were examined by the trial court. The court found that he was not qualified by education, practical experience or research and reading sufficient to testify concerning the applicable standard of care. I Plaintiffs first claim that the trial court abused its discretion in refusing to allow testimony by the proffered expert witness. Both parties agree that the proper test for an expert witness in a medical malpractice trial is whether the witness is familiar with the standard of care to be applied. Francisco v Parchment Medical Clinic, PC, 407 Mich 325, 327; 285 NW2d 39 (1979), Siirila v Barrios, 398 Mich 576, 591; 248 NW2d 171 (1976). The standard to be applied in this case is a national one equal to that of a specialist practicing in the field of obstetrics and gynecology. Francisco, supra. Whether a witness is sufficiently qualified to provide opinion testimony is a decision committed to the discretion of the trial court. Groth v DeGrandchamp, 71 Mich App 439, 443; 248 NW2d 576 (1976), Auto-Ion Chemicals, Inc v Gates Rubber Co, 33 Mich App 574, 577; 190 NW2d 357 (1971). In the absence of a finding of abused discretion, the trial court’s determination will not be reversed. Patelczyk v Olson, 95 Mich App 281; 289 NW2d 910 (1980). Before holding Dr. Miller to be unqualified, the trial court examined the witness with respect to his knowledge, skill, experience, training and education and appeared to consider all as factors in reaching its conclusion. In its written opinion, the lower court noted four factors bearing on Dr. Miller’s lack of expertise in the area of obstetrics .and gynecology, including (1) a lack of board certification in obstetrics, (2) the absence of evidence on the number or type of maternity cases he handled, (3) that he had not performed surgery since 1967 or delivered a baby since 1959, and (4) a lack of research or study in the field of obstetrics and gynecology. In light of these deficiencies in Dr. Miller’s background and qualifications, we conclude that the trial court properly exercised its discretion by ruling Dr. Miller’s testimony inadmissible. The plaintiffs next assert that the trial court erred in refusing to admit Dr. Miller’s testimony as it related to claims based on treatment allegedly outside the field of obstetrics and gynecology. However, we note that all of the plaintiff’s allegations supporting their malpractice claim relate to the prenatal treatment and delivery procedures employed by defendant O’Sullivan. We thus hold it was not an abuse of discretion to rule inadmissible the testimony of Dr. Miller. II The plaintiffs next allege reversible error in the trial court’s dismissal of their claim for damages based upon the breach of an alleged contract to deliver the plaintiff’s child by Caesarean section. The court first granted the defendants’ motions for accelerated judgment under GCR 1963, 116.1(5), when it found no evidence to meet the "in writing” requirement of the statute of frauds, as applied to agreements for medical care. MCL 566.132(g); MSA 26.922(g). In a subsequent proceeding, a second judge denied the plaintiffs’ motion to amend the pleadings by reinstating the contract claim. In so holding, the court found four documents offered by the plaintiffs as proof of the contract’s existence insufficient to overcome the bar of the statute of frauds. This statutory provision, expanding the statute of frauds to agreements for medical care, has not yet been the subject of an appellate decision. Its constitutionality was not attacked below so we have no foundation for finding it suspect constitutionally. However, as applied to other agreements, it has been held that "a writing must contain all of the essential terms of the contract with the degree of certainty which would obviate any necessity for parol evidence”. Ass’n of Hebrew Teachers v Jewish Welfare Federation, 62 Mich App 54, 59; 233 NW2d 184 (1975), citing Commercial Factors Corp v Zephyr Awning Corp, 353 Mich 251, 256-259; 91 NW2d 511, 514-515 (1958). In Fothergill v McKay Press, 361 Mich 666, 675-676; 106 NW2d 215 (1960), the Supreme Court described the requisite sufficiency necessary for a memorandum to satisfy the statute of frauds as applied to employment contracts: "Why was this instrument not a sufficient memorandum to answer the requirement of the statute? Appellee argues, in part, that it 'was not a memorandum but rather represented a proposed contract between the parties, complete in all respects.’ This circumstance, if true, would only add to its strength as a memorandum, not detract therefrom. Normally a memorandum need be only that It is sufficient if the obligations of each party may be determined from it It need not have the minutiae of a contract Mr. Justice Cardozo refers to it as a 'token,’ and so, indeed, it is. But it is no less a token because it purports to be more.” (Emphasis added, footnote omitted.) Under the above sufficiency standards, the documents presented to satisfy the statute of frauds must, at a minimum, display defendant O’Sullivan’s promise or agreement to perform a Caesarean section birth. Review of the disputed documents does not reveal any language by which defendant O’Sullivan bound himself to deliver the plaintiffs’ child by Caesarean section only. The first writing offered was an undated obstetrical record of patient Lynn Gilmore labelled "St. Joseph’s Mercy Hospital”. Under the heading "Impression and Outlook” is stated "Repeat C/S”. The second writing is dated November 27, 1975, and states, "Plan: If goes into labor today let deliver from below. If not — C/S—11-28-75”. The third writing is a consent to operation form employed by defendant UMMC and signed by another physician. Paragraph 2 of this form states that the procedures required to treat the patient’s condition have been explained and is followed by the written statement "repeat C/S — delivery of infant through incision in the uterus”. However, the next paragraph permits alternative remedies in response to "unforeseen conditions.” The fourth writing is dated December 12, 1975, and states, "talked to Mrs. Gilmore this a.m. — Since she didn’t have repeat C/S they have decided that her husband will have vas”. "Vas” refers to vasectomy. The documents are consistent with plaintiffs’ claim that the parties contemplated a Caesarean section delivery. This interpretation is also supported by the deposition testimony of Dr. O’Sullivan, which consistently referred to a "plan” to deliver by Caesarean section. At no time, however, did Dr. O’Sullivan obligate himself to perform such a procedure. Absent Dr. O’Sullivan’s acknowledged assumption of an enforceable obligation to perform the requested operation, it cannot be said that there was a contract. We are impelled to this conclusion in spite of a definite conviction that Mr. and Mrs. Gilmore, under all the facts and circumstances revealed in this record, had a reasonable expectation of a Caesarean section delivery. The language of the statute, MCL 566.132; MSA 26.922, states as follows: "In the following cases an agreement, contract or promise shall be void, unless that agreement, contract, or promise, or a note or memorandum thereof is in writing and signed by the party to be charged therewith, or by a person authorized by him: "(g) An agreement, promise, contract, or warranty of cure relating to medical care or treatment.” We conclude that an agreement to deliver a baby by Caesarean section is an agreement relating to medical care or treatment within the above statute. We find the evidence insufficient to satisfy the written requirements of the amended Michigan statute of frauds. III The plaintiffs’ final contention is that the governmental immunity statute, MCL 691.1407; MSA 3.996(107), under which the liability of defendant UMMC was claimed, should be interpreted to place jurisdiction over the claim against UMMC in the Washtenaw County Circuit Court. The plaintiffs rely principally upon Genesee County Road Comm v State Highway Comm, 86 Mich App 294, 297; 272 NW2d 632 (1978) ("the power of the Court of Claims is limited in part by the doctrine of governmental immunity”), and Doan v Kellogg Community College, 80 Mich App 316, 320; 263 NW2d 357 (1977) ("The Court of Claims act should be interpreted in light of the governmental immunity act”), as support for their position. However, we find these cases do not alter the exclusive jurisdiction vested in the Court of Claims over claims against state agencies. MCL 600.6419; MSA 27A.6419. Our reading of Genesee County Road Comm discloses that the limitations imposed by the doctrine of governmental immunity operated only to restrict the Court of Claims power to render a judgment against an immune state agency. The Court did not discuss the scope of the Court of Claims jurisdiction to hear claims against state agencies. In Doan, the Court merely held that the exclusive jurisdiction of the Court of Claims did not extend to local community colleges. We also find inapplicable the Supreme Court recent decision in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), cited by the plaintiffs as further support for their claim. The Parker Court did not address the jurisdiction of the Court of Claims. We find the plaintiffs’ claim without merit. Affirmed.

Bronson, P.J. Defendant appeals by leave granted from a judgment of the Workers’ Compensation Appeal Board (WCAB or Board) affirming the decision of the administrative law judge granting plaintiff compensation benefits. On September 18, 1975, plaintiff filed a petition for workers’ compensation alleging that physical and mental stress on his job caused him to have internal injuries and caused or aggravated a heart condition, angina pectoris, and myocardial infarctions. A hearing was held before an administrative law judge on October 26, 1976. Plaintiff testified that his first position with defendant was that of a paint mixer. This job entailed some heavy lifting including moving 55-gallon drums that could weigh anywhere from 300 to 400 pounds. Plaintiff was eventually promoted to assistant decorating foreman. This position required him to oversee all or part of the work of some 300 em ployees. He worked some ten hours a day, five days a week. Some weeks he also worked on Saturday. It was plaintiff’s responsibility to ensure. that production schedules were met. After approximately three years, plaintiff was transferred to the midnight shift and became foreman over eight other employees. On this shift, he was required to do some production and painting work himself. In mid-1972, plaintiff was transferred back to the warehouse and made a flow coater. In the flow coating department, a base is placed onto raw parts before the parts go into metalizing. This job required a lot of manual labor and "the fumes were terrible”. Plaintiff started experiencing pain in his left arm and was diagnosed as having bursitis. Immediately after these problems, plaintiff became a production control supervisor. He testified that this job was very stressful. He found particularly unnerving his responsibility for having to deal with telephone calls from purchasers complaining that their parts had not been shipped. Plaintiff testified that his employer told him to tell lies with respect to why their parts had not been shipped and when they might get them. While working in production control, plaintiff worked ten-hour shifts Monday through Friday and half a day on Saturday. Plaintiff testified that he suffered his first heart attack on Saturday morning, February 1, 1973, while at work. Plaintiff was out of work until July, 1973, when he returned to his job in production control. Thereafter, he suffered a second heart attack in February, 1974. Plaintiff returned to work in September, 1974, and continued to work 10 to 11 hours a day, five days a week as well as working on Saturdays. Plaintiff was transferred to production control in a new plant the company had purchased in Sterling "Heights. Although smaller, this plant was experiencing difficulties and plaintiff was required to work all night on more than one occasion to ensure compliance with production schedules. In December, 1974, plaintiff stated that he suffered another heart attack while at the plant. He was hospitalized for two more weeks. When plaintiff returned to work, he was placed in charge of a Zenith television project at defendant’s Fifteen Mile plant. This plant was experiencing serious labor difficulties, and defendant had recently discharged the supervisor and all of the hot stamping workers there. As production foreman, plaintiff had 50 to 70 people working under his direction. In March, 1975, plaintiff testified that he again suffered a heart attack. Plaintiff returned to work in July, 1975. While at work one morning, he sat down at a cafeteria table and passed out. Medical personnel told him that he had not experienced another heart attack, but, rather, was just having problems with his "nerves”. Following this incident, defendant was laid off. Medical testimony will be discussed below in Part I of this opinion. I Plaintiff was awarded compensation benefits on a 2-to-l vote of the WCAB. Each of the Board members wrote a separate opinion in this matter. The lead opinion by member Oldstrom rejected as incompetent plaintiff’s testimony that he had experienced "heart attacks” because he was not a doctor. Nonetheless, this opinion found that "employment stress was a factor in [plaintiff’s] atherosclerotic heart disease” and upheld the administrative law judge’s granting of compensation benefits. WCAB member Miller’s concurring opinion considered plaintiff’s testimony concerning heart attack competent, but did not indicate what weight he would give it. Mr. Miller also believed that stress at work was more significant to the ultimate heart-related disability than did Mr. Oldstrom. Chairman Gillman in dissent concluded that plaintiff’s lay testimony was competent but that he had not established by a preponderance of the evidence that the atherosclerotic condition was work-related. All three opinions by the WCAB, however, impliedly proceeded on the assumption that the arteriosclerosis could be compensable in a given case. Defendant first contends that arteriosclerosis is an ordinary disease of life which is not compensable. MCL 418.401(c); MSA 17.237(401)(c). The company relies on the following excerpt from Kostamo v Marquette Iron Mining Co, 405 Mich 105, 116-118; 274 NW2d 411 (1979): "Arteriosclerosis is an ordinary disease of life which is not caused by work or aggravated by the stress of work. However, stress that would not adversely affect a person who does not have arteriosclerosis may cause a person who has that disease to have a heart attack. "The WCAB found that Fiszer and Hannula had not suffered heart damage. Those findings are supported in the evidence. Therefore, whatever the stress of the jobs, there was no injury. Since stress does not aggravate arteriosclerosis, the WCAB decisions denying them com pensation must be affirmed. Although there is a causal relationship between the underlying disability, arteriosclerosis, and Fiszer’s and Hannula’s inability to continue working, that disability was not caused and could not have been aggravated by their employment.” (Footnotes omitted.) The above excerpt certainly seems to indicate that the Supreme Court is taking judicial notice that arteriosclerosis is not aggravated by stress. However, we reject this view as will be detailed below. The quotation constitutes dicta which we are not bound to follow. In the actions brought by Fiszer and Hannula upon which this dicta is based, both men argued that their arteriosclerosis was a work-related disability. It was unnecessary for the Court to consider whether arteriosclerosis could be aggravated by stress to affirm the WCAB determinations in these cases. By Const 1963, art 6, § 28, findings of fact in workers’ compensation proceedings are conclusive in the absence of fraud. As such, the Court in the Fiszer and Hannula matters need only have upheld the WCAB findings of fact to affirm. Nonetheless, the fact that the excerpt quoted above constitutes mere dicta does not mean that we should refuse to follow it in rendering our decision. Indeed, in the normal case, we should resolve disputed issues in accordance with the dicta from a higher court where applicable. Simply because language in an opinion is unnecessary to the ultimate resolution of that case is no reason not to give it effect. The dicta still express the views of the higher court. It would be intellectually dishonest to reject dicta in deciding a case in which we were convinced the higher court would give effect to said dicta merely because it is not technically binding. It is thus our duty to attempt to ascertain whether the four Supreme Court Justices who concurred in the majority opinion in Kostamo really meant that as a matter of law arteriosclerosis could not be aggravated by the stress of work. Whether stress in general, and work-related stress in particular, can aggravate arteriosclerosis to the point where the disease becomes disabling is apparently a matter of considerable medical debate. In this case, for instance, Dr. Helen Winkler, a board-certified internist who has had articles published in her field of expertise, categorically stated: "This man’s occupational stresses aggravated his coronary atherosclerosis. His occupational stresses precipitated recurrent episodes of myocardial hypoxia resulting in angina pectoris and myocardial infarction. His occupational stresses aggravated his hypertension and chronic anxiety.” Similarly, Dr. Donald Overy, board-certified in internal medicine, stated that he was sure that stress at work "is a factor in this disease”. Dr. Overy, however, indicated that stress was not the "precipitating” or "causative” factor in the atherosclerotic heart condition resulting in plaintiff’s disability. His opinion was that the occupational factors were insignificant given the fact that plaintiff was "a walking casebook of risk factors” including obesity, smoking, mild diabetes, hypertension, and a family history of heart disease. Nonetheless, Dr. Overy’s testimony indicates that work-related stress can aggravate arteriosclerosis. A third doctor, Joseph Kopmeyer, also a board-certified internist, testified that personal family matters were "of relatively much more importance in the total process of any possible worsening of his coronary vascular disorder than would be the possible occupational factors”. Implicit in this testimony is the acceptance of the idea that employment-related stress can aggravate arteriosclerosis. Given the apparent divergence of medical opinion concerning whether occupational stress aggravates arteriosclerosis, this matter is subject to reasonable dispute and, as such, is not a fact amenable to judicial notice pursuant to MRE 201(b). Consequently, we do not follow the dicta in Kostamo since it is, in effect, judicial notice of disputed factual matter. We still must determine whether there is evidence to support the WCAB’s judgment that in this case the atherosclerotic heart condition was aggravated by the employment. This Court may reverse the Board’s decision only when convinced that there is no evidence to support that judgment. Kostamo, supra, 135-136, Mansfield v Enterprise Brass Work Corp, 97 Mich App 736, 743-744; 295 NW2d 851 (1980), and cases cited therein. Here, the Board chose to accept the testimony of Dr. Winkler which affirmatively tied the aggravation of the atherosclerotic heart disease to occupational stress. While it is true that Drs. Overy and Kopmeyer believed that the occupational factors were of little significance to the disability, both indicated that stress at work was a factor. There was evidence, then, from which the WCAB could support its judgment. II Defendant next contends that if aggravation of plaintiffs atherosclerotic heart condition is compensable, it is only compensable as an occupational disease. As such, defendant contends that it is entitled to apportion benefits between plaintiffs "occupationally related heart condition” and his "nonoccupational diabetes and nonoccupational hypertension” pursuant to MCL 418.431; MSA 17.237(431). The question we are called upon to resolve, then, is: where the WCAB finds that occupational stress aggravated the coronary condition to the point of disability but where plaintiff has failed to establish that a heart attack precipitated the disability, is compensation awardable pursuant to MCL 418.301; MSA 17.237(301) (Chapter 3) or MCL 418.401; MSA 17.237(401) (Chapter 4)? If the coronary related disability is compensable as a Chapter 4 disease or disability rather than a Chapter 3 personal injury, apportionment of benefits is required. The WCAB specifically rejected defendant’s contention that the atherosclerosis constituted a Chapter 4 occupational disease. Rather, it ruled that plaintiff suffered from an injury under Chapter 3. Defendant contends that this conclusion is wrong, asserting that Chapter 3 only applies to disabilities arising from: (1) a single event injury, (2) a single event injury aggravated by subsequent employment or (3) a series of traumatic events. We reject this argument. MCL 418.301(1); MSA 17.237(301X1), provides: "An employee, who receives a personal injury arising out of and in the course of his employment by an employer who is subject to the provisions of this act, at the time of such injury, shall be paid compensation in the manner and to the extent provided in this act, or in case of his death resulting from such injuries the compensation shall be paid to his dependents as defined in this act. Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death. ” (Emphasis added.) The emphasized portion of the provision indicates that lack of knowledge of the time or date of the injury resulting in the disability is not fatal to recovery. Furthermore, it provides that an injury not attributable to a single event may be compensable. The provision does not impose any requirement that the events resulting in the disability be traumatic (as used here, meaning caused by some physical blow or contact) to the exclusion of psychological or emotional events. The idea that the injury must be the result of a traumatic event is contrary to the state of the law as it now exists. In Carter v General Motors Corp, 361 Mich 577; 106 NW2d 105 (1960), the Supreme Court held that a psychosis resulting from the emotional pressures experienced by plaintiff daily on his job was a compensable personal injury within the meaning of the precursor to MCL 418.301(1); MSA 17.237(301)(1). In Carter, the claimant was disabled by "paranoid schizophrenia” not manifesting itself in a physical injury. Here, plaintiff actually was physically disabled, and the WCAB found that this disability was caused in part by the emotional pressures plaintiff was subjected to on the job. In both Carter and the instant case, the plaintiffs suffered from preexisting infirmities — Carter from "pre-existing latent mental disturbances” and plaintiff Fox from preexisting arteriosclerosis. We see no grounds in the Worker’s Disability Compensation Act allowing us to distinguish emotional pressures resulting in disabling mental illness and emotional pressures resulting in a disabling atherosclerotic heart condition. The Supreme Court has recently considered again the status of mental conditions resulting in disabilities for purposes of the Worker’s Disability Compensation Act in Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978). The majority opinion specifically recognized as a compensable Chapter 3 disability a physical injury resulting from "a mental stimulus”. Id., 22. This is basically the situation we are presented with. Plaintiff Fox’s work-related pressures consti tuted the "mental stimulus” which aggravated a preexisting coronary condition resulting in a physical injury. It does not matter that the mental stimulus, itself, was insufficient to render plaintiff disabled. Its interaction with the underlying physical condition was found by the WCAB to have resulted in a Chapter 3 personal injury. Defendant makes much of the fact that any injury suffered by plaintiff was ultimately the result of heart disease aggravated by employment factors. However, this is no different from Carter’s injury which was ultimately the result of mental disease aggravated by employment factors. Defendant also places much reliance on Derwinski v Eureka Tire Co, 407 Mich 469; 286 NW2d 672 (1979). The question in Derwinski was whether plaintiff’s last employer was entitled to apportionment of benefits pursuant to MCL 418.435; MSA 17.237(435) with plaintiff’s previous employer where plaintiff was disabled due to aggravation of preexisting degenerative disc disease. The Court answered affirmatively as the WCAB found that the disablement was the result of repeated lifting duties required by both employers. Defendant points to the definition of disease used in Derwinski, supra, 482-483, and argues that since plaintiff’s atherosclerosis falls within this definition, apportionment is required pursuant to MCL 418.431; MSA 17.237(431). We disagree. There are at least two flaws with defendant’s analysis. The Court in Derwinski specifically justified the apportionment in that case on the WCAB’s acceptance of the referee’s factual conclusion that the disability was the result of heavy lifting duties imposed by both employers. The Court in Derwinski specifically distinguished Dressier v Grand Rapids Die Casting Corp, 402 Mich 243; 262 NW2d 629 (1978), which also involved back problems, on the basis that the WCAB’s conclusion there — that plaintiff’s disability was the result of a single-event injury and subsequent aggravations thereof — was a binding factual conclusion. In the case at bar, the Board’s finding was that plaintiff suffered from a Chapter 3 injury. The second flaw in defendant’s argument is that the atherosclerotic condition suffered by plaintiff is not "characteristic of and peculiar to the business of the employer” within the meaning of MCL 418.401(c); MSA 17.237(401)(c). As the WCAB noted, heart disease is very common and cuts across all walks of life. In Mills v Detroit Tuberculosis Sanitarium, 323 Mich 200; 35 NW2d 239 (1948), the Supreme Court made it clear that an ordinary disease of life is compensable as an occupational disease where exposure to the disease is increased due to the inherent characteristics and peculiarities of the employment. Thus, the claimant in Mills who suffered from pulmonary tuberculosis was held to have a compensable disease since his employment exposed him to a far greater risk of contracting the malady than is common for the public generally. Mills, supra, 208-209. Every disease is not an occupational disease merely because it was aggravated by and became disabling as a consequence of the employment. Mills, supra, 207-208, makes it clear that the Legislature amended the Worker’s Disability Compensation Act to allow for recovery for an occupational disease arising out of and in the course of the employment. The purpose of the amendment was to broaden the scope of compensable work-related disabilities. Prior to the amendment, a formerly healthy worker could obtain no benefits where he became diseased, as opposed to injured, as a consequence of the employment. The purpose of the amendment reveals that Chapter 4 has no applicability to this case. Nobody contends that plaintiffs arteriosclerosis was caused by the employment as the worker in Mills argued that his tuberculosis was caused by his employment. Rather, as the WCAB found, plaintiff already had coronary disease which was aggravated by the employment to the point of constituting a disabling injury. In Kostamo, supra, 119-120, the Supreme Court held that a worker who suffered a heart attack because of occupational stress may be found to have a compensable disability even in the face of medical testimony that because of preexisting heart problems, the attack would some day have been "inevitable”. In our opinion, whether plaintiff suffered a Chapter 3 personal injury does not turn on whether the occupational stress aggravating the underlying arteriosclerosis ultimately manifested itself in a heart attack or merely manifested itself in an aggravation of the arteriosclerotic condition to the point of disability. In either case, the disability arises fundamentally from the underlying heart disease and not the work-aggravated manifestation of the disease. The ultimate question is: where the WCAB has made a factual finding, supported in the record, that the atherosclerotic heart condition was aggravated by occupational stress to the point of becoming debilitating, may plaintiff recover compensation for a personal injury? In our opinion this inquiry must be answered affirmatively. The Supreme Court held in Kostamo that where the occupational stress results in a heart attack, a resulting disability is compensable. See, also, Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966). If the occupational stress aggravates the heart disease to the point of being disabling, the fact that the manifestation of the stress was not so dramatic as a heart attack makes the disability no less compensable. In either case, the manifestation of the disease which results in disability constitutes a personal injury for purposes of Chapter 3. Affirmed. This was error. The fact that plaintiff was not a doctor did not render his testimony concerning heart attacks incompetent. See, Kostamo v Marquette Iron Mining Co, 405 Mich 105, 120, 131-132; 274 NW2d 411 (1979). It may be that in a technical sense Justice Levin is correct in stating that arteriosclerosis cannot be aggravated by the stress of work. In the instant case, the doctors actually diagnosed plaintiff as having atherosclerosis. Some authorities simply state that atherosclerosis is a form of arteriosclerosis marked by the formation of atheromas or athermatous plaques. 1 Schmidt, Attorneys’ Dictionary of Medicine, pp A-296, A-324; 11 Kalisch & Williams, Courtroom Medicine, Chest, Heart, and Lungs, § 13.00, pp 13-2 — 13-3. Other authorities, however, refer to atherosclerosis and arteriosclerosis as two distinct conditions, stating that atherosclerosis may be aggravated by hypertension, but that arteriosclerosis is a product of aging, characterized by a hardening or loss of elasticity in the media or middle tissue layer in the arteries. 3B Gordy-Gray, Attorneys’ Textbook of Medicine, § 91.01, pp 91-4 — 91-5. Very probably Justice Levin and the Kostamo majority intended the more narrow meaning of arteriosclerosis. However, large numbers of doctors apparently do not use the term so precisely. In this case, for instance, although the doctors all diagnosed plaintiff as having atherosclerosis, in their testimony each referred to plaintiffs arteriosclerosis as the equivalent of his diagnosed condition. Thus, even if the Kostamo majority is literally correct, we decline to follow its dicta since we do not believe a plaintiffs claim for compensation should turn upon the degree of exactitude with which the testifying doctors use the medical jargon. In Kostamo, supra, 128, fn 15, the Supreme Court quoted with approval from McNiece, Heart Disease and the Law (Englewood Cliffs, NJ: Prentice-Hall, Inc, 1961), on the interplay between medical and legal causation. We reuse that quote here because it is particularly germane in this matter: "[T]he courts are not talking of causation in an etiological sense but rather of aggravation, acceleration, or 'lighting up.’ Unlike the medical profession, the courts are not concerned with the degree of impairment which may lurk beneath the surface appearances of a man. Their inquiry is not directed to the undoubted existence of the chronic and longstanding features of cardiac impairments, but rather to the fact that the work contributed, at least in some slight measure, to bring those impairments to light.” MCL 412.1; MSA 17.151. Indeed, it is no different than any of the plaintiffs’ injuries in Kostamo who suffered injuries which were ultimately the result of heart disease. Were we to hold that the disability, here, was an apportionable occupational disease, we would have to remand to the WCAB with instructions to consider plaintiffs testimony about heart attacks and for further factfinding. Upon consideration of plaintiffs testimony, the WCAB might, in fact, conclude that the work stress resulted in a disabling heart attack. See fn 1, supra.

T. M. Burns, P.J. Defendants Steven Vannoy and Joseph Vannoy appeal as of right their May 21, 1979, guilty plea convictions of one count of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant Pamela Howard appeals by leave granted her May 21, 1979, guilty plea conviction of one count of armed robbery. On June 13, 1979, Joseph Vannoy was sentenced to a term of from three to ten years imprisonment for the armed robbery conviction and was given the mandatory consecutive two-year sentence for the felony-firearm conviction. On the same date, defendant Pamela Howard was sentenced to a term of from two to ten years imprisonment for her armed robbery conviction. Defendant Steven Vannoy appeared for sentencing on July 2, 1979, and was sentenced to a term of from 3 to 15 years for the armed robbery conviction and the mandatory two-year consecutive prison term for the felony-firearm conviction. The charges against all three defendants arose out of a bank robbery in Dearborn, Michigan. Defendants Steven and Joseph Vannoy, accompanied by two juveniles, entered the Dearborn bank on March 22, 1979. Joseph Vannoy and one of the juveniles were armed with rifles, and Steven Vannoy was armed with a knife. Once in the bank, they ordered bank employees and customers who were present to lie on the floor. Thereupon, they took money from the bank tellers’ cages and from the bank vault. Soon after the robbery, Pamela Howard, who is the sister of Joseph and Steven Vannoy and of one of the juveniles, received a call from the juvenile asking her to come and pick him up in her automobile. She did so, and while driving him to her house she learned of the bank robbery for the first time and was given $400 of the proceeds. On March 23, 1979, the defendants were arrested and charged with three counts of armed robbery and one count of possession of a firearm during the commission of a felony. Following a preliminary examination on April 11, 1979, they were bound over for trial on the original charges. Subsequently, on May 21, 1979, defendants pleaded guilty to various of these charges, as noted above, and the remaining charges were dismissed. Defendants raise a number of issues in this appeal, one of which we deem to be dispositive. Defendants claim that for the prosecutor to charge them with three counts of armed robbery rather than with a single count of bank robbery where the evidence indicates that they robbed three bank tellers constituted error. We agree. The statute under which defendants were charged and convicted, MCL 750.529; MSA 28.797, provides in pertinent part: "Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years.” The common-law crime of robbery in this state has been superseded by this statute. People v Needham, 8 Mich App 679; 155 NW2d 267 (1967). Under this statute, the essential elements of armed robbery are: (1) an assault committed by the accused upon the victim, (2) a felonious taking of property from the victim, and (3) the presence of a dangerous weapon or an object fashioned to make the victim reasonably believe it to be a dangerous weapon. People v McGuire, 39 Mich App 308, 313; 197 NW2d 469 (1972). In contrast to armed robbery, the statute setting forth the crime of bank robbery, MCL 750.531; MSA 28.799, in pertinent part, defines that offense as follows: "Any person who, with intent to commit the crime of larceny, or any felony, shall confine, maim, injure or wound, or attempt, or threaten to confine, kill, maim, injure or wound, or shall put in fear any person for the purpose of stealing from any * * * bank * * * shall, whether he succeeds or fails in the perpetration of such larceny or felony, be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years.” The principal question before us is whether the Legislature intended to divest prosecutors of discretion to charge defendants under the armed robbery statute where the facts of the case clearly indicate that the offense committed was one of bank robbery. The rules of statutory construction must be examined to determine the proper statute under which a prosecutor may charge. These rules were set forth by the Supreme Court in their opinion in the case of People v Hall, 391 Mich 175, 189-190; 215 NW2d 166 (1974). There, the Court held: "We begin our review of these statutes by affirming our previous holdings that penal statutes are to be strictly construed. Lansing v Brown, 172 Mich 50; 137 NW 535 (1912); People v Goulding, 275 Mich 353; 266 NW 378 (1936). However, as the Court pointed out in People v Consumers Power Co, 275 Mich 86; 265 NW 785 (1936), the fact that these types of statutes are narrowly construed does not require rejection of that sense of the words which best harmonizes with the overall context of the statutes and the end purpose sought to be achieved by such legislation. With criminal statutes, such end purpose is the evil sought to be corrected and the objects of the law sought to be effectuated. Hightower v Detroit Edison Co, 262 Mich 1; 247 NW 97; 86 ALR 509 (1933). "This Court will presume that the Legislature of this state is familiar with the principles of statutory construction. People v Lowell, 250 Mich 349; 230 NW 202 (1930). One of our most honored and long standing such principles is that literal interpretations, and the inferences drawn therefrom, arising from general provisions of a statute or statutory section must be read so as to be limited and controlled by clear and express language found in other sections of the same statute. Bidwell v Whitaker, 1 Mich 469 (1850); McDade v People, 29 Mich 50 (1874). * * * As we stated in Bidwell, supra, 'the inferences to be drawn from a literal interpretation of the first section must be controlled by the clear and express language to be found in other sections of the same statute.’ 1 Mich 469, 479.” Although prosecuting attorneys have great discretion in determining under which of two possible applicable statutes a prosecution shall be instituted, that discretion is not unlimited. People v LaRose, 87 Mich App 298, 302; 274 NW2d 45 (1978). A basic rule of statutory construction is that a statute specific in language and enacted subsequent to or contemporaneously with a general statute covering the same subject matter constitutes an exception to the general statute if there appears to be a conflict between them. Manville v Board of Governors of Wayne State University, 85 Mich App 628; 272 NW2d 162 (1978). In the present case, the general armed robbery statute is limited and controlled by the bank rob bery statute, which follows it in the statutory scheme. The existence of both statutes makes it clear that the Legislature intended to distinguish between the offense of armed robbery and the offense of bank robbery. The facts of this case disclose that at the time defendants entered the bank they did not do so to rob the individuals, either customers or employees, who were in the bank at the time. Rather, their plan was to rob the bank itself. Based upon the foregoing considerations, we hold that the prosecutor abused his discretion when he charged defendants with three counts of armed robbery rather than with one count of bank robbery. We recognize that our opinion in this matter appears to conflict with a recent opinion of this Court that considered this same issue. See People v Williams, 98 Mich App 510; 296 NW2d 293 (1980). However, we believe that that opinion was wrongly decided in that it did not take into proper consideration the seminal and most significant Michigan case on this problem, Hall, supra. Inasmuch as the error in charging defendants under the wrong statute amounts to a jurisdictional defect in this case, that error was not waived by defendants’ pleas of guilty. People v Alvin Johnson, 396 Mich 424, 439-444; 240 NW2d 729 (1976). Therefore, we hold that the circuit court never obtained proper jurisdiction over the defendants with respect to the armed robbery/ bank robbery charges or with respect to the inseparable felony-firearm charges. Reversed and remanded with instructions to vacate defendants’ convictions and dismiss the complaint. Our decision here does not prejudice the prosecutor from reinstituting charges against defendants consistent with the double jeopardy provisions of the constitution. As to defendant Steven Vannoy, any reinstitution of the felony-firearm charge against him must be in accordance with the recent opinion of our Supreme Court in People v Johnson, 411 Mich 50; 303 NW2d 442 (1981).

Riley, J. We granted leave to appeal to resolve a conflict in the Court of Appeals over whether a lienholder may recover under a loss payable clause where the insured breached an insurance contract, by intentionally destroying his property and misrepresenting the loss to his insurer. In cases involving nearly identical loss payable clauses, two Court of Appeals panels agreed that a standard loss payable clause operates as a separate contract of insurance between the lienholder and the insurer, yet differed over the coverage conferred upon the lienholder. The Boyd Court concluded that a lienholder’s right of recovery is no greater than that of the insured, and because the insured’s intentional act of destroying her automobile was excluded under the terms of the policy, the lien-holder could not recover under the loss payable clause when the insured intentionally destroyed her vehicle. However, in the instant case, the Foremost panel concluded that because the lien-holder has a separate contract with the insurer, it is entitled to recovery under the loss payable clause even when the insured was excluded from recovering under the same policy. We are persuaded that the Foremost panel correctly concluded that the insured’s acts of arson do not preclude the lienholder’s recovery from the insurer, and now affirm. i The parties stipulated the following set of facts pursuant to MCR 2.116(A)(2). On July 24, 1985, Bobby Taylor executed an installment note with the State Employees Credit Union. The note was secured by a 1982 Be[e]ch-craft motor home. The State Employees Credit Union was named as a lienholder on the title to the motor home. On the same date, Bobby Taylor entered into a separate contract with Allstate Insurance Company (Allstate) to provide motor vehicle insurance for the motor home. The declaration sheet and the certificate of insurance designated State Employees Credit Union as a lien-holder. In recognition of State Employees Credit Union’s interest in Bobby Taylor’s vehicle, Allstate Insurance Company issued to the Credit Union a "Loss Payable Clause,” which reads in pertinent part as follows: "Loss or damage, if any, under the policy shall be payable as interest may appear to [State Employees Credit Union] and this insurance as to the interest of the Bailment Lessor, Conditional Vendor, Mortgagee or other secured party of Assignee of Bailment Lessor, Conditional Vendor, Mortgagee or other secured party [herein called a Lien-holder] shall not be invalidated by any act or neglect of the Lessee, Mortgagor, Owner of the within described automobile or other Debtor nor by any change in the title or ownership of the property; provided, however, that the conversion, embezzlement or secretion by the Lessee, Mortgagor, Purchaser or other Debtor in possession of the property insured under a bailment lease, conditional sale, mortgage or other security agreement is not covered under such policy unless specifically insured against and premium paid therefor . . . .” On August 25, 1985, the motor home was destroyed by an incendiary fire. Bobby Taylor filed a claim with Allstate for insurance proceeds. It is undisputed that Bobby Taylor committed arson in an effort to defraud the Company. In addition, Mr. Taylor committed fraud and false swearing. His acts amounted to a material breach of contract, and on June 11, 1986, Allstate expressly and unequivocally denied his claim. State Employees Credit Union, in its letter of April 22, 1986, requested Allstate to provide coverage under the policy issued to Bobby Taylor based on its interest in the motor home as a lienholder. On June 16, 1986, State Employees Credit Union’s request for coverage under the insurance policy issued to Bobby Taylor was denied. On February 10, 1988, Foremost Insurance Company, as subrogee of State Employees Credit Union, filed a Complaint against Allstate seeking to recover for the loss of the motor home. II In general, there are two types of loss payable clauses, otherwise known as mortgage clauses, contained in insurance policies which protect lien-holders. The first type, commonly known as an ordinary loss payable clause, directs the insurer to pay the proceeds of the policy to the lienholder, as its interest may appear, before the insured receives payment on the policy. Under this type of policy, the lienholder is simply an appointee to receive the insurance fund to the extent of its interest, and its right of recovery is no greater than the right of the insured. There is no privity of contract between the two parties because there is no consideration given by the lienholder to the insured. Accordingly, a breach of the conditions of the policy by the insured would prevent recovery by the lienholder. The second type of loss payable clause is known as a standard loss payable clause. Under this type of clause, a lienholder is not subject to the exclusions available to the insurer against the insured because an independent or separate contract of insurance exists between the lienholder and the insurer. In other words, there are two contracts of insurance within the policy — one with the lien-holder and the insurer and the other with the insured and the insurer. Under the standard loss payable clause, the consideration for the insurer’s contract with the lienholder is that which the insured paid for the policy itself. Traditionally, insurers have undertaken the risk that the insured will commit fraud against them by inserting a standard loss payable clause in the insurance contract for the lienholder’s protection. The lienholder, usually the financial or lending institution, is assured, through the incorporation of the clause, that they will not be required to evaluate the borrower’s insurance claim history when approving a loan. Thus, the lender protects its interest by requiring the borrower to obtain insurance with a loss payable clause made payable to the lender prior to purchasing the vehicle that will protect the lender against the defenses that could be asserted against the borrower by the insurer. In the instant case, both parties agree that the loss payable clause used by Allstate is a standard loss payable clause. Allstate, however, argues that its clause does not operate as a standard loss payable clause in the traditional sense because it provides less than complete protection: it excludes coverage where the insured converts, embezzles, or secretes the property. Thus, Allstate would have us read the loss payable clause in reference to the underlying insurance policy that defines "loss” as a "direct and accidental loss” and take the coverage for the lienholder out of its hands. We do not agree. We believe that Allstate’s argument misses the mark because it runs contrary to the language and the purpose of the standard loss payable clause in its policy. We are persuaded that under Allstate’s theory of the case the inclusion of the specific prohibition against recovery in a standard mortgage clause— where the insured converts, embezzles, or secretes the property — would be rendered either redundant or meaningless. The exclusions in the standard loss payable clause would be rendered meaningless because losses in the described circumstances are never accidental. Embezzlement, conversion, and secretion require an intentional act by the defendant of dominion or control over the property that is inconsistent with an owner’s property rights. Moreover, it would be redundant to provide for the three exclusions because these acts are already excluded from coverage in the underlying policy of the insured. We also believe that under Allstate’s theory of the case, an insurer would be able to avoid its basic promise to hold the lienholder harmless from any act or neglect by the insured and, therefore, the lienholder would only be entitled to recover for an accidental loss. Allstate has failed to recognize the significance of the fact that we are evaluating two separate contracts of insurance. The Boyd Court’s analysis is illustrative of the problems that arise by not recognizing the significance of the two contracts when evaluating the standard loss payable clause at issue. In 1981, Boyd entered into a standard installment sales agreement with General Motors Acceptance Corporation to finance the purchase of her new automobile. As part of this agreement, gmac, the lienholder, conditioned the financing of the vehicle upon her obtaining insurance while the vehicle was being financed. Boyd insured the car with Auto Club Insurance Association and listed gmac as the loss payee in its standard loss payable clause. Acia’s standard loss payable clause is almost identical to the clause used by Allstate in the instant case. A few years later, Boyd reported the car stolen and filed a claim with acia. Acia denied her claim, alleging that Boyd intentionally destroyed the car, and also denied the claim of gmac as the security lienholder under the loss payable clause, on the basis of its belief that a lienholder is subject to the same exclusions as the insured because it is part of the same insurance policy and does not provide any greater coverage than that provided in the policy._ In reversing the trial court’s grant of summary disposition for gmac, the Court of Appeals held that the loss payable clause would only protect gmac with regard to risk otherwise covered in the acia policy. The Court reasoned that because Boyd’s intentional destruction of the vehicle was not a covered risk under the policy, and because the loss payable clause only protected gmac from covered risk, gmac was not entitled to any insurance proceeds. The Boyd Court, as does Allstate, misinterprets the nature of the standard loss payable clause in relation to the policy issued to the insured by the insurer. As we have previously noted, there are two contracts of insurance involved in this case. One covers risk and outlines exclusions for the insured and the insurer. The other operates as an independent contract for the limited purpose of preventing the loss of coverage by any act or neglect between the insurer and the insured. The prevention of recovery under the contract between the insured and the insurer does not prohibit the recovery by the lienholder under its separate contract of insurance with the insurer because the exclusions in the standard loss payable clause do not apply. We are not alone in the conclusion we reach today. Every jurisdiction that has considered this issue in light of the same or similar standard loss payable clauses has concluded that the lienholder’s interest in the insured’s property will not be avoided by any acts, representations, or omissions of the insured. Thus a policy payable to the mortgagee as his interest may appear, and which contains clauses of the character under consideration, is to be construed so as to effectuate the parties’ interests, and so constitutes two separate contracts of indemnity which relate to the same subject matter, but cover distinct interests therein, and it effects a new and independent insurance which protects the mortgagee as stipulated, and which cannot be destroyed or impaired by the mortgagor’s acts or by those of any person other than the mortgagee or someone authorized to act for him and in his behalf.[ ] III Allstate suggests that if we find that their loss payable clause operates as a traditional standard loss payable clause, coverage should be denied to Foremost because Bobby Taylor converted the State Employees Credit Union’s interest in the motor home when he intentionally destroyed it. The crux of Allstate’s argument is that the conversion proviso refers to State Employees Credit Union’s lien or security interest. Foremost, however, argues that it refers to Bobby Taylor’s motor home. The pertinent part of Allstate’s standard loss payable clause provides: "[provided, however, that the conversion, embezzlement or secretion by the Lessee, Mortgagor, Purchaser or other Debtor in possession of the property insured under a bailment lease, conditional sale, mortgage or other security agreement is not covered under such policy, unless specifically insured against and premium paid therefor . . . .” [Emphasis added.] We are persuaded that the exclusion simply provides that the insured will not be covered when he converts his own property. In other words, the conversion provision focuses on the insured’s property and not on State Employees Credit Union’s lien. Having so concluded, we must now deter mine whether Bobby Taylor converted the mobile home when he intentionally destroyed it. In the civil context, conversion is defined as any distinct act of domain wrongfully exerted over another’s personal property in denial of or inconsistent with the rights therein. In general, it is viewed as an intentional tort in the sense that the converter’s actions are wilful, although the tort can be committed unwittingly if unaware of the plaintiff’s outstanding property interest. In the instant case, we believe that Bobby Taylor’s intentional destruction of his motor home, as well as his fraud and false swearing to his insurer, Allstate, cannot be considered conversion. In each of the cases referred to above, the property converted belonged to another person who had original ownership or possession. In this case, however, the alleged converter owned the item that Allstate contends was converted. We agree with the Court of Appeals in the instant case that "a person can[not] 'convert’ his own property,” and therefore we reject Allstate’s second argument. IV Allstate’s final argument is that public policy should preclude recovery by the lienholder because allowing recovery will encourage automobile own ers to intentionally burn their vehicles, and will invite collusion between borrowers and lenders in the conventional automobile financing arrangements. We find this argument untenable. Allowing a lienholder to recover its interest in the property that was intentionally destroyed by the insured under a standard loss payable clause simply protects the lienholder’s insurable interest in accordance with what the insurer promised to do. That is, the insurer promised to cover the lienholder’s security interest in the insured’s automobile regardless of any act or neglect of the insured. Thus, rejection of Allstate’s public policy arguments, which endorse the holding in Boyd, would at most simply return lenders and insurance companies to the traditional role they play in the commercial marketplace. Lenders will be returned to the role of evaluating credit risk associated with the making of commercial loans, and insurance companies will be returned to their traditional role of evaluating every conceivable risk of loss in order to price their respective premiums for policyholders. We, therefore, conclude that the insured’s acts of arson and misrepresentation to Allstate did not preclude Allstate’s coverage to State Employees Credit Union under the standard loss payable clause. Thus, to the extent inconsistent with this opinion, we overrule Boyd v General Motors Acceptance Corp and its progeny. The Court of Appeals decision in the instant case is affirmed. Levin, Griffin, and Mallett, JJ., concurred with Riley, J. Boyd v General Motors Acceptance Corp, 162 Mich App 446; 413 NW2d 683 (1987); General Motors Acceptance Corp v Auto Club Ins Ass’n, 168 Mich App 733; 425 NW2d 156 (1988); General Motors Acceptance Corp v Ibrahim, 171 Mich App 483; 431 NW2d 41 (1988); cf. Foremost Ins Co v Allstate Ins Co, 185 Mich App 119; 460 NW2d 242 (1990). 437 Mich 1035 (1991). Boyd, n 1 supra at 453; Foremost, n 1 supra at 121. Boyd at 455-457. Foremost at 121-122. Van Buren v St Joseph Co Village Fire Ins Co, 28 Mich 398, 405 (1874); Gallant v Lake States Mut Ins Co, 142 Mich App 183, 187; 369 NW2d 205 (1985); J C Wyckoff & Associates v Standard Fire Ins Co, 936 F2d 1474, 1493 (CA 6, 1991). Van Buren, n 6 supra at 404; Gallant, n 6 supra at 187. See 10A Couch, Insurance, 2d (rev ed), § 42:702, p 738; Van Buren, supra at 404. Id. Insurance companies have used standard loss payable clauses in real estate fire insurance policies since at least 1878. Hastings v Westchester Fire Ins Co, 73 NY 141 (1878). For an interesting and complete historical review of mortgage arrangements, see Lehto, The standard mortgage clause under attack: The lender’s insurance claim when a borrower commits arson, 66 U Det L R 603, 607 (1989). Citizens State Bank v State Mut Fire Ins Co, 276 Mich 62, 67-69; 267 NW 785 (1936); Pink v Smith, 281 Mich 107, 111-112; 274 NW 727 (1937); Cottrell v Clark, 126 Mich App 276, 280; 337 NW2d 58 (1983). See also Vormelker v Oleksinski, 40 Mich App 618, 624; 199 NW2d 287 (1972); Cole v Michigan Mut Ins Co, 116 Mich App 51, 55; 321 NW2d 839 (1982); Heritage Federal Savings Bank v Cincinnati Ins Co, 180 Mich App 720, 723-724; 448 NW2d 39 (1989). Couch, n 8 supra, § 42:728, pp 763-764. Lehto, The standard mortgage clause, n 10 supra. Id. The exclusion barring a lender’s claim for the insured’s conversion, embezzlement, or secretion of its automobile has been part of the standard loss payable clause included in automobile insurance policies since at least 1920. Buxton v Int’l Indemnity Co, 47 Cal App 583; 191 P 84 (1920). See also Lehto, The standard mortgage clause, n 10 supra at 607. Florida courts have classified this type of loss payable clause as a "hybrid” clause because it provides for coverage through neglect of any act of the insured, and also establishes several instances where coverage would not exist — conversion, embezzlement, or secretion. Progressive American Ins Co v Florida Bank at Daytona Beach, 452 So 2d 42, 44-45 (Fla, 1984). The purpose of a standard loss payable clause was explained by Judge Rapallo in his concurring opinion in Hastings, n 10 supra at 154, the first recorded decision explaining this type of mortgage arrangement. I think the intent of the clause was to make the policy operate as an insurance of the mortgagors and the mortgagees separately, and to give the mortgagees the same benefit as if they had taken out a separate policy, free from the conditions imposed upon the owners, making the mortgagees responsible only for their own acts. . . . This provision, in case the policy were invalidated as to the mortgagors, made it, in substance, an insurance solely of the interest of the mortgagees, by direct contract with them, unaffected by any questions which might exist between the company and the mortgagors. See also Lehto, The standard mortgage clause, n 10 supra at 607. The Massachusetts Supreme Court has reached the same conclusion in Gibraltar Financial Corp v Lumbermens Mut Casualty Co, 400 Mass 870, 871-873; 513 NE2d 681 (1987). Embezzlement differs from conversion and secretion in that it focuses on a narrow type of relationship between the owner and the defendant. See People v Doe, 264 Mich 475, 481; 250 NW 270 (1933); People v Bergman, 246 Mich 68; 224 NW 375 (1929). See, generally, 12 Michigan Practice, Criminal Law, §§ 7.72, 7.83, pp 85-86, 97-100. Boyd, n 1 supra at 448. Id. at 449. Id. The loss payable clause in Boyd provided in pertinent part: "Loss or damage, if any, under the policy shall be payable as interest may appear to . . . [lienholder] and this insurance as to the interest of the Bailment Lessor, Conditional Vendor, Mortgagee or other secured party or Assignee of Bailment Lessor, Conditional Vendor, Mortgagee or other secured party (herein called the Lienholder) shall not be invalidated by any act or neglect of the Lessee, Mortgagor, Owner of the within described automobile or other Debtor nor by any change in the title or ownership of the property; provided, however, that the conversion, embezzlement or secretion by the Lessee, Mortgagor, Purchaser or other Debtor in possession of the property insured under a bailment lease, conditional sale, mortgage or other security agreement is not covered under such policy, unless specifically insured against and premium paid therefor; and provided, also, that in case the Lessee, Mortgagor, Owner or other Debtor shall neglect to pay any premium due under such policy the Lienholder shall, on demand, pay the same.” [Id. at 449-450.] Id. at 450. Id. at 458. We believe that Justice Brickley errs, as did the Boyd Court, in his analysis of the clause. Initially, he agrees with us that the mortgage clause at issue in this case is a standard loss payable clause. However, he construes the language of the conversion proviso as referencing the lienholder’s lien. The effect of this construction not only is at odds'with the language of the proviso, but also renders the "any act or neglect” language of the standard loss payable clause meaningless. Under his construction, any act or neglect of the insured would invalidate the lienholder’s interest in the insurance policy. The effect of this construction would be to render this clause as an ordinary mortgage clause having only one contract between all three parties. Because we believe that there are two contracts of insurance in this standard loss payable clause, we cannot agree with this analysis. Except, of course, conversion, embezzlement, and secretion. See ante, p 382. Our analysis does not obviate the general rule, with respect to construction of contracts, that where one writing refers to another, the two writings are to be construed together. Whittlesey v Herbrand Co, 217 Mich 625, 627-628; 187 NW 279 (1922). Nor does it ignore the distinction between conditions subsequent for coverage and exclusions from coverage. As the Boyd Court recognized: "A condition subsequent is to be distinguished from an exclusion from the coverage: the breach of the former is to terminate or suspend the insurance, while the effect of the latter is to declare that there never was insurance with respect to the excluded risk. Accordingly, the shicide clause in a life insurance policy is not a condition subsequent but rather suicide is simply not a risk insured against.” [Boyd, n 1 supra at 455, quoting 7 Couch, Insurance, 2d (rev ed), § 36:49, pp 482-483.] The purpose of the standard loss payable clause is to confer greater coverage to the lienholder than the insured has in the underlying policy. This is the distinction between that type of coverage and the coverage involved in an ordinary loss payable clause, which merely assigns the proceeds of the policy to the lienholder upon destruction of the automobile but does not cover the intentional acts or neglect of the insured. See also 5A Appleman, Insurance Law & Practice, § 3401, p 286. Couch, n 8 supra, § 42:736, pp 768-771. We believe Justice Brickley errs in asserting that the language or the purpose of the proviso references the lienholder’s interest. The language of the conversion proviso supports our conclusion that the exclusion solely refers to the insured’s property. We additionally note, in support of our conclusion, that when the Massachusetts Supreme Court evaluated an identical conversion exclusion in Gibraltar Financial Corp, n 17 supra at 872-873, it reached the same conclusion as we do today. In Gibraltar, the court concluded: A simple reading of the loss payable clause reveals that it is a conversion of the insured property, not of the mortgagee’s interest in that property, which would shield the insurer from liability. Nelson & Witt v Texas Co, 256 Mich 65, 70; 239 NW 289 (1931); Thoma v Tracy Motor Sales, Inc, 360 Mich 434, 438; 104 NW2d 360 (1960); Citizens Ins Co v Delcamp, 178 Mich App 570, 575; 444 NW2d 210 (1985). Warren Tool Co v Stephenson, 11 Mich App 274, 299; 161 NW2d 133 (1968); Citizens Ins Co, n 31 supra. Foremost Ins Co, n 1 supra at 122. We note that should Allstate wish to avoid liability to lienholders where insureds intentionally destroy their vehicles by arson, it can easily add arson to the list of owner acts excluded from coverage in its standard loss payable clause. Amicus curiae acia, who has submitted a brief in support of Allstate, has revised its list of owner acts excluded from coverage in its standard loss payable contracts. A certified copy of acia’s revised loss payable clause provides in pertinent part: We agree that this Endorsement shall not be invalidated as to the interest of the Lienholder in the described vehicle by any act or neglect of any Named Insured or of any owner except: 1) When that vehicle is intentionally damaged, destroyed or concealed by or at the direction of any Named Insured or by any owner; or 2) When the vehicle is damaged, destroyed or concealed as a result of any other act which constitutes a breach' of contract between any Named Insured or owner and the Lienholder. General Motors Acceptance Corp v Auto Club Ins Ass’n, n 1 supra; General Motors Acceptance Corp v Ibrahim, n 1 supra.

M. J. Kelly, J. The Organization of School Administrators and Supervisors (OSAS), respondent below, appeals of right a decision and order of the Michigan Employment Relations Commission (MERC), clarifying the OSAS bargaining unit to exclude certain employees under an "executive exclusion” recognized in Hillsdale Community Schools v Labor Mediation Board, 24 Mich App 36, 39; 179 NW2d 661 (1970). The petition for clarification, initiated by the Detroit Board of Education, was submitted pursuant to the recognition provision of the parties’ 1976 collective bargaining agreement, which stipulated to the parties’ disagreement over classification of the disputed positions. In its opinion, the Commission concluded that those persons who were classified as region assistant or director of communications and those divisional directors not subordinate to other divisional directors were subject to the executive exclusion and thus barred from OSAS representation. Specifically, the Commission found that: the duties of region assistants were equal to those of "high-level public officials”; the director of communications participated in the "formulation and dissemination” of labor policies and thus held a confidential position; and divisional directors occupied policy making positions requiring exclusion. On appeal, we are bound by the Commission’s factual conclusions if supported by competent, material and substantial evidence. In its opinion, the Commission described the structure and authority of the City of Detroit School District as follows: "The Detroit School District is divided into eight semiautonomous regions in accordance with State Law. Each region has a five member regional board of education, and is run by a region superintendent and two region assistants. The eight region superintendents are conceded by the parties to be executive employees, and they are excluded from the OSAS bargaining unit along with region personnel officers. Superimposed on the eight regions is a thirteen member central board of education with its central staff, which oversees the operation of the eight regions and formulates policies for and manages the entire School District. "The central staff of the Employer is composed of a number of classifications which are conceded by both parties to be executive employees and are not in any bargaining unit. These executive employees are the general superintendent, and his two assistants; an executive deputy superintendent; three deputy superintendents; an associate superintendent, which position was not filled at the time of the hearing; approximately eight assistant superintendents; and an executive director. In addition, there are a number of unspecified excluded executives or confidential employees in the personnel and labor relations departments of the Employer. Approximately 25 of the foregoing positions, including certain individuals in the Union’s bargaining unit and certain excluded employees on Employer’s labor relations staff, make up the Employer’s executive staff, which is responsible for setting policy where the board has not ruled and carrying out the policies of the board. The Union contends there are approximately 40 excluded executive employees in the School District, but an accurate count is not indicated in the record. "Below the level of executive director in the Employer’s hierarchy is the position of divisional director, which is the other major classification in dispute in this proceedings [sic], and the director of communications position which is also in dispute. The eleven divisional directors in dispute in this case generally report to one of the superintendent positions, except for an undesignated few who report to other divisional directors, especially in the curriculum area. These divisional directors are responsible for the following programs or areas of the Employer’s operations: technical planning; office of federal, state and special programs; adult education and summer schools; school-community relations; planning and building studies; department of research and evaluation; physical plant management; health and physical education; mathematics and science education; aide training program; and office of curriculum, staff development, and federal, state, and special programs. The final position in dispute, the director of press, radio and TV relations, also referred to as the director of communications, sits on the Employer’s executive staff along with the divisional directors for federal and state programs and school-community relations. All of the foregoing individuals whose classification is in dispute occupy the highest classifications in the Union’s bargaining unit and are the highest paid individuals in that unit.” In a June 12, 1978 order, the Commission denied the OSAS’s motion to reconsider the earlier order. On appeal, the OSAS raises three issues, each of which contests the Commission’s application of the executive exclusion to one of the three positions at issue. OSAS first alleges as reversible error the Commission’s conclusion that region assistants and those divisional directors who do not report to other such directors were excludable as executive employees. In this regard, we note the limited standard of review for findings of fact made by the Commission, embodied in MCL 423.23(e); MSA 17.454(25)(e): "The findings of the commission with respect to questions of fact if supported by competent, material, and substantial evidence on the record considered as a whole shall be conclusive.” See also Const 1963, art 6, § 28 and Council 25, AFSCME v Macomb County Road Comm, 101 Mich App 91, 107; 300 NW2d 462 (1980), citing Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 121; 223 NW2d 283 (1974). Under MCL 423.213; MSA 17.455(13), the Commission is empowered to determine the appropriate units within which public employees may organize: "The commission shall decide in each case, to insure public employees the full benefit of their right to self-organization, to collective bargaining and otherwise to effectuate the policies of this act, the unit appropriate for the purposes of collective bargaining as provided in section 9e of Act No. 176 of the Public Acts of 1939, as amended, being section 423.9e of the Michigan Compiled Laws * * . Pursuant to this statutory grant of authority, the Commission has developed certain basic guidelines to determine what shall constitute an exempt executive employee. Due to substantial differences among various employing units, these basic guidelines have required application on a case-by-case basis. In Macomb County Board of Comm’rs, 1979 MERC Lab Op 995, 1000, the Commission summarized these guidelines: "Determination of executive status has always been made on a case-by-case basis; the Commission has declined to establish a rule as to the appropriate number of executives per employer, but has instead analyzed the general organization and administrative structure of the individual employer. We have indicated that we will not necessarily limit an employer to one executive per department. City of Dearborn Heights, 1978 MERC Lab Op 190, Genesee County, 1978 MERC Lab Op 552. "We have traditionally limited the executive exclusion to policy making heads of major departments who operate with a substantial degree of autonomy. See Hillsdale Community Schools, 1968 MERC Lab Op 859, affd 24 Mich App 36, lv den 384 Mich 779 (1970); City of Warren, 1970 MERC Lab Op 211. In City of Grand Rapids, 1979 MERC Lab Op 198, we expanded the definition of executive to include those who effectuate policy with substantial and broad discretion. We also indicated in Detroit Bd of Ed, 1978 MERC Lab Op 575, that the executive exclusion may have to be applied differently to a small employer with limited supervisors than to a larger employer with a substantial supervisory staff which is still entitled to a cadre of exempt executive decisionmakers. We indicated that we will look at factors such as extent of authority, scope of responsibility, and interchangeability of function with other executives. See, also, City of Detroit (Police Dep’t) 1978 MERC Lab Op 159.” _ OSAS does not contest the Commission’s use of an executive exclusion to determine bargaining units. Rather, it is alleged that the Commission had before it insufficient evidence from which to conclude that the disputed region assistants and divisional directors held executive status. To resolve this conflict, we must review the evidence presented below under the competent, material and substantial evidence” standard of review. I. Division Directors Several witnesses testified below regarding the duties performed by various divisional directors. Initially, Richard Levy, Assistant to the Superintendent, testified that Herschel Fort and Freeman Flynn, divisional directors of the offices of Federal, State and Special Programs and School-Community Relations respectively, participated in weekly meetings of the school board’s executive staff. The function of this staff is to execute policies set by the school board and to set policies in areas where the board failed to act. At these meetings, labor policies are also discussed. Flynn also acts as a school board liaison to the community for such programs as millage campaigns. Bernard Coker, an Assistant Superintendent, testified as to the duties of John L’Hote, Divisional Director of Physical Plant Management. L’Hote supervises approximately 285 tradesmen and an additional 2,000 to 2,400 cleaning personnel and allocates among the various schools a maintenance budget of $40,000,-000. He also has complete discretion to approve supply requisitions of a value less than $400 and has input on the approval of requisitions over that amount. L’Hote also has authority to close individual school buildings in emergencies and has initiated measures to reduce energy consumption. Finally, L’Hote assists in formulating labor policies and conducting labor negotiations with several bargaining units representing those employees he oversees. Coker also testified concerning Michael Boggio, Divisional Director of Technical Planning. Boggio’s duties include supervision of new construction and school improvement projects, selection of contractors for jobs under $50,000, performance evaluations for the 25 employees under him and the recommendation of labor policies for those employees. The duties of Merle Henrickson, Divisional Director for Planning and Building Studies, were said to include the preparation of educational performance specifications for new school construction, determination of school boundaries and decisions on whether to close individual schools due to declining enrollment. Melvin Chapman, Deputy Superintendent for Educational Services, testified to the duties of the above directors and others. Chapman explained the duties of Donald Ferrier, Divisional Director of Adult Education and Summer Schools, as being responsible for summer and evening school programs and administration of an outreach educational program. Ferrier makes the decisions as to budget and personnel allocation for the various programs and lobbies for state and federal financial assistance. Robert Luby, Divisional Director for Health and Physical Education, was said to control the funds collected at interscholastic sports events, authorize expenditures for athletic equip ment, decide when and where sporting events will be held and set policies for the conduct of physical education classes. Mario Motter, Divisional Director of Mathematics and Science Education, was said to be responsible for determining the content of math and science programs in the schools. James Neubacher, Divisional Director of the Aide Training Program, was said to operate various offices in the Stevenson Building, supervise on-site training of teacher’s aides and resolve disputes involving use of his building. Neubacher also formulates programs for more efficient use of teacher’s aides. The final witness for the school board was Lewis Ellis, Divisional Director of the Office of Curriculum, Staif Development and Federal, State and Special Programs. Ellis testified that he administers the budget for personnel, salaries, fringe benefits, materials and supplies. He also reviews grievances previously ruled upon by lower level administrators. Two of the other divisional directors, Mario Motter and Robert Luby, report to Mr. Ellis. Lastly, Ellis explained the duties of Robert Lank-ton, Divisional Director for the Department of Research and Evaluation. It is Lankton’s responsibility to determine whether various research or testing programs will be conducted, to train personnel to conduct examinations and to analyze and report the test results. He also participates in labor negotiations. In Employment Relations Comm v Detroit Symphony Orchestra, Inc, supra, 124, the Supreme Court discussed the standard of review imposed by MCL 423.23(e); MSA 17.454(25)(e): "What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record — that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review.” In light of this mode of review, we hold the Commission’s decision as to divisional directors is supported by competent, material and substantial evidence on the whole record. The uncontradicted testimony of board witnesses Levy, Coker, Chapman and Ellis discloses that those divisional directors exempted from the OSAS unit exercise substantial autonomy to implement or effectuate management policies. The testimony from union witness Mario Motter disclosed the lesser status of the divisional directors of mathematics and science and health and physical education. The Commission’s decision took this evidence into account and retained in the bargaining unit those two divisional directors who report to other divisional directors. In light of the substantial evidence indicating executive status for the divisional directors actually exempted from the OSAS unit, we must affirm the Commission’s order. II. Region Assistants Testimony was also heard from Marvin Chapman as to the duties of region assistants. Chapman disclosed that region assistants participate in such policy decisions as whether to have an "open school” (without specific grade levels) in the region and whether to bus children within a region to remedy overcrowding. The region assistants also develop curriculum and graduation requirements and make recommendations to implement central policy decisions as to testing to be conducted in the various schools. These policies may not, however, go beyond the bounds of central school board policy where such general polices are in effect. Finally, the region assistants handle requests for transfers within a region, participate in region school board meetings and evaluate the performance of other employees in the region. The union also presented for testimony Lawrence Niblett, a region assistant for Region V. Niblett stated that he has never been invited to an executive session of the Region V Board. He also testified that a job announcement submitted into evidence adequately summarized the duties of region assistants. Niblett also said that the policy regarding admission to the Region V middle school was set by the region superintendent. Our review of the evidence discloses no error in the Commission’s conclusion that region assistants are executive employees. The descriptions of the position and its attendant responsibilities indicates that region assistants apply a wide degree of discretion to implement region board policies. Additionally, the region assistants in some cases develop policies and procedures to govern matters affecting their own region. We thus hold there was sufficient competent evidence to support the Commission’s exclusion of region assistants from the OSAS bargaining unit. III. Director of Communications Hazel Trumble, Divisional Director of Communications, was said by Richard Levy to be a member of the executive board. Her primary function was to handle press and media relations. In so doing, Mrs. Trumble has a direct input into the content of public announcements and formulates the school board’s public posture on such matters as millage elections. She is also exposed to confidential information prior to its release to the public and determines to what extent such information will be disseminated. Trumble is also provided information as to positions to be taken by the school board in collective bargaining agreement negotiations. The confidential exclusion, because it deprives public employees of their right to collective bargaining under PERA, has been applied on a limited basis. Riverview Community Schools, 1968 MERC Lab Op 419. In this regard, the Commission has held that an employee’s mere access to confidential or labor relations material will not provide a basis for the exclusion. Sixty-First Dist Court, 1975 MERC Lab Op 785, Lake Michigan College, 1971 MERC Lab Op 190, 193. The circumstances under which the confidential exlusion arises were summarized in City of Ypsilanti, 1975 MERC Lab Op 362, 366, quoting Benton Harbor Board of Education, 1967 MERC Lab Op 743: " 'It is the Board’s customary practice to exclude from bargaining units employees who act in the [sic] confidential capacity to officials who formulate or effectuate general labor relations policies, or who, in the course of their duties regularly have access to information concerning anticipated changes which may result from collective bargaining negotiations. However, the Board’s classification as confidential does not apply to individuals having access to personnel or statistical information upon which such policy is based, or to employees who may type documents relating to negotiations or grievances after the information contained therein is known by the union or the employees involved.’ ” Applying this standard, we hold that the Commission properly found the Director of Communications to be an exempt confidential employee. The evidence presented below discloses that Hazel Trumble has more than mere access to confidential labor relations information. In fact, she has control over the content of information released for public consumption. Additionally, Trumble is given advance notice of collective bargaining positions to be adopted by the school board and works closely with the general superintendent to determine board positions on various public issues. These duties clearly make Trumble a confidential employee. Affirmed. No costs, a public question being involved. The relevant provision of the parties’ collective bargaining agreement provides in part: "Excluded from the unit are all personnel employed in classifications not specifically listed above as well as all confidential, managerial and executive employees. "The Board and OSAS disagree concerning the unit placement of Director, Communications; Divisional Director; and Region Assistant. The Board would exclude them and OSAS would include them. The Board has filed a Petition for Unit Clarification with the Michigan Employment Relations Commission. That Petition has been docketed as Case No. R76 G374, The persons who are the subject of the aforesaid Petition will be covered by the terms and conditions of this Agreement until removed by a final decision on the issue by MERC and/or state courts.” Under the definition contained in MCL 423.2(e); MSA 17.454(2)(e), the term “employee” does not include “any individual employed as an executive or supervisor”. However, we note that this definition does not apply to public employees, which have been statutorily designated in MCL 723.202; MSA 17.455(2). Thus, since the definition of "public employee” includes all persons in the service of the state (including executives or supervisors), the rights granted in MCL 423.209; MSA 17.455(9) apply to all such employees. The statute provides: "It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.” The executive exclusion, as applied to public employees, is thus based upon the Commission’s power to delineate appropriate bargaining units. As noted in Dearborn School Dist v Labor Mediation Board, 22 Mich App 222, 228; 177 NW2d 196 (1970), MCL 423.9(e); MSA 17.454(10.4) "does not prohibit those employees engaged in executive or superviso^ positions from organizing, but only that they shall not be included in a bargaining unit containing nonsupervisory employees in the same plant or business enterprise”. In City of Grand Rapids, 1979 MERC Lab pp 198, 202, the Commission discussed further the application of its guidelines to large employers, specifically the Detroit Board of Education: "As we stated in Detroit Board of Education, 1978 MERC Lab Op 575, the determination of executive status cannot be premised solely on reviewing the decisionmaking responsibilities of the position, viewed in vacuo, apart from the context in which essential managerial decisions of the organization are made. It is appropriate to consider the total size of the Employer’s work force and the locus of decisionmaking within it. An organization of 20,000 employees such as the Detroit school system may or may not be administered effectively through 40 executives. In any event, we found it appropriate to grant the Employer’s request to expand the cadre of Detroit school administrators who would be considered to include some 8 or 9 divisional directors who reported directly to superintendents.” The job announcement listed the following duties and responsibilities of region assistants: "Under the direction of the Region Superintendent, discharge the duties and responsibilities assigned to the region office in one of the regions of the city. More specifically the Region Assistant will take substantial responsibility for: "1. Working with principals, teachers, and citizens on various region committees which study and attempt to improve the curriculum, school organization, special education, professional staff growth, and other aspects of the school and its program. "2. Conferring with parents, community groups, and employees on problems which are received in or referred to region offices. "3. Participating in'-school-community affairs, especially in community meetings which deal with school matters. "4. Aiding in the development of school improvement projects— local, state, and federal projects. "5. Reviewing various types of reports, communications, personnel ratings and requests for teaching materials and equipment which are channelled through the region offices. "6. Consulting with principals on present and future building needs, school boundaries, program planning, instructional supplies, and other matters. "7. Sharing in the supervision of the staff assigned to the region office and the personnel connected with auxiliary services. "8. Other activities as assigned.”

Beasley, J. Plaintiff, Robert W. Schaeffer, appeals a trial court’s denial of his motion for modification of alimony and elimination of alimony arrearages owed to defendant, Jacqueline Y. Schaeffer. Defendant wife cross-appeals the trial court’s refusal to increase the alimony. The Schaeffers, who had been married for 26 years, were divorced on September 9, 1976. The judgment of divorce awarded defendant wife $1,250 a month in alimony and $20,000 of the couple’s property. Defendant wife was not employed at the time of the divorce. Soon after the divorce, defendant began a number of legal actions in Michigan and New York, where plaintiff lived, to collect the alimony which plaintiff had failed to pay. On February 14, 1979, a Michigan court awarded a $13,000 judgment on the accrued alimony arrearages to defendant. Defendant subsequently obtained a $550 per month garnishment order of plaintiffs salary from a New York court. Plaintiff filed a motion to abate or reduce the alimony. Defendant cross-petitioned, asking for an increase in alimony, an award of attorney fees, and a finding that plaintiff was in contempt. After a hearing on these matters, the trial court denied plaintiff’s petition to modify the alimony and found plaintiff in contempt for failure to pay alimony. He was sentenced to one year in jail unless he paid the $10,000 alimony arrearage and $5,000 in defendant’s attorney fees and executed a wage assignment for $1,250 a month. Plaintiff paid the arrearages and attorney fees and executed the wage assignment. On January 9, 1980, his subsequent request for reconsideration was denied. On appeal, plaintiff claims that the trial court could not order him to execute a wage assignment because MCL 552.203; MSA 25.163, which the trial court relied upon, only allows wage assignments for money owed for child support. This statute, in relevant part, provides: "Whenever the events described in section 1 have resumed so that the court would be authorized to place a person on probation the court may order an assignment to the friend of the court of the salary, wages or other income of the person responsible for the payment of support and maintenance, which assignment shall continue until further order of the court.” (Footnote omitted.) The scope of application of this statute is governed by MCL 552.201; MSA 25.161 which, in relevant part, provides: "Whenever either party to a proceeding for divorce or separate maintenance has been ordered or decreed to pay money for the support and maintenance of minor children and fails or refuses to obey and perform such order, and has been found guilty of contempt of court for such failure or refusal, the court making such order in contempt proceedings may forthwith upon the filing of. a sworn affidavit of complaint establishing such fact of nonpayment, issue a bench warrant requiring said party to be brought forthwith before said court to answer and plead to such neglect or refusal.” This latter statute, as originally enacted in 1913, only covered cases where there was a failure to pay alimony. In 1919, the statute was amended also to include cases where there was a failure to pay child support. A 1931 amendment deleted all references to alimony payments and, thus, put the statute into what is basically its present form under which only failure to pay child support is covered. Although the title to the act is "Failure to Pay Alimony”, it is clear from the legislative history and the plain language of MCL 552.201; MSA 25.161 that the Legislature did not intend MCL 552.203; MSA 25.163 to apply to cases where a party fails to pay alimony. Thus, the trial court was in error in relying on these statutes to compel plaintiff to execute a wage assignment. However, our inquiry does not end here. A court possesses inherent authority to enforce its own directives. A divorce case is equitable in nature, and a court of equity molds its relief according to the character of the case; once a court of equity acquires jurisdiction, it will do what is necessary to accord complete equity and to conclude the controversy. Moreovér, MCL 600.611; MSA 27A.611 provides: "Circuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.” In the present case, plaintiff was ordered to pay $1,250 per month in alimony to his wife. Soon after the divorce, the trial court had to issue show cause orders on three different occasions to ensure that plaintiff paid the alimony. After plaintiff moved to New York, he failed to pay the alimony, and a $13,000 deficit accrued. In an effort to recover the alimony, defendant was required to commence an action in New York, which gained her only $550 a month. At the time of the hearing below, plaintiff still resided in New York with no showing of an intention of permanently returning to Michigan. Therefore, to ensure that the alimony was paid, the trial court ordered plaintiff to execute a wage assignment. This was a proper exercise of the trial court’s equitable powers. Plaintiff also contends that MCL 552.253; MSA 25.173 prevents the friend of the court from submitting orders to the trial court in alimony procedures. This argument ignores GCR 1963, 727, which requires the friend of the court to investigate, report, and make recommendations in alimony proceedings. Where a court rule and statute conflict on procedure, the court rule controls. In this case, the trial court did not err when it allowed the friend of the court to submit an order of wage assignment. Plaintiff’s argument that the order was entered ex parte by the friend of the court lacks merit. The order was entered by the trial court after a full evidentiary hearing where plaintiff had a chance to call witnesses and where he had signed a slightly different form of authorization to withhold wages for application to alimony. Plaintiff also objects to the award of attorney fees by the trial court. The matter of attorney fees rests generally in the sound discretion of the trial judge. The standard of appellate review of an award of attorney fees in a divorce case is that this Court will only substitute its judgment for that of the trial court where it is clear that it would have reached another result had it occupied the position of the trial court. In the present case, plaintiff’s refusal to pay alimony made it necessary for defendant to commence actions in Michigan and New York. These actions, together with plaintiff’s refusal to pay the alimony, left defendant without sufficient funds to maintain herself. Under the facts present in this case, it is not clear that we would have reached a different result regarding attorney fees awarded by the trial court had we occupied the position of the trial court. The trial court’s inclusion of attorney fees for the action in New York does not violate the Full Faith and Credit Clause of the United States Constitution, as the New York court never addressed the issue of attorney fees. As indicated, we view the New York proceedings as caused by plaintiff’s defaults and as part of the full picture of defendant’s efforts to collect amounts awarded her in the divorce judgment. We also note defendant’s request that this Court award her attorney fees for this appeal. Viewing the totality of circumstances surrounding this appeal and taking into consideration our disposition, we award to defendant, payable by plaintiff, the sum of $2,000 as attorney fees on appeal. Both parties appeal the trial court’s refusal to modify the alimony award. Modification of an alimony award may rest only upon new facts or changed circumstances arising since the judgment which justify the revision. This Court reviews divorce judgment modifications de novo and will not disturb the trial court’s decision unless it is convinced that it would have reached another result had it occupied the position of the trial court. A review of the record does not disclose any new facts or change of circumstances which would clearly justify either a decrease or an increase in the alimony award. Thus, we are not convinced that we would have reached a different result regarding modification of the alimony award had we occupied the position of the trial court. Finally, plaintiff argues that the trial court erred when it refused to eliminate the alimony arrearage. A trial court has the discretion to modify the amount of accrued and unpaid alimony if there is a subsequent change in circumstances to justify the modification. In the present case, plaintiff has failed to show any change of circumstances which would justify the elimination of the alimony arrearage. The trial court did not abuse its discretion. Affirmed in part, modified in part. No costs, neither party having prevailed in full._ Both parties and their respective counsel approved the divorce judgment in writing as to form and content. 1913 PA 239, § 1. 1919 PA 415. 1931 PA 232. Greene v Greene, 357 Mich 196, 202; 98 NW2d 519 (1959). St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210, 214; 238 NW2d 806 (1975). Perm v Peuler, 373 Mich 531, 540; 130 NW2d 4 (1964). Vaclav v Vaclav, 96 Mich App 584, 593; 293 NW2d 613 (1980). White v White, 86 Mich App 98, 102; 272 NW2d 202 (1978). US Const, art IV, § 1. Graybiel v Graybiel, 99 Mich App 30; 297 NW2d 614 (1980). Id., 33. Pohl v Pohl, 13 Mich App 662, 664; 164 NW2d 768 (1968).

Per Curiam. Plaintiff appeals as of right from an order of the trial court denying his motion to modify child support payments. On June 15, 1979, a consent judgment of divorce was entered in Wayne County Circuit Court. In addition to other matters, the judgment provided that plaintiff pay $120 per week, per child, for the support of two minor children. Subsequently, plaintiff filed a motion for modification of child support payments and soon thereafter the defendant wife filed a motion for order to show cause for failure to pay child support. The plaintiff was ordered to appear on the order to show cause on May 30, 1980. Following the filing of the friend of the court’s report and recommendation, on May 23, 1980, a hearing on plaintiff’s motion to modify child support was held before Judge John M. Wise. The plaintiff was not present at the hearing. His attorney advised the court that plaintiff had remarried, lost his job and had moved to Nevada. In addition, the attorney advised the court that since his client’s employment in a family-owned business had been terminated, an arrearage of $2,400 had accrued in the plaintiff’s support payments. Finally, the attorney requested an evidentiary hearing by the friend of the court. Judge Wise denied the motion to modify. Plaintiff’s first claim of error is that the trial court conditioned the granting of an evidentiary hearing regarding plaintiff’s motion to modify child support on payment of arrearages. In so framing the issue, we believe the plaintiff distorts the facts. Before modification is warranted, the record must reflect a change in circumstances and this change must be supported by proven evidence. Andries v Andries, 77 Mich App 715; 259 NW2d 203 (1977), McCarthy v McCarthy, 74 Mich App 105; 253 NW2d 672 (1977). As we read the record, the court denied the motion to modify because the plaintiff could not carry his burden of proof— hence, the court was powerless to grant him the relief he requested, a modification of the child support payments for his two minor children. MCL 552.17, 722.27; MSA 25.97, 25.312(7). In the present case, plaintiff did not attend the hearing. The trial judge inquired about the circumstances relating to the motion. Plaintiff’s attorney explained that plaintiff was currently un employed and living in Nevada. He submitted a letter from plaintiffs father stating that he had terminated his son’s employment. No other evidence was offered which would warrant modification. The court is not obliged to reduce child support payments solely for the reason that there has been a reduction in plaintiff’s income. All relevant factors must be considered. Without the plaintiff present to provide this information, the court could do no more than decide the motion on the information supplied by the petitioner. While it is clear that the court did state that it would not grant an evidentiary hearing unless the plaintiff appeared to testify and the arrearage was paid, this was not the basis for the denial of the motion to modify. The motion failed because of the absence of sufficient proof and the failure of the plaintiff to provide an evidentiary record that would support altering the support provisions. Had the plaintiff been present (and he was not) and had the issue of arrearages also been before the court (and it was not) the court could not have required payment of said arrearages without first establishing at an evidentiary hearing that the plaintiff had the capacity to pay. The fact that the judge indicated that he would do otherwise at such a hearing is not a basis for reversing the decision properly made on the motion to modify which was before him. Plaintiff’s second contention of error is that the trial court erroneously adopted the friend of the court’s recommendation as conclusive evidence on the matter of child support. Again, while it is clear that the judge, at the close of the proceedings, indicated that he was adopting the recommendation of the friend of the court, the court did so only after it had questioned plaintiffs attorney and concluded that plaintiff could not carry his burden of proof by establishing a sufficient change in circumstances. Where, as here, the record indicates that the court did not rely on the report in reaching its decision, there is no violation of MCL 552.253; MSA 25.173, which disallows the admission of the friend of the court’s report unless both parties agree. Krachun v Krachun, 355 Mich 167; 93 NW2d 855 (1959), McCarthy, supra. The record clearly supports the fact that the court arrived at its own conclusions based on the questions posed to plaintiff’s attorney and the fact that a satisfactory evidentiary record could not be developed in the absence of the plaintiff. Finally, plaintiff claims that the trial court erred by invoking the contempt statute. The record does not support plaintiff’s claim. At the time of hearing on the motion to modify, plaintiff had not been found in contempt for nonpayment of support, because, pursuant to the order to show cause, he was not to appear before the court until May 30, 1980, one week following the modification hearing. While the Court of Appeals was advised by counsel, at the time of oral arguments, that plaintiff did not appear at that order to show cause hearing and an attachment was issued for his arrest, the contempt proceedings are not properly within the purview of this claim of appeal. There was np determination on the order to show cause by the trial judge at the modification hearing on May 23, 1980, and there is no evidentiary record for our review. McNames v McNames, 93 Mich App 477, 482; 286 NW2d 892 (1979). Affirmed.

Per Curiam. On August 20, 1979, defendant was convicted by a jury of first-degree murder, contrary to MCL 750.316; MSA 28.548. On August 27, 1979, the trial court sentenced defendant to life imprisonment with credit for time previously served in the St. Clair County jail. Defendant appeals as of right, pursuant to GCR 1963, 806.1. Defendant was charged with the murder of his former wife, Kathleen Brand. Prior to trial, a Walker hearing was held to determine the admissibility of certain inculpatory postarrest statements made by defendant to Detective Donald Savalox of the Michigan State Police and Detective Ralph Cerpial of the Algonac Police Department. These statements were made after the officers told defendant that no attorney was available in response to his request for one. The trial judge ruled that any statements made by defendant after his request for counsel were inadmissible under People v Parker, 84 Mich App 447, 452; 269 NW2d 635 (1978), lv den 406 Mich 884 (1979), and People v Lewis, 47 Mich App 450; 209 NW2d 450 (1973). Prior to the prosecution’s resting its case, at defense counsel’s request, a separate record was made outside the presence of the jury to determine whether the testimony of two prosecution witnesses, St. Clair County Sheriffs Deputies Daniel Eastwood and Thomas J. Carr, would fall within the scope of evidence excluded by the trial court’s Walker hearing ruling. After taking testimony from these witnesses, the trial court ruled that their testimony concerning defendant’s postarrest statements would be inadmissible under the court’s prior ruling. Defendant never denied the shooting, his sole defense being insanity. In support of this claim, defendant presented both lay and expert witnesses. After the defense rested, the prosecutor presented several rebuttal witnesses, including Deputies Daniel Eastwood and Thomas J. Carr. Eastwood and Carr testified concerning defendant’s postarrest statements in which he admitted killing Kathleen Brand. It is undisputed that the trial court had previously excluded those statements from the prosecutor’s case in chief. On appeal, defendant argues that the admission of these statements constituted improper rebuttal testimony and violated the trial court’s previous order. Preliminarily, we note that no objection was raised at trial to the admission of the deputies’ testimony. Accordingly, we need not reach this issue absent a finding of manifest injustice. People v Moss, 397 Mich 69, 70; 243 NW2d 254 (1976), People v Coles, 79 Mich App 255, 262; 261 NW2d 280 (1977). We find that no manifest injustice was occasioned by the admission of this testimony and hold that defendant has failed to preserve this issue for appeal. Nevertheless, we further note that the admission of this testimony was not erroneous. The testimony of Officers Eastwood and Carr related to defendant’s actions and statements following his arrest for the charged crime. This evidence was offered not for its substantive value but to rebut and impeach the testimony of defendant’s witnesses (and Dr. Tanay’s videotaped interview with defendant) which indicated that the defendant was a psychotic who believed that he was controlled by demons at the time of the crime. Through the deputies’ testimony, the prosecutor specifically brought out the fact that defendant never mentioned demons after his arrest but stated that he had committed the crime because he was angry at his former wife for living with another man. Since the officers’ testimony tended to refute or impeach evidence raised by defendant, it was proper rebuttal testimony. People v Meadows, 80 Mich App 680, 686; 263 NW2d 903 (1977). In People v Murphy, 100 Mich App 413, 415; 299 NW2d 51 (1980), lv gtd 410 Mich 920 (1981), this Court held that testimony of two police officers relating to defendant’s sanity was prematurely allowed and should not have been admitted into evidence until after defendant had introduced evidence that he was insane. Because a defendant is presumed sane until he introduces some evidence to the contrary, People v Sargeant, 65 Mich App 691; 238 NW2d 175 (1975), the proper place for the testimony of Officers Eastwood and Carr was in rebuttal, rather than in plaintiffs case in chief. See Murphy, supra. Although the trial judge specifically ruled that defendant’s postarrest statements were inadmissible as substantive evidence during the prosecutor’s case in chief, the rebuttal testimony was not offered to prove that the crime was committed. Consequently, its admission did not contravene the trial court’s previous ruling. It should be noted that the trial judge specifically instructed the jury regarding the purpose of the rebuttal testimony as follows: "This now leads us to the point in the trial where we have rebuttal testimony and the testimony that you are about to hear is intended to be in answer to the evidence presented by the defense which related to defendant’s mental state. This rebuttal testimony is inadmissible for any other purpose such as for proof that the crime was in fact committed. "You will consider the testimony for the purpose of determining the defendant’s mental state on September 19th and only for that purpose.” Accordingly, the evidence was properly admitted on rebuttal. Defendant contends that the deputies’ testimony that defendant related the incidents "like a kid that hit a homerun” constituted inadmissible lay testimony on the issue of defendant’s sanity without a proper foundation as required by People v Cole, 382 Mich 695; 172 NW2d 354 (1969). This argument is without merit. We conclude that the officers’ isolated characterization of defendant was more of a comment on defendant’s demeanor than an opinion of his sanity. We also note that neither of these statements was purposely elicited by the prosecutor. Affirmed. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

J. H. Gillis, J. Defendant was convicted by a jury of uttering and publishing a forged instrument. MCL 750.249; MSA 28.446. He was sentenced to a one-year term of probation and directed to pay court costs of $2,500. Defendant appeals as of right. On April 30, 1976, defendant purchased a .44- caliber handgun by presenting a forged license to purchase a pistol. Defendant concedes that he presented the license and purchased the handgun. He further admits that he was aware of the normal procedures for obtaining a license but, instead, paid a third party to acquire the license for him without the normal "red tape”. Defendant, nonetheless, contends that he believed the license to be entirely legitimate. On appeal, defendant first argues that the statute prohibiting uttering and publishing does not apply to licenses to purchase pistols. MCL 750.249; MSA 28.446 provides: "Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years.” The preceding section referred to proscribes the forgery of, among other things, any public record, MCL 750.248; MSA 28.445. Defendant argues that the license was not subject to the uttering and publishing and forgery statutes since it was not an instrument capable of affecting the rights of others or creating liability in others. People v Hester, 24 Mich App 475; 180 NW2d 360 (1970). Defendant’s reasoning begs the question. The prosecution was not based on the theory that the license was a forged instrument, that is, some species of commercial paper. Rather, the license was considered to be a forged public record. Quite plainly, it was such a public record. A license to purchase a pistol is required by law to be kept by public officials as a record of the sale of the weapon. MCL 28.422(2); MSA 28.92(2) states unequivocally: "The seller may retain a copy of the license as a record of the sale of the pistol. The licensee shall return 2 copies of the license to the licensing authority within 10 days following the purchase of the pistol. One copy .of such license shall be retained by the licensing authority as a permanent official record for a period of 6 years and the other copy shall be forwarded by the licensing authority within 48 hours to the director [of the Department of State Police].” Further, MCL 28.426(3); MSA 28.93(3), provides: "One copy of the license shall be delivered to the applicant, the duplicate shall be retained by the county clerk as a permanent official record for a period of 6 years, and the triplicate of the license shall be forwarded within 48 hours to the director who shall file and index licenses so received and keep them as a permanent official record for a period of 6 years.” Defendant’s conduct is of the type the uttering and publishing statute is designed to prevent. We agree that defendant’s use of the forged license did not affect the rights and liabilities of others. However, his action was such to defraud the state itself. The state controls the sale of pistols by subjecting purchasers and sellers to the licensing requirement. The use of a forged license impairs this legitimate governmental function, even though the state suffers no pecuniary loss. Cf., United States ex rel Abbenante v Butterfield, 112 F Supp 324 (ED Mich, 1953) (false prescription for narcotics held to violate federal statute prohibiting the forgery of writings to defraud the United States). Defendant also argues that the prosecutor abused his discretion by charging defendant under the uttering and publishing statute because the same conduct violated a more specific misdemeanor statute. Defendant contends that he should have been prosecuted under MCL 750.232a; MSA 28.429(1), which provides: “Any person who shall purchase a pistol without having obtained a license to purchase as provided in section 2 of Act No. 372 of the Public Acts of 1927, as amended, shall be guilty of a misdemeanor. "Any person who shall intentionally make a false statement in any application for a license to purchase a pistol, under section 2 of Act No. 372 of the Public Acts of 1927, as amended, shall be guilty of a misdemeanor.” While prosecuting attorneys have broad discretion in determining under which of two possible applicable statutes a prosecution will be brought, that discretion is not unlimited. People v LaRose, 87 Mich App 298, 302; 274 NW2d 45 (1978). As a matter of statutory construction, a statute specific in language and enacted subsequent to a more general statute covering the subject matter constitutes an exception to the general. statute if a conflict appears between the two. As a result, where the Legislature carves out such an exception and provides a lesser penalty for the more specific offense, a prosecutor must charge a defendant under the statute fitting the particular facts. Id., 303-304. Nonetheless, the rule does not apply where the two statutory crimes are distinct. Id. The instant case involves two distinct offenses. Clearly, the first paragraph of MCL 750.232a; MSA 28.429(1) was violated, as defendant purchased a pistol without first having obtained a license to do so. Yet the statute defendant was prosecuted under required additional conduct on his part. Specifically, the prosecution was required to prove that defendant bought the handgun by presenting a "false, forged, altered or counterfeit” license to purchase. Thus, although both statutes were applicable to defendant’s conduct, it can hardly be contended that the prohibition of MCL 750.232a; MSA 28.429(1) is a more specific form of the uttering and publishing statute. Defendant’s claim of prosecutorial abuse is without merit. Aflirmed. MCL 28.422; MSA 28.92 prohibits purchasing a pistol without first obtaining a license. The statute details the procedures for acquiring such a license.

Per Curiam. On May 31, 1979, defendant pled guilty to one count of issuing a no-account check, MCL 750.131a; MSA 28.326(1), and one count of attempted false pretenses over $100, MCL 750.92, 750.218; MSA 28.287, 28.415. On July 23, 1979, defendant was sentenced to 40 months to five years imprisonment on the attempted false pretenses charge and to 16 months to two years on the no-account check charge. It is from these sentences that defendant now appeals. Defendant first argues that he is entitled to resentencing because the trial judge failed to respond to defendant’s contention that his presentence report contained inaccurate information. We agree. The record reveals that both defendant and his counsel argued that the presentence report was incorrect because it included as a prior felony conviction in defendant’s record a case that had, in fact, been nolle prossed. Defendant also pointed out to the court that the presentence report contained erroneous and misleading police reports. The trial judge failed to respond to these alleged inaccuracies. Therefore, it is unclear whether the court relied on inaccurate information in pronouncing sentence. This Court has consistently held that a sentencing court has a duty to respond to a defendant’s allegation of inaccuracy in the information provided to the judge at sentencing and that the judge’s failure to do so is error mandating resentencing. People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975), modified 400 Mich 1 (1977), People v Horace Williams, 77 Mich App 402, 405-406, 409-410; 258 NW2d 737 (1977), modified 402 Mich 950j (1978), People v Westerfield, 71 Mich App 618, 626; 248 NW2d 641 (1976). People v McIntosh, supra, interpreted GCR 1963, 785.12 to mean that the trial court must exercise its discretion in determining whether allegations of error are correct, and may consider statements of the defendant: "GCR 1963, 785.12, leaves to the trial judge not only discretion to consider and weigh the contents of the presentence report, objective and subjective, but also discretion as to the means of implementing the due process duty of ascertaining, when the objection is raised, that the defendant is not prejudiced in sentencing by false information. United States v Sanders, 438 F2d 344 (CA 5, 1971). While not compelled to hold an evidentiary hearing, in the exercise of his discretion, he may do so. He may accept unsworn statements of the defendant. He may ascertain that the disputed matter is not relevant to his decision, or is of little weight, or could be safely disregarded without regard to its accuracy in light of other facts. There are many ways, in the exercise of his discretion, that he may meet the problem.” People v McIntosh, supra, 448. In McIntosh, as in the instant case, the sentencing court simply failed to respond to defendant’s allegation that his presentence report contained inaccurate information. In remanding the case for resentencing, the McIntosh Court stated: "Here, unfortunately, the trial judge simply did not respond to the defense claim in any way and thus abdicated his discretion. The failure to exercise discretion, when called upon to do so, is error. People v Lessard, 22 Mich App 342; 177 NW2d 208 (1970), United States v Espinoza, 481 F2d 553 (CA 5, 1973). We remand for resentence accordingly.” Id. (Emphasis added.) See also People v Perez, 94 Mich App 759, 760-761; 289 NW2d 857 (1980), People v Williams, supra, 409. Under the aforecited authority, the trial judge erred in failing at least to acknowledge the allegations of defendant. Defendant’s failure to file, supporting affidavits did not relieve the court of its duty to exercise its discretion. As noted in McIntosh, supra, at 448, the judge may rely upon unsworn statements in making his determination. Accordingly, the trial court’s failure to exercise its discretion requires that this case be remanded for resentencing. As his second issue on appeal, defendant argues that he should have received credit for time served in the Oakland County jail on an unrelated charge from the date such incarceration began or from the date that St. Clair County requested that a hold be placed on him. The check offenses to which defendant pled guilty and which are the basis for this appeal occurred in St. Clair County on April 5, 1978, and May 24, 1978. On January 19, 1979, defendant was arrested on unrelated check offenses in Oakland County and was held in jail there. Defendant pled guilty to the Oakland County offense April 6, 1979. On that same date, defendant was transferred to the St. Clair County jail, where he was held until he was sentenced for the instant offenses on July 23, 1979. The sentencing judge granted defendant credit for time served from the date that St. Clair County placed a hold on him in the Oakland County jail, April 5, 1979. On July 3, 1979, the judge, for a reason not discernible from the record, amended the credit time back to March 15, 1979. The proper date for determining credit for time served under MCL 769.11b; MSA 28.1083(2) is the date on which the hold was placed. See People v Face, 88 Mich App 435, 440-441; 276 NW2d 916 (1979). In effect, this Court, in Face, held that an accused is considered to be in custody as soon as the arresting authorities have him incarcerated, either directly or indirectly. Although Face dealt with indirect detention prior to arrest, this principle should be extended to include indirect detentions occurring after the accused has posted bond. See People v Havey, 11 Mich App 69; 160 NW2d 629 (1968), lv den 381 Mich 756 (1968). Under the reasoning of the above-cited cases, defendant was entitled to credit for the time he was incarcerated in Oakland County, commencing on the date of the hold. The fact that he had previously been free on bond from St. Clair County and was arraigned in Oakland County on an unrelated offense does not alter this result. Defendant was indirectly in the custody of St. Clair County authorities from the date of the hold. Accordingly, the decision of the trial court to grant credit from the date of the hold was correct. Defendant seeks to extend this principle. He argues that the St. Clair County authorities impermissibly delayed placing the hold until defendant’s last day of incarceration in the Oakland County jail. He contends that he is entitled to credit for the full time served in Oakland County, commencing January 19, 1979, on the grounds that this is the date the hold should have been requested. We do not agree. Defendant cites no authority in support of this position; neither can we find any. As stated, the proper date for determining credit for time served under MCL 769.11b; MSA 28.1083(2) is the date on which the hold was placed. It is at this time that the St. Clair County authorities effectively took defendant into custody. Unfortunately, the record is unclear as to this date. Defendant asserted at his sentencing hearing that the hold was placed on January 19, 1979, but argues on appeal that the date was April 5, 1979. The prosecutor indicated during the sentencing hearing that the hold was dropped on April 5, 1979, but he was unable to recall when it was placed. The trial court, for reasons not apparent in the record, granted credit from March 15, 1979. The uncertainty as to this important date prevents this Court from determining whether the trial court acted properly. Accordingly, this matter is remanded to the trial court with instructions to make a finding regarding the date the hold was placed on defendant and then, if necessary, to amend the amount of credit in accordance with such determination. Defendant’s sentence is vacated and this case is remanded for resentencing in accordance with this opinion. We do not retain jurisdiction.

Per Curiam. Defendant was charged with armed robbery, MCL 750.529; MSA 28.797. His plea of guilty as charged was accepted by the trial court. He was sentenced to a prison term of from 17 months to 120 months. Defendant alleges on appeal that his plea was not voluntary because he was not informed that the Legislature had recently enacted a statute which did away with "good time” for certain convictions, including armed robbery. See MCL 791.233b; MSA 28.2303(3). There is no requirement that the court advise a defendant prior to accepting his guilty plea that "good time” is not available. The defendant was properly informed that he could not receive probation and that he would spend at least one year in prison. GCR 1963, 785.7(l)(d) and (f). Therefore, the defendant was completely and accurately apprised of the consequences of his guilty plea. Affirmed.

T. M. Burns, P.J. Claimants, Gregory Ward, Sarah Ramsey and James Herman, were part of a group of Chrysler employees who were discharged in June of 1974, after they had participated in an illegal work stoppage at Chrysler’s Warren Truck Assembly Plant. Along with many other employees who were terminated, claimants filed for unemployment compensation. After receiving the applications for benefits, the Michigan Employment Security Commission (MESC) requested information from Chrysler regarding the circumstances surrounding claimants’ discharges. When this information from Chrysler was not forthcoming, the MESC multi-claimant unit issued a master determination on August 16, 1974, in which it held that the fired Chrysler employees were not disqualified from benefits. Sometime after issuing this master determination, the MESC received information from Chrysler to the effect that its former employees had been discharged for being involved in an illegal strike. Thereupon, the MESC reversed its original master determination of August 16 and issued a redetermination on August 21, 1974, in which it held that the fired employees were disqualified for unemployment benefits for six weeks. Further, the August 21 redetermination ordered restitution of the benefits that had been improperly paid to the fired employees. On August 29, 1974, the local branch of the MESC where claimant Ward applied for benefits awarded them to him on the basis of the August 16 master determination of the MESC multi-claimant unit. On the same day, that branch office also denied claimant Ward unemployment benefits on the basis of the August 21 master redetermination. Both orders were mailed out on the same day to Chrysler but were addressed to different post office box numbers. It appears that the order granting Ward benefits was received first by the appropriate Chrysler office. On September 9, 1974, Chrysler, believing that claimant Ward had been found to be entitled to benefits, requested a redetermination of the August 29 order granting the benefits. When Chrysler’s request for a redetermination was received at the MESC office it was treated as an "appeal per employer”. A form entitled "Appeal to Referee and Notice of Hearing” was prepared by the MESC and mailed to claimant Ward and to Chrysler on February 11, 1975. This form indicated that Chrysler was appealing the August 29 redetermination order which held that Ward was not entitled to benefits. On September 25, 1975, a hearing was held before a MESC referee. The referee issued his opinion on September 29, 1975, in which he dismissed the appeal for lack of jurisdiction on the ground that claimant Ward had never appealed the MESC order disqualifying him for benefits: "The record fails to show that the claimant ever made a protest or attempted to appeal the Commission disqualifying redetermination of August 29, 1974. Obviously, it was the employer’s intent to disagree with a non-disqualifying determination on the subject of 'labor dispute’, and it certainly cannot be reasonably construed as the intent of a party to protest or appeal a document which is, in reality, favorable to it. At best, the employer said it wanted a 'redetermination’, and it cannot be found that there was any intent to appeal any Commission ruling, particularly the one which would be favorable to the employer. "A justiciable issue has not been brought before this Referee on the basis of the paperwork prepared by the Commission in a misguided response to the employer’s letter of protest, and the Referee has no proper jurisdiction to hear or decide anything with respect to this matter, except that he has no jurisdiction.” Claimant Ward appealed the referee’s decision to the MESC appeal board, which affirmed it on November 30, 1976. Thereafter, he appealed that decision to the Wayne County Circuit Court, which affirmed the decision of the appeal board on June 20, 1979. Like claimant Ward, claimant Ramsey received an individual determination as well as an individual redetermination from the MESC on September 17, 1974. The determination found Ramsey eligible for benefits and the redetermination found her ineligible for them. Sometime after the multiclaimant unit issued the master redetermination holding that the former Chrysler employees were disqualified for benefits because of their participation in the illegal strike, the multi-claimant unit issued a master reconsideration of that redetermination. This reconsideration affirmed the disqualification of the employees for benefits but changed the date of the disqualification. An individual redetermination, incorporating the decision of the master reconsideration, was then issued on October 15, 1974, to claimant Ramsey. Claimant Ramsey was out of this state seeking work when the October 15, 1974, redetermination was delivered to her home, but her mother informed her over the telephone that it had arrived. Claimant Ramsey did not file a timely request for reconsideration of the October 15 redetermination. However, sometime later she saw one of the other claimants and an attorney and was informed by them that there might be a basis for an appeal. Therefore, on March 1, 1975, she filed a request for a reconsideration with the MESC. Claimant Ramsey’s request for a reconsideration was denied by the MESC, whose opinion in the matter was affirmed by a MESC referee on May 27, 1975, by the MESC appeal board on November 30, 1976, and by the Wayne County Circuit Court on June 20, 1979. Claimant Herman was held disqualified for benefits as of August 24, 1974, in a redetermination issued by the MESC on September 17, 1974. Claimant Herman did not appeal this redetermination. On October 15, 1974, the MESC issued a second redetermination in which it changed the disqualification date of claimant Herman’s benefits and stated that improper payments had been made to him from June 6, 1974, through July 27, 1974. Restitution of these improper payments was ordered. Claimant Herman did file a timely appeal from this redetermination. Subsequently, a referee held that the October 15 redetermination had been improperly made. Nonetheless, that part of the redetermination ordering restitution of benefits paid from July 6 to July 27 was upheld by the referee. The appeal board summarily affirmed the referee’s decision. At a hearing before the circuit court, the MESC stipulated that the referee had been in error in voiding the October 15 redetermination without voiding the restitution order. The circuit court thereupon ruled that claimant Herman owed the MESC no restitution and entered an order invalidating the October 15 restitution order. The court further ordered that claimant Herman be reimbursed for any restitution that he had already paid. The circuit court judge concluded, "Such an order provides Herman with all the relief he is entitled to under the law; thereby, mooting further claims for additional relief’. All three claimants now appeal the June 20, 1979, Wayne County Circuit Court order that affirmed the decision of the MESC as to claimants Ward and Ramsey, that ordered claimant Herman reimbursed for restitution that he had paid, and that denied claimants’ motion for reconsideration and rehearing. We affirm. Turning first to the issues raised by claimant Ward in his appeal, we find that none of them require reversal. Ward first argues that the MESC referee was required to take jurisdiction over his case pursuant to the provisions of MCL 421.33; MSA 17.535: "The commission shall appoint an adequate number of impartial referees to hear and decide appeals from a redetermination issued by the commission in accordance with section 32a [MCL 421.32a; MSA 17.534(1)] or hear and decide a matter transferred in accordance with section 32a. If the commission transfers a matter, or an interested party requests a hearing before a referee on a redetermination, all matters pertinent to the claimant’s benefit rights or to the liability of the employing unit under this act shall be referred to a referee. The referee shall afford all interested parties a reasonable opportunity for a fair hearing and, unless the appeal is withdrawn, the referee shall decide the rights of the interested parties and shall notify the interested parties of the decision within 60 days, setting forth the findings of fact upon which the decision is based, together with the reasons for the decision. * * *” Ward argues that the referee was obligated to afford him a reasonable opportunity for a fair hearing if there existed any appeal of the MESC’s August 29 redetermination. He contends that because he received notice that an appeal had been made by Chrysler and because the MESC treated Chrysler’s request for a redetermination of the order granting benefits as an appeal from the order denying benefits, he is entitled to a hearing on his claims. This argument is without merit. Section 33 only describes the referee’s responsibility to hear "appeals from a redetermination issued by the commission” or to hear matters "transferred in accordance with section 32a”. Nei ther existed in this case. Claimant Ward did not appeal the redetermination of the MESC and neither did Chrysler. The mistaken handling of Chrysler’s request for redetermination of the original determination granting Ward benefits cannot serve to vest jurisdiction in the MESC over Ward’s claims arising out of the August 29 redetermination order. Neither Ward nor Chrysler ever sought timely review of that redetermination order. Even if Chrysler’s request for a redetermination were "an appeal” within the meaning of § 33, the referee would still have been without jurisdiction to hear claimant Ward’s claims because § 33 provides that the referee shall decide the rights of interested parties "unless such an appeal is withdrawn”. Chrysler did withdraw the mistaken "appeal” and, as a consequence, Ward had no right to have his claims adjudicated. Nor can we say that the MESC was vested with jurisdiction over this matter under that part of § 33 pertaining to matters "transferred in accordance with section 32a”. Therefore, the referee properly concluded that he did not have jurisdiction over this case. Claimant Ward’s right to have his claims heard by the referee was lost when he did not file an appeal from the August 29 redetermination order within 15 days, as § 32a required at that time. Similarly, we reject claimant Ward’s argument that the clerical error made by the MESC constituted good cause for a late appeal by him. As the lower court properly noted, an administrative clerical error does not constitute good cause for a late appeal unless it adversely or materially prejudices an interested party. Ward could not have been adversely or materially prejudiced by the clerical error of the MESC because the first notice that he received of Chrysler’s request for a redetermination of the August 29 determination was on February 11, 1975, long after his right to appeal had expired. Thus, he cannot claim that he relied on any action of Chrysler. Finally, we reject claimant Ward’s argument that the referee’s failure to hear his case violated his right to due process of law. The basic requirement of due process is that a person be given a meaningful hearing before an impartial decision-maker after having been afforded reasonable notice. Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976). Ward was afforded a reasonable opportunity for a hearing on the MESC redetermination denying him benefits. He chose not to avail himself of the benefits of the appeal procedure. As a consequence, he cannot claim that his right of due process of law has been violated. Claimant Ramsey raises two issues before this Court, neither of which has resulted in reversible error. She first argues that the referee erred in not hearing her claims because she had good cause for a late appeal based upon newly discovered evidence. We disagree. Claimant Ramsey’s "newly discovered evidence” consists of her late discovery from another claimant and her attorney that a good case existed for appealing the MESC rulings pertaining to her case. This, however, is not "newly discovered evidence”. Ramsey received actual notice of the MESC order disqualifying her for benefits in a telephone conversation with her mother. She did not attempt to appeal that decision within the 15-day appeal period. All facts pertinent to determining whether she should or should not have appealed the MESC redetermination were available to her at the time that she received notice of her disqualification for benefits. She chose not to seek legal assistance at that time. Her late attempt to do so does not amount to "newly discovered evidence” constituting good cause to reopen her case. Claimant Ramsey next argues that the circuit court erred in holding that the appeal period of the MESC order denying her benefits ran from issuance of that order, October 15, 1974, and not from the date the MESC began deducting benefits for restitution. Under the provisions of MCL 421.62; MSA 17.566, if the MESC determines that a person has obtained benefits to which he or she is not entitled, it may recover the sums improperly paid through "deduction from benefits that may be or may become payable to the individual * * *”. Accordingly, the October 15 redetermination as to Ramsey included an order that "payments made on and after 8-19-74 must be recovered” because they had been improperly paid. The deductions from her unemployment benefits began when she first received benefits in mid-February of 1975. Ramsey argues that her March 1, 1975, request for reconsideration of the October 15 redetermination was timely. Under the provisions of MCL 421.32a; MSA 17.534(1) as in effect at the time of the redetermination at issue here, orders of redetermination would become final "unless within 15 days after the mailing or personal service of a notice thereof an appeal is filed with the commission * * *”. Therefore, Ramsey’s right to appeal was extinguished 15 days after the redetermination order was mailed by the MESC. Her argument that the appeal period runs from the date that the MESC begins deducting benefits from checks to which a claimant may be entitled is contrary to this statute, and it is rejected by this Court. Claimant Herman raises only one issue in this appeal: whether the circuit court erred in holding that he was entitled to no relief other than reimbursement of the restitution he had improperly paid. The record unambiguously indicates that Herman failed to appeal the September 17, 1974, MESC redetermination that denied him benefits. Therefore, it became final after 15 days. Herman did, however, timely appeal the October 15, 1974, redetermination of the MESC that changed his disqualification date for benefits and that ordered restitution of payments received by him from June 6, 1974, through July 27, 1974. The Wayne County Circuit Court found, and we agree, that the MESC referee erred in voiding the October 15 redetermination without also voiding the restitution order. The circuit court ordered that Herman be reimbursed for any restitution that he had paid. Claimant Herman now wishes to challenge the original September 17, 1974, MESC redetermination that denied him benefits. However, he did not raise these challenges during the 15-day appeal period afforded him by statute. Therefore, we will not permit him to transform his challenge of the October 15 restitution order into a challenge of the merits of the September 17 order disqualifying him from benefits. He has received reimbursement of the payments that were improperly deducted from his benefit checks and is entitled to no more relief. We have carefully considered all issues raised by claimants in this appeal and we find that no error has occurred. The June 20, 1979, order of the Wayne County Circuit Court affirming the decision of the MESC as to claimants Ward and Ramsey, ordering reimbursement to claimant Herman of payments that had been improperly deducted from his benefits and denying claimants’ motion for reconsideration and rehearing, is affirmed.

Per Curiam. Defendant was convicted by a jury in Monroe County Circuit Court of larceny from the person, MCL 750.357; MSA 28.589. Defendant was sentenced to 6-1/2 to 10 years imprisonment, with credit for 178 days already served. It is from this conviction and sentence that defendant now appeals as of right, pursuant to GCR 1963, 806.1. On appeal, defendant raises four issues, only one of which we deem merits our consideration. Defendant claims that she was denied effective assistance of counsel where defense counsel failed to bring a pretrial motion to suppress a lineup identification because it was the product of an illegal arrest of defendant. It is the issue of the legality of defendant’s arrest to which we shall address ourselves. The statutory authority for an officer to arrest without a warrant is set forth in MCL 764.15; MSA 28.874, which provides in pertinent part: "A peace officer may, without a warrant, arrest a person * * * "(d) when the peace officer has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the person has committed it.” In People v Summers, 407 Mich 432; 286 NW2d 226 (1979), the Court noted that probable cause for an arrest has been defined as any facts which would induce a fair-minded person of average intelligence to believe that the suspect has committed a felony, and that such facts upon which such belief is based must be present at the moment of arrest. Further, in reviewing a claim that a police officer lacked probable cause to arrest, this Court must determine whether facts available to the officer at the moment of arrest would justify a fair-minded person in believing that the suspect had committed a felony. In the instant case, at the time of defendant’s arrest, the police had the following information: (1) Mrs. Janet Compeau’s wallet and credit cards had been taken from her by two black women after she had pulled into a rest area on 1-75, (2) Mrs. Compeau described the women as wearing dark shoulder length wigs and one as wearing a beige coat with a fur collar, (3) each of the two perpetrators was approximately 5' 5" tall and weighed about 120 pounds. Defendant contends that because she was only 5' 1" tall and weighed only 110 pounds, Mrs. Compeau’s description of her was erroneous and could not have possibly provided the police with the probable cause necessary for her arrest. Under the peculiar circumstances of the instant casé, we cannot agree. Mrs. Compeau was robbed by two women at a rest stop near Monroe, Michigan. She was returning home from work and had pulled into the stop-area because she was feeling ill due to an attack of hypoglycemia, a condition from which she suffered. She testified that she passed out for a brief period and, upon regaining consciousness, she saw two women (whom she later positively identified at a postarrest lineup as defendant and Evelyn Michaels, defendant’s sister) at the front of her car. Mrs. Compeau stated that she honked her horn and motioned to defendant and Mrs. Michaels to come to her aid. Both women approached Mrs. Compeau’s window on the driver’s side and questioned her about her situation. She testified that she told them she was ill and needed some help. Mrs. Compeau stated that when the women approached her car she rolled down the window and was able to see their faces very clearly, the car having been parked in a well-lighted area near the rest rooms. Mrs. Compeau testified that about one-half hour after this conversation, the women returned to her car. Defendant reached into the window on the driver’s side, unlocked the back door on that side, entered the car, and unlocked the front passenger side door, whereupon the other woman climbed into the front seat. After both women were in the car with Mrs. Compeau, Mrs. Michaels removed Mrs. Compeau’s wallet from her purse. Defendant and Mrs. Michaels then exited from the car. The first person Mrs. Compeau spoke to after the alleged larceny was the ambulance driver. Both the driver and the ambulance attendant testified that Mrs. Compeau was coherent and alert, although she was weak. Mrs. Compeau was taken to a hospital where she was visited by Detective Cole. In attempting to describe her assailants, Mrs. Compeau gave their approximate sizes, but stressed that she was uncertain of sizes, but could certainly identify their faces. Ultimately, the description given the police was of two black females of average height and weight, wearing shoulder length wigs. Later that night, the police set up a surveillance unit at the rest stop in question, and on the following night they observed two women answering the description's provided by complainant. These women were subsequently placed under arrest. Defendant argues that the height discrepancy between herself and the person described was sufficient to eliminate any probable cause for her arrest. Given the fact that complainant’s attention was drawn to defendant’s face and hair style rather than her height, we do not believe that the description was so faulty as to render the arrest illegal. We note that the incident in question took place in January. In midwinter in Monroe, Michigan, it seems more than coincidental that two women matching the descriptions supplied by the complainant should appear at the rest stop on two consecutive nights. It appears from the record that there were not many women at the stop on the nights in question and that defendant and her sister were probably the only women with the distinctive wigs described by the witness. Under the particular circumstances of the instant case, we hold that the description was not so insubstantial as to render defendant’s arrest illegal. Our resolution of this issue makes it unnecessary to consider the other issues raised by defendant. Defendant’s counsel’s failure to raise the issue of her supposedly illegal arrest might have been trial strategy, which will not be second guessed by this Court on appeal. People v Penn, 70 Mich App 638; 247 NW2d 575 (1976). A decision to make a pretrial motion to challenge an arrest is generally a matter of trial tactics. People v Stevenson, 60 Mich App 614; 231 NW2d 476 (1975). Here, especially in view of the fact that there was no illegality in the arrest, defense counsel’s action is supportable. Defendant’s attorney mounted a zealous defense and his representation did not fall short of the standard for effective assistance of counsel enunciated in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976). Although we can appreciate defendant’s dissatisfaction with her sentence, it complies with the minimum and maximum penalties as well as with the parameters of the indeterminate sentencing act as interpreted in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), and will not be disturbed by this Court on appeal. Affirmed.

R. B. Burns, J. Defendant was convicted by a jury of one count of armed robbery, MCL 750.529; MSA 28.797. It was alleged during trial that defendant and two other persons, James Hudson and James Steven Townsend, robbed Ruby’s Truck Wash in Sawyer, Michigan, on July 26, 1977. Hudson testified for the prosecution. Defendant asserted during trial that he was not a participant in the robbery. Defendant raises numerous issues on appeal, none of which warrant reversal. Prior to trial, James Dickerson, an employee of the truck wash who was standing outside just prior to the robbery, was unable to identify defendant’s picture during a photographic showup. Defendant argues therefore that Dickerson’s subsequent in-court identification of defendant was improper. We disagree. Counsel was present at the showup, and the record indicates that it was not suggestive. We find no authority in support of defendant’s contention that the in-court identification was per se violative of due process or that the prosecution was required to establish an independent basis for the witness’s in-court identification of. defendant. See People v Currelley, 99 Mich App 561, 566; 297 NW2d 924 (1980). Defendant next argues that the prosecutor im permissibly bolstered the testimony of James Hudson by eliciting testimony of his prior out-of-court statement that was consistent with his testimony against defendant. The record indicates that in August of 1977, officer Hellenga of the Michigan State Police questioned Hudson about the armed robbery and that Hudson told him about his and defendant’s involvement in the crime. Subsequently, while Hudson was being held in jail, he wrote a note to "Steve” Townsend. The note read as follows: "Steve "I don’t know why I told the police those things. My mind wasn’t functioning well from those pills I took. They kept telling me they were going to send me away for life. There was a state cop from New Buffalo there. He told me * * * you and Butch [defendant] and me robbed that truck wash in Sawyer. He told me all about it. Then he told me if I told him we did it he would help me get out of this mess. I was so confused I signed a statement. I don’t know why I did it but its to [sic] late for me now. I just hope you can prove your inocence [sic] "Your friend "Jim Hudson” During trial Hudson gave testimony implicating defendant in the crime. On cross-examination, defense counsel impeached Hudson’s credibility by his prior inconsistent statement — the note to Townsend. The note was received into evidence. Hudson acknowledged that he had written the note but denied the truth of its contents. In an apparent effort to rehabilitate Hudson’s credibility through the introduction of his prior consistent statement, officer Hellenga was called to the stand. After repeated hearsay objections were interposed by defense counsel, Hellenga testified that the statement that Hudson gave to him, to which the note refers, was the same as Hudson’s preliminary examination testimony. Regarding the admissibility during trial of prior consistent statements, the Supreme Court stated, in Brown v Pointer, 390 Mich 346, 351-352; 212 NW2d 201 (1973): "Generally, consistent statements of a witness are not admissible as substantive evidence. People v Hallaway, 389 Mich 265, 276; 205 NW2d 451 (1973); Dundas v Lansing, 75 Mich 499, 502; 42 NW 1011; 13 Am St Rep 457; 5 LRA 143 (1889); Brown v People, 17 Mich 429, 435; 97 Am Dec 195 (1868). It has been said, however, that they are often 'allowed a limited admissibility for the purpose of supporting the credibility of a witness, particularly to show that a witness whose testimony has allegedly been influenced told the same story before the influence was brought to bear.’ McCormick, Evidence (2d ed), § 251, p 604. The authors of this recent revision of McCormick assert that the trend of decision supports the admission of consistent statements; they reason that '[t]he witness can be cross-examined fully. No abuse of prepared statements is evident. The attack upon the witness has opened the door.’ McCormick, Evidence, op cit. "In People v Hallaway, supra, p 277, it was recently noted: 'Justice Cooley, in Stewart v People, 23 Mich 63 (1871), held that a prior consistent statement of a witness may be admitted where a prior inconsistent statement has been put in evidence, and the prior consistent statement is of such character as to be probative upon the issue of whether or not the prior inconsistent statement was in fact made.’ ” As the Brown Court noted above, there are at least two exceptions to the general rule that prior consistent statements are inadmissible: to rebut a charge of influence and when there is a question whether or not a prior inconsistent statement in fact was made. See also People v Washington, 100 Mich App 628; 300 NW2d 347 (1980), People v Harris, 86 Mich App 301; 272 NW2d 635 (1978), People v Miniear, 8 Mich App 591; 155 NW2d 222 (1967), People v Gardineer, 2 Mich App 337; 139 NW2d 890 (1966). Defendant correctly points out that neither exception is applicable in the present case. There is no question that Hudson made the prior inconsistent written statement or that he made the prior consistent statement in response to the police officer’s promise to help him out if he talked, that is, after the influence was brought to bear. However the Brown Court did not expressly limit the admissibility of prior consistent statements to the two situations mentioned. Cf., Woodrow v Johns, 61 Mich App 255; 232 NW2d 688 (1975). In the present case, whether or not officer Hellenga’s testimony regarding Hudson’s prior consistent statement was properly introduced into evidence, we find any error to be harmless. People v Wright (On Remand), 99 Mich App 801, 810-811; 298 NW2d 857 (1980). We do not find that the prosecutor’s questioning of officer Hellenga regarding Hudson’s prior statement was offensive to the sound maintenance of the judicial system. His persistent examination, after objections by defense counsel, did not have the character of deliberate misconduct but instead evinced an effort to ask questions and receive answers that would fit within the limits of the trial court’s rulings. We further find that any error in introducing officer Hellenga’s testimony was harmless beyond a reasonable doubt. What Hellenga testified to regarding Hudson’s prior consistent statement was already clearly evident to the jury once defense counsel had introduced Hudson’s written note to Steve Townsend and had questioned Hudson at length concerning its contents. Reversal is not required. Defendant next argues that the prosecutor improperly cross-examined him by inquiring into irrelevant prior conduct and improperly sought to impeach his credibility by extrinsic collateral evidence. The record indicates that defense counsel raised no objections, that some of the questioning did involve relevant matters, that the prosecutor’s inquiry into irrelevant matters was brief, and that some of the questioning was in response to defense counsel’s direct examination. We find no miscarriage of justice and no error requiring reversal. People v Champion, 97 Mich App 25, 31; 293 NW2d 715 (1980), People v Meier, 47 Mich App 179, 195-196; 209 NW2d 311 (1973). We find no merit to defendant’s other claims of error. Affirmed. Defendant does not argue that the employment of a photographic showup, instead of a corporeal lineup, was improper in the present case. See People v Kachar, 400 Mich 78; 252 NW2d 807 (1977). A third exception, in which prior consistent statements are admissible, is where the witness is impeached by charging recent fabrication or contrivance. Although impeachment by charging recent fabrication or contrivance is similar to impeachment by charging that influence has been brought to bear on a witness, the two concepts are distinguished in 4 Wigmore on Evidence (Chadbourn ed), § 1129, pp 270-276. See also Miniear, supra, People v Iehl, 100 Mich App 277; 299 NW2d 46 (1980). It appears that Hudson’s prior consistent statement does not fall within this third exception.

After Remand Before: Danhof, C.J., and Cynar and Mackenzie, JJ. Per Curiam. The history of this case is documented in this Court’s original opinion in this matter, People v Hale, 99 Mich App 177; 297 NW2d 609 (1980). In remanding this case to the lower court, we directed the trial judge to hold an evidentiary hearing relative to defendant’s claim that he was induced to plead guilty on the basis of a police representation that, if defendant cooperated, he would receive a sentence of no greater than two years. The trial judge made the following findings: "The Court: Well, gentlemen, I’m going to give you a Decision now and carry out the duties given me by the Court of Appeals remand. "First: I would like to observe that the defendant’s claim is not that he is innocent. He has surely admitted his guilt. I say this for only one reason, and that is to make it clear that this case does not fall within the holdings of [the] Appellate Court involving cases in which a defendant seeks to set aside a guilty plea on the ground that he is not guilty. "Second: I am satisfied from the proofs that no member of the Detroit Police Department, including Sergeant Bullach, ever gave the Defendant any promise or assurance that the Defendant would not get more than two years or any other named sentence. I find from the evidence that no promise of leniency was made to the Defendant by any law enforcement officer as an inducement for a guilty plea. There is disputed testimony in this regard. I find that the testimony of Sergeant Bullach is more credible than the testimony of the Defendant and his girlfriend Jannie Hall. "Third: However, it appears from the evidence that the Defendant’s cooperation with the Detroit Police Department was never made known by The People to this Court. Indeed the Assistant Prosecutor Wouczyna disputed the defendant’s claim that he had cooperated with the Detroit Police Department. The letter that was sent by the prosecutor ex parte to the Court did not state that the Defendant had cooperated. Now this ex parte letter recommended a very severe sentence. And incidently, the Court made known to defense counsel the ex parte letter and presented this letter to defense counsel at the first convenient opportunity after the Court had seen the letter. "The Probation Report contains no mention of the Defendant’s cooperation with law enforcement authori- . ties. The officer-in-charge of the case assured the Defendant that he would make known the Defendant’s cooperation if asked. In fairness The People should have made known the Defendant’s cooperation to the Court prior to sentencing. "This Court respectively suggests to the Court of Appeals that the Court of Appeals remand the case to this Court for resentencing. This Court has not thought through what effect the Defendant’s cooperation will have on any new sentence that might be imposed. Further, this suggestion to the Court of Appeals should not be taken as representation by this Court that if the case is returned to this Court for sentence the court will impose a less severe sentence. "Gentlemen, you have the Decision. "Any questions? "(Whereupon there were no questions presented.)” We will not overturn the trial court’s findings unless they are clearly erroneous. People v Belanger, 73 Mich App 438; 252 NW2d 472 (1977), GCR 1963, 517.1. Under Belanger and GCR 517.1, we conclude that the trial court’s findings were not clearly erroneous and, therefore, decline to disturb them. It follows that the denial of defendant’s motion to withdraw his guilty plea was a proper exercise of .the lower court’s discretion. However, our further review of the record in this case convinces us that the trial court was also correct in its observation that defendant’s cooperation with the police was not made known to the court at the time defendant was originally sentenced. Similarly, we agree with the court below that defendant’s sentence should be vacated and this cause remanded to the trial court for resentencing as a matter of due process of law. People v Lauzon, 84 Mich 201, 208-209; 269 NW2d 524 (1978). Accordingly, defendant’s plea-based conviction is affirmed, but the sentence imposed thereon is vacated, and the cause is remanded to the trial court for resentencing. We do not retain jurisdiction.

Beasley, J. Appellants, six townships located in Washtenaw County, petitioned the Michigan Tax Tribunal for review of an equalization decision by the Washtenaw County Board of Commissioners for the year 1979. After the tribunal upheld the county equalization plan, the townships appealed as of right. In October, 1978, the State Tax Commission completed a sales ratio study for agricultural lands in Washtenaw County. This study, which was based on sale prices of 139 parcels in the county, was sent to George Kostishak, director of the Washtenaw County Equalization Department. The county equalization department had done its own study of agricultural assessments in Washtenaw County. The county study used a mixed appraisal/sales ratio approach in determining total agricultural value. The county equalization staff made 318 appraisals and compared them against selected sales for verification of the accuracy of the appraisals. The study was intended to examine agricultural values in each assessing unit and determine if the assessments in that unit were satisfactory. On December 31, 1978, Kostishak filed the study done by the Washtenaw County Equalization Department with the State Tax Commission showing an $80,000,000 difference between the estimate of true cash value in agricultural lands reached by the county and that reached by the state. Using the results from the county" study, the county equalization department recommended tentative factors for each assessing unit in the county. Local assessors revised their rolls and when their final rolls were submitted to the county all but one unit, Lyndon Township, had increased assessments following the county’s recommendation which brought each unit up to the level recommended. During this period of time, Kostishak met with staff members of the State Tax Commission in an attempt to persuade them to revise their estimate of the true cash value of agricultural land by using sales other than the ones used in the study. Kostishak also hoped to eliminate some of the discrepancy by what is called "sloughing”. The State Tax Commission has provided that any assessment roll that is assessed to 49% of true cash value shall be conclusively presumed to be 50% of true cash value where certain requirements are met. If a unit within a county is assessed at between 49% and 50% of true cash value, while other units are assessed at less than 49%, the units, when added together, may produce an average assessment of greater than 49%. For example, a county containing two assessing units equal in true cash value, one assessed at 50% and the other assessed at 48%, has an average assessment of 49%. Thus, without assessing any unit at greater than 50%, a county can generally reduce the amount of underassessment found by the State Tax Commission. The technique is disapproved by the State Tax Commission, however, when it is deliberately used to leave some units obviously underassessed. This policy recognizes that "sloughing” can be used as a discriminatory tool in the hands of the county board of commissioners when determining county equalization. In his recommendations to the county board, Kostishak intended to use "sloughing” to eliminate some of the discrepancy between the State Tax Commission’s estimate of total cash value of agricultural land and that of the county. The State Tax Commission indicated to Kostishak that an attempt to "slough” by adding value to the assessments of the cities in Washtenaw County would not be approved. The State Tax Commission had determined that other classes of property (i.e., commercial, industrial, residential) were properly assessed at 50% of true cash value. Any attempt to "slough” by adding value to the cities, which had no agricultural land, would discriminatorily underassess agricultural land. By April, 1979, it had become clear to Kostishak that the failure to add agricultural value in the county equalization order, would result in the county receiving a state equalization factor greater than 1.0. At that time, he had been told that the discrepancy was approximately $55,000,000. On April 4, 1979, he held a meeting with local assessors to discuss the problem and determine how the county board of commissioners could equalize the county assessments to add the agricultural value to those units containing agricultural lands. Prior to the meeting of the county board of commissioners to finalize county equalization, Kostishak received a final figure based on the State Tax Commission study, indicating that the State Tax Commission study had found county agricultural lands underassessed by $50,063,949. Kostishak presented three plans, labeled A, B, and C, to the county board of commissioners. He recommended plan B as the most equitable plan. Plan A could be referred to as the "do nothing” plan. It would use the preliminary results as found by the county equalization department and as met by the local assessors in revising their rolls. If this had been done, there was little question that the State Tax Commission, sitting as the State Board of Equalization, would assign a factor of greater than 1.0 to Washtenaw County real property as a whole to spread the $50,063,949 of agricultural property underassessment to every unit in the county in proportion to its share of the total true cash value of real property. Plan C closely resembles plan A. Under plan C, the county board would itself spread the $50,063,-949 to every unit in the county in proportion to its share of total true cash value of real property. Under this plan, a very large share of the $50,063,-949 would be added onto assessments of city properties. Thus, the underassessment of agricultural lands would necessarily result in increased assessments for residential, commercial, and industrial properties. The county board of commissioners adopted plan B which apportioned the $50,063,949 according to each township’s percentage of total county agricultural land value as determined by the county equalization department’s study. The Michigan Tax Tribunal unanimously affirmed the Washtenaw County Board of Commissioners’ decision to adopt plan B in three separate opinions issued from the bench. Appellants contend that the Tax Tribunal erred by approving the equalization order of the Washtenaw County Board of Commissioners. They argue that the commissioners’ decision to use the results of the county equalization department’s study to apportion the agricultural underassessments re- suited in assessments exceeding 50% of true cash value for some townships and that this decision was a political one which benefitted the cities and urban townships to the detriment of the rural townships. Appellants claim that the $50,063,949 in added value should have been allocated between the agricultural townships using the State Tax Commission study as a unit-by-unit study. If that could not be done, they contend that all units in the county should have shared the burden. The county board of commissioners’ equalization decision is governed by MCL 211.34; MSA 7.52 which provides in pertinent part as follows: "The county board of commissioners shall examine the assessment rolls of the townships or cities and ascertain whether the real and personal property in the respective townships or cities has been equally and uniformly assessed at true cash value. If, on the examination, the county board of commissioners considers the assessments to be relatively unequal, it shall equalize the assessments by adding to or deducting from the valuation of the taxable property in a township or city an amount which in the judgment of the county board of commissioners will produce a sum which represents the true cash value of that property, and the amount added to or deducted from the valuations in a township or city shall be entered upon the records.” This statute also provides the standard to be used by the state Tax Tribunal in reviewing a county equalization decision. At the time relevant to this appeal, it provided in pertinent part: "The state tax tribunal shall, upon hearing, determine if in its judgment there is a showing to the effect that the equalization complained of is unfair, unjust, inequitable, or discriminatory. The state tax tribunal shall have the same authority to consider and pass upon the action and determination of the county board of commissioners in equalizing valuations as it has to consider complaints relative to the assessment and taxation of property. The state tax tribunal may order the county board of commissioners to reconvene and to cause the assessment rolls of the county to be brought before it, may summon the commissioners of the county before it to give evidence in relation to the equalization, and may take further action and may make further investigation in the premises as it considers necessary. The state tax tribunal shall fix a valuation on all property of the county. If the state tax tribunal shall decide that the determination and equalization made by the county board of commissioners is correct, further action shall not be taken.” On appeal, this Court is bound by the factual determinations of the state Tax Tribunal and may consider only questions of law. It is an error of law if a decision of the state Tax Tribunal is not supported by competent, material, and substantial evidence. In their separate opinions issued from the bench, all three Tax Tribunal members found that the State Tax Commission countywide study was not valid for applying value on a unit-by-unit basis. They were also in unanimous agreement that plan B, under which the $50,063,949 countywide agricultural underassessment found by the State Tax Commission study was apportioned to each township according to its percentage of total agricultural land value as determined by the county equalization department study, put the underassessed agricultural value back into the units that had. been underassessed and was the best solution under the circumstances._ Two members of the tribunal found that the county equalization study led to uniformity between the units within the county, or was "uniformly conservative” in comparing values. Two members also stated that they found no showing of bad faith and that the plan adopted was fair, equitable, and nondiscriminatory. A review of the record convinces us that the Tax Tribunal’s decision to approve the adoption of plan B by the Washtenaw County Board of Commissioners is supported by competent, material, and substantial evidence. Appellants’ claim that the $50,063,949 underassessment in agricultural land values should have been apportioned between units using the State Tax Commission study must fail in light of the unanimous finding of the tribunal that this countywide study was not valid for applying values on a unit-by-unit basis. Appellants’ alternative suggestion to apportioning the $50,063,949 underassessment of agricultural land values between all of the units in the county, regardless of whether or not they contained any agricultural land, would have caused a large percentage of this agricultural underassessment to have been absorbed by nonagricultural units. The result in the present case is in accord with the reasoning of the Michigan Tax Tribunal in Montcalm Twp v Montcalm County Board of Comm’rs, where the tribunal held: "Also, instead of adding 25% to the value of the agricultural class, the county only added 12.5%. The resulting 12.5% which was added by the STC in arriving at the SEV (state equalized value) was therefore spread against all the units in proportion to their percentage of county total. This method of distribution and allocation shifts value erroneously to the various governmental units of the county and if allowed to stand, would be most inequitable and of course is the root cause of Petitioner’s appeal. For example, the cities in Montcalm County constituted 21.5% of the county total and thus have received an increase in equalized value which arose from agricultural value determinations from the various townships. This constitutes an arbitrary distribution as units in the county would receive an additional amount whether they deserved it or not.” We agree with the Tax Tribunal that the decision of the Washtenaw County Board of Commissioners to adopt plan B was fair, equitable, and nondiscriminatory. Faced with the necessity of apportioning the $50,063,949 agricultural underassessment, the commissioners used the county equalization study to apportion this burden among the agricultural townships. While the commissioners’ decision may have resulted in some townships receiving assessments of over 50% true cash value according to the county equalization study (which did not include the $50,063,949 countywide agricultural underassessment) and the State Tax Commission study (which was found not to be valid for applying value on a unit-by-unit basis), it was a fair method of distributing the burden of the countywide underassessment in agricultural values only among those units which had such values. Nor do we believe that plan B constituted an improper equalization by class. This plan added value to units containing agricultural land, and the value was spread across the entire unit, regardless of class. Affirmed. No costs, a public question being involved._ Const 1963, art 6, § 28; Kern v Pontiac Twp, 93 Mich App 612, 620; 287 NW2d 603 (1979). Fisher-New Center Co v State Tax Comm (On Rehearing), 381 Mich 713, 715; 167 NW2d 263 (1969). Michigan Tax Tribunal, Docket No. 15191, p 3 (March 30, 1977). We note that 1979 PA 114(2), effective March 27, 1980, mandates equalization by class beginning December 31, 1980. MCL 2Í1.34; MSA 7.52.

Per Curiam. Defendant appeals as of right his October 4, 1979, jury conviction of armed robbery. MCL 750.529; MSA 28.797. On October 18, 1979, defendant was sentenced to a term of life imprisonment. Defendant raises a number of issues in this appeal. He first argues that the lower court erred in refusing to permit him to represent himself at trial. We have reviewed the record and find that it supports the action of the lower court. In People v Anderson, 398 Mich 361; 247 NW2d 857 (1976), the Michigan Supreme Court held that a defendant’s request to represent himself should not be granted where it is not: unequivocal; knowingly, intelligently and voluntarily made; or would result in undue disruption of the administration of the court’s business. The record reflects that the defendant’s request to proceed pro se at trial was not unequivocal. Rather, defendant wished to share the responsibility of representation with defense counsel. That is, defendant sought to have the lower court judge permit defendant’s counsel to argue all pretrial motions. A defendant does not have the right to share trial defense responsibilities. People v William Ramsey, 89 Mich App 260; 280 NW2d 840 (1979). It further appears from the record that the granting of defendant’s request would have substantially disrupted the orderly process of trial. Therefore, the lower court did not abuse its discretion in denying defendant’s request to represent himself. Nor can we say that the lower court erred in denying defendant’s request for an adjournment in order to permit defense counsel to prepare for trial. Originally, defendant retained counsel to represent him. However, approximately two weeks prior to trial, defendant sought and was granted permission to discharge his retained counsel. At that time, the trial judge appointed an attorney to represent defendant. Defendant requested a trial adjournment of 30 days in order to permit counsel to prepare himself for trial. The trial judge denied defendant’s request leaving defense counsel approximately two weeks in which to prepare for trial. We find that the record does not support defen dant’s claim that defense counsel was inadequately prepared for trial. Much less does the record support defendant’s argument that any prejudice resulted from the trial judge’s denial of his request for a 30-day adjournment. Defendant had a two-week period in which to present his counsel with the names and addresses of potential alibi witnesses. However, instead of aiding in the preparation of his defense, defendant withheld this information from his attorney until the night of September 24, 1979, just 1-1/2 days before trial. This is so despite the fact that defense counsel had visited defendant on several occasions prior to that date. Finally, the transcript reveals that defendant was unruly and uncooperative during trial. Therefore, we hold that the lower court did not err in promptly advancing this matter towards trial. We summarily reject defendant’s argument that the lower court erred in granting the prosecutor’s motion to consolidate the instant case with the trial of a matter in which defendant was charged with three counts of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), two counts of armed robbery and violation of the felony-firearm statute, MCL 750.227b; MSA 28.424(2). These offenses were part of the same criminal continuum of activity that encompassed the present case. However, they involve separate complaining witnesses. The trial judge granted the prosecutor’s motion because these cases arose out of the same criminal transaction, they had a mutual witness and "the only difference is Miss Nelms would not be called in the other case”. We find that consolidation of these cases was not error. People v Grant, 102 Mich App 368; 301 NW2d 536 (1980). Defendant next claims that the trial judge’s failure to insure the presence at trial of certain alibi witnesses denied his right to compulsory process. The record reveals that defendant failed to file a timely notice of alibi as required by the applicable statute. MCL 768.20, 768.21; MSA 28.1043, 28.1044. In fact, defendant did not even give his counsel the names of all of his alibi witnesses until 1-1/2 days prior to trial. Thus, it appears that the absence of any potential favorable defense witness was because defendant was dilatory in presenting the names of his witnesses to the court. It should be noted that a number of witnesses did testify on behalf of defendant in his attempt to establish an alibi and that defendant was able to present his defense fully. Furthermore, none of the witnesses who did testify on behalf of the defendant stated that they had seen the alleged missing alibi witnesses during the period of time with which the alibi defense was concerned. Accordingly, it appears that the absence of these missing alibi witnesses did not substantially prejudice defendant’s case. Defendant’s contention that his arrest was illegal and the evidence obtained thereby should have been suppressed at trial is meritless. The trial judge did not abuse his discretion in finding that there was probable cause to arrest defendant. People v Flores, 92 Mich App 130, 133-134; 284 NW2d 510 (1979). Further, sufficient exigent circumstances existed to justify the warrantless entry of defendant’s home to effectuate his arrest. People v Beachman, 98 Mich App 544; 296 NW2d 305 (1980). Defendant’s claim that the lower court erred in admitting in-court identifications of him where they were allegedly the products of a series of suggestive pretrial identification procedures has not been properly preserved for appellate review. People v Mann, 89 Mich App 511; 280 NW2d 577 (1979). Nonetheless, it appears that the in-court identifications by all three complainants originated from an adequate independent basis. People v Kachar, 400 Mich 78; 252 NW2d 807 (1977). Defendant’s claim that the trial judge foreclosed the rereading of testimony to the jury and that there was insufficient evidence introduced at trial to support his conviction for armed robbery both are without merit. The record does not reflect that the trial judge either instructed or intimated to the jury that trial testimony would not be reread where necessary. Further, we find that the trial proofs are not lacking as to the elements of felonious intent and taking without consent and against the will of the owner so as to be insufficient to support defendant’s conviction of armed robbery. People v Elijah Smith, 68 Mich App 551; 243 NW2d 681 (1976), remanded in part on other grounds 397 Mich 864 (1976). Defendant’s conviction is affirmed.

T. M. Burns, J. Defendant comes before this Court on a delayed appeal and challenges a December 18, 1978, jury verdict convicting him of first-degree felony murder. MCL 750.316; MSA 28.548. On January 11, 1979, he was sentenced to a term of life imprisonment. We affirm defendant’s conviction. In the early morning hours of July 3, 1978, firefighters, responding to a fire alarm in a Detroit apartment, discovered the partially burned body of a woman. A subsequent investigation disclosed that her hands and feet had been tied with an electrical cord, that her head had been covered by plastic or pantyhose, and that an electrical cord had been tightly wrapped around her neck. The assistant county medical examiner, who later examined the body of the decedent, listed the cause of her death as "multiple blunt force injury to the head”. He testified during trial that the decedent had type "A” negative blood and that a vaginal swab showed the presence of sperm in such a condition as to indicate that she had had sexual intercourse within the 12 hours prior to her death. Evidence was introduced which indicated that although an odor of gasoline was not detected in the room where the body was discovered, Apartment 109, the smell of gasoline was found in the rear bedroom of Apartment 106, just down the hallway from Apartment 109. The rear bedroom of Apartment 106 had been partially burned, and the fire in that room, as well as the fire in Apartment 109, had been deliberately set. On the day that the body was found, defendant was taken into custody by police on the pretext that they wanted him to identify some jewelry. He was later charged with the murder of the decedent. The evidence introduced by the prosecutor at trial primarily consisted of comparisons of blood and hair samplings taken from the decedent and defendant and found in Apartment 106, evidence that defendant lived in Apartment 106 at the time of the trial, evidence that a pair of pants seized by the police from the apartment of defendant’s girlfriend contained the presence of gasoline, and circumstantial evidence concerning defendant’s whereabouts in a time period surrounding the crime and his access to the stick of wood that the prosecutor claimed was the instrument with which the decedent had been beaten to death. Defendant interposed an alibi defense at trial. He testified that he first heard of the fire at his apartment and of the death of the decedent in a telephone call from his mother on the morning that the fire was discovered. He had spent the previous night at his girlfriend’s apartment. He identified the pair of blue jeans on which the police had found gasoline as his own; however, he stated that the gasoline had gotten on them while he was doing carburetor work on his car. Although the defendant knew the decedent, she lived in the same apartment building as defendant, he denied ever hitting her or sexually assaulting her. Following his conviction by the jury, defendant filed a motion for a new trial which was denied by the lower court on April 7, 1980. Defendant now appeals, and we affirm. Defendant first argues that the trial judge improperly exercised her discretion in denying defendant’s motion to suppress evidence of his prior misdemeanor convictions that involved theft and dishonesty. MRE 609 provides that for the purpose of attacking the credibility of any witness, evidence that he has been convicted of a crime may be elicited from him if: (1) the crime was punishable by death or imprisonment in excess of one year or it involved theft, dishonesty, or false statement, regardless of punishment and (2) the trial judge determines that the probative value of the impeaching evidence on the issue of credibility outweighs its prejudicial effect. Defendant’s prior two convictions were for unlawfully driving away an automobile and larceny over $100. The prosecutor noted that the trial judge had discretion to admit evidence of these misdemeanors but contended that they were admissible for impeachment purposes because they involved theft and dishonesty. The trial judge agreed and denied defendant’s motion to suppress. We find no error in the trial judge’s ruling. The judge recognized her discretion in this matter and found that the prejudicial nature of this evidence did not outweigh its probative effect. Our review of the record does not convince us that the trial judge abused her discretion. People v Jones, 98 Mich App 421; 296 NW2d 268 (1980), People v Worden, 91 Mich App 666; 284 NW2d 159 (1979), People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979). The recent amendment to MRE 609 requiring a trial judge to articulate on the record the factors considered when making a determination as to whether evidence of prior crimes is admissible was not in effect at the time of defendant’s trial. Therefore, it is sufficient that the trial judge in this case recognized her discretion to admit the impeaching evidence under the provisions of MRE 609 as it stood on the date of defendant’s trial. Defendant next argues that the trial judge erred in permitting the prosecutor to question his girlfriend regarding whether defendant had assaulted her with the murder weapon on the day before the murder. Although we agree with defendant that this evidence was not admissible under the similar acts statute, MCL 768.27; MSA 28.1050, it was admissible to impeach his girlfriend because she was a res gestae witness whom the prosecutor was obligated to call at trial. MCL 767.40a; MSA 28.980(1); MRE 607. Defendant’s girlfriend denied during trial that defendant had ever threatened her; therefore, it was proper to impeach her by reference to her prior inconsistent statement. We are not persuaded by defendant’s argument that the trial judge abused her discretion in permitting the prosecutor to introduce at trial certain photographs showing the body of the decedent. The law regarding admission of photographs at criminal trials was summarized by this Court in People v Sullivan, 97 Mich App 488, 492; 296 NW2d 81 (1980): "The admission of photographs of victims of crime is committed to the discretion of the trial court. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). The issue to be addressed in the admission of photographic evidence is whether the photograph is substantially necessary or instructive to show material facts or conditions or is merely calculated to excite passion and prejudice. People v Falkner, 389 Mich 682, 685; 209 NW2d 193 (1973).” This test, which requires the photographs "to be substantially necessary or instructive” upon a material fact before being admissible, is nearly identical to that enunciated by our Supreme Court in People v Becker, 300 Mich 562, 565; 2 NW2d 503 (1942), where that Court held that, "[t]he general rule upon the admissibility of this kind of evidence is that it is admissible if helpful in throwing light upon any material point in issue”. Defendant argues that the photographs in this case were not used to settle a fact in dispute because defense counsel did not content that they showed that the victim had pantyhose on her legs. However, our review of the record discloses that defense counsel raised the issue of a prosecution witness’s credibility in his questioning of that witness regarding whether the victim was wearing pantyhose. The photographs had bearing on this issue and were properly admitted by the trial judge. Further, inasmuch as defendant made no request for a limiting instruction to the jury on the photographs, his contention that the trial judge erred in failing to give one has not been preserved for our review. People v Barker, 97 Mich App 253; 293 NW2d 787 (1980). Defendant next contends that the trial judge erred in admitting certain expert testimony regarding gas chromatography and vacuum distillation analysis of his clothing and analysis of microscopic hair comparisons because there was no specific showing that these scientific tests were generally recognized. The trial record reflects that defendant did not object in any respect to the testimony of the witness who analyzed his pants and found the presence of gasoline. The record also indicates that defendant’s only objection to the witness who testified regarding the hair comparisons was that the witness was not an expert in that field. Thus, the objection that defendant now raises to this testimony, that is, that these tests are not generally recognized in the scientific community, was not asserted below. Therefore, it has been waived. MRE 103(a)(1). We note, however, that this Court previously has recognized that microscopic hair analysis may be a recognized scientific field. People v Watkins, 78 Mich App 89; 259 NW2d 381 (1977). Further, such evidence has been held admissible in the Federal courts. United States v Cyphers, 553 F2d 1064 (CA 7, 1977). Finally, even if the lower court erred in admitting the gas chromatography evidence, any error was harmless only in view of the fact that the testimony itself was very weak (four tests were required to be done on defendant’s pants before detecting a slight amount of gasoline vapor) and because defendant admitted that he had been working on an automobile and may have wiped a small amount of gasoline on his pants. Similarly, defendant has not preserved for review his argument that the trial judge erred in admitting blood-type evidence that included him in the class of possible perpetrators of this offense. Defendant did not object to this testimony at trial and as a result this issue has not been preserved absent manifest injustice. People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979). Even if we were to review this issue, we would decline to find error. Although this Court has held that blood-type evidence such as that objected to here has no probative value, People v Sturdivant, 91 Mich App 128; 283 NW2d 669 (1979), it has refused to give that holding retroactive application. People v White, 102 Mich App 156; 301 NW2d 837 (1980). Defendant’s argument that the lower court erred in denying his motion to dismiss on the ground that the evidence was insufficient to support the verdict of first-degree felony murder because there was no direct or circumstantial evidence supporting the finding that defendant was guilty of the underlying felony is completely without merit. The evidence presented by the prosecutor during trial relating to the presence of sperm on the body of the decedent when coupled with evidence concerning the condition of the decedent’s body would support a reasonable inference that the victim had been raped. This inference was bolstered by testimony of a witness that defendant had told her that a woman had been raped and killed and burned beyond recognition in his apartment building. Defendant claimed to have obtained this information over the telephone from his mother despite the fact that the police officers who had approached defendant’s mother about getting in touch with defendant never told her that there was a possibility that the decedent had been raped. Thus, the evidence, when taken in a light most favorable to the prosecutor, establishes that defendant was in possession of certain information about the decedent that had never been generally released to the public by the police. The evidence, in toto, was sufficient under the test promulgated by our Supreme Court in People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), to justify a jury in reasonably concluding that defendant was guilty beyond a reasonable doubt of the underlying felony of rape. Defendant next raises several issues concerning the trial judge’s instruction to the jury. He first argues that the trial judge erred in not giving a requested instruction to the jury on how they should evaluate mixed direct and circumstantial evidence, CJI 3:1:10(6)(B), and in not giving the jury an instruction on pure circumstantial evidence, CJI 4:2:01. Contrary to defendant’s claims, it cannot be inferred from the record that defense counsel requested an instruction on pure circumstantial evidence, CJI 4:2:01. Therefore, it was not error for the trial judge to fail to give this instruction. Further, there was some direct evidence of defendant’s guilt in this case and, therefore, the "pure circumstantial evidence” instruction of CJI 4:2:01 was not appropriate here. The trial judge substantially instructed the jury with regard to CJI 3:1:10, failing to give only subpart (6)(B) of that standard jury instruction. In People v Corbett, 97 Mich App 438; 296 NW2d 64 (1980), this Court noted that where a case does not depend entirely upon circumstantial evidence, no instruction on the use of circumstantial evidence is required. Assuming that defendant’s conviction was based entirely upon circumstantial evidence, an instruction requiring the prosecutor to negate every reasonable theory of innocence was effectively incorporated into the instruction requiring that the jury find the defendant guilty beyond a reasonable doubt. Read as a whole, the instructions on circumstantial evidence given in this case were sufficient. Although the record supports defendant’s claim that the trial judge did not instruct the jury, sua sponte, on the law of attempt, we do not believe that this fact requires reversal of defendant’s conviction under People v Horton, 99 Mich App 40; 297 NW2d 857 (1980). Unlike Horton, the present case does not involve an additional charge on the underlying felony. In Horton, the jury verdicts were inconsistent in that they found the defendant there guilty of felony murder but acquitted him of criminal sexual conduct. On appeal, the prosecutor argued that the verdicts could be reconciled by assuming that the jury convicted defendant of felony murder after finding him guilty of attempted rape. However, as this Court noted in its opinion, that reason was faulty because the jury was never instructed on the law of attempt. Defendant did not object to the trial judge’s failure to instruct the jury on the law of attempt in this case. Further, there was strong evidence in this case that the victim was, in fact, raped and no evidence to support a conclusion that there was a mere attempt to rape her. Therefore, we find that this case is controlled by People v McGhee, 67 Mich App 12; 239 NW2d 741 (1976). In that case, the defendant was charged with and convicted of felony murder arising out of the occurrence of a robbery. On appeal to this Court, the defendant’s conviction was affirmed, even though the trial judge had not defined the elements of the crime of robbery to the jury, because there was no question in the case that a robbery had taken place. Similarly, in this case, there is no question but that the decedent was raped. As in McGhee, the only question in this case concerns the identity of the assailant. The failure of the trial judge to define attempt to the jury constituted harmless error only. Defendant’s final argument in this appeal is that he was denied a fair trial because the trial judge denied his pretrial motion for appointment of an investigator, a forensic chemist, and, a pathologist at public expense. We find no error. Defendant does not argue that the tests conducted by the prosecutor’s experts were faulty or that the experts reached the wrong conclusions. Further, the record reflects that defendant was given a full and sufficient opportunity to examine both the qualifications of the prosecutor’s witnesses and the bases for their testimony. Absent some showing that the test results reached by the prosecutor’s expert witnesses were in error or that the testing procedures were inadequate, the trial judge did not abuse her discretion in denying defendant’s request for the appointment of experts to conduct similar tests. We have examined all issues raised by defendant in this appeal and find that none of them merits reversal. Defendant’s conviction is affirmed.

Per Curiam. The Bay County Probate Court entered an order reopening the estate of Edwin C. Miller, deceased, who had been a physician during his lifetime, and appointing a personal representative several years after the probate of his estate was completed. The order was entered pursuant to the petition of a former patient who allegedly discovered surgical malpractice on the part of the physician several years after the latter’s death. The order was entered for the purpose of providing a defendant against whom the former patient could file a medical malpractice action in circuit court to attempt to recover from the malpractice insurer. Both the personal representative appointed in the probate court order and the malpractice insurer have taken this appeal. The claim of appeal was filed pursuant to MCL 600.861; MSA 27A.861, which provides inter alia that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust”. Recognizing that a substantial question existed as to the jurisdiction of this Court to entertain an appeal from this probate court order, this Court ordered the parties to file separate briefs on this jurisdictional question. Since the order in question clearly was entered in a decedent’s estate, the issue is whether or not the order reopening the estate and appointing a successor personal representative was a "final” order and therefore appealable to this Court rather than the circuit court. As we have stated before, since there is no statutory or rule definition of the term "final” as used in MCL 600.861; MSA 27A.861, the determination of which probate court orders are "final” and which are not, for purposes of determining the appellate jurisdiction of this Court, has to be made on a case-by-case basis. In re Swanson Estate,| 98 Mich App 347; 296 NW2d 256 (1980). The test of finality of a probate court order is whether it affects with finality the rights of the parties in the subject matter. Equitable Trust Co v Bankers Trust Co, 268 Mich 394, 397-398; 256 NW 460 (1934), In re Swanson Estate, supra. Since the order of the Bay County Probate Court reopening the decedent’s estate and appointing a successor personal representative is not dispositive of any of the rights of the parties, we conclude that this order is not a final order appealable as a matter of right to this Court under MCL 600.861; MSA 27A.861. This appeal is therefore dismissed without prejudice to the filing of a motion for leave to appeal in the Circuit Court for the County of Bay pursuant to GCR 1963, 703. In the Matter of Antieau, 98 Mich App 341; 296 NW2d 254 (1980). The appeal is dismissed. It is ordered that the time for filing a proper motion for leave to appeal in the circuit court shall commence with the release date of this opinion. The potential recovery of money damages by the appellees here in any circuit court malpractice action is limited to sources other than assets of the probate estate previously distributed. Williams v Grossman, 409 Mich 67, 78; 293 NW2d 315 (1980). This section is part of the new Chapter 8 added to the Revised Judicature Act by 1978 PA 543, which took effect July 1,1979.

N. J. Kaufman, J. This is an appeal from a judgment in a medical malpractice case. The plaintiff in the instant action, Joan Sponenburgh, guardian of Brian Sponenburgh, a mentally incompetent person, claims that her son, Brian, suffered total and permanent brain damage as a result of the negligence of Wayne County General Hospital and its employees, physicians, and staff in failing to immediately institute proper treatment for carbon monoxide poisoning. On September 22, 1977, a Wayne County Circuit Court jury found for the plaintiff in the amount of $3,088,000. A motion for judgment notwithstanding the verdict or for a new trial was denied by order of that court on April 3, 1979. Defendant Wayne County, which operates Wayne County General Hospital, now appeals as of right, pursuant to GCR 1963, 806.1. Because of the complexity of the case before us, a recitation of the pertinent facts is necessary. On August 2, 1968, Brian Sponenburgh, a 17-year-old male, was discovered by his aunt in an unconscious condition lying on the front seat of an automobile located in the garage of the Sponenburgh home. The garage doors were closed, and the automobile’s engine was running. Brian had been seen last by his brother approximately one hour before being found by his aunt. Soon after his discovery, Brian was taken by. a rescue squad out to the yard in the. open air. Firemen administered 100 percent oxygen via face mask to Brian, who was comatose. Shortly thereafter, Brian was taken by ambulance to a nearby hospital, St. Mary’s Hospital in Livonia, where he arrived at approximately 10:10 a.m. While in the ambulance, oxygen was again administered to Brian by a face mask. Upon arrival at St. Mary’s, Brian was taken into the emergency room, where his condition was recognized as being a result of carbon monoxide poisoning. A constant supply of 100 percent oxygen was administered to him through an endotracheal tube. After being seen in the emergency room at St. Mary’s, Brian was transferred by ambulance to Wayne County General Hospital. As testified to by the examining physician at St. Mary’s, Dr. Napoleon Imperio, the reasons for the transfer were that St. Mary’s did not have an intensive care unit or a hyperbaric oxygen chamber. Dr. Imperio knew Wayne County General had such a chamber, and he anticipated that it would be used with Brian. At approximately 11:15 a.m., 20 minutes after leaving St. Mary’s, Brian Sponenburgh arrived at Wayne County General Hospital. He remained in the emergency room there for approximately two hours. During this period of time he was not placed in a hyperbaric chamber, nor was he given 100 percent oxygen by endotracheal tube or face mask. A concentration of approximately 30 to 40 percent oxygen was administered to him via nasal prongs. At 1:15 p.m., Brian Sponenburgh, still unconscious, was taken to the pediatric ward. There is some dispute as to whether the room to which he was admitted was considered an intensive care area within the pediatric section at the hospital. It was stated by Dr. Vaughn, one of defendant’s witnesses, that the ward to which Brian was taken could be considered an intensive care unit if it contained the proper equipment for monitoring the patient and if such monitoring was done in fact. Dr. Vaughn testified that such monitoring would occur about every five minutes in an intensive care unit. Dr. Kuhns, another of defendant’s witnesses, testified that Brian never was placed in intensive care. Dr. Imperio also stated that frequent monitoring was part of intensive care. Whether or not the room in which Brian was placed could have been considered an intensive care unit under the proper circumstances, it is uncontroverted that during the first two hours of Brian’s hospital stay his condition was, in fact, monitored on only one occasion and with even greater infrequency thereafter. The patient remained in Wayne County General Hospital from August 2, 1968, to December 9, 1968. He at no time was placed in the hyperbaric chamber, nor was he given oxygen via endotracheal tube or face mask. His basic treatment continued to be oxygen via nasal prongs. Testimony was heard to the effect that Brian Sponenburgh received no treatment for carbon monoxide poisoning but was treated instead for aspiration pneumonia. Brian Sponenburgh was discharged from Wayne County General Hospital with permanent brain damage. It is undisputed that he suffers and in the future, will, continue to suffer from brain damage, spastic paralysis of his body, loss of vision, inability to communicate, inability to walk without external support, and loss of coordination of his limbs, hands, and feet. Brian Sponenburgh is totally and permanently disabled. Plaintiff claims that the brain damage proximately was caused by the negligence of Wayne County General Hospital and its employees, physicians, and staff in failing immediately to institute proper treatment for carbon monoxide poisoning and specifically in failing to utilize the hyperbaric chamber or administer 100 percent oxygen in some other form, in failing to place the patient in an intensive care unit, and to test and monitor him in accordance with required medical Standards. Defendant claims that the brain damage had occurred in the garage or immediately thereafter and was irreversible. Defendant further claims that the standard of care in 1968 did not mandate use of a hyperbaric chamber nor of any of the other measures claimed by plaintiff. Defendant’s first contention of error is twofold. Defendant argues that there was insufficient evidence of negligence in breaching the 1968 stan dard of care regarding treatment of carbon monoxide poisoning and the use of hyperbaric chambers adduced at trial to have submitted the question of professional negligence to the jury. If, however, a submissible question of fact was presented, defendant alleges that the jury’s verdict was against the great weight of the evidence. Defendant asserts that due to the insufficiency of evidence on the standard of care, plaintiff did not establish a prima facie case of professional negligence and that the trial court, therefore, should have granted a directed verdict. Plaintiff argues that the 1968 standard of care requiring defendant to provide Brian Sponenburgh with 100 percent oxygen in the most efficient manner available and to place him in an intensive care unit, frequently monitoring his condition, indeed, has been established. Furthermore, plaintiff asserts that defendant’s breach of this standard also has been established. In reviewing denial of a directed verdict for defendant on completion of plaintiffs proofs, this Court considers proofs and reasonable inferences therefrom in a light most favorable to the plaintiff. Signs v The Detroit Edison Co, 93 Mich App 626; 287 NW2d 292 (1979). A motion for directed verdict is properly denied when, upon viewing the evidence in a light most favorable to the nonmovant, the facts are such that reasonable persons could honestly reach different conclusions. Tiffany v The Christman Co, 93 Mich App 267; 287 NW2d 199 (1979). A judgment notwithstanding the verdict (n.o.v.) on defendant’s motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the plaintiff. In reviewing a motion for a judgment n.o.v., an appellate court must give the nonmoving party the benefit of every reasonable inference which could have been drawn from the evidence. If reasonable minds honestly could disagree as to whether plaintiff has satisfied his burden of proof on the necessary elements of his cause of action, a judgment n.o.v. is improper. Cormack v American Underwriters Corp, 94 Mich App 379; 288 NW2d 634 (1979), Sabraw v Michigan Millers Mutual Ins Co, 87 Mich App 568, 571; 274 NW2d 838 (1978), Fitzpatrick v Ritzenhein, 367 Mich 326; 116 NW2d 894 (1962). In McPhee v Bay City Samaritan Hospital, 10 Mich App 567, 570; 159 NW2d 880 (1968), the Court stated: "A treating physician is responsible in damages for unfortunate results when it is shown that he has departed from that standard of care which is known as customary medical practice. Skeffington v Bradley, 366 Mich 552 [115 NW2d 303] (1962), Zoterell v Repp, 187 Mich 319 [153 NW 692] (1915). The burden of proving that standard of care is upon the complainant, and such proof must come, in most cases, with the aid of expert testimony from those learned in the profession. Lince v Monson, 363 Mich 135 [108 NW2d 845] (1961), Skeffington v Bradley, supra. ” See Mitz v Stern, 27 Mich App 459; 183 NW2d 608 (1970). In Lince v Monson, 363 Mich 135, 140-141; 108 NW2d 845 (1961), the Court stated the following regarding the standard of care to be established by a plaintiff in a malpractice suit or negligence action: " 'In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.’ ” (Citation omitted.) Very recently, in Patelczyk v Olson, 95 Mich App 281, 290; 289 NW2d 910 (1980), this Court, in assessing the correctness of a directed verdict for the defendant-physician, adopted a very strict view as to when a standard of care has been established. The Court suggested that an expert testifying to the applicable standard of care should state that a certain procedure is standard for physicians exercising ordinary care and that failure to follow such procedure constitutes malpractice. However, in Moore v Foster, 96 Mich App 317, 321-322; 292 NW2d 535 (1980), another panel of this Court enunciated the traditional test for the establishment of negligence in a medical malpractice case: "[T]he plaintiff must produce medical testimony to the effect that what the attending physician did was contrary to the practice in that or similar communities, or that he omitted doing something which was ordinarily done in that or similar communities. * * * In other words, a physician is responsible in damages for unfortunate results when it is shown that he has departed from that standard of care which is known as customary medical practice.” (Citations omitted.) In her complaint, plaintiff alleged that defendant had breached its standard of care in several ways, including failure to administer sufficient oxygen, failure to treat Brian in an intensive care unit, and failure to use the hyperbaric chamber. On appeal, defendant argues as though the plaintiff has alleged that the hospital’s failure to use its hyperbaric chamber was the sole breach of the standard of care. This is not the case. It is true that the trial transcript reveals no expert testimony that unequivocally states that use of a hyperbaric chamber was standard practice in 1968 or that failure to administer oxygen to a carbon monoxide victim via such chamber would constitute breach of the standard of care. See Patelczyk, supra. Thus, if plaintiffs claim were based solely on defendant’s failure to use the chamber in treating Brian, this Court might agree that a prima facie case for submission to a jury had not been made and that a directed verdict for defendant could have been proper. However, because plaintiff clearly asserted that administration of 100 percent oxygen by some means and that placement of Brian in an intensive care unit as required to meet the standard of care for treatment of carbon monoxide poisoning, our inquiry does not end here. Dr. Vaughn, one of the physicians who treated Brian at defendant hospital, stated that administration of 100 percent oxygen in the most efficient way was the preferred mode of treating carbon monoxide poisoning. This concentration of oxygen could have been administered by face mask, by endotracheal entubation, or by hyperbaric chamber. It nowhere is denied that defendant hospital used the only method which could not deliver 100 percent oxygen: nasal prongs — a treatment which provided only a 30-40 percent concentration of oxygen. This was the sole means by which oxygen ever was delivered to Brian. Dr. Imperio, the physician who treated Brian in the emergency room at St. Mary’s Hospital, testified that endotracheal administration of oxygen was part of Brian’s treatment at St. Mary’s and that he anticipated that Brian would receive better treatment at Wayne County General. Dr. Impe rio also stated that Brian’s condition, upon arrival, was critical, and that intensive care and frequent monitoring were indicated. Although, as previously noted, there was considerable equivocation on this subject by some of defendant’s staff, the evidence is clear that Brian never was provided with the monitoring typical of that given in an intensive care unit. Although Dr. Vaughn testified that he was unsure whether Brian was ever placed in an intensive care unit, he also testified that intensive care was indicated for Brian and that Brian’s vital signs should have been monitored and that 100 percent oxygen should have been administered. Dr. Kuhns, a resident in charge of Brian’s case, testified as follows: "Q. Now, during the month of August, was Brian placed in intensive care? "A. No. ”Q. Did you have the authority yourself to order intensive care if you thought it was indicated? "A. At that time I didn’t know what authority I had or did not have since I had just been at Wayne County for one day, I didn’t know if I had it or not. ”Q. Did you ever attempt to have him placed in intensive care? "A. No.” Dr. Kuhns also testified that Brian was treated only for aspiration pneumonia during his hospital stay after his treatment for carbon monoxide poisoning via nasal prongs was ended and after the doctors had received results from their carboxyhemoglobin tests. It is our view that sufficient expert testimony was presented to establish the appropriate standard of care for a carbon monoxide victim as consisting of intensive care with frequent monitoring and administration of 100 percent oxygen. Viewing the record as a whole in the light most favorable to the plaintiff, reasonable men could differ as to whether defendant had breached the applicable standard of care in not placing Brian in intensive care and in failing to administer 100 percent oxygen by any available means. Therefore, the trial court did not err in refusing to direct a verdict in defendant’s favor and in submitting the issue to the jury. Defendant further contends that the jury’s verdict was against the great weight of the evidence. In Patterson v Thatcher, 273 Mich 597, 600; 263 NW 882 (1935), the Supreme Court stated the following in regard to the issue of the great weight of the evidence: "We confine ourselves to a comprehensive review of all of the evidence, having in mind the burden of proof and according due allowance to the advantage had by the jury in facing the witnesses, and from the record determine whether or not the verdict is so plainly a miscarriage of justice as to call for a new trial.” In view of expert testimony concerning the desirability of administration of 100 percent oxygen and of placing the victim in intensive care with proper monitoring and other testimony indicating that the defendant did not meet this standard of care, the verdict was not against the great weight of the evidence. Defendant next alleges that the trial court erred in allowing plaintiffs counsel, during final argument, to read to the jury from a medical textbook, a passage not previously in evidence relating to the standard of care to be applied. During closing argument, plaintiffs counsel read the following excerpt from a 1976 article by Dr. Donald McDonald published in the British Medical Journal: "Emergency treatment of a patient suspected of carbon monoxide poisoning includes removal of the victim from the source of poisoning, administration of 100 percent oxygen by tight fitting face mask and immediate transportation to a hospital where hyperbaric treatment is available.” The reading was done in the context of impeaching the testimony of Dr. Spitz, who had testified that use of the hyperbaric chamber was a "fad” and that he would not have recommended it for treatment of Brian. The trial judge twice indicated that only words or passages which had already been read into evidence could be read to the jury during closing argument. The McDonald article, along with several other articles, had been properly used by the plaintiff to impeach Dr. Spitz’s testimony earlier. Dr. Spitz had recognized this article and stated that he had used it in preparation for his testimony. Dr. Spitz had been cross-examined at length on the material in the article and expressed agreement with its assertion that every patient exposed to carbon monoxide should receive prompt and efficient oxygen from a hyperbaric chamber where available. However, the record does not indicate that the exact sentence quoted during final argument had been read into evidence. Before and after the passage in question was read, two passages from other medical texts were properly read into evidence. The first stated: "Such patients should be given pure oxygen by mask and treatment in a hyperbaric chamber if this is available.” The passage read after the McDonald passage stated: "In a severe CO [carbon monoxide] poisoning with loss of consciousness, the treatment of choice is oxygen at Two Atmospheres of Pressure [a level administered by a hyperbaric chamber].” Defendant’s dispute is not with these two passages but with plaintiffs counsel’s use of the sentence from the McDonald article in closing argument. Michigan law regarding the admission of learned treatises into evidence is quite strict. In Bivens v Detroit Osteopathic Hospital, 77 Mich App 478; 258 NW2d 527 (1977), rev’d 403 Mich 820 (1978), this Court allowed a three-page passage to be read during closing argument (not during cross-examination for the purpose of impeachment). The Bivens Court admitted the textbook as substantive evidence and instructed the jurors that the textbook could be considered as such. Citing Jones v Bloom, 388 Mich 98; 200 NW2d 196 (1972), which allowed textbooks to be used for the purpose of impeaching an expert witness on cross-examination, the Bivens Court stated: " 'We, therefore, hold that medical textbooks or other publications may be used to cross-examine expert witnesses if the expert recognizes the publication as authoritative or if the trial court takes judicial notice of the publication as authoritative.’ ” Jones v Bloom, supra at 118.” Bivens, supra, 490. As to the reading of the passage in the case before it, the Bivens Court concluded: "We believe the trial court exceeded the authority provided by Jones. The court’s allowance of the text material as 'impeachment evidence’ was clearly proper under Jones. However, when he provided the material might be allowed 'for whatever substantive value it may have’, he exceeded the stated perimeters of Jones by giving effect to the Jones dicta as well. We believe this extension was error. "Nevertheless, upon examining the record, we find that the effect of reading this section of the textbook was probably minimal.” Id., 491. In a memorandum opinion reversing this Court, the Supreme Court stated: "As we held in Jones v Bloom, 388 Mich 98 [200 NW2d 196] (1972), learned treatises are admissible for impeachment purposes. We declined to make learned treatises admissible as substantive evidence in the recently promulgated Michigan Rules of Evidence. Compare Federal Rule of Evidence 803(18). The trial judge thus erred by allowing plaintiff’s counsel to read to the jury excerpts from a medical textbook. Given counsel’s extended references to the textbook during his closing argument, we cannot agree with the Court of Appeals that the effect of this evidence 'was probably minimal’.” 403 Mich 820-821. (Emphasis supplied.) See, also, MRE 707, permitting use of learned treatises to be admitted "for impeachment purposes only”. In the instant case, in contrast to the actions of the trial court in Bivens, the trial court did not admit the passage as substantive evidence but only for impeachment purposes and insisted that the material read had to have been read previously into evidence. As it happened, the excerpt which plaintiffs counsel proceeded to read was not in evidence; however, it was a very brief excerpt of only one sentence and did not constitute or come close to constituting the "extended references” condemned by the Supreme Court in Bivens. While the passage read from the McDonald article does tend to recommend a standard of care, and to that extent would be impermissible as substantive evidence, the passage was read in the context of plaintiffs impeachment of Dr. Spitz’s testimony and the trial court did not intend or state that the excerpt was to be read for any reason other than impeachment. Furthermore, in view of the fact that this passage seems to restate the material of the two properly admitted passages, it appears to be clearly cumulative in nature. The determination of whether the error in plaintiffs reading from a portion of an article not in evidence was prejudicial may be made according to the standards set forth in Ilins v Burns, 388 Mich 504, 510-511; 201 NW2d 624 (1972): "The question then arises as to whether or not the error was harmless under GCR 1963, 529. A finding of prejudicial error depends on the circumstances of each case (3 Honigman & Hawkins, Michigan Court Rules Annotated [2d ed], Comments, p 228); the excessiveness or unfairness of the verdict (Ford v Cheever, 105 Mich 679 [63 NW 975 (1895)]; McDonald v Champion Iron & Steel Co, 140 Mich 401 [103 NW 829 (1905)]); the intent of counsel in introducing such evidence (Cluett v Rosenthal, 100 Mich 193 [58 NW 1009 (1894)]; Nemet v Friedland, 273 Mich 692 [263 NW 889 (1935)]); and whether the evidence went to the substantive issues of the case (Burns v Kieley’s Estate, 242 Mich 668 [219 NW 743 (1928)]). "Once prejudicial error is found, the cases call for reversal regardless of whether the trial judge gave an instruction in an attempt to cure the error. Potentially prejudical error can be cured. Prejudical error, however, implies a conclusion that the substantial rights of the party were affected. Such error calls for reversal and new trial.” (Footnote omitted, emphasis in original.) Applying this standard, this Court does not find the claimed error to be sufficiently prejudicial to defendant’s substantial rights even to warrant the final step of the above-cited analysis, especially in view of the fact that Dr. Spitz had recognized the article and had acknowledged reading it in his trial preparation. Defendant’s next issue on appeal involves a hypothetical question posed to one of defendant’s expert witnesses during cross-examination. Defendant contends that it constituted error for the trial court to admit into evidence the hospital records of a subsequently treated patient whose treatment by defendant hospital formed the basis of plaintiff’s hypothetical question. The facts which lead to the rather complex basis for defendant’s contention are as follows: during cross-examination, Dr. Spitz, expert witness for the defense, stated that he would not recommend use of a hyperbaric chamber for Brian, who was admitted to defendant hospital approximately two hours after he was exposed to carbon monoxide, because such treatment would have been useless and, in fact, harmful in Brian’s case, too much time having elapsed since Brian’s initial exposure to the fumes. Plaintiff’s counsel then presented Dr. Spitz with a hypothetical fact situation regarding a carbon monoxide victim and asked him if he would recommend use of the chamber in that instance. Dr. Spitz said he would not. Plaintiff’s counsel, out of the jury’s presence, then proposed for admission certain records of defendant hospital on which the hypothetical situation was based. The records, especially Exhibits 13-K and 34, related to the hospital’s hyperbaric treatment of 17-year-old Kathleen Brown for carbon monoxide poisoning and to the patient’s total cure, even though she had been transferred to defendant hospital over four hours after her arrival at Mt. Clemens Hospital. Plaintiff’s counsel proposed the record as an admission against interest. Defense counsel objected because the hypothetical and the hospital record contained facts with respect to a patient at a later date in a "completely different circumstance”. Defense counsel also objected to admission of the record as hearsay with respect to the history and diagnosis contained therein. In the context of protracted argument, the trial court stated, "The contents is [sic] hearsay, but it is [sic] admitted into evidence everyday because it is an admission * * *”. The court apparently meant that the information contained in the record was an admission against interest at the time made. The court explained: "You see, at the time it was made, there was — there was no question involved by the usual kind of admission which when made tends to — how shall I say it, it is admitted into evidence because at the time it is made it tends to reflect adversely on oneself. This is not an admission in that sense. It is a series of events which tends to impeach the position of the defendant — is more properly phrased. "Now the only danger involved in all of this is that— if there is danger at all — is that this would be somehow taken, bearing on the standard of care. But that is cured, I hope, in a sense by the obvious fact that this occurred later than the treatment of Brian Sponenburgh. "In effect, this is being introduced only to establish a question of scientific fact if we can put it that way. "Now the next thing is — now it is in evidence and he is [sic] given his opinion. I have admitted it on the grounds that it occurred in defendant’s hospital. It does contradict his opinion.” More important to our determination of this issue is the fact that in the presence of the jury, before resting his case, plaintiffs counsel stated: "Your Honor, in the absence of the jury, counsel for the Plaintiff and Defendant have entered into a stipulation regarding certain exhibits regarding this young lady, Kathleen Vera Brown, and it is stipulated between the parties or agreed between the parties that the material I used in my hypothetical question was actually [accurately] portrayed. And I am now going to read first from the Mt. Clemens General Hospital the relevant material as if it was being offered into evidence. "This is Kathleen Vera Brown in the emergency. She arrived there at six a.m., that was November 1st, 1968; that she had a blood pressure of 100 over 50; pulse 120; and that she was given 100 percent oxygen while there; that she arrived at Wayne County General at 10:45 a.m. And that in addition to the material that has already been given to the jury as an exhibit, additionally to these materials, which aré already in evidence, it is found that the pupils are equal and do react sluggishly to light. "To make it clear to those of you who are not familiar, we are not actually giving these as evidence.” On appeal, defendant raises the same objections to admission of this record as were raised in the motion for new trial or judgment n.o.v. In denying that motion, the trial judge gave several reasons for the admissibility of the record in question. The trial court stated that the record was admissible as a business record under MRE 803(6) and also as prior inconsistent conduct of defendant, and under MRE 407 as a subsequent remedial measure to rebut defendant’s claim that such would be unfeasible and because defendant stipulated at trial to the facts contained in the history. We shall first address the issue of whether defense counsel stipulated at trial to the disputed history contained in the hypothetical question, for our resolution of this issue will be dispositive of defendant’s contention. Defendant, on appeal, alleges that the admissibility of the history and opinion or diagnosis contained in the records never was stipulated to by defendant, defendant only having stipulated to acts, events, transactions, and occurrences in the hospital record. (We here note that defendant’s characterization of the stipulation as being only to acts, events, etc., without the history, would render the stipulation meaningless.) Defendant states that the history that Kathleen Brown, the patient in question, was found in a closed garage with three friends who were pronounced dead on arrival at Mt. Clemens Hospital was highly prejudicial in light of plaintiffs suggestion that Brown could have been revived by the hyperbaric chamber and sent home totally asymtomatic despite the unfavorable circumstances under which she was found. In this Court’s opinion, this testimony also could have been viewed as supportive of Dr. Spitz’s contention that because Brian, unlike Kathleen Brown, was in a comatose condition, administration of 100 percent oxygen in his case would have been futile. The defendant normally has a heavy burden in asserting that a stipulation made in open court is other than what was stated in court: "The litigant who so asserts to a stipulation freely entered into in open court carries a heavy burden of persuasion. Every presumption of judicial care, of professional competence, and of decretal stability is against the overthrow, in the appellate court, of such stipulation and of orders and decrees based thereon.” Wagner v Myers, 355 Mich 62, 68; 93 NW2d 914 (1959). See also Meyer v Rosenbaum, 71 Mich App 388; 248 NW2d 558 (1976). In the instant case, defendant asserts that the record indicates that its stipulation was made only to certain specific facts in defendant’s hypothetical question to Dr. Spitz and not to the history and diagnosis contained in the hypothetical question. We cannot agree with this strained reading of what appears to us to be a clear stipulation, freely offered. Defendant argues that plaintiff’s counsel’s statement that "it is stipulated between the parties * * * that the material I used in my hypothetical question was [accurately] portrayed” cannot be read reasonably as meaning that defense counsel stipulated to all material in the hypothetical. We do not see how it can be read to mean otherwise. When defendant’s counsel vigorously resisted admission of the hospital records of Kathleen Brown, plaintiff’s counsel sought a stipulation regarding certain facts contained in the Mt. Clemens Hospital record not contained in the Wayne County General record. The following colloquy occurred: "Mr. Koulouras [defense counsel]: Let me ask this of counsel, if I may. "What facts does he intend to prove by this document? "Mr. Charfoos [plaintiffs counsel]: The same I gave in my hypothetical. "The Court: But he wants to know. "Mr. Charfoos: Roughly it starts with the time which is listed at six a.m. and goes through the vital signs, goes through the treatment that was rendered on emergency basis and the time of transfer. "Mr. Koulouras: We will stipulate to those facts if the facts contained in the hypothetical are essentially correct.” The trial court concluded that defendant had stipulated to everything that happened to Kathleen Brown on the date in question, beginning with 6 a.m. and going through the time of transfer, including all facts in the plaintiffs hypothetical, and thus the stipulation included reference to the three companions who died of carbon monoxide poisoning. We agree. Although defendant contends that he believed plaintiffs counsel only was seeking to establish the specific items mentioned, it appears from the plain words of the stipulation and from the context in which it was offered that plaintiff’s counsel was speaking of all facts in the record from the 6 a.m. reference to the time of transfer. Plaintiffs counsel had just said that he wished to establish the facts in his hypothetical and, when pressed for specifics, his answer indicated that he wanted everything from 6 a.m. to the time of transfer. The transfer record from Mt. Clemens clearly indicates the diagnosis and history at the time of transfer, and it strains the credulity of this Court to hear defendant argue that defendant’s counsel was unaware of this when he stipulated to facts going through the time of transfer. It must be further noted that oral arguments were heard on the question of the stipulation in the course of defendant’s motion for a new trial. The trial court made its findings on this issue in a written opinion. Because the trial court was able to observe the demeanor of the attorneys at trial, an advantage not afforded this Court, it is our belief that the trial judge was in the better position to determine the scope of the stipulation. See Wagner, supra. Additionally, the diagnosis of carbon monoxide poisoning might be described more properly as a physical condition than as a diagnosis. In Osberry v Watters, 7 Mich App 258, 263; 151 NW2d 372 (1967), the Court stated that hospital records were admissible despite the notations that the diagnosis was whiplash of the neck because "[t]he four words can scarcely be classified as a diagnosis and would seem to fall in the classification of description of physical condition mentioned in Caccamos’s Case (1944), 316 Mass 358, 362 (55 NE2d 614, 616) It is our view that the facts contained in the hospital record, other than those relating to history and diagnosis, were admissible under the business records exception to the hearsay rule, MRE 803(6) as acts, transactions, occurrences, or events which could be used to impeach Dr. Spitz’s testimony that hyperbaric treatment two hours after a carbon monoxide victim has been exposed to the gas would be futile, where defendant hospital did, in fact, render such treatment after four hours. Underlying this holding is the assumption that Dr. Spitz was an agent of Wayne County and that he was not testifying as an independent expert. We believe that such assumption is justified on the basis that Dr. Spitz was a salaried employee of Wayne County and had not decided at the time of trial whether to take his regular county salary or an expert witness fee, the choice, apparently, having been left to him. The hospital records also were properly admitted, as the trial court noted, as admissions (by conduct) against interest and as prior inconsistent conduct. 31A CJS, Evidence, § 291, pp 739-741, states: "An admission may be made by conduct as well as orally or in writing. Thus, as a general rule, any act or conduct on the part of a party which may fairly be interpreted as an admission against interest on a material issue may be shown in evidence against him. Where a party on the trial of an action advances contentions which are inconsistent with his prior conduct with respect to the matter in controversy, such prior conduct may be shown as being in the nature of an admission. "Evidence of this character takes a wide range and may be received for example where the matter in controversy is the ownership, value, or control of property; the existence of a relative mental state, such as assent or lack thereof, intent, motive, knowledge, or recklessness; or the existence of such matters as claim, disclaimer, fraud, probable cause, and ratification.” (Footnotes omitted.) Because the hypothetical question and the hospital records were not identical, the records should not have been used to impeach Dr. Spitz’s answers to the hypothetical question. The hypothetical question as stated by plaintiffs counsel involved an unconscious victim, whereas Kathleen Brown’s hospital records indicate that she was semicomatose upon admission to Wayne County General. Defendant properly did object on the grounds of lack of identity between the hypothetical question and the hospital records. Dr. Spitz himself indicated the differences between the two. Because the hospital records were admissible for other purposes, however, no prejudice requiring reversal occurred because of this lack of identity. Furthermore, it remains our abiding conviction that the admission of the disputed material was the result of the stipulation between defendant’s and plaintiffs counsels. Defendant raises two more claims of error, which we deem merit only brief discussion. Defendant first argues that the trial judge erred in admitting into evidence a newspaper clipping for the purpose of cross-examining the hospital administrator. This issue concerns an article which appeared in a Detroit newspaper in June of 1966 showing a photograph of a hyperbaric chamber and containing the following caption: "Taking part in the unveiling of a $10,000 hyperbaric chamber for treatment of poison victims in the new Wayne Glas Memorial Intensive Care Unit at Wayne County General Hospital are Dr. H. J. Wells, Hospital Superintendent; Dr. Glas’ Widow and W. G. Grant, Chairman of the County Board of Institutions. "The chamber was installed as a memorial to Dr. Glas, former chief of surgery of the hospital, who was shot to death October 2 by an off-duty plant guard.” Dr. Emma Conklin, administrator of Wayne County General Hospital, testified on direct examination that the hyperbaric chamber was purchased by the hospital for the purpose of research and investigation. On cross-examination, plaintiff’s counsel marked and offered Exhibit 28, the previously described newspaper clipping. Defendant objected to introduction of the contents of the caption, stating that it was not attributable to the defendant and had no probative value. Defense counsel did not object to introduction of the picture "to show there was available a 'hyperbaric chamber’ The trial court admitted the exhibit, stating to the jury: "Ladies and gentlemen, we have admitted into evidence Exhibit No. 28. Well, the portion that’s material is a photograph and the caption under it appearing in a newspaper and I just wanted to tell you that this is offered for the purpose of demonstrating that it appeared in the newspaper, and not for the purpose of showing that the caption the information contained in the caption emanated from Wayne County General Hospital. As of the present there is no evidence of that. "But as I say, just for the purpose of showing that it appeared in the newspaper. ” (Emphasis supplied.) Because the trial court did not admit the article as proof of the contents therein, the court did not impermissibly admit hearsay evidence under MRE 801(c). It is our opinion that the trial court did not abuse its discretion in admitting the article for the limited purpose of showing that it appeared in the paper. The final issue which we shall address is defendant’s contention that the trial court improperly denied defendant’s request for the court to preview the video deposition of plaintiffs expert, Dr. William Hulet. Defendant claims that this denial prevented it from interposing certain, substantive objections to this deposition. On August 30, 1977, the defendant filed a request for the viewing of the video tape deposition by Dr. Hulet pursuant to GCR 1963, 315.6(2). The trial started on the scheduled trial date six days later, September 6, 1977. GCR 315.6(2) provides: "(2) Before any visual deposition shall be introduced in evidence, either party may request that the trial judge view the visual deposition for the purpose of making rulings on objections to all or any portion of the deposition, whether such objections were made at the deposition recording or not. Failure to request such viewing at least 10 days before trial shall constitute waiver of objections. Where the trial judge has presided at the taking of the deposition and has ruled upon objections, the provisions of this subrule shall not apply.” (Emphasis supplied.) After the unedited video deposition had been seen by the jury, the defendant asked to make a record, and the court stated that the basis for letting the entire video deposition into evidence was (1) the lateness of the request under the court rule, (2) that there was no written transcript for the court to review, and (3) that it would have inconvenienced the jury due to the delay involved in previewing the tape. The defendant contends that the video deposition contained some prejudicial testimony, as well as comments by attorneys present at the deposition. However, the record does not suggest that the deposition was so manifestly prejudicial to the defendant as to deny it a fair trial. Furthermore, it is just as plausible to surmise that some of the comments regarding Brian’s history of glue-sniffing and his prior suicide attempt could have prejudiced the plaintiffs case in the minds of some jurors. The trial court did not err in admitting the unedited deposition testimony for the reasons stated by the trial court, primarily the lateness of the defendant’s request for court review of the videotape. The defendant further claims that GCR 315.6 is in conflict with GCR 302.5 which states: "Subject to the provisions of subrule 308.3, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.” We disagree with defendant’s contention. The interests of judicial convenience and efficiency may be different when video depositions, as opposed to written depositions, are at issue. Defense counsel was free to provide a written transcript of Dr. Hulet’s deposition prior to admission of the deposition in evidence. Problems of delay which may arise when a court is asked to view a taped deposition, after which the tape must be edited before presentation to the jury, validly may require a time limit after which a party waives objections to the deposition. Absent such prejudice as would deny the defendant a fair trial, failure to comply with the court rule waives any objection to the deposition testimony. Because no manifest injustice is present here, reversal is not required. The defendant’s final contention, that GCR 315.6(2) cannot be performed in Wayne County Circuit Court because parties do not know who the trial judge will be ten days before trial, is without merit. The rule requires only the timely filing of the request, after which the trial judge, before trial, will view the video deposition. In the instant case, there is no question but that timely filing was not made. In our opinion, the crux of this case was whether whatever damage had occurred to Brian Sponenburgh in the garage was irreversible, defendant’s position, or whether there was a possibility that certain treatment could have improved Brian Sponenburgh’s condition, the position asserted by plaintiff. Essentially, this was a question of fact for the jury. Each side’s contention was vigorously argued in a prolonged trial, the transcript of which covers over 1600 pages and is encompassed in ten volumes. In reading the record, it is our belief that both plaintiff and defendant were given the best assistance our adversarial system could afford them. It was the conclusion of the jury that plaintiffs position was the most tenable. A trial of the magnitude of that in the instant case cannot be totally free of error. However, our detailed study of the briefs, records, and transcript in this complex case leaves us with the firm conviction that none of the errors complained of by defendant was sufficiently prejudicial to require reversal. Affirmed. Costs to appellee. "MRE 707. Use of Learned Treatises for Impeachment. "To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice, are admissible for impeachment purposes only.”

Per Curiam. Plaintiff, Betty J. Matts, administratrix of the estate of her deceased son, Ronald Matts, filed a medical malpractice complaint against R. K. Homsi, M.D., P.C., and R. K. Homsi, M.D., individually (hereinafter collectively referred to as defendant). The essential allegation of plaintiff’s complaint was that defendant was guilty of negligently treating plaintiff’s son following his involvement in an automobile accident on October 11, 1975. Plaintiff named several other defendants, but they were dismissed prior to trial. Following plaintiffs proofs, the trial court granted defendant’s directed verdict motion. Plaintiff appeals. The standard of review employed to determine whether a trial court has erred in entering a directed verdict is to view the evidence in the light most favorable to the nonmoving party. If the evidence, when so viewed, establishes a prima facie case, a directed verdict is improper. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975), Wynn v Cole, 91 Mich App 517; 284 NW2d 144 (1979), Weeks v Feltner, 99 Mich App 392; 297 NW2d 678 (1980). Siliski v Midland-Ross Corp, 97 Mich App 470; 296 NW2d 576 (1980). In slightly different terms, it has been said that a trial court should deny a motion for directed verdict when the facts are such that reasonable persons could honestly reach different conclusions. Tiffany v The Christman Co, 93 Mich App 267; 287 NW2d 199 (1979). Defendant’s directed verdict motion was based upon the partial immunity afforded by MCL 691.1502; MSA 14.563(12). The pertinent language of the statute is as follows: "(1) In instances where the actual hospital duty of that person did not require a response to that emergency situation, a physician * * * who in good faith responds to a life threatening emergency or responds to a request for emergency assistance in a life threatening emergency within a hospital or other licensed medical care facility, shall not be liable for any civil damages as a result of an act or omission in the rendering of emergency care, except an act or omission amounting to gross negligence or wilful and wanton misconduct.” (Emphasis supplied.) The immunity afforded by the above section can be removed by subsection (2) of the statute in certain circumstances: "(2) The exemption from liability under subsection (1) shall not apply to a physician where a physician-patient relationship existed prior to the advent of the emergency * * *.” (Emphasis supplied.) It is clear that a careful review of the factual circumstances in each case is necessary to determine whether a health care provider should be afforded the partial immunity found in the above statute. In the case at bar, the facts indicated that defendant was called to the emergency room of Community Memorial Hospital after being informed by the physician on duty that a young man had been brought in with internal abdominal bleeding. The emergency room operated by the hospital was manned on a temporary basis by the staff physicians at the hospital. Defendant was a staff physician but was not "on call” on the night in question and had no direct responsibility to respond to the request for assistance if he did not want to. The staff physician manning the emergency room was an internist and called defendant when he realized that plaintiffs decedent was in need of abdominal surgery. When defendant arrived at the emergency room, he found the decedent in severe shock and bleeding profusely. After determining that the decedent needed surgery, defendant received the family’s permission to perform the surgery and admitted the decedent to the hospital. Following several hours of surgery, the decedent’s condition started to improve, and he was taken to the intensive care unit. On the following day, his condition started to deteriorate, and he experienced renal failure and lung congestion. The decedent was transferred to another hospital where further surgery was performed. This surgery disclosed that there were several unrepaired tears to decedent’s mesentery tissues and that there were several unrepaired holes in his small intestine. The subsequent surgery (not performed by defendant) and postoperative care was unsuccessful in saving decedent’s life. Following the submission of plaintiffs proofs, defendant moved for a directed verdict contending that defendant was entitled to the partial immunity provided by MCL 691.1502; MSA 14.563(12). In arguing against defendant’s motion before the court, plaintiff conceded that there had been no showing that defendant acted in a grossly negligent way, intended to cause the deceased’s death, or acted in utter disregard for the consequences of his conduct. On appeal, plaintiff contends that defendant was not entitled to partial immunity since: (1) he did not have any duty whatsoever to respond and attend deceased, (2) he had a doctor-patient relationship with the deceased prior to the advent of the emergency, and (3) he did not respond to a "life threatening emergency”. On the facts of this case, we disagree. Plaintiffs first argument is that defendant was not within the protection of the statute since he had absolutely no "actual hospital duty” to come to the hospital and treat the deceased. This contention is not supported by the facts of this case. Plaintiff interprets the statute to indicate that a physician who has absolutely no responsibility to respond to an emergency is not accorded partial immunity since the statute was only meant to apply to hospital personnel who had some hospital responsibility. Since defendant had no responsibility, plaintiff contends that he should not be afforded immunity for his allegedly negligent acts. The testimony adduced by plaintiff indicated that defendant clearly had certain hospital responsibilities. He was on the staff at the hospital and specifically agreed in the case at bar to respond to an emergency call for assistance. Furthermore, a comparison between MCL 691.1501; MSA 14.563 and MCL 691.1502; MSA 14.563(12) indicates that the latter statute was intended to afford partial immunity in instances where the situs of the emergency was actually within a hospital or other medical care facility. Plaintiff’s interpretation of the act would mean that partial immunity is afforded only to a health care provider who has some nonspecific connection with the health care facility, but whose duty did not require him to respond to the particular emergency. We do not read the statute so narrowly. The statute does not require that the person providing emergency care be in some way affiliated with the medical care facility where the care is being rendered. It only seeks to delineate the partial immunity afforded in terms to indicate that immunity does not exist for persons whose actual function is to respond to emergency situations. Plaintiff also contends that defendant should not have been afforded partial immunity since there was a doctor-patient relationship established prior to the advent of the emergency. Plaintiff’s contention is not supported on the facts of this case. Defendant saw the deceased in the emergency room and subsequently admitted the deceased into the hospital as his patient. However, the emergency in the case at bar existed from the point in time when the deceased was involved in the automobile accident until surgery was completed. There is no dispute with the fact that the deceased was in very serious condition when brought into the hospital. Defendant’s initial treatment of the deceased in the emergency room was all a part of his diagnosis and treatment. The deceased was brought to the hospital in critical condition, diagnosed as having severe abdominal injuries, pre pared for surgery and then operated upon. The facts clearly indicated a continuing emergency. Lastly, plaintiff contends that there was no showing that a "life threatening emergency” existed. This contention also is not supported on the adduced facts. As previously mentioned, the facts were uncontested that the deceased’s life was threatened from the point in time when he was brought into the emergency room until surgery was completed. Examination in the emergency room indicated that the deceased was suffering from severe internal injuries and hemorrhaging. His blood pressure was exceedingly low and he was in a state of shock. His near-death condition continued throughout the surgery performed by defendant. There was no discontinuation of the "life threatening emergency” until, at the earliest, surgery was completed. Under the facts of this case, we conclude that the application of partial immunity pursuant to MCL 691.1502; MSA 14.563(12) was proper. Plaintiffs proofs failed to establish a prima facie case, and the trial court was correct in directing a verdict for defendant. Affirmed. Defendant may tax costs.

Per Curiam. Defendant pled guilty to conspiracy to commit the crime of breaking and entering a building with the intent to commit larceny therein, MCL 750.110; MSA 28.305 and MCL 750.157a; MSA 28.354(1). Defendant’s sentence was deferred in order to give defendant the opportunity to demonstrate that he was worthy of a probationary sentence. Upon the court’s finding that defendant had failed to do so, defendant was sentenced to imprisonment for a term of from six to ten years. Defendant now appeals as of right. Defendant first claims that his plea must be vacated because the lower court informed defendant that, by pleading guilty, defendant would give up his right to have an attorney appointed on his behalf at public expense. We first note the defendant was represented by retained counsel at his plea-taking proceeding and both sentencing proceedings. Moreover, the lower court file indicates that at no time prior to his being sentenced to imprisonment had defendant filed an affidavit of indigency indicating even a prima facie entitlement to appointed counsel. Additionally, at an earlier point in his plea-taking proceeding the court had indicated to defendant that, if he ran out of funds during the course of the lower court proceedings, counsel would be appointed to represent him at public expense. The court never indicated, as claimed by defendant, that by pleading guilty defendant would give up his right to counsel at sentencing. In context, it appears that the court was informing defendant that he was giving up his right to appointed counsel at trial, either a bench trial, or by jury, since this was the right which defendant was informed he would be giving up as a result of his plea immediately prior to the statement in dispute. We decline to vacate defendant’s plea on this basis. Cf., Guilty Plea Cases, 395 Mich 96, 119; 235 NW2d 132 (1975). Defendant next argues that he should not have been sentenced to prison following the period of sentence deferral, since the lower court indicated it would give defendant a chance to establish he was deserving of probation by defendant’s continuing in an alcohol therapy program as well as a job program and since defendant, in good faith, attempted to comply literally with these conditions and did, in fact, abstain from alcohol during the entirety of the deferral period and had secured employment, only to be laid off because of the seasonal nature of the work in which he was engaged. Finally, defendant argues that there was no alcohol therapy program in the area in which he was working. The trial court specifically found that defendant had not stopped drinking and had quit alcohol therapy. The purpose for delaying a sentence is to give a defendant an opportunity to prove himself eligible for probation or other lenient treatment by the court. MCL 771.1; MSA 28.1131. People v Clyne, 36 Mich App 152; 193 NW2d 399 (1971), held that a defendant whose sentence has been delayed is not entitled to even a summary hearing before the trial court may properly terminate the delay in sentencing. Under subsequent cases, defendant has a due process right to respond at sentencing to the information in the presentence report and to bring to the court’s attention any other information which defendant deems appropriate. People v Saylor, 88 Mich App 270; 276 NW2d 885 (1979). Defendant may not reopen and contest a prior conviction included in the presentencing report, but he may dispute the accuracy of the information contained therein. In such a case, the trial judge may disregard the disputed information or conduct a hearing to determine its accuracy if, in his discretion, he deems it appropriate. People v Books, 95 Mich App 500, 504-505; 291 NW2d 94 (1980). It would follow that a similar hearing should be had or defendant’s contentions should be considered where he presents mitigating circumstances outside of what is contained in the presentence report. Such mitigating circumstances may or may not affect the trial court’s decision. In the instant case the trial court found that the defendant had not stopped drinking and had quit the alcohol therapy program which he had been required to pursue by the court as a condition of his delayed sentencing. This appears to be the reason for which the court decided that sentence should be imposed. Defendant alleged, however, that he was unable to continue a therapy program because one was not available in the vicinity of his most recent job. There was no indication that this was found to be untrue. Defendant also claimed that he had in fact stopped drinking. If these claims are true, it would seem to this Court that the defendant has demonstrated his eligibility for lenient treatment. We believe that principles of fairness mandate that, where, as here, the trial court gives a defendant an opportunity to demonstrate eligibility for lenient treatment, defendant is entitled to a hearing as to whether failure to comply with conditions imposed on defendant was in fact due to circumstances beyond defendant’s control. We therefore remand the case for such a deter mination. We note in doing so that we do not require a hearing in every case of sentencing after a delay. All we require here is that the trial court act in conformity with its own pronouncements. We note further that the trial court is not responsible for providing treatment for defendant’s alcoholism and that it may still, in its discretion, decide that incarceration is necessary if defendant has not, in fact, stopped drinking or did not attend a suitable alcohol treatment program. Reversed and remanded for further proceedings.

Beasley, J. Plaintiff, Kathleen Varney, started a paternity suit against defendant, George W. Young, on October 17, .1978. In her case, plaintiff claimed that a child, Tabitha A. Loubert, was born on November 2, 1972, and is the child of plaintiff and defendant. Pursuant to a stipulation between plaintiff, who was represented by the office of the Midland County Prosecuting Attorney, and defendant, a full blood test and tissue examination (HLA test) was had of the child and of the parties. The stipulation provided "that the results of said tests shall be admissible as evidence in these proceedings before this court”. The tests were made and, apparently, both sides agree that the results of the tests indicate that the probability of defendant being the father of Tabitha A. Loubert is greater than 96.6 percent. When, immediately prior to trial, the trial judge discovered that plaintiff did not intend to establish a foundation so as to admit the results of the tests, he took it upon himself to dismiss the case sua sponte. Plaintiff appeals as of right. We reverse. The sua sponte dismissal by the trial judge constituted an abuse of discretion. In Genesee Prosecutor v Genesee Circuit Judge, the Supreme Court said that a circuit judge does not enjoy supervisory power over a prosecuting attorney. Where, as here, the assistant prosecutor represented to the trial court that he believed he had sufficient evidence to proceed to trial, the obligation of the trial judge was to permit the prosecutor to proceed with trial. If, after the prosecutor submitted his proofs, the trial judge did not believe that the proofs were sufficient, the trial judge could, at that time, make such orders as would be appropriate under the circumstances. We hold that it was an abuse of discretion to dismiss this case on the court’s own motion without hearing the proofs that the prosecutor claimed were sufficient to establish paternity. In so ruling, we are not unmindful of the evidentiary problem which concerned the trial judge and which could arise again after remand if the prosecutor attempts to introduce the results of the HLA tests. MCL 722.716(d); MSA 25.496(d), which is entitled "Blood tests; admission as evidence”, was last amended in 1956 and provides as follows: "(d) The result of the tests shall be receivable in evidence in the trial of the case but only in cases where definite exclusion is established. If more than 1 expert is appointed by the court, and if they disagree in their findings or conclusions, neither the findings, conclusions or the results of these tests shall be admissable [sic] as evidence of the paternity or non-paternity of the alleged father.” In Shepherd v Shepherd, which was a case involving the traditional exclusionary blood tests, this Court gave a literal interpretation to the statute, saying that blood tests disclosing only a probability that a defendant was the father were inadmissible. In the years since 1956, blood testing to show parentage has become greatly improved and far more sophisticated. The HLA tests which were given here are a potentially powerful tool in determining the probability of paternity. But, in Michigan, we have not yet had an appellate decision determining the current state of the art concerning HLA testing. Neither has there been a definitive ruling as to the effect, if any, of MRE 401, adopted in 1978. Consequently, the trial judge’s insistence that a proper foundation be laid before he could rule upon the effect of the parties’ stipulation to admit the results in evidence was fitting and not at all surprising. We agree that a full evidentiary hearing as to the present state of the art regarding serologic testing such as HLÁ tests was a condition precedent to admission of the results of the HLA tests. However, in view of the lack of record before us, we are not in a position to rule on these possible issues and decline to attempt to do so. In summary, we hold that it was an abuse of discretion to dismiss this case on the court’s own motion, without hearing the proofs that the prosecutor claimed were sufficient to establish paternity, and remand to the trial court for further proceedings. Reversed and remanded._ Around 1976, the American Medical Association and the section on Family Law of the American Bar Association approved and published "Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage”. See, 10 Family Law Quarterly, No 3, p 246 (Fall, 1976). The guidelines make clear that H (human) L (leukocyte, white blood cells) A (antigen) tests represent a great technological advance and can be used to predict both probabilities that a particular person is the father and that a particular person is not the father. Part of the language of the filed stipulation was: "* * * a full blood test and tissue examination including an HLA test [be performed] in order to compare the genetic structure of the cells of the Defendant, with the Plaintiff and that of the minor child of the Plaintiff”. 391 Mich 115, 121; 215 NW2d 145 (1974). 81 Mich App 465; 265 NW2d 374 (1978). See, Terasaki, Resolution By HLA Testing of 1000 Paternity Cases Not Excluded By ABO Testing, 16 J of Family L, pp 543-557 (1977-1978); also, 7 Family L Rep, pp 2069, 2070 (December 2, 1980). People v Barbara, 400 Mich 352; 255 NW2d 171 (1977).

Per Curiam. The question on appeal is whether the trial court erred in denying plaintiff Golonka’s motion for summary judgment, the practical effect of which was to deny her request for a writ of mandamus which would have compelled the Michi gan Department of Education to certify her as a teacher consultant. Plaintiff Golonka, certified by the State Board of Education as a general education teacher and a special education teacher, taught in the South Redford School District. As stipulated to by the parties, for more than ten years she has taught handicapped students with learning disabilities, who have been mainstreamed with nonhandicapped students. She had not, however, completed at least one year of teaching experience in a special education classroom as a special education teacher. Because of her impending layoff as a general education teacher, she and the South Redford School District sought to determine whether the State Board of Education would approve her as a teacher consultant under Rule 340.1790, 1979 AC R 340.1790._ Rule 340.1790 was promulgated by the State Board of Education pursuant to its authority under the special education code and provides as follows: "Rule 90. A teacher consultant for special education programs and services shall meet the following requirements for full approval by the state board of education: "(a) Full approval by the state board of education as a teacher in 1 or more areas of special education. "Ob) A minimum of 3 years of satisfactory teaching experience, including at least 1 year of experience teaching handicapped pupils. "(c) Recommendation to the department, by letter, by the employing superintendent or his designee for approval as a teacher consultant. Evidence of experience and training shall be submitted with the request for approval.” (Emphasis added.) A representative from the South Redford School District sent a letter to the State Department of Education seeking its response to the following inquiry. "Two of our laid off teachers are fully certified by the state board of education in one or more areas of special education. Although neither teacher has taught in a selfcontained classroom, both have taught many identified handicapped students that have been mainstreamed in their classrooms. Does their work with mainstreamed students qualify them for teacher consultant approval?” The State Department’s response was that "[a] person must have worked in a special education classroom as a special education teacher.” In reliance upon this response, the South Redford School District refused to assign plaintiff Golonka to a position as a teacher consultant. She then began direct correspondence with the State Department of Education. The defendant department interpreted the phrase "at least 1 year of experience teaching handicapped pupils” to mean that a teacher consultant must have at least one year of experience teaching handicapped people in a self-contained, special education classroom. Therefore, the department argued, even though plaintiff Golonka had taught handicapped students who had been mainstreamed into her general education classroom, she was not certifiable as a teacher consultant because she had not spent at least one year teaching handicapped students in a self-contained, special education classroom. On August 28, 1979, plaintiff Golonka filed a complaint seeking a writ of mandamus to compel defendants to certify her as a teacher consultant under Rule 340.1790. In response to an order to show cause issued by the trial judge, the defendant Department of Education argued that the writ should be denied since, according to its interpretation of Rule 340.1790, plaintiff Golonka did not meet the requirements necessary to be a certified teacher consultant. On December 10, 1979, plaintiffs filed a motion for summary judgment in which they claimed that defendants had failed to set forth a valid defense, GCR 1963, 117.2(2), and that there were no genuine issues of material fact, GCR 1963, 117.2(3). At a subsequent hearing held on this motion wherein both parties stipulated that there were no genuine issues of material fact, the trial court denied plaintiffs’ motion and instead granted summary judgment in favor of defendants. Plaintiffs appeal as of right. We note at the outset that had the trial court granted plaintiffs’ motion for summary judgment, it would have been issuing mandamus. The issuing of writs of mandamus is discretionary with the trial judge, and an appellate court will not disturb the trial court’s ruling absent an abuse of discretion. Carlson v City of Troy, 90 Mich App 543, 547; 282 NW2d 387 (1979). In order for a writ of mandamus to be issued, a plaintiff must have a clear legal right to performance of the specific duties sought to be compelled. Id. The trial judge was not convinced that plaintiffs were entitled to mandamus as a matter of law and suggested that plaintiffs move for a declaratory judgment rather than for summary judgment. When plaintiffs persisted with their motion for summary judgment, the trial court denied it on the ground that plaintiffs were not entitled to mandamus. The trial judge took the position that he should defer to the administrative expertise of the Department of Education and that he should not substitute his judgment for the department’s. He also concluded that the interpretation placed on Hule 340.1790 by the department was reasonable when read in conjunction with the entire special education code. The Supreme Court recently reaffirmed its position that the courts should pay some deference to interpretive rulings made by those charged with the duty of executing statutory grants of power. '' 'The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons.’ ” Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977), citing United States v Moore, 95 US 760, 763; 24 L Ed 588, 589 (1877). We believe this principle should be afforded at least equal, if not greater, weight in the context of administrative interpretations of departmental rules. Having reviewed the record and briefs, we concur with the trial judge’s conclusion that the State Department of Education’s interpretation of the rule in question is reasonable when considered in light of the entire special education code. Since the interpretation placed on Rule 340.1790 is reasonable, plaintiff Golonka has no clear legal right to be promoted to the status of teacher consultant. Since the record contains evidence to support the trial court’s denial of mandamus, we may not disturb its decision. South Looking Glass Drainage Dist Board v Grand Trunk W R Co, 357 Mich 215, 222; 98 NW2d 543 (1959). We find no error in its grant of summary judgment for the defendants. Affirmed. Pursuant to the rule-making authority granted to it by the Michigan special education code, MCL 380.1701; MSA 15.41701, MCL 380.1703; MSA 15.41703, the State Board of Education promulgated Rule 340.1749, which defines a teacher consultant as follows: "Rule 49. The teacher consultant for special education: "(a) Shall provide services to pupils who have been identified as handicapped according to R 340.1703 to R 340.1714. "(b) Shall provide services to pupils whose handicap is such that they may be educated effectively within a regular classroom if supportive service is provided to them. "(c) Shall provide consultation to regular classroom teachers who have handicapped pupils integrated into their clasrooms. "(d) May provide educational services to handicapped persons in their home. "(e) May be employed as an itinerant staff person in 1 or more school buildings. "(f) Shall carry an active case load of not more than 25 handicapped persons and all persons served under this rule shall be counted as part of the active case load. "(g) May work with a regular classroom teacher for a total of not more than 10 consecutive school days to evaluate the educational needs of a person suspected of having an impairment as defined in R 340.1702.” 1979 AC R 340.1749. Federal legislation, and rules adopted pursuant thereto to insure that handicapped children are educated with children who are not handicapped, mandates mainstreaming. 20 USC 1412(5)(B); 1414(a)(l)(C)(iv); 45 CFR 121a.550-121a.556 (1980).

Per Curiam. Intervening defendant, Modern Merchandising, Inc., appeals by leave granted from an order denying its motion for accelerated judgment pursuant to GCR 1963, 116.1 in which it alleged that plaintiffs lacked standing to pursue their lawsuit. The Norton Shores City Council approved a public economic development project plan pursuant to the Economic Development Corporations Act, MCL 125.1601 et seq.; MSA 5.3520(1) et seq. Plaintiffs, claiming to be residents and registered electors of Norton Shores, thereafter filed a complaint in Muskegon County Circuit Court contending that the city council had violated due process by committing alleged irregularities in its approval of the project plan. The trial judge denied intervening defendant’s motion for accelerated judgment, ruling that plaintiffs had standing to pursue their action. We reverse and remand for entry of accelerated judgment in favor of intervening defendant. "Standing is the legal term used to denote the existence of a party’s interest in the outcome of the litigation; an interest that will assure sincere and vigorous advocacy.” Michigan License Beverage Ass’n v Behnan Hall, Inc, 82 Mich App 319, 324; 266 NW2d 808 (1978). "Traditionally, a private citizen has no standing to vindicate a public wrong or enforce a public right where he is not hurt in any manner differently than the citizenry at large.” Waterford School Dist v State Board of Education, 98 Mich App 658, 662; 296 NW2d 328 (1980). In the case at bar plaintiffs have not indicated any manner in which the alleged procedural improprieties of the Norton Shores city council affect them in a manner differently from the citizenry at large. This is true notwithstanding the fact that a careful review of the record indicates that this case has been fully, adversarily and vigorously argued to date and that plaintiffs have thus demonstrated a sufficient stake in the outcome of the litigation to insure both opposing interest and the requisite adversariness. However, any alteration of the common-law principles narrowly restricting standing by the present plaintiffs must come from our Michigan Supreme Court or the Legislature. Accordingly, we reverse this case and remand it to the trial court for entry of an order granting intervening defendant’s motion for accelerated judgment on the question of standing. No costs.

C. L. Horn, J. On October 13, 1973, Bryan Beard, age 13, and David Scott Buhler, age 14, entered a Michigan National Guard firing range and found a 40-millimeter grenade. Bryan threw the grenade at a cement abutment on the range, but it did not explode. The boys picked up the grenade and took it back to their campsite located at the Jones Lake Campground, north of the firing range. The grenade was placed in the camper body of a pickup truck. Later that day the boys entered into the area of the camper where the grenade had been left. The grenade fell from a table and ex ploded when it hit the floor, seriously injuring both boys. Plaintiffs’ complaints relating to each boy were consolidated. Motions for summary judgment were filed by plaintiffs under GCR 1963, 117.2(2), and by defendants under GCR 1963, 117.2(3). This is an appeal as of right from the Court of Claims order granting defendants’ motion for summary judgment. The trial court found that defendants’ maintenance of a firing range is a governmental function. As such, defendants are immune from tort liability under MCL 691.1407; MSA 3.996(107), with certain judicially created exceptions. These exceptions are discussed in the Supreme Court recent reexamination of the impact of the nuisance doctrine on governmental immunity in Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). This Court has previously concluded that although no clear majority view has emerged from these cases, there appears to be an agreement that a claim of governmental immunity is defeated where there exists either an intentionally created or continued nuisance in fact or the maintanance of a nuisance per se. Ford v Detroit, 91 Mich App 333, 335-336; 283 NW2d 739 (1979). The question as to what constitutes a nuisance per se is a question of law for the court, while it is for the jury to decide whether a particular act or structure or use of property which is not a nuisance per se is a nuisance in fact. Brown v Nichols, 337 Mich 684, 689; 60 NW2d 907 (1953). The trial court found that defendants created a nuisance per se in the way they maintained the shooting range. We do not review this finding since it is not challenged by either party on appeal. The court also found however that, even though defendants were not protected by governmental immunity due to their maintenance of a nuisance per se, they could not be held liable for the boys’ injuries because liability on the theory of nuisance cannot be extended to injury sustained from dangerous objects taken from the premises on which the nuisance is maintained. We agree with the trial court’s conclusion. Liability for nuisance is predicated on the existence of a dangerous condition. Rosario, supra, 132. "Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 636; 178 NW2d 476 (1970).” Id. Cases have expanded the term "nuisance” to apply to members of the public injured on the landowner’s premises as a result of a dangerous condition. See, Rosario, supra, 140, Munson v Menominee County, 371 Mich 504; 124 NW2d 246 (1963), Bluemer v Saginaw Central Oil & Gas Service, Inc 356 Mich 399; 97 NW2d 90 (1959), Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971). However, there is no authority for expanding liability for nuisance to where a dangerous object is removed from the premises and results in damages elsewhere. This is in contrast to the situation where liability is based upon a defendant’s negligent act, where courts have found the property owner guilty of negligence in situations similar to the case at bar. See, e.g., Stewart v United States, 186 F2d 627 (CA 7, 1951), Shemper v Cleveland, 212 Miss 113; 51 So 2d 770 and 54 So 2d 215 (1951), Parrott v United States, 181 F Supp 425 (SD Cal, 1960), Duvall v United States, 312 F Supp 625 (ED NC, 1970). We have previously held that liability for damage caused by a nuisance turns upon when the defendant was in control, either through ownership or otherwise. Stemen v Coffman, 92 Mich App 595; 285 NW2d 305 (1979). In the instant case, defendants’ liability is based on the maintenance of a dangerous condition resulting from unexploded grenades on defendants’ premises. Liability cannot extend to where an object constituting part of the nuisance or the dangerous condition is removed from defendants’ premises and thus out of their control. We therefore affirm the judgment of the trial court. Allen, J. concurred.

M. J. Kelly, J. Plaintiffs appeal as of right from a decision of the lower court granting the defendant’s motion for summary judgment, pursuant to GCR 1963, 117.2(1), on the ground that the complaint failed to state a cause of action as a matter of law. At the time the incident leading to this cause of action arose, plaintiff Victoria Escobar was employed as a nurse at the defendant hospital. The hospital owned the house in which the plaintiffs resided. It was one of approximately five homes located on Fairfield Street in the City of Detroit, which were leased by the hospital to its employees. The houses were located behind the hospital and separated from the hospital by an adjacent parking area. The houses were serviced by the hospital’s maintenance people and it partially reserved the basement of plaintiffs’ house as a storage area for old records. At approximately 11:50 p.m. on the evening of October 27, 1977, the Escobars returned home from grocery shopping and parked their car in the driveway directly adjacent to their home. After Mrs. Escobar entered the home with the couple’s baby, Mr. Escobar returned to the car to bring in the groceries. While Mr. Escobar was unloading the groceries from the trunk, an unknown black male approached, announced that this was a "stickup” and forced Mr. Escobar back into the house at gunpoint. Once inside the house, the assailant forced the Escobars to lie on the floor, took their wallets and searched the premises. The assailant ordered the couple into the bedroom, forced them to undress and attempted to force Mrs. Escobar to engage in a sexual act with him. Mrs. Escobar then kicked the assailant and both plaintiffs tried to subdue him. The effort was unsuccessful, however, and in the ensuing struggle Mrs. Escobar suffered a gunshot wound to the left shoulder. The assailant then fled and has not been apprehended. The parking lot behind the house was illuminated at night by lights located on top of the hospital which shine in the direction of the parking area and the rear of plaintiffs’ house. The extent of the illumination is an area of dispute. The defendant also employed one security guard who patrolled in and around the hospital grounds. The night of the attack, the defendant’s guard had apparently gone off duty shortly before the incident took place. The area in which the house and the hospital are located was alleged by Mrs. Escobar to be a high crime area. Mrs. Escobar testified at length as to hearsay accounts of purse snatchings, assaults, larcenies and robberies committed on hospital employees and patients on or near the hospital grounds around the time of the instant attack. Further, a number of the other houses leased by the hospital had been subject to breaking and enterings at or about the time of this incident, according to Mrs. Escobar. On March 15, 1978, plaintiffs filed the instant suit, asserting five specifications of alleged negligence: "(a) Defendant failed and omitted although knowing the perils to which Plaintiff and others were exposed, negligently and carelessly failed and omitted to hire proper and sufficient and competent personel [sic] to maintain the security of said premises. "ffi) Failed to conduct reasonable inspections of the security of said premises. "(c) Failed to provide an alternative to plaintiff [sic] exposing herself to such peril to which Defendant, its agents, servants and/or employees had knowledge. "(d) That defendant knew that the area in which the said premises were located was dangerous, that other criminal acts including assaults and burglarys [sic] had taken place, and defendant failed to provide for plaintiffs [sic] safety. "(e) Failed to provide adequate lighting to light those common pathways.” Plaintiffs further alleged a breach of contract by the defendant by its asserted failure to "provide quiet enjoyment and by not maintaining said premises in the very best condition”. On October 19, 1978, the hospital filed its motion for summary judgment pursuant to GCR 1963, 117.2(1), alleging that the plaintiffs failed to state a claim upon which relief could be granted because there was no legal duty upon the defendant to protect against this kind of assault. On March 2, 1979, the motion was heard and denied without prejudice, in order to allow plaintiff an additional 180 days in which to pursue discovery. No additional discovery ensued. On September 28, 1979, the hospital renewed its motion for summary judgment. The court again continued the matter for 60 days, conditioned on plaintiffs’ efforts to complete discovery. Again, no discovery ensued. On December 21, 1979, the matter was reargued. On January 7, 1980, the trial court granted defendant’s motion, stating that "defendant did not owe the plaintiff a duty to protect against the kind of sudden and unforeseeable injury occurring here, and plaintiffs’ com plaint, therefore, fails to state a claim upon which relief can be granted”. In reviewing the propriety of a motion for summary judgment under GCR 1963, 117.2(1) a court looks to the pleadings only. Such a motion is intended to test the legal basis of a complaint, as opposed to the facts available to support it. McCallister v Sun Valley Pools, Inc, 100 Mich App 131, 135; 298 NW2d 687 (1980). Allegations of fact contained in the plaintffs’ complaint and fairly drawn inferences or conclusions therefrom are to be taken as true. Unless the claim is so clearly unenforceable as a matter of law that no factual development could establish a basis of recovery, the motion must be denied. The Michigan Supreme Court has twice considered, under varying fact situations, the propriety of placing a duty of care on landlords to protect their tenants from potential criminal activities. In Johnston v Harris, 387 Mich 569, 573-574; 198 NW2d 409 (1972), the Court discussed the liability of the owner of a four-unit apartment building, in which a tenant was attacked and beaten in an unlocked, unlighted vestibule of the building. The building itself was located in a high crime neighborhood. The Court held: "We are of the opinion that 2 Restatement Torts, 2d, §442B, p 469, cited by the Court of Appeals, is not applicable to the instant case. Rather, in point are §§ 302B, 448 and 449, supra. "Section 302B provides: " 'An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.’ "Section 448 provides: " 'The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. ’ (Emphasis supplied.) "Section 449 provides: " 'If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.’ ” Thus, it was held that a landlord’s duty of care would extend to foreseeable criminal activities by third persons within the common areas of a multiple dwelling unit. The later case of Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975), imposed a duty of care upon the landlord of a commercial office building. In Samson, the Supreme Court upheld a jury verdict in favor of a tenant’s employee based on the defendant’s negligence in renting the premises to a state mental clinic and not, thereafter, taking appropriate steps to protect its other tenants and patrons from foreseeable criminal actions committed by patient-visitors to that clinic. The Court held that the defendant landlord was under a duty to provide some security measures or warnings for the safety of his tenants and visitors and stated: "We prefer to recognize and uphold that duty in these types of relationships, leaving it to the jury to determine the ultimate questions which may impose liability, those of foreseeability, reasonableness and proximate cause.” 393 Mich 393, 409. The Court also saw fit to predicate the defendant’s duty of care on 2 Restatement Torts, 2d, § 314A(3), which places upon the possessor of land open to the public a duty to protect the public from "unreasonable risk of physical harm”. In Graham v Ryerson, 96 Mich App 480, 488; 292 NW2d 704 (1980), we discussed the general rule regarding the finding of duty: "Although the question of duty is generally for determination by the trial court as a matter of law, the jury should examine the issue pursuant to proper instructions, when the facts adduced at trial are in dispute, giving rise to a reasonable difference of opinion as to the foreseeability of the particular risk and the reasonableness of defendant’s conduct in that regard. Robertson v Swindell-Dressler Co, 82 Mich App 382; 267 NW2d 131 (1978), lv den 403 Mich 812 (1978), relying on Prosser, Torts (4th ed), § 37, p 206 and § 45, p 290.” See also Farwell v Keaton, 396 Mich 281, 286-287; 240 NW2d 217 (1976). We do not find the facts, as alleged by the plaintiffs, subject to dispute. Accepting as true the facts so alleged and fairly drawn inferences and conclusions therefrom, the lower court properly determined the issue of duty as a question of law. Further, while there is substantial disagreement over the imposition of a duty on landlords in cases like the present, we have been unable to find any prior decision which would impose such a duty on a landlord in a situation similar to that of the defendant. Despite the Supreme Court’s expressed preference to "recognize and uphold” a landlord’s basic duty to protect tenants from potential criminal activities, we do not believe this duty should extend to fact situations like the present. We find this case readily distinguishable from Berlin v Snyder, 89 Mich App 38; 279 NW2d 322 (1979), wherein the tenant was assaulted and robbed in a common area inside the apartment building in which he lived. There the plaintiff alleged the cause of his injuries was the landlord’s failure to provide and maintain a rear door that closed and locked properly. We found a cognizable theory of negligence in those allegations. We hold that no such cognizable theory of negligence is presented here. The facts as accepted below disclose a series of crimes which began outside of the plaintiffs’ home. There is nothing in the record to suggest that the house was improperly maintained as was the apartment building in Johnston v Harris, supra, or that the home was not equipped with outside lights sufficient for residential purposes. Further, in cases like this we see no landlord duty to provide continuous security personnel as alleged by the plaintiffs. We thus find no error in the lower court’s order granting defendant’s motion for summary judgment. Affirmed. The Samson Court also quoted several additional comments from the Restatement of Torts, pertaining to the duty to protect against criminal activities: "There are, however, situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct; or where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account. The following are examples of such situations. The list is not an exclusive one, and there may be other situations in which the actor is required to take precautions. * * * "B. Where the actor stands in such a relation to the other that he is under a duty to protect him against such misconduct. Among such relations are those of carrier and passenger, innkeeper and guest, employer and employee, possessor of land and invitee, and bailee and bailor. * * * "D. Where the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.” 2 Restatement Torts, 2d, § 302B, pp 90-91. See the extensive summary of decisions concerning this issue in 43 ALR3d 331.

Per Curiam. Defendant appeals as of right his jury conviction of first-degree felony murder. MCL 750.316; MSA 28.548. This action arose out of an incident where it was alleged that defendant murdered one Clinton Lockhart during the commission of an armed robbery. Defendant was originally tried and convicted on this charge in March, 1977. This Court reversed that conviction on the ground that the trial court had failed to exercise its discretion on the record in considering the admissibility of defendant’s prior convictions. People v Dennis Johnson, 85 Mich App 181; 270 NW2d 734 (1978). Defendant raises four issues in this appeal, only one of which requires discussion by this Court. Defendant argues that the trial court committed error requiring reversal in admitting into evidence testimony indicating that defendant had remained silent in the face of an accusatory statement. The testimony was that of an acquaintance of defendant, Tommy Wright, and consisted of a conversation had shortly after the armed robbery. Judy Krisel, an accomplice to the robbery and murder, was also present. Wright testified that he asked defendant if he could see the gun which defendant had obtained from another individual earlier that evening. Defendant did not reply; however, Krisel responded that defendant had just shot somebody. Wright testified that defendant made no response to Krisel’s statement. Defendant objected to the admission of the testimony and moved for a mistrial. Plaintiff argued that the testimony was admissible as an adoptive admission. MRE 801(d)(2)(B). Defendant argued that even if defendant’s action constituted an adoptive admission, defendant adopted the statement through his silence and, thus, the testimony was inadmissible under the rule of People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). Plaintiff then argued that the circumstances surrounding the conversation established that defendant understood and unambiguously assented to the statements made, and, thus, the testimony was admissible. People v Dietrich, 87 Mich App 116, 130; 274 NW2d 472 (1978). The trial court ruled that since Krisel, an eyewitness and accomplice to the robbery and murder, had testified that defendant did shoot the victim, Wright’s testimony was not prejudicial and would be admitted. Even assuming arguendo that the foregoing was error, we do not feel that a reversal of defendant’s conviction is mandated. An eyewitness and accomplice, Judy Krisel, testified that defendant shot the victim four times in the back of the head. That testimony was corroborated by that of a witness from the medical examiner’s office and reflected information not available to Krisel unless she was present at the time of the shooting. Defendant admitted to being with Krisel for a large part of the night in question. Another individual testified that on the evening before the shooting he had shown defendant a gun which he owned, that he left the room in which they were standing for a short period of time, and that upon returning he discovered that both defendant and the gun were gone. That witness also testified that on the morning following the shooting defendant returned the gun. The witness testified that all of the shells which had been in the gun were gone and that the gun smelled as if it had been fired recently. In light of this evidence, this Court cannot conclude that defendant would have had a reasonable likelihood of acquittal in a trial free of any such inadmissible testimony. People v Hurd, 102 Mich App 424; 301 NW2d 881 (1980). Having examined defendant’s remaining allegations of error we find them to be without merit. See People v Gerald Hughes, 85 Mich App 8; 270 NW2d 692 (1978), and People v McQueen, 85 Mich App 348; 271 NW2d 231 (1978). Moreover, Ms. Krisel’s response that she had seen the murder weapon when the "trial started three years ago” was inadvertent and unsolicited. Affirmed.

Per Curiam. Plaintiff appeals from a circuit court order granting defendant’s motion for summary judgment. Plaintiff is the owner of Fashion Square Mall, located in Saginaw Township. Defendant entered into a 15-year-lease agreement for the operation of a Big Boy Restaurant inside the mall. A base rental was to be paid by defendant plus a percentage of the gross sales in excess of $412,500. The pertinent lease provision contained the following language: "TENANT agrees that, so long as this lease shall remain if effect, TENANT (or any officer, director, or shareholder owning capital stock of TENANT if TENANT be a corporation) will not, within a radius of three (3) miles of the perimeter of the Shopping Center of which the PREMISES are a part, either directly or indirectly, own, operate or be financially interested in, either itself or with others, a business like, or similar to, the business permitted to be conducted under Subsection 7(a) hereof. LANDLORD, for breach of this covenant and in addition to any other remedy otherwise available, may require that all sales from any such business be included within gross sales as used in the computation of Percentage Rent pursuant to Subsection 3(b) hereof as though such sales had actually been made from the PREMISES.” Defendant subsequently entered into an agreement with Baysha Restaurants for the construction of a Big Boy Restaurant within the three-mile radius of the mall. In return for granting the franchise, defendant received a franchise fee and a percentage of the monthly gross sales. Upon discovery of the construction of the restaurant within the three-mile radius, plaintiff filed this suit and sought an injunction or the addition of the gross sales of Baysha Big Boy to the gross sales of defendant’s restaurant within the mall. Plaintiff subsequently dismissed its claims for an injunction and rested its claim upon the additional gross sales provision. The trial court found that the agreement between plaintiff and defendant violated MCL 445.761; MSA 28.61 because defendant covenanted that it would not compete within three miles of the mall. Plaintiff claims that this provision did not come within the proscriptions of the statute or that, even if it did, it should be upheld because it is reasonable. Plaintiff asserts that the agreement does not prohibit competition within the three-mile area bacause the gross sales provision is not an agreement by defendant "not to engage in any business”. However, the prior language in the lease provision which states that defendant will not open a business within the three-mile radius belies the assertion. Plaintiff points to Couch v Administrative Com mittee of the Difco Laboratories Inc Salaried Employees Pro&t Sharing Trust, 44 Mich App 44; 205 NW2d 24 (1972), in support of this position. That case is distinguishable from the facts of the case at bar. There the Court said that the statute did not apply to a forfeiture of an interest in a profit sharing plan as a result of the employee being employed by a competitor. The Court noted that a forfeiture was not a covenant not to compete with his employer. The same result was reached in Tweedle v Tweedle Litho Co, 80 Mich App 418; 264 NW2d 9 (1978). The Michigan Supreme Court has agreed that a forfeiture of employee benefits as a result of employment with a competitor does not fall within the statutory proscription. Woodward v Cadillac Overall Supply Co, 396 Mich 379; 240 NW2d 710 (1976). However, when the contract uses language such as "not to engage in”, "shall not”, "will not”, "no partner shall engage”, or "agrees not to compete”, the courts have found the statute to have been violated and the provisions unenforceable. See E W Smith Agency, Inc v Sanger, 350 Mich 75; 85 NW2d 84 (1957), Lyzen v Lyzen, 221 Mich 302; 191 NW 6 (1922), Grand Union Tea Co v Lewitsky, 153 Mich 244; 116 NW 1090 (1908), Bernstein, Bernstein, Wile & Gordon v Ross, 22 Mich App 117; 177 NW2d 193 (1970), and Mackie v State Farm Mutual Automobile Ins Co, 13 Mich App 556; 164 NW2d 777 (1968), lv den 381 Mich 806 (1969). The language in the lease which states that defendant will not construct a restaurant within three miles of the mall is in violation of the statute and, therefore, improper. Plaintiff claims that even if this provision comes within the statute it should be upheld because the provision is reasonable. It claims that Gasses v Razk, 219 Mich 500; 189 NW 37 (1922), and Bobenal Investment, Inc v Giant Super Markets, Inc, 79 Mich App 31; 260 NW2d 915 (1977), lv den 402 Mich 870 (1978), allow for application of a reasonableness standard which is within the boundaries of the statute. Both of those cases involve unique factual situations. The restrictions there were imposed on the owner by the tenant. These restrictions lasted for the term of the lease which had been surrendered by the tenant to the landlord-owner. The Courts noted that because the owner had an absolute right to impose limitations on the use of his land during the term of the lease, the tenant had a similar right to the continuance of those restrictions when the lease was surrendered before its term had expired. These sanctions could arguably be within the exception stated in MCL 445.766; MSA 28.66. We find that the foregoing cases dod not reach the situation at hand. Plaintiffs citation to other jurisdictions for the proposition that a rule of reason should be applied ignores the language of the Michigan statute, which states that the agreement is illegal and void regardless of whether it is reasonable or unreasonable. For that reason, CK & JK, Inc v Fairview Shopping Center Corp, 63 Ohio St 2d 201; 407 NE2d 507 (1980), Pensacola Associates v Biggs Sporting Goods Co, 353 So 2d 944 (Fla App, 1978), and Winrock Enterprises, Inc v House of Fabrics of New Mexico, Inc, 91 NM 661; 579 P2d 787 (1978), are not applicable. We are in agreement with the trial court that the provision as written is in violation of the statute and is, therefore, unenforceable. Affirmed, costs awarded to defendant.

Per Curiam. Plaintiff-appellant, Terrance O’Keefe (hereinafter "O’Keefe”) appeals from a trial court’s grant of accelerated judgment, GCR 1963, 116, in favor of defendant-appellee, Clark Equipment Company, based upon the running of the statute of limitations. On July 19, 1976, O’Keefe’s hand was injured when a defective fork lift dropped a piece of machinery on it. On June 22, 1979, he commenced this action against John Doe Corporation claiming that the defective fork lift, manufactured by that corporation, caused his injury. On July 10, 1979, plaintiff had the Record Copy Service Corporation perform a record copy deposition on his employer to discover who manufactured the fork lift. See GCR 1963, 302.2. After receipt of the material requested by the deposition, it was discovered by plaintiff that the Clark Equipment Company manufactured the fork lift. Plaintiff’s attorney received a copy of the deposition on August 13, 1979. On October 17, 1979, the plaintiff filed an amended complaint naming Clark Equipment Company as the defendant. On December 10, 1979, Clark moved for accelerated judgment which the trial court granted based upon the running of the statute of limitations. The plaintiff appeals the grant of accelerated judgment. GCR 1963, 118.4 allows a plaintiff to amend his complaint and governs whether an amendment relates back to the date of the original complaint. In Charpentier v Young, 83 Mich App 145, 149-150; 268 NW2d 322 (1978), rev’d on other grounds 403 Mich 851 (1978), this Court addressed the issue of whether a plaintiff could amend his complaint to add a party after the statute of limitations had run. This Court stated: "We, therefore, conclude that whether a party seeking to add parties to the litigation has complied with the court rules so as to entitle, him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court’s review of the circumstances leading up to the filing of the amended complaint by filing a motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case.” This Court in Charpentier stated that a plaintiff may avoid a defense based upon the statute of limitations only where he can demonstrate diligence in discovery and compliance with procedural rules. Id., 151. The plaintiff in the instant case did not use due diligence, and this Court affirms the trial court’s grant of accelerated judgment. In this case, the applicable statute of limitations was three years. MCL 600.5805(8); MSA 27A.5805(8). Plaintiff did not commence his action until a month before the statute was to run. While plaintiff did begin discovery immediately, he did not press for the material from the record copy deposition which contained the information needed to join the real manufacturer. Rather, plaintiff waited until August 13, 1979, for the information and did not file an amended complaint until October 17, 1979. Furthermore, the plaintiff did not comply with GCR 1963, 118 when he amended his complaint, having filed no motion to so amend, as mandated by GCR 1963, 118.1. Therefore, the trial court did not err in granting defendant’s motion for accelerated judgment. Plaintiff argues that defendant is a necessary party and can therefore be joined under GCR 1963, 205 even though the statute of limitations has run. The statute of limitations runs until a plaintiff amends his complaint to join the party. Forest v Parmalee (On Rehearing), 60 Mich App 401, 406; 231 NW2d 378 (1975), aiPd on other grounds 402 Mich 348; 262 NW2d 653 (1978). However, Parmalee also establishes three exceptions to the rule, one of which allows the joinder of a necessary party after the statute of limitations has expired. Id. Plaintiff argues that defendant is a necessary party because it is the only party from which plaintiff can recover. In this case, plaintiff filed suit against this defendant after the statute of limitations had run. Even if it is true that Clark Equipment Company is the only defendant from which plaintiff can recover, this does not render the statute of limitations inapplicable. If plaintiff’s argument were to be accepted, any plaintiff who filed suit against a fictitious defendant prior to the running of the statute of limitations could circumvent the statute by claiming that the defendant to be joined was a necessary party. This would prevent the operation of the statute of limitations even though the plaintiff was not diligent in bringing his suit. We therefore conclude that the trial court did not err in granting accelerated judgment and affirm. Costs to defendant. The Notice of Taking Record Copy Deposition instructed plaintiffs employer, pursuant to GCR 1963, 302, to produce certain documents concerning the injury of plaintiff, Terrance O’Keefe. These records were copied and forwarded to plaintiff’s attorney, providing him with the name of the true defendant in this action. >

Allen, J. On January 2, 1980, Oakland County Circuit Judge Gilbert issued an order granting plaintiffs’ motion for summary judgment. The order precluded defendants’ recovery of interest on a mortgage note made by plaintiffs, denied defendants’ motion to amend their answer, denied defendants’ motion to file a counterclaim and to add a party defendant, and ordered defendants to pay plaintiffs’ attorney fees and court costs. Defendants appeal as of right. On April 29, 1976, plaintiffs executed a promissory note in the principal amount of $20,000 payable to the order of defendants. The note, prepared by plaintiffs’ attorney, called for a 12% per annum interest rate. Plaintiffs secured the note with a second mortgage on their home. During the life of the note, plaintiffs had paid defendants $5,000 as interest but had made no payments on the principal. When the note matured, plaintiffs contended that defendants could not recover interest on the note because the interest rate was usurious. Plaintiffs demanded the prior payments be applied against the principal and offered to pay the remaining principal balance. Defendants maintained the full $20,000 plus interest was due and commenced foreclosure by advertisement, as provided under the terms of the mortgage. On September 12, 1978, plaintiffs filed a complaint asking the trial court to declare the 12% note usurious, to order that all prior interest payments be applied to the principal balance due, and to order the note discharged upon total payment of $20,000. Defendants’ answer to plaintiffs’ complaint conceded that the note was usurious but denied that plaintiffs had offered to pay the principal on maturity. The answer raised two affirmative defenses: (1) that plaintiffs had unclean hands since the note had been prepared by their attorney; and (2) that the usury statute was unconstitutional as discriminating against the individual lender. On September 14, 1978, a temporary restraining order was issued preventing foreclosure. After both plaintiffs and defendants moved for summary judgment, the trial court granted summary judgment in favor of plaintiffs, ruling (1) that plaintiffs’ complaint for declaratory judgment was the assertion of a statutory right to prevent defendants’ enforcement of a usurious contract, (2) that the equitable defense of unclean hands was not available to defendants, and (3) that defendants were barred by their own attempt to enforce a usurious contract from collecting any interest on the note. The trial court also ruled that any sums heretofore paid by plaintiffs were to be credited against the principal balance, that defendants were entitled to the unpaid principal balance, and that no attorney fees would be awarded. The written opinion of the trial court was filed on August 27, 1979. On September 28, 1979, plaintiffs moved for reconsideration of that part of the trial court opinion denying attorney fees. On October 2, 1979, defendants made motions to amend the pleadings to allege fraud on behalf of plaintiffs and to add Eugene Hanlon, the attorney for plaintiffs who drew up the usurious note, as a third-party defendant. A hearing on this motion was held on October 24, 1979. Judge Gilbert denied defendants’ motions and stated that plaintiffs were entitled to attorney fees as part of the final judgment. The first question raised before this Court is whether the trial court erred in ruling that all interest previously paid by plaintiffs must be applied to reduce the principal debt. We find that the trial court did not err. MCL 438.32; MSA 19.15(2) sets forth the penal provision incurred by a violation of the interest limit established in MCL 438.31; MSA 19.15(1). In Michigan Mobile Homeowners Ass’n v Bank of the Commonwealth, 56 Mich App 206; 223 NW2d 725 (1974), this Court provided an historical perspective of MCL 438.32; MSA 19.15(2): "From 1891 until the present language was adopted by 1966 PA 326, the enforcement provision of the general usury law was 1891 PA 156, §2, which provided: " 'No bond, bill, note, contract or assurance, made or given for or upon a consideration or contract, whereby or whereon a greater rate of interest has been directly or indirectly, reserved, taken or received, than is allowed by law, shall be thereby rendered void; but in any action brought by any person on such usurious contract or assurance, except as is provided in the following section, if it shall appear that a greater rate of interest has been, directly or indirectly, reserved, taken or received, than is allowed by law, the defendant shall not be compelled to pay any interest thereon.’ "Under the 1891 statute it was held that one could not maintain an independent suit to recover interest paid on a usurious contract; however, once enforcement of the usurious contract was sought, the borrower could avail himself of the statute and seek to have all of the interest previously paid applied against any outstanding principal.” 56 Mich App 206, 212-213. (Emphasis supplied.) The foregoing analysis is amply supported by judicial interpretation of the statute. Fretz v Murray, 118 Mich 302; 76 NW 495 (1898), Gladwin State Bank v Dow, 212 Mich 521; 180 NW 601 (1920), Leon v Zlatkin, 265 Mich 225; 251 NW 377 (1933), Union Guardian Trust Co v Crawford, 270 Mich 207; 258 NW 248 (1935), McKenna v Wilson, 280 Mich 227; 273 NW 457 (1937), See also Lincoln National Bank v Kaufman, 406 F Supp 448 (ED Mich, 1976). It is therefore undisputed that MCL 438.32 compels application of any interest heretofore paid to the extinguishment of the principal outstanding debt. Defendants argue that the recent decision of Bebee v Grettenberger, 82 Mich App 416; 266 NW2d 829 (1978), alters this conclusion. We disagree. The question before the Bebee Court was whether a second mortgage was restricted to the 7% maximum interest rate authorized by MCL 438.31c; MSA 19.15(l)(c). The Bebee Court correctly ruled in the affirmative. The Bebee decision then, iri dicta, engaged in a cursory summation of the penalties for charging a usurious rate of inter est. Defendants choose to ignore the first statement which cites the present statute and states that the seller is barred "from recovery of any interest”. Bebee, supra, 423. Instead, defendants rely upon the following statement of the Bebee decision which cites Wright v First National Bank of Monroe, 297 Mich 315, 328; 297 NW 505 (1941), as its source: "Usurious interest already freely and voluntarily paid by the buyer cannot be recovered but usurious interest remaining due and payable may not be collected.” Bebee, id. To the extent this statement may be interpreted as being applicable to the present fact situation, it is incorrect. The meaning of this statement is that where a borrower voluntarily satisfied the entire obligation, the lender is entitled to retain the usurious interest paid. This interpretation is made clear by a reading of the cited case. Wright, supra, 328. In accord, Fretz, supra, citing Fowler v Equitable Trust Co, 141 US 384; 12 S Ct 1; 35 L Ed 786 (1891). Next, we must determine whether the trial court erred in precluding defendants from raising the equitable defense of unclean hands. We find no error. In the instant case, defendants attempted to enforce a usurious obligation. McKenna, supra, Bebee, supra, Michigan Mobile Homeowners Ass% supra. Plaintiffs did not bring suit in equity to have the usurious obligation set aside but merely requested a determination of their legal rights under MCL 438.32. As such, defendants may not raise the equitable defense of unclean hands as to plaintiffs’ request for a determination of their legal rights. Did the trial court err in denying defendants’ motion to amend their answer, to counterclaim against plaintiffs for fraud, and to add plaintiffs’ former attorney, who drafted the usurious note, as a third-party defendant? "GCR 1963, 118.1 permits a party to amend its pleading by leave of court, which 'shall be freely given when justice so requires’. Although the decision to allow amendment is within the trial court’s discretion, Leahy v Henry Ford Hospital, 84 Mich App 719, 722; 271 NW2d 34 (1978), as a general rule, leave should be granted absent unfair prejudice to the opposing party. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 71 Mich App 177; 247 NW2d 589 (1976), rev’d on other grounds 400 Mich 184; 253 NW2d 646 (1977). When denying a motion to amend, the court should state specific reasons why justice would not be served by granting the amendment. Goldsmith v Moskowitz, 74 Mich App 506; 254 NW2d 561 (1977).” Rubino v City of Sterling Heights, 94 Mich App 494, 499; 290 NW2d 43 (1979). A motion to amend a pleading should be denied only for particular reasons "such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment”. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973), citing Foman v Davis, 371 US 178; 83 S Ct 227; 9 L Ed 2d 222 (1962). Moreover, a grant or denial of a motion to add a party or a motion to file a counterclaim is governed by the same standard applicable to a motion to amend pleadings. Drapefair, Inc v Beitner, 89 Mich App 531; 280 NW2d 585 (1979), Wallace v Patterson, 85 Mich App 266, 269; 271 NW2d 194 (1978), rev’d on other grounds 405 Mich 825 (1979), Vermont Mutual Ins Co v Dalzell, 52 Mich App 686; 218 NW2d 52 (1974). In the present case, the trial court denied defendants’ motions stating that, as a matter of law, the proposed counterclaim did not state a cause of action for fraud as defendants are presumed to have known the law as to usurious interest rates and that any amendment would be prejudicial to plaintiffs. The trial court was in error in ruling as a matter of law that defendants did not state a cause of action for fraud. Rosenburg v Cyrowski, 227 Mich 508; 198 NW 905 (1924), is on point. In Rosenburg, it was alleged that the attorney for the other party to a contract knowingly made a false statement of law to the plaintiffs who were dealing with the attorney’s client. Plaintiffs alleged that this statement was made with the intent to deceive the plaintiffs and to relieve the attorney’s client from paying money to the plaintiffs which the plaintiffs had earned. The Supreme Court held that such allegations were sufficient, if believed by a jury, to allow recovery in fraud. The Court stated: "It is the general rule that 'fraud cannot be predicated upon misrepresentations as to matters of law.’ * * * The writer, however, adds that the rule 'may be rendered inapplicable by the existence of peculiar facts and circumstances.’ * * * The rule is founded on the maxim that 'All men are presumed to know the law.’ Experience teaches us that this maxim finds but little support in fact. It may be doubted if it was ever intended to excuse fraud.” Rosenburg, supra, 513. See also Holt v Rickett, 143 Ga App 337; 238 SE2d 706 (1977), and Liebergesell v Evans, 93 Wash 2d 881; 613 P2d 1170 (1980). The same rationale applies to the present defen dants’ motion to amend, motion to file a counterclaim against plaintiffs, and motion to add plaintiffs’ original attorney as a third-party defendant. The trial court’s conclusionary statement that amendment would prejudice plaintiffs is not a specific or particular reason for the denial of defendants’ motions. The trial court specifically declined to rule defendants’ motions untimely. Plaintiffs claimed no specific prejudice nor did the trial court find specific prejudice to plaintiffs. We find that the trial court, although ruling correctly as to the motions heretofore discussed, erred in denying defendants’ motions to amend, to file a counterclaim alleging fraud, and to add plaintiffs’ original attorney as a third-party defendant. Rubino, supra. Lastly, for the first time on appeal, defendants argue that the amount of attorney fees awarded plaintiffs was excessive. Since defendants’ trial counsel failed to object to the amount of the award of attorney fees, and, in fact, specifically stated that he could not argue that the fee was unreasonable, we affirm the amount of the award of attorney fees. Magreta v Ambassador Steel Co, 380 Mich 513; 158 NW2d 473 (1968), Walls v Director of Institutional Services, 84 Mich App 355; 269 NW2d 599 (1978), Oakland County v Detroit, 81 Mich App 308; 265 NW2d 130 (1978). Remanded for further proceedings as to defendants’ claim of fraud. Affirmed in part; reversed in part. No costs, neither party having prevailed in full._ MCL 438.32; MSA 19.15(2) provides: "Any seller or lender or his assigns who enters into any contract or agreement which does not comply with the provisions of this act or charges interest in excess of that allowed by this act is barred from the recovery of any interest, any official fees, delinquency or collection charge, attorney fees or court costs and the borrower or buyer shall be entitled to recover his attorney fees and court costs from the seller, lender or assigns.” It should be noted that defendants’ motions were filed approximately one month after the trial court’s written opinion was filed and only four days after plaintiffs’ motion for reconsideration concerning attorney fees was filed.

M. J. Kelly, J. This case presents a first impression question in Michigan; that is, where an injury occurs in the course of employment to one alleged to be an employee of the United States Government under the Federal Comprehensive Employment and Training Act, is a dual employment question of fact presented which precludes summary judgment? Plaintiffs appeal as of right from separate lower court orders granting defense motions for summary judgment. On June 23, 1976, the plaintiffs’ daughter, Patricia Ann Haselhuhn, was killed in a motor vehicle collision at Stoney Creek Metropark. Patricia Ann was employed under the Comprehensive Employment and Training Act (CETA), 29 USC 801 et seq., and was working at the park as a groundskeeper. The park was operated by defendant Huron-Clinton Metropolitan Authority (HCMA). At the time of her death, Patricia Ann was allegedly under the supervision of defendants Watts and Armstadt, who were employees of HCMA and whose duties included supervision of CETA employees. Just prior to the fatal accident, Patricia Ann was directed to drive a golf-cart-like vehicle the wrong way on a one-way road for an undisclosed purpose. At that time, the park was not open and weather conditions were foggy. In the fog, Patricia Ann’s vehicle collided with a truck traveling in the opposite direction. This case comes before us on the odd procedural origin of final orders entered in different circuits. On July 6, 1977, plaintiffs brought suit against the HCMA in Wayne County Circuit Court. HCMA filed motions for summary and accelerated judgments on two grounds: (1) that plaintiffs’ suit was barred by governmental tort immunity and (2) that the deceased was an employee of the HCMA and, as such, plaintiffs’ exclusive remedy was under workers’ compensation. Plaintiffs later moved to amend their complaint to join Armstadt and Watts as defendants. On February 21, 1978, Judge Horace Gilmore of the Wayne County Circuit Court granted the motion to amend. The next day Judge Gilmore granted HCMA’s motion for summary judgment on the basis of governmental immunity, but held in abeyance the motion for accelerated judgment on the exclusive remedy of workers’ compensation. In the interim, Armstadt and Watts moved to change venue to Macomb County, which motion was granted on July 13, 1978. Once the case against Armstadt and Watts reached Macomb County, the defendants filed motions for accelerated and summary judgments on the same grounds alleged by HCMA in Wayne County. On March 16, 1979, Macomb County Circuit Court Judge Edward J. Gallagher granted summary judgment on both grounds and issued an order to that effect on August 3,1979. I In recent years the issue of governmental tort immunity for parks and recreational areas has produced considerable activity in the appellate courts in this state. For example, in a case involving one of these parties, this Court held that the operation of a park and recreational area is a governmental function and thus clothed with governmental immunity. Rohrabaugh v Huron-Clinton Metropolitan Authority Corp, 75 Mich App 677; 256 NW2d 240 (1977). However, as a result of several closely divided opinions from the Supreme Court, this Court has reexamined the issue presented in Rohrabaugh several times, with conflicting results. Governmental immunity from tort liability is provided by statute: "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.” MCL 691.1407; MSA 3.996(107). A split of authority has developed in the Supreme Court over how this act should be applied. Justices Fitzgerald, Kavanagh and Levin would limit governmental functions under this act to those activities that are "of essence to governing”. Parker v Highland Park, 404 Mich 183, 194; 273 NW2d 413 (1978), dissent in Perry v Kalamazoo State Hospital, 404 Mich 205, 215; 273 NW2d 421 (1978). Justices Ryan, Williams and Coleman would apply the common-law principles developed for the passage of the governmental immunity act to determine whether the government should be immune. Parker, supra, dissenting opinion, 203, Perry, supra, 210-211. Justice Moody wrote separately in Perry and Parker engrafting on the Kavanagh-Levin-Fitzgerald language an "only by government” limitation: "To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” Parker, supra, 200. See also Keenan v Secretary of State, 103 Mich App 82; 302 NW2d 602 (1981). Before applying these various tests to the facts of the instant case, it is necessary to determine what function the government branch was performing when plaintiffs’ decedent was injured. HCMA was filling a dual role at the time of the accident. First, HCMA was involved in training the unemployed as part of its agreement to accept CETA workers. Second, HCMA was involved in the maintenance of a recreation area for the benefit of the public. The training of unemployed workers is a task that has been assumed by the government from the. depression era onward. No private agency would be likely to undertake this function, as little profit could be found in such a task. Thus, under either the common-law test or the essence of governing standard, we regard training in connection with CETA as a governmental function. The question of whether HCMA was filling a governmental function in maintaining a recreation area is closer. Plaintiffs rely on Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), for the proposition that maintenance of a park is not a governmental function. In that case, however, the Court was considering a playground —not a large recreational area — and the majority did not rule on whether operating a playground is a governmental function. Since Perry and Parker, this Court has twice considered whether the operation of large recreational areas constitutes an immune governmental function. In Daugherty v Michigan, 91 Mich App 658; 283 NW2d 825 (1979), the Court considered the issue when a. patron at the Proud Lake Recreation Area was seriously injured by diving from an abandoned bridge into the Huron River. The Court recognized the traditional view of park operations but found that the changing views of the Supreme Court required a different result. The Court held: "In applying the law as stated in the recent decisions of our Supreme Court as we understand it, it appears that the operation of a recreational area is not 'of essence to governing’ because it is not an activity which can be done only by government. Private recreational areas do exist and provide essentially the same services. Also under the analysis stated by Mr. Justice Moody, in Parker, the instant case does not present a situation where the purpose, planning, carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by government. In addition, liability would not be an unacceptable interference with the government’s obligation to govern. "Applying the principles laid down in Parker, we rule that the operation of the recreational area in question was not a governmental function. Therefore, defendants would not enjoy governmental immunity.” Id., 663. More recently another panel of this Court limited the broad language of Daugherty. Faced with a similar situation (drowning at a swimming area in a state recreation facility), the Court in Feliciano v Dep’t of Natural Resources, 97 Mich App 101, 107-108; 293 NW2d 732 (1980), held: "In summary, to the extent that Daugherty, supra, holds that the entire spectrum of the Department of Natural Resources statutory prescribed operation of the Pinckney Recreation Area is not a governmental function, we disagree with Daugherty. But to the extent, that case holds that the conduct and operation of a bathing and swimming area is a nongovernmental function to which the defense of immunity does not apply, we agree with the decision.” (Footnote omitted.) Applied to the instant case, the holding in Feliciano guides our conclusion that governmental immunity is a valid bar to the plaintiffs’ action against HCMA. The decedent’s duties as a groundskeeper in this case were performed in support of the overall operation of the park, an activity generally performed only by government entities. Absent evidence that the decedent was working to accomplish a nongovernmental task at the time of the accident, the cause of action against HCMA was properly dismissed. II We next address the question whether Patricia Ann Haselhuhn, a participant in the federal government’s Comprehensive Employment and Training Act (CETA) program, 29 USC 801 et seq., was an "employee” of the park and thus limited to recovery under the Worker’s Disability Compensation Act. MCL 418.101 et seq.; MSA 17.237(101) et seq. Under MCL 418.131; MSA 17.237(131), an employee is limited to those benefits provided by the act to compensate for personal injuries received in the course of employment. The act also defines those employees to whom the exclusive remedy provisions are applicable. In relevant part, MCL 418.161(l)(c); MSA 17.237(161)(l)(c), provides: "An employee as used in this act shall mean: "(c) Every person engaged in a federally funded training program or work experience program which mandates the provision of appropriate workmen’s compensation for participants and which is sponsored by the state or a county, city, township, village, or school district, or an incorporated public board or public commission in the state authorized by law to hold property and to sue or be sued generally, or any consortium thereof, shall be considered, for the purposes of this act, to be an employee of the sponsor and entitled to the benefits of this act. The sponsor shall be responsible for the provision of workmen’s compensation and shall secure the payment of compensation by a method per mitted under section 611. When a sponsor contracts with a public or private organization to operate a program, the sponsor may require the organization to secure the payment of compensation by a method permitted under section 611.” A pertinent Federal provision also provides: "Except as otherwise provided, the following conditions are applicable to all programs under this chapter: "(d)(5) Appropriate workers’ compensation or equivalent protection shall be provided to all participants”. 29 USC 823(d)(5). Applying the above statutes, it is clear that the decedent was an "employee” for purposes of the workers’ compensation act. As such, the Macomb County Circuit Court committed no error in dismissing the plaintiffs’ claim against defendants Armstadt and Watts. Affirmed. The statute provides: "The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.” Our conclusion that the Worker’s Disability Compensation Act provides an exclusive remedy for the decedent’s fatal injuries precludes the necessity of considering whether defendants Armstadt and Watts could also claim governmental immunity.

Brickley, J. In this case, we are asked whether the fireman’s rule adopted in Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347; 415 NW2d 178 (1987), applies to bar a suit brought by a police officer injured following a high speed chase. Because we believe that it does, we reverse the decision of the Court of Appeals and affirm the circuit court’s order of summary disposition. I During the early morning hours of February 2, 1986, Sergeant Charles Woods of the Center Line Department of Public Safety was on police patrol in Center Line. Reserve Officer Phillip Smart accompanied him. Around 2:50 a.m., Sergeant Woods received word that a Camaro z-28 had been stolen and was proceeding down a nearby street. Abandoning normal patrol duties, he drove to investigate. He spotted the stolen car as it drove past the street on which Sergeant Woods was then driving. Sergeant Woods notified the dispatcher that he had located the car and gave chase. Upon seeing Sergeant Woods, the driver of the stolen car accelerated rapidly. Sergeant Woods also sped up, trying to maintain observation of the vehicle. As the two cars sped down Lawrence Street, Reserve Officer Smart began alerting other police officers of the incident so that they could saturate the area. As they drove, Sergeant Woods interrupted Officer Smart and took over radio communications himself. Lawrence Street runs through both the City of Center Line and the City of Warren. Although starting in Center Line, the two cars quickly entered Warren. Lawrence Street, a north-south street, ends where Republic Street, an east-west street, cuts across it, forming a "t” intersection. The stolen car approached Republic Street, attempted to turn, but could not because of glaze ice on the road, drove over the curb and came to rest in the living room of an unoccupied house on Republic Street. The thief then fled on foot. Sergeant Woods meanwhile also attempted to slow down as he approached the intersection, but, because of the icy road, could not, and smashed into the same house, suffering injuries to his pelvis and hip. On September 26, 1986, Sergeant Woods and his wife brought this action in the Macomb Circuit Court. Following discovery, the circuit court granted defendant’s motion for summary disposition on the basis of the fireman’s rule. Plaintiff appealed, and the Court of Appeals reversed the circuit court’s order. 183 Mich App 656; 455 NW2d 382 (1990). Defendant then filed an application for leave to appeal, which we granted. 437 Mich 1035 (1991). II Taking plaintiff’s well-pleaded allegations as true, the particular facts alleged call for application of the fireman’s rule as adopted in Kreski v Modern Electric. Because Sergeant Woods’ injury resulted directly from his performance of police duties, the Macomb Circuit Court’s order granting summary disposition was correct. The fireman’s rule has a long and impressive common-law heritage. Michigan first embraced it in Kreski. The fireman’s rule prevents police officers and fire fighters from recovering for injuries sustained in the course of duty. Id. at 358. Even though several rationales have been advanced, the most basic is "that the purpose of safety professions is to confront danger and, therefore, the public should not be liable for damages for injuries occurring in the performance of the very function police officers and fire fighters are intended to fulfill.” Id. at 368. When this rationale is implicated and no other considerations outweigh it, the fireman’s rule requires dismissal of a safety officer’s suit. Adjudicating these disputes requires "balancing] the underlying rationales with the interest of allowing recovery when those rationales are not implicated.” Id. at 371. Thus, the rule will develop mainly through case-by-case adjudication of concrete disputes. We follow that approach today. We believe plaintiff’s suit presents a clear case for the application of the fireman’s rule. In both Kreski and Reetz v Tipit, Inc, a case consolidated and decided with Kreski, this Court applied the fireman’s rule to bar suits brought by a fire fighter and a police officer who suffered injuries directly related to performance of their duties. This Court dismissed both suits because the injuries clearly occurred while the safety officers were performing their duties. In Kreski, a fire fighter was killed when a part of a burning building’s roof fell on him. In Reetz, a police officer suffered injuries when she fell down a trap door while investigating a burglary. Each injury occurred in the performance of a duty characteristic of the particular safety officer’s job. Sergeant Woods’ crash occurred while he was performing a classic police function. After receiving a radio report of a stolen car, he located it, informed the dispatcher, and pursued it. Sergeant Woods was no longer merely on patrol; he was actively engaged in one of a police officer’s most common duties. Needing to maintain sight of the stolen vehicle, Sergeant Woods accelerated to speeds between forty and forty-five miles per hour. Driving at high speeds on potentially icy roads obviously increases the risk of an accident such as Sergeant Woods’. This injury clearly stems from the performance of a fundamental police function. In such circumstances, the fireman’s rule "foundational policy rationale” applies, and plaintiff’s suit must share the same fate as those in Kreski and Reetz, i.e., dismissal. III Plaintiff seeks to avoid application of the fireman’s rule with four arguments. First, he argues that an affirmative statutory obligation exists to maintain roads in a safe condition. MCL 691.1402; MSA 3.996(102). That duty, he suggests, allows "any person” to bring suit against a governmental entity for injuries caused by breach of that obligation. Second, he contends that the fireman’s rule ought not to apply because the injury suffered by Sergeant Woods is not "unique” to police duties. Third, he argues that a number of "exceptions” to the fireman’s rule apply, allowing Sergeant Woods’ suit to proceed to trial. Finally, plaintiff suggests that grammatically parsing Kreski’s holding creates a basis to bring his suit to trial. We disagree with each of these contentions. We agree that the City of Warren has an affirmative statutory obligation to maintain its roads and that "any person” may bring a suit to enforce that obligation. We do not, however, agree that this section removes the bar to plaintiff’s action imposed by the fireman’s rule. In Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978), this Court indicated that the sole purpose of MCL 691.1402; MSA 3.996(102) was to provide an exception to governmental immunity. The statute neither adds to nor detracts from a plaintiff’s right to proceed in the absence of governmental immunity. Forest, supra at 358. We also reject plaintiff’s second argument. Although the danger from slippery roads is not unique to police officers, Sergeant Woods’ injury flows directly from his performance of his police duties and from a specific risk which, under the circumstances, was increased by his performance of those duties. As Kreski’s articulation of the fireman’s rule rationale indicates, the analytical focus must be on whether the injury stems directly from an officer’s police functions. If the circumstances indicate that it does, the fireman’s rule applies. If the circumstances indicate otherwise, it likely does not. We reject plaintiff’s suggested "uniqueness” test for another reason as well. To adopt this approach would effectively diminish the fireman’s rule. Although some injuries may be incurred more commonly by police officers, no injuries are unique to them. What is unique is being called upon to perform duties which expose officers to such risks far more often than the public at large. The kind of duty, not the kind of injury, provides the starting point for analysis. Plaintiff’s next argument asserts that Kreski apparently recognizes several "exceptions” to the fireman’s rule. It did not. The Kreski Court did indicate that the rationale of the fireman’s rule might not apply in every circumstance involving an injury to a safety officer. It suggested, for instance, that buildings open to the public might justify a different result and that injuries resulting from intentional torts might also justify disregarding the fireman’s rule. The Court did not, however, establish that those circumstances prevented application of the fireman’s rule. It merely used them to indicate its willingness to apply the rule flexibly as circumstances required. That the Kreski Court chose this language to avoid rigid and formalistic adjudication does not mean it intended to defeat application of the fireman’s rule when otherwise justified. Plaintiff’s final attempt to avoid the fireman’s rule is to parse the Kreski holding narrowly. He points to the following language as expressive of the scope of the fireman’s rule: [A]s a matter of public.policy, we hold that fire fighters or police officers may not recover for injuries occasioned by the negligence which caused their presence on the premises in their professional capacities. This includes injuries arising from the normal, inherent, and foreseeable risks of the chosen profession. [Kreski, supra at 372.] During oral argument, plaintiff provided a grammatical analysis of this statement, noting that between the two sentences no conjunction is used. From a grammatical standpoint the word "includes” refers to a subset, making the entire second sentence applicable only if the predicate condition precedent of the first sentence is met. As a result, he suggests that Kreski’s holding should not bar his cause of action. Plaintiff, however, overlooks an exposition of the rule that immediately follows. As this Court held: "The scope of the rule . . . includes negligence in causing the incident requiring a safety officer’s presence and those risks inherent in fulfilling the police or fire fighting duties.” Kreski, supra at 372 (emphasis added). Given the factual context in Kreski and Reetz, we think the latter statement more accurately reflects the law and therefore explicitly adopt it today. In Kreski, the plaintiff died when a burning roof fell on him. The plaintiff alleged that negligence in the design of the roof led to its collapse. The reason for plaintiff’s presence, however, was the fire. According to Sergeant Woods’ theory, the plaintiff should have recovered. This Court, however, denied recovery because his injury was a "normal, inherent, and foreseeable risk[]” of fire fighting duties. Id. at 372. Therefore, the Court necessarily applied the latter exposition of the rule. The application of the fireman’s rule in Reetz reinforces the conclusion that the second description of the fireman’s rule most accurately states the law. In Reetz, a police officer fell through an open trap door while investigating a burglary. The reason for her presence in the building was not connected with the negligence alleged, i.e., leaving the trap door open. Again, the Court found that the fireman’s rule prevented recovery in two general circumstances, not one. The disposition of these cases indicates that the fireman’s rule bars recovery for two types of injury: those deriving from the negligence causing the safety officer’s presence and those stemming from the normal risks of the safety officer’s profession. The following opinion was filed with the Clerk of the Supreme Court on March 27, 1992, after the release of the opinion of the Court on March 23,1992 — Reporter. None of plaintiff’s arguments suffice to prevent application of the fireman’s rule in this case. Sergeant Woods suffered an injury fróm a specific risk directly connected with the performance of his police duties. In the circumstances presented here, it is sufficient to justify applying the fireman’s rule in Sergeant Woods’ suit. IV Because we believe the fireman’s rule applies in these circumstances, we reverse the decision of the Court of Appeals and affirm the circuit court’s order of summary disposition dismissing plaintiff’s suit. Cavanagh, C.J., and Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J. Although both Sergeant Woods and his wife filed complaints, Mrs. Woods’ suit is wholly derivative. We will therefore use "plaintiif” in the singular. Although defendant did not originally make it clear, the circuit court analyzed his motion for summary disposition as one brought under both MCR 2.116(C)(8) and MCR 2.116(0(10). We analyze the question under MCR 2.116(C)(8). Kreski, supra at 352, 356. Because summary disposition is proper under subrule (C)(8), we do not reach the subrule (C)(10) issue. The Kreski Court described the precedential backing of the fireman’s rule as “impressive” and noted that the rule was “deeply rooted in common law.” Id. at 357. In the Reetz portion of its opinion, this Court noted: [P]olice officers cannot be certain what dangers surround them when investigating a burglary. They have been trained to expect a variety of contingencies and to deal with those contingencies as they arise. It was plaintiff’s duty to investigate the burglary, despite the inherent dangers. In performance of her duty, plaintiff took the premises as she found them, with no representations being made regarding their safety. [Kreski, supra at 378.] The Court’s comment applies equally to Sergeant Woods. He had received extensive training in maneuvering cars on slippery roads, and it was Sergeant Woods’ duty to follow the stolen car. If the fireman’s rule applied to Officer Reetz, it applies to Sergeant Woods. As this Court in Reich v State Highway Dep’t, 386 Mich 617, 623; 194 NW2d 700 (1972), explained: The object of the legislation under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tortfeasors. McGhee v Dep’t of State Police, 184 Mich App 484; 459 NW2d 67 (1990). Sergeant Woods himself echoed this: "In the course of eighteen years, I’ve had numerous injuries occur, that sort of goes with my type of work.” Of course, this statement should not be taken to prevent application of these "exceptions” when Kreski’;s fundamental policy rationale is inapplicable. The Kreski Court offered this explanation in response to an argument that the negligence was unrelated to the reason the fire fighter was present. "Plaintiff also argues that, since the alleged negligence is unrelated to the cause of the fire, it was unforeseeable and, thus, not inherent in fire fighting. We disagree.” Kreski, supra at 372.