author: Allen, P. J.

text:
    McKINNEY v UNIROYAL, INC.
    1. Workmen’s Compensation — Res Judicata.
    The doctrine of res judicata applies to workmen’s compensation proceedings; however, for res judicata to bar a subsequent proceeding, the precise issue of fact or law must have been at issue and decided in the preceding litigation.
    2. Workmen’s Compensation — Favored Work — Evidence—Physical Capabilities — Forfeiture of Compensation — Employer’s Burden of Proof.
    An irrevocable forfeiture of compensation benefits should not be compelled where the employee refuses favored work in the absence of an express finding that the favored work was within the employee’s then physical capabilities; the burden of showing that the proffered work is within the employee’s physical capacity is on the employer.
    3. Workmen’s Compensation — Favored Work — Employee Refusal —Refusal Justified — Employee is Capable — Refusal Not Justified — Denial of Benefits.
    An employee is under no obligation to comply with an unreasonable and arbitrary demand to accept whatever work an employer thinks is suitable; but an injured employee who refuses an offer of favored work which the employee is capable of performing, is not entitled to workmen’s compensation benefits.
    4. Workmen’s Compensation — Favored Work — Employee Refusal —Physical Ability — Evidence—Legal Consequences Undecided.
    No Michigan decision speaks of the legal consequences of an employee’s refusal to try favored work when there is no evidence one way or the other of whether or not the employee has the physical ability to perform such work.

      References for Points in Headnotes
    [1] 82 Am Jur 2d, Workmen’s Compensation §§ 584, 587.
    Matters concluded, in action at law to recover for the same injury, by decision or finding made in workmen’s compensation proceeding. 84 ALR2d 1036.

       82 Am Jur 2d, Workmen’s Compensation § 349. 82 Am Jur 2d, Workmen’s Compensation § 511.

       82 Am Jur 2d, Workmen’s Compensation § 549 et seq.

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

      5. Workmen’s Compensation — Favored Work — Employee Refusal —Physical Ability — Employer’s Burden of Proof — Forfeiture of Benefits.
    An employer is unable to sustain its burden of proving the physical ability of an employee to perform the job offered where the employee flatly refuses to try; employee refusal should be favorably considered and weighed in favor of the employer in the determination of whether the employer has carried its burden of proof, but such refusal does not result in an automatic forfeiture of benefits.
    6. Workmen’s Compensation — Favored Work — Physical Ability— Employee Refusal — Workmen’s Compensation Appeal Board —Finding of Fact.
    Merely because an employee was physically unable at a later date to cope with the favored work offered does not mean that he was likewise physically unable to do so 31 months earlier when the same type of favored position was first offered; the Workmen’s Compensation Appeal Board should make an appropriate finding of fact as to whether the employee was capable of performing the favored work when it was first offered.
    7. Workmen’s Compensation — Benefits—Further Compensation— Compensation Originally Sought — Withheld Compensation —Pending Litigation — Statutes.
    The statute which provides for the one-year back limitation on the payment of workmen’s compensation benefits applies where a claimant is seeking "further compensation” as distinguished from compensation originally sought but which is withheld pending further determination (MCLA 418.833; MSA 17.237[833]).
    Appeal from Workmen’s Compensation Appeal Board.
    Submitted January 9, 1978, at Detroit.
    (Docket No. 77-1098.)
    Decided April 4, 1978.
    Claim by Frank McKinney against Uniroyal, Inc., for workmen’s compensation. Benefits denied for a prior 31-month period, but an award of future payments was granted. The Workmen’s Compensation Appeal Board affirmed. Claimant appeals by leave granted.
    Reversed and remanded.

      Kelman, Loria, Downing\ Schneider & Simpson (by Ina C. Cohen), for plaintiff.

      Lacey & Jones (by John L. Salter), for defendant.
    Before: Allen, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   Allen, P. J.

We are asked to determine whether a 3-2 split decision of the Workmen’s Compensation Appeal Board, denying plaintiff benefits for an interim 31-month period (April 30, 1970, to December 2, 1972) on grounds that plaintiff refused to perform favored work, should be affirmed.

Plaintiff commenced work for defendant in. 1951 and, in May 1971, filed a petition claiming an occupational disablement as of July 1969, from severe lung congestion caused by working in atmospheric pollutants. Following hearings held before him in the summer and fall of 1972, Hearing Referee Robert Martin issued an opinion November 8, 1972, holding that plaintiff was disabled from July 8, 1969, to April 30, 1970, but terminated benefits at that point for the following reasons:

"No compensation is ordered payable from April 30, 1970 to date because plaintiffs medical witness, Dr. Hopkins, felt that plaintiff should have tried the proffered work to see whether he could have done it. Plaintiff’s second medical witness, Dr. Shapiro, felt that any area in the plant would contain irritating airborne particles. Unfortunately neither of the doctors had the benefit of having viewed the proffered work area. The particular area appears to be essentially free of airborne particles although it is not free from the odor of rubber. The proffered employment has been on October 9, 1971 been [sic] inspected by the hearing referee and found to be 'clean’. The proffered employment, however, is not as easy as it would seem from descriptions given. There appears to be considerable exertion required in the unrolling of the inner rag; also the pocket checker, at the time of observation, was constantly, though not hurriedly, moving about the work area.
"Plaintiff should present himself for work and attempt the proffered employment. Until such time as he does he is entitled to no further compensation. If, and when plaintiff does attempt to return to work he shall be entitled to compensation for partial disability as set forth in the statute.”

No appeal was taken from Referee Martin’s decision, but 24 days following the date of that decision, plaintiff reported at defendant company and attempted to perform the favored work. Claiming he was unable to do such work, he left two weeks later and, on January 22, 1973, filed another petition for hearing. On March 28, 1973, he again returned to defendant company and again was unable to perform the favored work and left some two weeks later. Hearings were held by administrative law judge Morris Zwerdling who, on July 11, 1975, found that plaintiff was unable in 1972 to do the favored work offered by defendant company and entered an open award for future payments but denied compensation for the period here in dispute. Defendant then appealed to the Workmen’s Compensation Appeal Board which unanimously agreed that plaintiff was entitled to an open award from December 11, 1973. However, three members held that for the 31-month period from April 30, 1970, to December 2, 1972, plaintiff, by unreasonably failing to perform work proffered in good faith within his capacity to perform and by failing to appeal Referee Martin’s decision, was not entitled to compensation. Two members held that Referee Martin did not either expressly or by implication find that plaintiff was able to perform the proffered work but instead merely suspended the compensation which otherwise would be payable for that period until plaintiff presented himself and attempted to perform such work. Since at the second hearing plaintiff’s proofs showed he was unable in 1972 to perform the work proffered, the two members concluded he was entitled to compensation for the 31-month period. On appeal to us, only the question of whether or not plaintiff was entitled to benefits during the intervening period between the date of suspension by referee Martin and plaintiff’s attempts at favored work is at issue.

The correct answer to the narrow issue posed above lies in which of two possible meanings is to be given to Referee Martin’s holding cited earlier. Did Referee Martin find (a) favored work was offered, (b) plaintiff refused to try such work, and (c) plaintiff was capable of performing such favored work? Or did the referee only find (a) and (b) but withheld decision on condition (c) pending plaintiff’s return to try such favored work at which time it would then be determined whether plaintiff was able to perform such work as of April 30, 1970? The Workmen’s Compensation Appeal Board majority reads the referee as holding the first interpretation, and the minority construes the referee as intending the second position. The doctrine of res judicata applies to workmen’s compensation proceedings. Hlady v Wolverine Bolt Co, 393 Mich 368, 375; 224 NW2d 856 (1975). But in workmen’s compensation proceedings "for the doctrine of res judicata to bar a subsequent proceeding, the precise issue of fact or law must have been at issue and decided in the preceding litigation”. White v Michigan Consolidated Gas Co, 352 Mich 201, 211; 89 NW2d 439 (1958). Case authority and res judicata, therefore, would support the majority position if it is determined that Referee Martin found conditions (a), (b) and (c) above.

There is no question in our minds that the referee found conditions (a) and (b). But we agree with the WCAB minority that the referee merely withheld judgment on plaintiff’s ability to perform the favored work. And we know of no law which compels an irrevocable forfeiture of compensation benefits where the employee refuses the favored work in the absence of an express finding that the favored work was within the employee’s then physical capabilities. In fact, it is the employer who ultimately bears the burden of showing that the proffered work is within the employee’s physical capacity. In Kolenko v United States Rubber Products, Inc, 285 Mich 159, 162; 280 NW 148 (1938), our Supreme Court stated:

"The burden was on the defendant to show that it offered plaintiff work which she could perform. Obviously her physical handicap excluded labor that would require the use of her injured arm. Plaintiff was under no obligation to comply with the unreasonable and arbitrary demand of defendant that she accept whatever work the company thought suitable for her.” (Emphasis supplied).

Admittedly, several cases cited by defendant as controlling held that an injured employee who refuses an offer of favored work which the employee is capable of performing is not entitled to workmen’s compensation benefits. Pigue v General Motors Corp, 317 Mich 311, 318; 26 NW2d 900 (1947), Lynch v Briggs Manufacturing Co, 329 Mich 168, 172; 45 NW2d 20 (1950), Hope v Welch Grape Juice Co, 46 Mich App 128, 129; 207 NW2d 476 (1973). The trouble is that no decision speaks to the legal consequences of an employee’s refusal to try favored work when there is no evidence one way or the other of whether or not the employee has the physical ability to perform such work. As defendant correctly inquires, how can the employer sustain its Kolenko burden of proof of the physical ability of the employee to perform the job offered if the employee flatly refuses to try? Under such circumstances, again assuming there is no other evidence one way or the other as to the employee’s ability to perform the favored work, does refusal result in an automatic forfeiture of benefits? We think not but do opine that such refusal should be favorably considered and weighed in favor of the employer in the determination of whether the employer has carried its burden of proof.

In the instant case there has been no determination whether plaintiff was physically capable — in 1970 — of performing the proffered work. All that has been determined is that in 1970 he should have tried it and that in 1972 he was incapable of performing it. True, in the hearing before Referee Martin, one of plaintiff’s medical witnesses stated plaintiff should have tried the favored work but a second medical witness felt any area of the plant would contain irritating substances. In view of this conflict in testimony and the referee’s own personal inspection of the plant from which he concluded that the proffered employment "is not as easy as it would seem from the descriptions given”, and that "considerable exertion is required”, it appears to us that Referee Martin did weigh plaintiff’s refusal to attempt the proffered work in favor of the employer but nevertheless concluded that, until further evidence was produced in the form of plaintiff’s return and attempt to perform the favored work, the employer had not carried its burden of proof. Under Kolenko, supra, the employer must carry the burden of proof that the offered work is within the employee’s capabilities of performance. Certainly, the referee’s admittedly ambiguous opinion failed to make clear that the employer has carried that burden of proof. Since Referee Martin did not make a finding that plaintiff was physically capable of performing the favored work — this being condition (c) described earlier — res judicata does not govern. To this extent we agree with the minority opinion of the Workmen’s Compensation Appeal Board.

Nevertheless, we cannot agree with the minority’s automatic assumption that plaintiff was unable to perform the work offered in 1970 because he was unable to perform it in 1972. Some 2-1/2 years elapsed between the 1970 job offer and December 2, 1973, when plaintiff attempted the pocket checker job. The record more than adequately supports the unanimous conclusion of the Appeal Board that in late 1972, plaintiff was unable to withstand the dust, exertion and strain required in either the pocket checker or flipper job positions. Testimony by Dr. Avrin, a witness for plaintiff, and by Dr. Barrett, defendant’s only medical witness, suggested that plaintiff’s condition worsened between late April 1970 and late 1972. It does not follow and we cannot agree with the minority opinion that merely because the transcript supports a conclusion that in 1972 plaintiff was physically unable to cope with the favored work offered, he was likewise physically unable to do so in April 1970 when the same type of favored position was first offered. In our opinion there can be no solution to the problem posed without a finding of fact as to whether or not the employee was capable of doing the proffered work at the time it was offered in April 1970. We therefore reverse that portion of the decision of the Workmen’s Compensation Appeal Board which denied plaintiff benefits for the 31-month interim period here involved and remand to the board with instructions that the board make an appropriate finding of fact as to whether plaintiff was capable of performing the favored work when it was offered in April 1970.

The Workmen’s Compensation Appeal Board also split on the question of whether plaintiff would be barred from compensation until January 22, 1972, under the one-year back rule, MCLA 418.833; MSA 17.237(833), assuming, arguendo, that res judicata would not apply. The majority stated that the one-year back rule would govern and the minority concluded that it would not. We agree with the minority. The statute applies where the claimant is seeking "further compensation” as distinguished from compensation originally sought but which is withheld pending further determination. For the reasons hereinbefore set forth as to why res judicata does not apply we find that in the present situation plaintiff was not asking "further compensation”.

Reversed and remanded to the Workmen’s Compensation Appeal Board for further findings in accordance with this opinion. No costs, neither party having prevailed in full.

       "Referee Martin’s decision, whether right or wrong, stopped plaintiffs compensation until he attempted the proffered employment: 'Plaintiff should present himself for work and attempt the proffered employment. Until such time as he does, he is entitled to no further compensation.’ In the absence of any appeal, this ruling became final fifteen days after its entry: i.e.: by November 24, 1972. Instead of appealing, plaintiff chose to attempt the proffered work commencing December 2, 1972. The issues of defendant’s good faith in offering work, defendant’s burden to show work within plaintiffs capacity to perform, and plaintiffs unreasonable failure to accept the proffered work were included in that final unappealed judgement and compensation was thus waived by plaintiff for the period from April 30, 1970, until he proved his inability to perform and became entitled to compensation when he left the proffered work December 17.” Workmen’s Compensation Appeal Board Addendum Opinion dated February 28, 1977.

       The suspension of benefits technique employed by Referee Martin violated Kolenko. If he was unable to find that plaintiff could perform the work, he should have found that plaintiff could not do so because defendant had the burden of proof on this question. This technique should be avoided in future cases.

       Findings of fact by the Appeal Board must be accepted as true. But in the present case such "findings” were made by a minority of the Appeal Board. Furthermore, having examined the record we find no testimony directly pertaining to plaintiffs capacity in 1970 to perform the work offered in 1970. Findings unsupported by any evidence are not binding on an appellate court. Thomas v Griffin Wheel Co, 8 Mich App 35, 42; 153 NW2d 387 (1967).

       Plaintiff first tried working as a pocket checker but gave that position up because of chest pain and difficulty in breathing. March 28, 1973, plaintiff was offered a "flipper’s job” which he worked at until April 12, 1973, but gave up primarily because it required lifting 75 to 100 pounds for each roll of rubber and placing them on a truck.

       On this point, the comprehensive opinion of member Richardson, speaking for the majority, states:
      "However, Dr. Barrett did have a strong clinical impression that plaintiff has heart disease (not indicating whether related to pulmonary disorder) and suffers from symptoms of inadequate circulation of the heart muscle. Thus, if there has been any change of plaintiffs condition since 1972, it has apparently been a worsening, not an improvement thereof.” (Emphasis added.)


source: Caselaw Access Project

author: Bashara, J. D. C. Riley, J.

license: Public Domain

text:
    PEOPLE v WILDER
    Docket No. 77-1305.
    Submitted February 21, 1978, at Detroit.
    Decided April 4,1978.
    Leave to appeal applied for.
    Ronald T. Wilder was convicted of first-degree felony murder and armed robbery in Recorder’s Court of Detroit, Henry Heading, J. Defendant appeals. Held:

    1. Use of the term "murder weapon” in instructing the jury did not prejudice the defendant’s presumption of innocence where the defendant did not deny that a murder had been committed, but contended that he was not present at the scene of the crime when it was perpetrated.
    2. The common-law felony-murder rule has been a part of Michigan’s jurisprudence since admission to statehood and should not be tampered with except by legislation.
    3. The trial court’s instruction to the jury on the alibi defense did not impermissibly shift the burden of proof where the trial judge in his charge to the jury emphasized that the burden of proving the defendant’s guilt was upon the prosecution and further charged the jury that if the evidence established the alibi, the defendant must be found not guilty, and that, if the perfect defense was not found, to convict the defendant they must, nevertheless, find from the prosecution’s evidence that the defendant was proved guilty beyond a reasonable doubt.
    4. The underlying offense of armed robbery, in a felony-murder case, is a necessary element of the murder charge, and, therefore, where a defendant is convicted of both offenses, the conviction for the underlying felony must be vacated.

      References for Points in Headnotes

       40 Am Jur 2d, Homicide §§ 482, 483.

       40 Am Jur 2d, Homicide § 534.

       21 Am Jur 2d, Criminal Law § 10 et seq.

       21 Am Jur 2d, Homicide § 518.
    Instructions: duty of court, in absence of specific request, to instruct on subject of alibi. 72 ALR3d 547.

       40 Am Jur 2d, Homicide § 190.
    Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide. 40 ALR3d 1341.

       40 Am Jur 2d, Homicide §§ 472, 498-500.

       40 Am Jur 2d, Homicide §§ 561, 562.

      Conviction for first-degree murder affirmed, conviction for armed robbery vacated.
    D. C. Riley, J., dissented in part and concurred in part:
    1. An instruction in a felony-murder case which removed from the jury’s determination the essential element of malice was erroneous.
    2. An instruction to the jury on an alibi defense which failed to clearly set forth to the jury that a reasonable doubt as to the defendant’s presence at the scene of the crime could arise by virtue of the alibi testimony even if the defense of alibi was not proved was error.
    3. The trial judge’s use of the term "murder weapon” in his instructions to the jury was erroneous, even though the defendant was claiming an alibi defense.
    Opinion of the Court
    1. Criminal Law — Instructions to Jury — Homicide—Felony Murder — Murder Weapon — Presumption of Innocence — Burden of Proof.
    Allegations of prejudice in a trial judge’s instructions to the jury cannot be established by extracting statements from the context of the instructions which should be read and assessed as a whole.
    2. Homicide — Felony Murder — Instructions to Jury — Robbery— First-Degree Murder — Statutes.
    An instruction to the jury that any killing, even if accidental, attributable to the act or acts of a defendant occurring during the perpetration of or attempt to perpetrate a robbery constitutes murder in the first degree is a proper instruction in a felony-murder case (MCLA 750.316; MSA 28.548).
    3. Homicide — Felony-Murder Rule — Michigan’s Jurisprudence— First-Degree Murder — Statutes—Modification—Legislation.
    The common-law felony-murder rule, which has been a part of Michigan’s jurisprudence since its admission to statehood and which has governed the application of the first-degree murder statute from that time, should not be modified except by legislative enactment; to do otherwise would be to deviate from that "safe and necessary rule that criminal law should not be tampered with except by legislation”.

      4. Criminal Law — Instructions to Jury — Alibi Defense — Burden of Proof — Evidence.
    A trial judge’s instruction to the jury on the defense of alibi did not impermissibly shift the burden of proof to the defendant where: (1) the trial judge, throughout, emphasized that the burden of proving the defendant’s guilt was upon the prosecution, (2) the trial court advised the jury that if the evidence established the alibi, the defendant must be found not guilty, and (3) the instruction also informed the jury that if the perfect defense was not found, to convict the defendant, they must, nevertheless, find from the prosecution’s evidence that the defendant was proved guilty beyond a reasonable doubt.
    5. Homicide — Felony Murder — Underlying Felony — Double Punishment — Necessary Element.
    A defendant’s conviction for armed robbery should be vacated where the defendant was convicted of first-degree felony murder and the armed robbery was a necessary element of the felony murder under the prosecution’s theory of the case.
    Partial dissent, partial concurrence by D. C. Riley, J.
    6. Homicide — Felony Murder — Malice—Question of Fact — Instructions to Jury.

      Michigan has neither a statutory felony-murder doctrine nor a common-law felony-murder doctrine; malice is not imputed to an act of killing from the intent to commit an underlying felony, and, although malice may be inferred from the nature of the underlying felony and the circumstances surrounding its commission, the presence or absence of malice in each case remains a question for jury determination, and instructions which remove the essential element of malice from jury consideration are erroneous.

    7. Criminal Law — Instructions to Jury — Alibi Defense — Two Avenues of Relief — Reasonable Doubt — Appeal and Error.

      An instruction to the jury on the defense of alibi must clearly explain that this defense offers two avenues of relief for a defendant, ñrst, if the alibi is established, a perfect defense has been shown and the defendant should accordingly be acquitted, alternatively and, perhaps, more importantly, the instruction must clearly indicate that if any reasonable doubt exists as to the presence of the defendant at the scene of the crime then, also, the defendant should be acquitted; a defendant’s conviction should be reversed where the trial judge’s instructions fail to enunciate the dual purposes of the alibi testimony.

      8. Homicide — Felony Murder — Murder Weapon — Words and Phrases — Burden op Proof — Elements—Failure to Object.

      A trial court’s use of the term "murder weapon”, in a felony-murder case, to describe the weapon used in the killing of the victim was prejudicial error; to rule otherwise is to ignore the prosecution’s duty, in all criminal cases, to prove the elements of the charged offense beyond a reasonable doubt; however, the inadvertent use of the term, although both erroneous and prejudicial, does not require reversal of the defendant’s conviction where no objection was voiced at the trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for defendant on appeal.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   Bashara, J.

Defendant appeals his conviction by a jury of first-degree murder and armed robbery. The prosecution sought to establish that defendant and his codefendant, Lee Chester Butts, killed the victim during the course of an armed robbery.

While instructing the jury, the trial court referred to the weapon used to kill the victim as the "murder weapon”. Defendant urges that such reference effectively negated the presumption of innocence by establishing in the minds of the jurors that a murder had been committed. However, the defense theory at trial did not refute the allegation that a murder had been committed. Rather, the defendant contended that he was not present at the scene of the crime at the time it was perpetrated. Consequently, we fail to perceive how the trial court’s choice of terms prejudiced defendant’s case.

Similarly, we find no merit in defendant’s contention that the trial court depreciated the presumption of innocence by other specified statements in the jury instructions. To the contrary, when read in their entirety, the instructions are replete with statements placing the burden of proof upon the prosection and emphasizing that defendant was not required to prove anything. This allegation of prejudice cannot be established by extracting selected statements from the context of the instructions, which must be read and assessed as a whole. See People v Frank Johnson, 58 Mich App 1; 226 NW2d 730 (1975), People v Musser, 53 Mich App 683; 219 NW2d 781 (1974), lv den, 392 Mich 798 (1974).

Defendant maintains that the trial court’s instruction on first-degree murder is reversibly erroneous. Essentially, that instruction enjoined the jury to find guilt if they concluded that the victim was "killed” by an act committed in the perpetration of the armed robbery.

This issue has resulted in diametric opinions from this Court. Compare People v Till, 80 Mich App 16; 263 NW2d 586 (1977), with People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). We subscribe to the conclusion expressed in Till and, therefore, find no reversible error in the import of the trial court’s instruction.

We also are of the opinion that the common-law felony-murder rule has been a part of Michigan’s jurisprudence since admission to statehood and from that time has governed the application of the first-degree murder statute. A rule with such historical foundation, especially in the area of criminal law, should not be modified except by legislative enactment. To do otherwise would, as long ago recognized, deviate from that "safe and necessary rule that criminal law should not be tampered with except by legislation”. In the Matter of Eugene Lamphere, 61 Mich 105, 108-109; 27 NW 882 (1886).

Another instructional error is claimed by defendant regarding the alibi defense raised at trial. He contends that the trial court’s instruction impermissibly shifted the burden of proving the alibi to defendant and failed to properly advise the jury that, even if the alibi fell short of establishing a perfect defense, it could also operate to raise a reasonable doubt as to defendant’s guilt.

An evaluation of the alibi instruction supports neither of defendant’s contentions. Throughout, the trial court emphasized that the burden of proving defendant’s guilt was upon the prosecution. Further, the trial court advised the jury that, if the evidence established the alibi, the defendant must be found not guilty. The instruction also informed the jury that if the perfect defense was not found, to convict the defendant they must, nevertheless, find from the prosecution’s evidence that the defendant was proved guilty beyond a reasonable doubt. This latter finding must necessarily encompass a conclusion beyond a reasonable doubt that the defendant was present at the scene of the crime at the time it was committed.

Our assessment of the alibi instruction discloses that all of the operative characteristics of the defense suggested by the proposed Criminal Jury Instructions were covered by the trial court. From our observations, the proposed instructions appear to succinctly and clearly state the appropriate law on the topics covered, and we would urge the trial courts to make use of them. Extensive use would provide the essential information necessary to facilitate a comprehensive analysis of their value in the criminal litigation context.

Defendant’s remaining contention, warranting brief discussion, concerns his conviction of both first-degree murder and armed robbery. Since the latter is a necessary element of the former under the prosecution’s theory of the case, the armed robbery conviction must be vacated. See People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). Defendant’s other contentions do not merit discussion.

Accordingly, defendant’s conviction of first-degree murder is affirmed, and the conviction of armed robbery is vacated.

Beasley, P. J., concurred.

D. C. Riley, J.

(dissenting in part, concurring in part). I respectfully dissent.

Although I concur in the majority’s holding that the conviction of armed robbery must be vacated, I cannot agree to the majority’s findings in two of the issues raised by the defendant that I believe mandate reversal.

In regard to the court’s instruction on the elements of felony murder, I reaffirm my dissent in People v Till, 80 Mich App 16; 263 NW2d 586 (1977), in which I set forth my approval of People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976).

Also, I am persuaded that the court’s alibi instruction was erroneous.

The pertinent portion of that instruction reads:

"If you believe from the testimony that you have heard that Mr. Wilder was some place else when this crime occurred, if you find out that this is a crime, you must find him not guilty, if he was some place else.
"Now if you do not believe his defense — now listen carefully — you must not convict him upon that alone because you must keep in mind that he didn’t have to bring that up to you. The test is is he guilty beyond a reasonable doubt upon the evidence that the prosecution has brought you, not what he’s brought you.
"In other words, what I am saying is this: if you decide that the witnesses that testified for him just totally lied to you, that’s not enough for you to convict him upon. You can consider that, but you then must go to the prosecution’s case and say did the prosecutor prove him guilty beyond a reasonable doubt? Now I hope you understand me. If you do not believe his witnesses that is not enough alone to convict him on. The test is did the prosecution prove him guilty beyond a reasonable doubt. Now you must keep in mind, as I have said, alibi is a legal defense, it is a good defense if you believe it.” (Emphasis added.)

In People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), this Court stated:

"An instruction to the jury concerning the defense of alibi must clearly explain that this defense offers two avenues of relief for the defendant. First, if the alibi is established, a perfect defense has been shown and the defendant should accordingly be acquitted. Alternatively and, perhaps, more importantly, the instruction must clearly indicate that if any reasonable doubt exists as to the presence of the defendant at the scene of the crime then, also, the defendant should be acquitted. People v Virgil Brown, 15 Mich App 600, 605-606; 167 NW2d 107, 110 (1969); People v Loudenslager, 327 Mich 718, 726; 42 NW2d 834, 837 (1950).” (Emphasis added.) 48 Mich App at 630.

The Erb Court’s "two avenues of relief’ analysis is founded on 80 years of legal precedent. See People v Burden, 395 Mich 462, 467; 236 NW2d 505, 507 (1975), citing People v Resh, 107 Mich 251; 65 NW 99 (1895). Where an alibi instruction fails to clearly enunciate the dual purposes of alibi testimony, this Court has found reversible error. People v John Johnson, 58 Mich App 60; 227 NW2d 228 (1975), People v William Johnson, 54 Mich App 678; 221 NW2d 452 (1974), People v McShan, 53 Mich App 407; 219 NW2d 792 (1974). See also, People v Marvill, 236 Mich 595; 211 NW 23 (1926).

Although the trial court did instruct that the prosecution had to prove defendant’s guilt, and by implication his presence at the scene of the crime, beyond a reasonable doubt, I remain convinced that the instruction failed to clearly set forth to the jury that such a doubt could arise by virtue of the alibi testimony. On the contrary, the instruction can be reasonably read to have informed the jury that if they rejected the alibi as a perfect defense, they were to consider reasonable doubt solely on the prosecution’s case-in-chief, with total disregard of the alibi evidence presented by the defense. I find the court’s instruction erroneous and grounds for reversal of the conviction.

Finally, I disagree with the majority’s treatment of the trial court’s statement that the "murder weapon” had not been found. The majority appears to argue that since the defense was alibi, a statement that may have been perceived by the jury to have been the court’s personal belief that a murder had been committed was not prejudicial. This argument ignores the prosecution’s duty, in all criminal cases, to prove the elements of the charged offense beyond a reasonable doubt. A defense of alibi is not an admission that a murder occurred, it is merely a statement that if such an act was committed, it is not this defendant who is guilty of the crime. Under the reasoning of the majority, could not a trial court instruct a jury, where the defense is alibi, that the prosecution’s case establishes the commission of the crime and that they thus need not deliberate on the elements? I doubt whether any appellate court would uphold such an instruction.

Although I would find the court’s statements to be both erroneous and prejudicial, I would not find them to require reversal. No objection was raised to the court’s apparently inadvertent use of the term "murder weapon”. Had a prompt objection been raised, the court could have corrected its instruction, thereby eliminating any possibility of improperly influencing the jury. People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970).

       MCLA 750.316; MSA 28.548.

       MCLA 750.529; MSA 28.797.

       In People v Reed, 393 Mich 342, 348-351; 224 NW2d 867 (1975), the Supreme Court stated that such an instruction is "patently wrong” and grounds for reversal.

       Although the Supreme Court in Reed, supra, held that an instruction that takes away the jury’s right to decide on the existence of an essential element is so fundamentally wrong that harmless error cannot apply, I do not find an error of that magnitude here. The trial court below, unlike the Court in Reed, did instruct the jury on the elements of murder, and left that decision to the jury. The challenged statements were prejudicial only in that they may have suggested the court’s personal views on the issue.


author: D. C. Riley, J.

text:
    MUZAR v METRO TOWN HOUSES, INC.
    Docket Nos. 77-1434, 77-1435.
    Submitted January 16, 1978, at Detroit.
    —Decided April 4, 1978.
    Charlotte Muzar, Carrie Ledbetter and Agatha Malinowski brought an action for damages for breach of warranty against Metro Town Houses, Inc., and State Farm Fire & Casualty Company when the building in which all three of the plaintiffs’ townhouses were located collapsed. Metro Town Houses, Inc., was found to be defunct, and State Farm settled the suit with the plaintiffs. State Farm then brought a third-party action for indemnity against Francisco Moschelli and Dembs Building Company. Dembs in turn filed a third-party complaint for indemnity against Lehner Associates, Inc., the architects who designed the building. Concurrent with these proceedings the original plaintiffs filed an action for damages directly against Dembs Building Company, which again brought a third-party complaint for indemnity against Lehner. Lehner moved for accelerated judgment in each case and the Macomb Circuit Court, George R. Deneweth, J., granted the motions on the basis that the statute of limitations which applies to suits against licensed architects and professional engineers arising from work done in connection with improvements to real property had run. Dembs Building Company appeals, and the cases were consolidated on appeal. Held:

    The statute of limitations applicable to suits against licensed architects and professional engineers arising from work done in connection with improvements to real property unconstitutionally violates equal protection of the laws because it distinguishes between the architects and engineers on the one hand and other members of the construction industry on the other, a distinction which is arbitrary and without reasonable relation to the object of the statute.
    Reversed and remanded for reinstitution of the third-party complaints.
    References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions § 31 et seq.

       16 Am Jur 2d, Constitutional Law §§ 517, 518, 526-529.

       1 Am Jur 2d, Actions §§ 87, 88.

      1. Limitation of Actions — Architects and Engineers — Constitutional Law — Equal Protection — Statutes.
    A statute of limitations applicable to suits against licensed architects and engineers arising from work done in connection with improvements to real property, when challenged on the basis of equal protection, should be considered using the "substantial relation to the object of the legislation” test (MCLA 600.5839[1]; MSA 27A.5839[1]).
    2. Limitation of Actions — Architects and Engineers — Constitutional Law — Equal Protection — Statutes.
    A statute of limitations applicable to suits against licensed architects and professional engineers arising from work done in connection with improvements to real property unconstitutionally violates equal protection of the law because it distinguishes between licensed architects and professional engineers on the one hand and other members of the construction industry on the other without a reasonable relation to the object of the act (MCLA 600.5839[1]; MSA 27A.5839[1]).
    3. Constitutional Law — Equal Protection — Indemnity.
    The general principle of equal protection is that all persons shall be treated alike under like circumstances and conditions, both in privileges conferred and in the liabilities imposed; therefore, a statute violates equal protection where it arbitrarily and without reasonable relation to the object of the legislation allows a defendant to be held liable for injury without recourse of indemnity against a similarly situated person who may in fact have caused the injury.
    4. Action — Cause of Action — Legislature—Abrogation of Cause of Action.
    The Legislature may abrogate a cause of action which has not vested.

      Eli Friedman, for Dembs Building Company.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P. C. (by William D. Booth and Michael T. Lynch), for Lehner Associates, Inc.
    Before: T. M. Burns, P. J., and M. F. Cavanagh and D. C. Riley, JJ.
   D. C. Riley, J.

The present appeal involves a challenge to the constitutionality of MCLA 600.5839(1); MSA 27A.5839(1), the statute of limitations applicable to suits against licensed architects and engineers arising from work done in connection with improvements to real property. A short recitation of the factual and procedural history of the cases is necessary prior to our discussion of the issue.

In 1964, Metro Town Houses, Inc. contracted with Dembs Building Company for construction of a townhouse complex in Mount Clemens, Michigan. Dembs in turn contracted the design of the drainage system for the townhouse buildings to Lehner Associates, Inc., a professional engineering firm.

In 1965, three of the townhouses were sold by Metro to plaintiffs Charlotte Muzar, Carrie Ledbetter, and Agatha Malinowski. All three of the townhouses were contained within the same building. State Farm Fire and Casualty Co. insured plaintiffs against damage, including collapse, to the common building.

On January 3, 1973, the building housing the plaintiffs’ townhouses collapsed, allegedly due to defects in the construction of the drainage system. In July, 1973, plaintiffs sued Metro and State Farm, jointly and severally, for breach of warranty. After Metro was discovered to be defunct, State Farm settled the plaintiffs’ suit for $40,000.

In December, 1975, State Farm brought a third-party complaint against Dembs, claiming that it was subrogated to the original plaintiffs’ right to seek recovery of the $40,000 from the construction company. In turn, Dembs filed a third-party action for indemnity against Lehner Associates, alleging that the collapse was caused by defective design of the drainage system.

Concurrent with these proceedings, the original plaintiffs instituted a separate lawsuit directly against Dembs, alleging a breach of warranty. Dembs again filed a third-party complaint for indemnity against Lehner.

On August 11, 1976, Lehner filed motions for accelerated judgment against Dembs in both suits, arguing that the actions were barred by MCLA 600.5839(1); MSA 27A.5839(1), since the building collapsed more than six years after completion of the work done by Lehner. In answer to the motion Dembs contended that the statute was unconstitutional as a violation of equal protection. On December 13, 1976, the trial court issued an opinion upholding the constitutionality of the statute and granting accelerated judgment to Lehner in both lawsuits. Dembs appealed the accelerated judgments to this Court, which has consolidated the matters due to the identity of the issues.

Appellant Dembs contends that the statute violates equal protection since it sets up a limited class (licensed architects and professional engineers) and exempts them from tort liability after a set time period without extending the same protections to other entities (contractors, materialmen, etc.) engaged in the construction industry and subject to related liabilities. Dembs argues that the statute arbitrarily discriminates between persons in the construction industry, claiming that none of the various justifications expressed in support of the legislation apply only to architects and engineers,

Lehner responds that the Legislature may validily limit the scope of the statute to a particular occupational class provided that there is a rational basis for the classification scheme. Lehner finds such a rational basis for this statute in the allegedly unique position of architects and engineers facing potential liability for work in connection with real property.

From the proceeding discussion it is evident that before the equal protection challenge can be reviewed and decided we must specify the standard by which we will judge the constitutionality of the statute. Under classic equal protection analysis the applicable standard depended on whether the legislation affected a "suspect” class or a fundamental right. If so, the reviewing court would apply a "strict scrutiny” test, which would require the state to show a compelling interest justifying the legislation. Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). If the legislation did not affect a suspect class or fundamental right, the burden would be on the person challenging the statute to show that there was no reasonable or rational basis for the classifications at issue. Manistee Bank, supra. In the majority of cases it appeared that the choice of the test predetermined the result, since few pieces of discriminatory legislation could withstand strict scrutiny, but some rational basis for a classification could be found.

In more recent cases many courts, apparently dissatisfied with the rigidity of the two-test approach, have adopted a third test as a middle-ground standard for equal protection challenges. In Manistee Bank, supra, the Michigan Supreme Court termed this test as the "fair-and-substantial-relation-to-the-obj ect-of-the-legislation” standard. Manistee Bank, supra at 670. The Court stated:

"A commentator writes that the California Supreme Court 'applied a somewhat redefined standard of equal protection — a standard requiring a "realistic”, rather than. merely a "legitimate”, state purpose which is substantially, rather than merely rationally, supported by the classification system set up by the legislature. * * * The Court in Brown [Brown v Merlo, 8 Cal 3d 855; 106 Cal Rptr 388; 506 P2d 212 (1973)] refused to attribute to the legislature a "theoretically 'conceivable’, but totally unrealistic, state purpose that might support this classification scheme” * * * ’. (Emphasis in original.) In short, the California Supreme Court approached its reviewing function in a manner Professor Gunther identifies as 'means scrutiny’ or 'equal protection bite without "strict scrutiny” ’.
"Whatever label is attached to the analysis ,* * * 'the governing rule is one of reason: The Equal Protection Clause, like the Due Process Clause, is a guaranty that controls the reasonableness of governmental action’. The classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation.” (Footnotes omitted.) Manistee Bank, supra at 670-671.

The Manistee Bank Court went on to state that the "reasonable relation to the object of the legislation” test should be applied where the statute creates an exception to a general rule and that exception is no longer experimental. 394 Mich at 671-672. The Court then applied the test to hold Michigan’s guest-passenger statute unconstitutional.

We believe that the Manistee Bank test should be applied in the case at bar. No argument has been, or reasonably can be, made that the statute affects a suspect class or fundamental right, thereby eliminating the "strict scrutiny” alternative. We believe further that the statute does not fit into the category of experimental legislation that would justify application of the lower standard of review provided by the "rational basis” test. Hence, we conclude that the proper test was set out in Manistee Bank, supra.

As we will discuss in the remainder of this opinion, numerous cases from other jurisdictions have dealt with equal protection challenges to statutes similar to Michigan’s. In the course of those cases, the gamut of justifications expressed in support of the statutes has been analyzed and reanalyzed.

"Where a classification scheme creates a discrete exception to a general rule and has been enforced for a sufficiently long period of time that all the rationales likely to be advanced in its support have been developed, a court should fully examine those rationales and determine whether they are sound.
"It is understandable that a court reviewing what may be 'experimental’ legislation would say, as did this Court in Naudzius, [Naudzius v Lahr, 253 Mich 216; 234 NW 581 (1931)] '[p]erhaps the legislature also had other reasons for the law’. Where, however, it can no longer be claimed that the legislation is experimental, where all possible rationales have been developed, a court should not dismiss a constitutional challenge on that hypothesis.” Manistee Bank, supra at 672.

Although we note that no previous cases have challenged Michigan’s law, we find that the cases construing similar statutes have removed this area of legislation from the experimental class, and thus call for application of the "reasonable relation to the object” standard.

Applying this standard, we hold that MCLA 600.5839(1); MSA 27A.5839(1) unconstitutionally violates equal protection in that it distinguishes between licensed architects and professional engineers on the one hand and other members of the construction industry on the other without a reasonable relation to the objects of the act. We find support for this conclusion in the review given by our sister states to their similar statutes.

In response to what had become a rising trend of lawsuits directed against members of the construction business resulting from allegedly defective or negligent work, a number of states passed laws seeking to limit the liability of these parties. See Comment, Limitation of Action Statutes for Architects and Builders — Blueprints for Non-action, 18 Catholic U L Rev 361 (1969). On review some of these statutes have been struck down on constitutional grounds.

In Skinner v Anderson, 38 Ill 2d 455; 231 NE2d 588 (1967), the Illinois Supreme Court found their statute to be unconstitutional because it singled out architects and contractors for protection not granted to similarly situated parties:

"The arbitrary quality of the statute clearly appears when we consider that architects and contractors are not the only persons whose negligence in the construction of a building or other improvement may cause damage to property or injury to persons. If, for example, four years after a building is completed a cornice should fall because the adhesive used was defective, the manufacturer of the adhesive is granted no immunity. And so it is with all others who furnish materials used in constructing the improvement. But if the cornice fell because of defective design or construction for which an architect or contractor was responsible, immunity is granted. It can not be said that the one event is more likely than the other to occur within four years after construction is completed.” 38 Ill 2d at 460; 231 NE2d at 591.

The Skinner Court held that in order for a legislative classification to be valid, it had to be "reasonably related to the legislative purpose”. Skinner, supra at 460.

Although the Skinner decision was founded on a specific section'hf the Illinois constitution, which forbids the state Legislature from granting any special or exclusive privileges, the analysis undertaken by the Skinner Court applies by analogy to a more general equal protection argument. This is especially so since the Skinner Court employed the "reasonably related to the purpose” test for challenges under the state constitutional provision.

The Hawaii Supreme Court reached a similar result in Fujioka v Kam, 55 Hawaii 7; 514 P2d 568 (1973). The Hawaii statute limited actions against "any registered and/or duly licensed person” who furnished services in the design, planning or construction of improvements to real property to those brought within ten years of completion of the work. In Fujioka, a plaintiff injured by the collapse of a supermarket roof sued the owners of the store, who in turn brought a third-party complaint against the engineer and general contractor who had constructed the roof. The third-party defendants successfully moved for summary judgment on the basis of the statute. The owners appealed, alleging a violation of equal protection.

The Fujioka Court, citing Skinner v Anderson, supra, held the statute unconstitutional:

"It is clear that the classification does not rest upon some reasonable consideration of differences (between the classes under the same circumstances), which have a fair and substantial relation to the object of the legislation. Nor is the classification founded upon a reasonable distinction or difference necessitated by state policy. A statute making such an unsupportable classification fails to meet the requirements of the equal protection guaranty.
"As we have said, the general requirement of the principle of 'the equal protection clause is that all persons shall be treated alike under like circumstances and conditions, both in privileges conferred and in the liabilities imposed.’ State v Johnston, 51 Haw 195, 202, 456 P.2d 805, 809 (1969).
"Here, it is clear that the statute calls for arbitrary and capricious discrimination and must therefore be declared an invidious discrimination violative of the equal protection guaranty.” 55 Hawaii at 12, 13; 514 P2d at 571, 572.

In Kallas Millwork Corp v Square D Co, 66 Wis 2d 382; 225 NW2d 454 (1975), the Supreme Court of Wisconsin, employing a "rational and reasonable justification for the classification” test for equal protection, struck down their statute limiting actions against "any person performing or furnishing the design, planning, supervision of construction or construction” of improvements to real property. Relying on Skinner, supra, and Fujioka, supra, the Court in Kallas Millwork stated:

"We find the rationale of Skinner and Fujioka persuasive and applicable to the interpretation of sec. 893.155, Stats., and the facts of this case. We adopt their position and conclude that the legislative classification that gives special protection to the protected group is unreasonable. While there are public policy reasons that might justify a limitations period that takes into consideration those who are engaged in the construction business, there appears no reason why only a very restricted class of those thus occupied is protected by the statute.
"As pointed out by Mr. Justice Schaeffer, it is ludicrous to permit a recovery against a manufacturer of a negligently formulated mortar or adhesive, but to deny a recovery against an architect who negligently designed a cornice or facade so that its fall was inevitable.” 66 Wis 2d at 392-393; 225 NW2d at 459.

While Skinner, Fujioka, and Kallas Millwork are certainly relevant to the present matter, they are not the only opinions on this subject. Other jurisdictions have upheld similar statutes against equal protection challenges. Not wishing to discuss at length our disagreements with those opinions, we quote with approval the language of Justice Heifernan in Kallas Millwork:

"The defendant also relies on Rosenberg v Town of North Bergen (1972), 61 N.J. 190, 293 A.2d 662, and Carter v Hartenstein (1970), 248 Ark. 1172, 455 S.W.2d 918. Those cases together with Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co. (1972), 81 Wash.2d 528, 503 P.2d 108, do indeed support the defendant’s contention that sec. 893.155, Stats., is constitutional. None of those three cases is persuasive. Each of them recites the truism that the legislature can make reasonable classifications of persons or things and accord different treatment to different classes. None of these cases, however, justify the special immunity accorded to the protected class but denied to others similarly situated. The cases relied upon, which fail to find statutes similar to sec. 893.155 unconstitutional, do not come to grips with the real problem presented — what factors distinguish the favored class so that it requires or deserves an immunity not accorded others who appear to be similarly situated.
"The cases relied upon by the defendant to sustain the constitutionality of sec. 893.155, Stats., are not persuasive, and we reject them.” 66 Wis 2d at 392-393; 225 NW2d at 460.

Applying the reasoning of the cited cases to Michigan’s statute, we reach the inescapable conclusion that the classification limited to "licensed architects and professional engineers” is arbitrary and without reasonable relation to the object of the legislation. Appellee has argued a number of justifications for the time limitations of the statute, including prevention of stále claims, the burdens of keeping records concerning work done many years in the past, the probabilities that defects in construction will not appear for long periods of time, and the lack of knowledge possessed by nonoccupiers of property as to alterations and/or lack of maintenance that may have contributed to or even caused the damages. Even if we agree that the statute is intended to remedy these potential problems, we remain unconvinced that any of these rationales support the classification made in the legislation. The difficulties faced by architects and engineers suddenly subject to liability for work done a significant time in the past are equally present when contractors, materialmen, etc. face similar liability. We concur with Justice Schaeffer in Skinner, supra, by noting the arbitrary nature of legislation which allows a defendant to be held liable without recourse of indemnity against a similarly situated person who may in fact have caused the injury.

In addition, Michigan’s statute is even more discriminatory than those struck down in Skinner, Fujioka, and Kallas Millwork. All of the statutes of these states included contractors, such as appellant Dembs, within the protection of their statute. While we might find some justification for the exclusion of persons in possession and control if we were squarely faced with that situation, we can conceive of no reasonable relationship to the object of this statute which allows for a distinction between contractors and materialmen on one hand and architects and engineers on the other. We hold that the grant of summary judgment in favor of appellee Lehner denied appellant Dembs equal protection of the law.

Having found the statute unconstitutional as a violation of equal protection, we. are not required to reach the remaining issues raised by Dembs. However, one issue bears discussion in the event the Legislature should attempt statutory revision.

Dembs argues that the statute violates due process in that it allows the limitation period to run before the cause of action accrues (i.e., before the damages occur). The statute, it is thus argued, eliminates a claim before it can be factually asserted.

It is essential to note, however, that the Legislature may abrogate a cause of action which has not vested. Grubaugh v City of St Johns, 384 Mich 165; 180 NW2d 778 (1970), Snow v Freeman, 55 Mich App 84; 222 NW2d 43 (1974). The method of accomplishing this purpose was discussed in Dyke v Richard, 390 Mich 739, 745-747; 213 NW2d 185 (1973):

"It is helpful to keep in mind the distinction between a statute which is intended to abrogate a common-law cause of action and a statute of limitation.
"A statute which expressly extinguishes a common-law right may be regarded as a proper exercise of legislative authority. For example, 1935 PA 127; MCLA 551.301; MSA 25.191, which abolished the common law cause of action for alienation of affections, criminal conversation, seduction and breach of contract to marry was held to be constitutional in Bean v McFarland, 280 Mich 19; 273 NW 332 (1937).
"Since '[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought * * * ’, Price [v Hopkin, 13 Mich 318 (1865)] a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation.”

If the Legislature chooses to re-enact a statute which bars claims based upon a construction or design defect in an improvement to real property which arises after a set period of time from the date the work was completed, the title of the act should clearly set forth the intent of the Legislature to abolish this right of suit, and not term the legislation to be a statute of limitations.

Reversed and remanded for reinstitution of the third-party complaints. No costs, a public question being involved.

       The statute reads:
      "No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.”

       GCR 1963, 116.1(5).

        Manistee Bank & Trust Co v McGowan, 394 Mich 655, 669; 232 NW2d 636 (1975). See also Note, Developments in the Law: Equal Protection, 82 Harv L Rev 1065 (1969), and Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1 (1972).

        See Reed v Reed, 404 US 71; 92 S Ct 251; 30 L Ed 2d 225 (1971).

       MCLA 257.401; MSA 9.2101.

       For an example of a situation of where a legislative experiment is afforded a greater amount of judicial deference through use of the rational basis test, see the treatment of challenges to Michigan’s no-fault automobile insurance law in Shavers v Attorney General, 65 Mich App 355, 366-368; 237 NW2d 325 (1975), lv granted 396 Mich 869 (1976), and Schigur v Secretary of State, 73 Mich App 239, 248; 251 NW2d 567 (1977).

       This trend was prompted by two factors: (1) abolition of the privity of contract requirement, and (2) rejection of the doctrine that liability ended when the work was accepted.

       S.H.A. Const, art 4, § 22.

       HRS §657-8.

       WSA 893.155.