497 So.2d 537 (1986)
Ex parte Bennie Steve POOLE.
(Re Bennie Steve Poole v. State of Alabama).
84-1274.
Supreme Court of Alabama.
August 15, 1986.
W. Clint Brown, Jr. of Brown-Willman, Decatur, for petitioner.
James S. Ward of Corley, Moncus, Bynum & DeBuys, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
While petitioner, a law enforcement officer, was responding to a call for help, his vehicle collided with another vehicle. Two persons were killed. He was convicted of manslaughter and was sentenced to a term of three years' imprisonment. Petitioner appealed to the Court of Criminal Appeals, which affirmed his conviction and sentence. Poole v. State, 497 So.2d 530 (Ala.Crim. App.1985).
Petitioner asked this Court to grant certiorari to review the decision of the Court of Criminal Appeals on the following grounds:
"3. Petitioner alleges as grounds for the issuance of the writ the following:
"(1) The first basis for this petition for the writ is that [the] decision of the Court of Criminal Appeals affects a class of constitutional, state and county officers and was incorrectly determined. The issue is whether such constitutional, state and county officers, when operating emergency vehicles during actual emergencies, should *538 have the benefit and protection of Section 13A-3-22, Code of Alabama, 1975, which creates an exception to the normal proscriptions of the criminal law where the act is performed by a public servant in the reasonable exercise of his official powers, duties or functions."
"* * *
"(3) The third basis for this petition for the writ is that the decision of the appellate court is in conflict with prior decisions of the appellate court on the same point of law. In its present decision, the appellate court held: `... the failure of a juror to make a proper response to a question regarding his qualifications to serve as a juror, regardless of the situation or circumstances, does not automatically entitle one to a new trial. ...' (Citations omitted.) Beauregard v. State, 372 So.2d 37 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979). We have carefully reviewed the evidence presented at the hearing on the motion for new trial and the trial judge's order denying the motions. We are of the opinion that in this cause the lack of response did not result in probable prejudice to the appellant. Having reviewed the record, we feel it is clear that the trial court did not abuse his discretion in denying the motion for new trial on the grounds set forth by appellant. Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 (1973); Trahan v. State, 450 So.2d 1102 (Ala.Crim.App.1984).
"In the case of Warrick v. State, 460 So.2d 320 at 325 (Ala.Cr.App.1984), the appellate court held: `The purpose of voir dire examinations of a venire prior to trial is to discover any interest a potential juror might have in the proceeding about to be tried. ... When these questions and others are answered falsely, either by vocal assertions or by intentional or indifferent silence, which in many cases is perhaps the most detrimental, an accused is denied his right to challenge for cause and has in fact been deceived into forgoing his right of a peremptory strike.'
"These statements of the law are in conflict and the issue is which holding should be followed on this principle of law."
This Court granted certiorari to review each of these grounds raised by the petitioner. After considering the briefs and arguments of counsel, we agree with the Court of Criminal Appeals that the trial court did not err in denying petitioner's motion for a judgment of acquittal based on an insufficiency of the evidence. Nevertheless, we find that the judgment must be reversed and the cause remanded for a new trial, because of the Court of Criminal Appeals' error in dealing with the failure of two persons on the venire to make a proper disclosure in response to questions propounded to them by petitioner's counsel at voir dire examination.

I
We first address petitioner's claim that he was entitled to a judgment of acquittal. In addition to the arguments which he made in the Court of Criminal Appeals, he states the following in his brief in this Court:
"The lower appellate court, in affirming Poole's conviction, failed to consider the application of Section 13A-3-22, Code of Alabama (1975), to the facts of this case. That statute reads as follows: "`Section 13A-3-22, execution of public duty.
"`Unless inconsistent with other provisions of this article, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by law or by a judicial decree or is performed by a public servant in the reasonable exercise of his official powers, duties or functions....' [Emphasis added by petitioner.]
"As the legislature in its wisdom has recognized, public servants involved in the reasonable exercise of their official powers, duties or functions are not held *539 to the same standard of criminal liability as private citizens. The above statute creates an exception from the normal operation of the manslaughter law which both the ... trial court and the lower appellate court failed to consider in their decisions. This Court should grant defendant's petition for the writ, allow full briefing and argument thereon and address the failure of both lower courts to grant defendant Poole the benefit of such exemption."
We have permitted the parties to brief in this Court the application of Code 1975, § 13A-3-22, and, although the Court of Criminal Appeals did not make specific reference to the statute in its opinion, we are of the opinion that it is implicit in its opinion that the Court of Criminal Appeals considered the legal effect of § 13A-3-22 and considered that it was inapplicable under the facts of the instant case, because the Court of Criminal Appeals concluded:
"This case is further complicated by a strong public policy argument. It is argued that, by holding the operators of authorized emergency vehicles criminally liable, we will discourage such operators from proceeding to their destinations with such dispatch as society now enjoys and expects. It is further argued that, as a matter of public policy, the operators of emergency vehicles in emergency situations ought not be placed under strict criminal liability for errors of judgment or simple negligence.
"In this cause it is clear to this Court that the appellant failed to operate his emergency vehicle with due regard for the safety of all persons. His failure to sufficiently slow down for the intersection and the resulting collision bear out this determination. It is clear that the appellant's conduct can readily be judged too harshly and that the jury could have done so by the verdict it rendered. Nevertheless, a review of the record in this cause reveals that the verdict is supported by substantial evidence. Although the appellant argues that the traffic mishap was merely a tragic error in judgment, it is the opinion of this Court that the appellant's conduct constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. See Heathcock v. State, 415 So.2d 1198 (Ala. Cr.App.1982), and authorities cited above."
After reviewing the applicable law as set out in the opinion of the Court of Criminal Appeals, and under the facts of this case, we are of the opinion that the Court of Criminal Appeals did not err in holding that the petitioner was not entitled to a judgment of acquittal, because we are of the opinion that a jury question was presented as to whether the petitioner was acting in the "reasonable exercise of his official powers, duties or functions." (Emphasis added.)

II
We now address petitioner's second argument, that is, that the Court of Criminal Appeals erred in failing to find that the service on the jury by two persons who had failed to respond to voir dire questions was prejudicial to him.
We set out extensively that portion of the opinion of the Court of Criminal Appeals which deals with this legal issue:
"Appellant contends that two prospective jurors failed to respond to questions asked by defense counsel during the voir dire examination of the jury venire. These two jurors served on appellant's jury.
"During his questioning of the panel of which these jurors were members, the defense counsel asked the following questions:
"`Have you ever had any problems or conflicts with any law enforcement officer, no matter how small or large they might be, got in a fuss with one about something, I don't know just the kinds of things I anticipate with that question, but have you ever had any problems?
"`....

*540 "`Have any of you ever had a relative... a close friend that was arrested by law enforcement officers in some kind of case?
"`Have any of you ever been witnesses for the defense in a criminal trial? That would be the side of the case that I am on in this case, Steve is on. A defense witness?
"`....
"At some point, defense counsel learned that jurors Betty Johnson and Marty Keith Russell had been involved in prior criminal activity, or that they had prior conflicts with the law. Defense counsel argued at the motion for new trial hearing, and again on this appeal, that because of the prospective jurors' failure to answer the questions, appellant was unable to utilize his jury strikes effectively, and was, therefore, prejudiced and entitled to a new trial.
"At the motion for new trial hearing, the trial judge heard the testimony of the two jurors who had failed to respond to the questions during the voir dire examination. In denying the appellant's motion he found the following:
"`The defendant having filed his Motion in the Alternative for a Judgment of Acquittal or New Trial was before this court with his attorney on October 12, 1984, for argument and testimony in support of those motions. The state was represented by the Assistant District Attorneys of this Circuit. The Motion for Judgment of Acquittal was argued by each party and taken under advisement by the court. After due and careful consideration of this motion, the court is of the opinion that it is due to be overruled. The Motion for Judgment of Acquittal is overruled.
"`Evidence and argument was taken in support of the motion for New Trial and taken under advisement by the court. The defendant contends that certain of the members of the venire who were selected as jurors in this case did not answer questions on voir dire and that such failure to give information by them was prejudicial to the defendant. One of the jurors was Betty Johnson and the other was Marty K. Russell.
"`The evidence reveals that juror, Betty Johnson, was convicted in the District Court of this county of the offense of sale of prohibited liquor. That conviction was in 1982 and was appealed to this court by that defendant. The case was pending in this court at the time Mrs. Johnson was selected to sit as a juror. The appeal of a case from the District Court to the Circuit Court is for trial de novo. Such an appeal de novo effectively eradicates a judgment of the District Court and such a conviction in the District court cannot be used or treated as a record of conviction in such instances. The voir dire examination to this juror involving the pending case against her was thus limited to the inquiry by the defendant of whether she had "ever had any problems or conflicts with any law enforcement officer no matter how small or large they might be ... have you ever had any problems?" This juror testified at the Motion for New Trial that she did not respond to this inquiry because she "had never had a fuss or conflict with them," and the court is of the opinion after observing this witness that she did not interpret this inquiry to include an arrest. The evidence further reveals that this juror's former husband had been convicted on at least two prior occasions for the offense of illegal sale of prohibited liquor. The inquiry on voir dire by the defendant as to whether she had "ever had a relative ... or a close friend that was arrested by law enforcement officers in some kind of case" was not responded to by this juror, and her testimony in this regard was that she, at the time of the voir dire, did not consider him a relative or a close friend having been divorced from him since January, 1984. The court finds that this juror was not disqualified to serve as a juror and *541 finds no evidence in this case that had this information been known that the juror would have been stricken by the defendant. The court finds no evidence in this case that this information affected this juror's deliberations nor verdict, nor had any tendency to do so.
"`Juror, Marty K. Russell, testified at the Motion for New Trial that he had twice been convicted of the offense of issuing worthless checks, both convictions were in the District Court of this county and both convictions were based upon a plea of guilty. This juror did not respond to the court's inquiry touching his qualifications pertaining to a conviction for a crime involving moral turpitude and the loss of his right to vote. Whether or not a conviction for a crime of issuing a worthless check is such a conviction that would cause a defendant to lose his right to vote is in a state of confusion presently because of a recent Federal Court ruling and an Attorney General's opinion (dated June 20, 1984). The Alabama [Court of Appeals] has held on at least one occasion that such a conviction is a conviction that involves moral turpitude. Irvin v. State, [44 Ala.App. 101] 203 So.2d 383 [283]. The worthless check statute under which this defendant was convicted requires an intent to defraud. It has historically been held that any offense having an element of intent to defraud is an offense involving moral turpitude. Whether a person loses his right to vote based upon such conviction is of no consequence in determining whether or not the offense involved moral turpitude. The refusal to deny a person his right to vote may be based upon some reason other than the moral turpitude aspect of a case such as lack of counsel or a federal court ruling. If the conviction is allowed to stand, the conviction involves moral turpitude whether or not the defendant loses his right to vote. The statute involved herein [§ 12-16-60(a)(4)] disqualifies a juror if that juror has lost his right to vote by conviction for any offense involving moral turpitude. There is no doubt under present Alabama law that this juror has been convicted of an offense involving moral turpitude. However, there is some doubt as to whether or not this defendant has lost his right to vote because of that conviction. There is no evidence in this case that this juror has lost his right to vote and it cannot be said therefore that this juror was disqualified to sit as a juror in this case. Even if this juror were subject to challenge for cause for his conviction of issuing a worthless check, there is no evidence before the court that the defendant herein did not know of the previous conviction of this juror. If the defendant had notice of the disqualification of the juror and did not invoke the action of the court to eliminate such juror, the defendant may not thereafter effectively use such disqualification for the purpose of procuring a new trial. It must affirmatively appear that the defendant did not previously know of the ground of objection and had used diligence to discover it, or could [not] have discovered it by the use of reasonable diligence.
"`Further, the defendant has failed to establish any prejudice or probable prejudice on the part of this juror which could impair this juror's deliberations and verdict.
"`After due and careful consideration of the Motion for New Trial in this case, the court is of the opinion that the same is due to be overruled. It is so ordered.'
"The appellant relies on the cases of Ex parte Ledbetter, 404 So.2d 731 (Ala. 1981), and Warrick v. State, 460 So.2d 320 (Ala.Cr.App.1984), wherein the Alabama Supreme Court and this Court held that the trial court erred in not granting a new trial. In these decisions the Supreme Court noted that `on the issue of whether the petitioner was prejudiced by a juror's failure to respond to a question *542 during voir dire, the test is whether the petitioner might have been, not whether he actually was prejudiced.' See Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982), and Ex parte Ledbetter, supra."
We agree with the petitioner that the failure of these two jurors to respond to the questions set out in the opinion constituted prejudicial error, and we find that the Court of Criminal Appeals failed to follow the principles of law set out in this Court's case of Ex parte Ledbetter, 404 So.2d 731 (Ala.1981). In that case, this Court granted certiorari and held that a juror's failure to disclose an incident during which gunshots were fired at his home five months prior to trial was prejudicial.
At the time of the voir dire examination in the present case, the prospective jurors were questioned whether they had "ever had any problems or conflicts with any law enforcement officer." Those questions should have elicited a response by both of the jurors.
The State contends that the questions asked in this case were so "vague, ambiguous and incoherent" that a failure to respond to them was not improper and did not result in probable prejudice to the petitioner. Although the questions are not overly specific, they were specific enough, in our opinion, that the jurors should have responded to them, under the doctrine of Ledbetter.
With regard to juror Marty Russell, petitioner raises another point. In his motion for a new trial, petitioner included as a ground of his motion the following:
"A member of the jury who returned the verdict of guilty against the defendant has been convicted of crimes involving moral turpitude and was not qualified to do jury service under Code of Alabama 1975, § 12-16-60(4), and failed to truthfully answer questions of the court and defense counsel that would have revealed the juror's lack of qualifications."
As is apparent from the order entered by the trial judge with regard to petitioner's claim, the trial court was of the opinion that juror Russell was under no duty to disclose his prior convictions. The Court of Criminal Appeals agreed. The State contends that the trial court correctly applied the law, and that the Court of Criminal Appeals did not err in affirming petitioner's conviction. The State argues, as the Court of Criminal Appeals held, that juror Russell was not subject to challenge for cause; that even if he was, the petitioner waived his right to challenge him on the ground stated; and that even if defendant did not waive his right to challenge Russell for cause, the petitioner did not show, as he must in order to be entitled to a new trial, that he was prejudiced by the juror's service.
We agree with the State that juror Russell was not disqualified for cause. We need not, therefore, address the State's arguments on the waiver issue.
The statutory scheme in effect at the time of Poole's trial clearly establishes that a disqualification occurs, not for the conviction of an offense involving moral turpitude, but when one's right to vote is lost by conviction for such a crime. Code 1975, § 12-16-60, provides:
"A prospective juror is qualified to serve on a jury if the juror is generally reputed to be honest and intelligent and is esteemed in the community for integrity, good character and sound judgment and also:
"(1) Is a citizen of the United States, has been a resident of the country for more than 12 months and is over the age of 19 years;
"(2) Is able to read, speak, understand and follow instructions given by a judge in the English language;
"(3) Is capable by reason of physical and mental ability to render satisfactory jury service, and is not afflicted with any permanent disease or physical weakness whereby the juror is unfit to discharge the duties of a juror;
"(4) Has not lost the right to vote by conviction for any offense involving *543 moral turpitude." (Emphasis added.)
Section 12-16-60 concerns only a prospective juror's initial qualifications that entitle him to have his name "placed in the trial court jury box." Code 1975, § 12-16-60(b)(1). The purpose of this section is "`to insure at least a reasonable approximation to the requirements that jury venires include all qualified persons, and, hence, represent a cross-section of the community.'" State ex rel. Gregg v. Maples, 286 Ala. 274, 279, 239 So.2d 198 (1970) (quoting Mitchell v. Johnson, 250 F.Supp. 117 (N.D.Ala.1966)). The code section that specifically addresses challenges for cause is § 12-16-150. This statute, however, is merely illustrative, Nettles v. State, 435 So.2d 151, 153 (Ala.1983), and a juror may still be challenged for cause on a ground not specifically enumerated in § 12-16-150 but recognized at common law. Nobis v. State, 401 So.2d 191, 197 (Ala.Crim.App.), cert. denied, 401 So.2d 204 (Ala.1981):
"Ala.Code § 12-16-150 (1975) provides a statutory list of grounds for which a juror may be challenged for cause by either party. Contained within that list is § 12-16-150(7), relied upon by appellant, which states that a challenge for cause lies where a juror `has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.' In addition to the grounds for challenge for cause under § 12-16-150, grounds for challenge for cause under the common law still exist, when not inconsistent with the section. Mullis v. State, 258 Ala. 309, 62 So.2d 451 (1952); Felton v. State, 46 Ala.App. 579, 246 So.2d 467 (1971)." (Emphasis added.)
This Court has recognized that the qualifications of jurors set forth in § 12-16-60 may constitute a ground for a valid challenge for cause under the common law if the juror does not possess those qualifications. Cf. Chrysler Credit Corp. v. McKinney, 456 So.2d 1069 (Ala. 1984) (juror who could not read and write and was partially deaf). Hence, a juror disqualified under § 12-16-60 may properly be challenged for cause; that is, a juror's disqualification under § 12-16-60 may also render him subject to challenge for cause. We do not find here, however, that juror Russell could have been challenged for cause under § 12-16-60(a)(4). In Beasley v. State, 39 Ala.App. 182, 96 So.2d 693 (1957), decided prior to our present statutory scheme, the Court held that adultery was a crime involving moral turpitude, and, therefore:
"A conviction of adultery, though only for a misdemeanor, is both a disqualification [under Code 1940, Title 30, § 21, the predecessor statute of Code 1975, § 12-16-60] and a common law ground for challenge to the principal cause ... and, therefore, under § 64, it is contemplated that such a prospective petit juror should be weeded out by the trial judge even though by some neglect or design of the jury commission his name should appear on the venire." 39 Ala.App. at 186, 96 So. at 697.
Thus, conviction of a crime of moral turpitude can be a ground for disqualification under § 12-16-60(a)(4) if a person has lost his right to vote. Under § 12-16-150(5), it is a good challenge for cause if the juror "has been convicted of a felony." (Emphasis added.)
The trial judge found, and we agree, that conviction of the offense of issuing a worthless check is a crime involving moral turpitude in Alabama, Irvin v. State, 44 Ala.App. 101, 203 So.2d 283 (1967); but juror Marty Russell was not due to be automatically struck for cause from this jury venire solely because of his prior conviction, because a juror convicted of an offense less than a felony involving moral turpitude is not subject to a challenge for cause unless he also has lost the right to vote:
"A prospective juror is qualified to serve on a jury if the juror ... (4) Has not lost the right to vote by conviction for any offense involving moral turpitude." § 12-16-60(a)(4). (Emphasis added.) *544 We agree with the trial judge that the law regarding disfranchisement by reason of conviction of a crime involving moral turpitude was "in a state of confusion," but, as the State contends, there was no evidence before him that juror Marty Russell had been disfranchised because of convictions.
Petitioner's jury was struck, and his trial began, on May 16, 1984. On April 10, 1984, in Underwood v. Hunter, 730 F.2d 614 (11th Cir.1984), the United States Court of Appeals for the Eleventh Circuit had invalidated "on account of race" a portion of § 182 of the Alabama Constitution (1901). 730 F.2d at 621. Section 182 of the Constitution concerns disfranchisement and provides:
"The following persons shall be disqualified both from registering, and from voting, namely:
"All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude; also, any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector." Ala. Const. of 1901, art. VIII, § 182. (Emphasis added.)
The Court held that "section 182 of the Alabama Constitution of 1901 violates on account of race the Fourteenth Amendment with respect to those convicted of crimes not punishable by imprisonment in the penitentiary." Underwood, supra, at 621. (Emphasis added.) Plaintiffs in Underwood were, inter alia, persons who had been denied the right to vote based on § 182 because of their conviction of a crime involving moral turpitude, specifically, issuing a worthless check. Thus, after Underwood, persons in Alabama could no longer be disfranchised merely because they had been convicted of a crime involving moral turpitude, unless the crime was punishable by imprisonment in the penitentiary. The United States Supreme Court affirmed the 11th Circuit's opinion and judgment on April 16, 1985. Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). Because of the principle announced in Underwood, juror Russell was not disfranchised at the time of petitioner's trial because of his convictions for crimes involving moral turpitude, as would have been the case under prior law.
The predecessor of § 12-16-60 was § 12-16-43, and it provided:
"The jury commission shall place on the jury roll and in the jury box the names of all citizens of the county who are generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment, but no person must be selected who is under 19 or who is an habitual drunkard or who, being afflicted with a permanent disease or physical weakness, is unfit to discharge the duties of a juror or cannot read English or who has ever been convicted of any offense involving moral turpitude. If a person cannot read English and has all the other qualifications prescribed in this section and is a freeholder or householder, his name may be placed on the jury roll and in the jury box. No person over the age of 65 years shall be required to serve on a jury or to remain on the panel of jurors unless willing to do so." Code 1975, § 12-16-43. *545 The statute does not mention the right to vote nor does it tie disqualification by reason of conviction of a crime involving moral turpitude to the right to vote.

The first mention of the right to vote in the jury qualification statute appears in § 12-16-60, enacted by the legislature in 1978. Ala. Acts 1978, Act No. 594, § 6(4). The addition of the "right to vote" language in the statute evidences a legislative intent to restrict the category of persons disqualified from jury service by reason of conviction of a crime involving moral turpitude to only those persons who by reason of such conviction have also been disfranchised.
Previously, "[b]eing an elector or not being an elector [was] irrelevant to a man's being a juror in Alabama," Sanders v. State, 42 Ala.App. 419, 426, 167 So.2d 174, 180 (1964), but the legislature, in enacting Code 1975, § 12-16-60(a)(4), intended to make disfranchisement a focal, and relevant, consideration in determining a person's qualification for jury duty if, of course, a person's conviction of a crime involving moral turpitude was the cause of the denial of this right to vote.

III
For the foregoing reasons, we have concluded that the judgment of the Court of Criminal Appeals is due to be reversed, and that this cause must be remanded to that court with directions to order a new trial.
Our opinion today should not be construed as holding that a party may not make inquiry about prior convictions of crimes involving moral turpitude that do not result in a loss of the right to vote. We only hold that convictions of these crimes do not result in disqualifying a juror for cause. As we have already pointed out, the questions propounded to the prospective jurors were specific enough, in our opinion, under the doctrine of Ledbetter, to warrant a response.
REVERSED AND REMANDED WITH DIRECTIONS.
ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., and HOUSTON, J., concur in the result.
JONES, J., concurs, in part; dissents, in part.
JONES, Justice (concurring, in part; and dissenting, in part.)
I agree that the conviction must be reversed for the reasons stated in the opinion; but I would go further and hold that the evidence is insufficient to support a conviction for manslaughter. I would uphold a civil verdict against Poole on this evidence, but not a criminal conviction. Operators of emergency vehicles, in order to carry out their legitimate role in society, must be given every benefit of the doubt in testing the sufficiency of the evidence to support a charge of criminal misconduct.


90 Ga. App. 283 (1954)
82 S.E.2d 739
SCOGGINS
v.
HILL et al.
34958.
Court of Appeals of Georgia.
Decided June 23, 1954.
*285 Augustus M. Roan, M. T. Hartman, III, for plaintiff in error.
Stonewall H. Dyer, Jack P. Turner, contra.
NICHOLS, J.
The allegations of the petition show that the plaintiff was hired for an indefinite period by Doris and James Rivers, through their manager, Belote, in July of 1951. His compensation was to be half of the gross proceeds received by the station from advertisers as a result of the plaintiff's announcing and playing records. It is alleged that Hill became the station manager in July of 1952, and it is contended that he then assumed personal responsibility for the plaintiff's compensation by stating, in substance, "If you will continue to work for the owners, I will see to it that your agreement with them is carried out and that you are paid, and we will pay you all the money that is due you."
An agent is not liable for the breach of an employment contract made with him in his capacity as agent for a known principal, in the absence of an express undertaking on his part. Pearl Assurance Co. v. Bernath, 185 Ga. 737 (2) (196 S. E. 389); *286 Pelotte v. Simmons, 41 Ga. App. 198 (4) (152 S. E. 310); Gill v. Tison, 61 Ga. 161; Lovelace v. Browne, 126 Ga. 802 (3) (55 S. E. 1041).
Granting that the form of Hill's alleged promise does not indicate that it was given only as that of an agent, and that Hill individually became a party to the contract, it appears that Hill was in effect a surety, since the owners, as the principal obligors, were alleged to have ratified the contract and so remained primarily liable for the plaintiff's pay. If Hill had paid the plaintiff, the owners would have been liable to reimburse Hill.
Contracts to answer for the debt of another must be in writing to be binding upon the promisor. Code § 20-401 (2). The owners were alleged to be liable for the services which the plaintiff was to perform in the future, which indicates that the plaintiff was working in fulfilment of his original contract with the owners, and not performing under a new contract made with Hill individually and on behalf of the owners. This also shows that the plaintiff's services were not rendered on Hill's credit alone, and that this part of Hill's undertaking was collateral to that of the owners and was within the statute of frauds.
A new and independent consideration moving to Hill is necessary to show that Hill's promise, to pay for the plaintiff's past services, was not collateral. See Ferst v. Bank of Waycross, 111 Ga. 229, 231 (36 S. E. 773); Thomason v. Pease Co., 47 Ga. App. 776 (171 S. E. 467); Grafton v. Nunnally, 17 Ga. App. 470 (87 S. E. 693); Restatement of the Law of Contracts, § 184. But the allegations of the petition do not show that Hill had a personal, immediate, and pecuniary interest in the plaintiff's continued performance of his duties, or that Hill was directly benefited thereby.
The consideration alleged is that the plaintiff's services were valuable and brought in sales and additional money, presumably to the owners of the station. Hill is alleged to have been benefited in that he participated in the profits. But, in the absence of allegations that there were profits  and, construed against the pleader, the allegation that the "station was operated for a pecuniary gain" is not an allegation that there were profits  or that Hill shared also in the losses, only a possibility of direct benefit to Hill is shown, and this is not a sufficient interest in *287 the transaction on Hill's part to show that his undertaking to pay for the plaintiff's accrued compensation was original rather than collateral to that of the owners.
The plaintiff alleged that he performed his services, but since they were not of substantial benefit to Hill, this affords no ground for removing from Hill the protection of the statute. 49 Am. Jur. 803, Statute of Frauds, § 500.
As the petition failed to set out a cause of action against Hill, who resided in Fulton County, where the suit was brought, the court was without jurisdiction of the defendants alleged to be residents of Crisp County, and did not err in sustaining their demurrers. Jackson v. Norton, 75 Ga. App. 650 (44 S. E. 2d 269); Walker v. Whittle, 83 Ga. App. 445 (64 S. E. 2d 87); Crosby v. Calaway, 65 Ga. App. 266 (16 S. E. 2d 155); Metcalf v. Hale, 42 Ga. App. 402 (156 S. E. 301); Southern States Life Ins. Co. v. Statham, 4 Ga. App. 482 (61 S. E. 886).
Judgment affirmed. Felton, C. J., and Quillian, J., concur.


266 Cal.App.2d 192 (1968)
B-L RANCH, INC., Petitioner,
v.
WORKMEN'S COMPENSATION APPEALS BOARD, FRANCA LUCIA RAY et al., Respondents.
California Court of Appeals.
Sept. 27, 1968.
 McConnell & Cramoline and Lawrence Kirk for Petitioner.
 Everett A. Corten, Sheldon M. Ziff, Nathan Mudge and Arthur C. Jones, Jr., for Respondents.
 McCOY, J. pro tem.  [fn. *]
 This is a proceeding to review and annul an order of the Workmen's Compensation Appeals Board dismissing the employer's compensation insurance carrier as a party defendant to the proceedings on the applicant's claim for death benefits and funeral expenses arising out of the industrial injury and death of applicant's husband.
 In June 1967 Franca Lucia Ray, the widow of Marian Ray, applied to the board for adjudication of her claim against B-L Ranch, Inc., and State Compensation Insurance Fund as the employer's insurance carrier, arising out of the industrial accident and death of her husband, Marian Ray, on May 13, 1967, while employed as a ranch worker by B-L Ranch, Inc. By its answer State Compensation Insurance Fund, hereafter referred to as the Fund, denied that it was the compensation insurance carrier for B-L Ranch, Inc. on the date of the accident. After hearing the matter the referee ordered the Fund dismissed as a party defendant, and then made an award in favor of the applicant against B-L Ranch, Inc. as an uninsured employer.
 The primary issue before the referee was whether the fund was the insurance carrier for the employer at the time of the accident. The contentions of the parties before the referee with reference to this issue are repeated in the petition of the employer for reconsideration and in the Fund's answer thereto. The employer's petition for reconsideration was based on the ground that the evidence does not justify the referee's findings of fact and that the findings do not support his decision. In support of its petition the employer contended in substance that the Fund was estopped to deny coverage *194 and that it had waived the right to claim termination of the policy. In its answer the Fund contended its conduct before the injury, as shown by the record, did not create an estoppel, that its conduct after the injury did not constitute a waiver, and that the evidence sustains the findings of the referee. The petition for reconsideration was denied by the board.
 [1] We have concluded that the decision of the board denying the petition for reconsideration must be annulled because of the failure of the board to comply with the provisions of section 5908.5 of the Labor Code. That section provides that any decision of the board denying a petition for reconsideration "shall be in writing ... and shall state the evidence relied upon and specify in detail the reasons for the decision." Where the board fails to comply with this section, the court cannot fairly consider the substantive issues raised by the petition for review. (Evans v. Workmen's Comp. App. Bd., 68 Cal.2d 753 [68 Cal.Rptr. 825, 441 P.2d 633].)
 [2] In the case before us the board's order denying reconsideration reads: "We have considered the allegations of the Petition for Reconsideration on file herein and the contents of the Referee's Report with respect thereto. Based on our review of the record, and for the reasons stated by the Referee, whose report we herewith adopt and incorporate, It is Ordered that said Petition for Reconsideration be, and it hereby is, Denied." It is obvious on its face that in making this decision the board made no attempt to comply with section 5908.5 of the Labor Code, in that, the decision contains no statement of the evidence relied upon and no statement of the reasons for the decision. As we pointed out in Holcomb v. Workmen's Comp. App. Bd., ante, p. 108 [71 Cal.Rptr. 874], decided this day, the board's failure to comply with that section is not cured by the extended discussion of the evidence and of the reasons for the board's decision in the answer filed by the board's attorneys to the petition for review.
 It is equally obvious, at least in the case before us, that the board has not complied with section 5908.5 by adopting and incorporating in its decision the reasons stated in the report of the referee. The formal decision of the referee in which he ordered the Fund dismissed as a party defendant contains no findings of fact as to the issues of estoppel or waiver and no statement of the reasons for his order or of the evidence on which he based his decision. The only statement with reference *195 to the issue of insurance coverage is found in the referee's opinion on his decision, where he says: "Because of sloppy business practices, the defendant employer was delinquent in paying premium and allowed its workmen's compensation insurance coverage to lapse on May 2, 1967. Therefore, it is found that the defendant employer had no coverage on the date of the fatal accident."
 The report of the referee on the petition for reconsideration is equally inadequate. So far as relevant here, it reads: "In arriving at the decision [that there was no insurance coverage] the Referee carefully weighed all of the evidence in the record. The record clearly demonstrates that workmen's compensation insurance coverage provided by State Compensation Insurance Fund lapsed on May 2, 1967, because of defendant employer's failure to pay the insurance premium. The industrial accident took place on May 13, 1967, when there was no insurance coverage." Assuming that the adoption and incorporation in its decision of a report of the referee on a petition for reconsideration is sufficient compliance with the requirement of section 5908.5 that the decision of the board on a petition for reconsideration "shall be made by the appeals board and not by a referee," the adoption and incorporation of such a report is not sufficient where the report itself contains no statement of the evidence relied upon or of the reasons for the decision as to decisive issues.
 In our opinion petitioner had the right under the law to a decision of the board on the issues raised in the proceedings before the board, as a prerequisite to a review by the court of an adverse decision. [3] In our opinion, since the board did not regularly pursue its authority in making its decision on the petition for reconsideration, the board retains jurisdiction to make a new decision on that petition which complies with the provisions of section 5908.5 of the Labor Code. (Evans v. Workmen's Comp. App. Bd., 68 Cal.2d 753 [68 Cal.Rptr. 825, 441 P.2d 633].)
 The decision of the board denying reconsideration is annulled and the case is remanded to the board with directions to issue a new decision on applicant's petition for reconsideration within 30 days from the day this decision becomes final.
 Ford, P. J., and Cobey, J., concurred.
NOTES
[fn. *]  *. Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.


665 F.2d 843
2 Employee Benefits Ca 2202
John M. HAUCK, Ralph May and Gerald Mitchell, as all of themembers of the Administrative Committee on behalfof Tubular Steel, Inc. Profit SharingPlan, Appellants,v.E. W. ESCHBACHER and R. E. Gray, Appellees.
No. 81-1075.
United States Court of Appeals,Eighth Circuit.
Submitted Sept. 14, 1981.Decided Dec. 10, 1981.

Larry B. Luber, Mark H. Goran (argued), St. Louis, Mo., for appellants; Greensfelder, Hemker, Wiese, Gale & Chappelow, St. Louis, Mo., of counsel.
Theodore D. Ponfil, Gary A. Growe (argued), Blumenfeld, Marx & Tureen, P. C., St. Louis, Mo., for appellees.
Before STEPHENSON, Circuit Judge, GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
STEPHENSON, Circuit Judge.

1
Plaintiffs-appellants in this case seek a declaratory judgment concerning accrued benefits in a profit-sharing plan.  The plaintiffs maintain that the two defendants have violated the "non-competition" clause of the plan and thus have forfeited their benefits.  The district court1 determined that the retroactive application of the no-compete clause to the two defendants would violate the profit-sharing plan.  Thus, the district court concluded that forfeiture was not proper.

2
The district court also held that the plaintiffs' action amounted to an anticipatory breach of the profit-sharing plan and, therefore, the defendants were entitled to an immediate lump-sum payment of their accrued benefits, if they decided to elect this remedy.

3
We affirm the district court's conclusion that forfeiture was not appropriate but disagree on the question of anticipatory breach.  Therefore, the defendants should receive the benefits but in the manner envisaged in the profit-sharing plan.

I. BACKGROUND

4
The defendants in this case are E. W. Eschbacher and R. E. Gray.  Both Eschbacher and Gray became employees of Tubular Steel, Inc. on October 1, 1967.  Eschbacher was employed as a vice-president and product manager.  Gray worked as an operations manager and later as a salesman.  Tubular Steel is a Missouri corporation which processes and distributes steel tubing and piping throughout the United States.

5
When Eschbacher and Gray started at Tubular Steel, the company had earlier adopted a tax-qualified plan of deferred compensation known as the Tubular Steel, Inc. Profit Sharing Plan and Trust.  This original or initial plan was adopted on December 28, 1965, and contained a "no-compete forfeiture clause."  In relevant part, section 12.7 states that an employee's benefits shall be forfeited if the employee works for a competitor within twelve months after leaving Tubular Steel.2

6
The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., required substantial changes in Tubular Steel's profit-sharing plans.  The changes in the vesting rules were required to be effective for plan years beginning after December 31, 1975.  See 29 U.S.C. § 1061(b)(2).3

7
In order to comply with ERISA, Tubular Steel began to alter its profit-sharing plan.  On September 27, 1976, Tubular Steel adopted an amended and restated profit-sharing plan.  This restated plan did not contain a no-compete forfeiture clause such as section 12.7 of the original plan.  The restated plan was again amended on January 28, 1977.  Nothing was added in this amendment that is pertinent to this case.  The restated plan was again amended on August 2, 1977.  The restated plan and the two amendments were made retroactive to January 1, 1976.

8
The August 2, 1977, amendment added section 14.14, a no-compete forfeiture clause.4  In contrast to section 12.7 of the original plan, the new no-compete forfeiture clause expanded the restricted period from one to three years.  However, it only applied to persons who had worked less than ten years with the employer.  This ten-year limitation was necessary in order for the new clause to be consistent with ERISA's minimum vesting standards.  See Hepple v. Roberts & Dybdahl, Inc., 622 F.2d 962 (8th Cir. 1980).  The new no-compete clause was adopted August 2, 1977, but made retroactive to January 1, 1976.

9
While Tubular Steel was in the process of bringing its pension plan into compliance with ERISA, the facts occurred which led to this lawsuit.  On March 15, 1976, defendants Eschbacher and Gray left the employ of Tubular Steel and began working for Aladdin Steel, Inc., an Illinois corporation.  Eschbacher became president of Aladdin and Gray, vice-president.  It is conceded that Aladdin is in direct competition with Tubular Steel.

10
On June 16, 1978, twenty-seven months after the defendants left Tubular Steel, the administrative committee of Tubular Steel restated plan sent notices to Eschbacher and Gray stating that they were considered to be in violation of section 14.14.  The committee provided an opportunity for the defendants to rebut this conclusion and stated that if the committee nevertheless decided that the defendants were in violation of section 14.14, then, unless the competitive activity ceased, they would affect a forfeiture of defendants' benefits.5

11
The committee then filed suit on October 12, 1978, seeking a declaratory judgment stating that forfeiture of the defendants' accrued benefits was lawful.  On cross-motions for summary judgment the district court adopted the report and recommendation of Magistrate David Noce.  The magistrate concluded, and the district court agreed, that retroactive application of section 14.14 to the defendants would violate section 10.1(c) of the restated plan.  Section 10.1(c) provides:

12
10.1 The Employer, by resolution of its Board of Directors, reserves the right to make from time to time any amendment or amendments to this Plan, provided however:

13
(c) Any such amendment shall not reduce a Participant's accrued benefits to less than the benefits to which he would have been entitled if he had resigned from the employ of the Employer on the day prior to the effective date of such amendment.

14
The magistrate concluded that "(c)learly, the retroactive application of § 14.14 to defendants resulted in a reduction of their accrued benefits in violation of § 10.1(c) of the (r)estated (p)lan."

15
The magistrate also decided that, although the restated plan requires distribution only after the defendants have reached age sixty-five in most cases, the plaintiffs' actions amounted to a "total anticipatory breach of the agreement to pay defendants' benefits pursuant to the (r)estatement (p)lan, without the improper retroactive application of § 14.14."6

II. DISCUSSION

16
A. Is Forfeiture Proper?

17
On appeal, the administrative committee of the Tubular Steel plan argues that section 14.14 concerns whether an employee is entitled to accrued benefits and not to the computation of the amount.  They assert that application of section 14.14 to the defendants here does not reduce the amount of accrued benefits but merely concerns entitlement.  Thus, they argue that application of section 14.14 of the restated plan to the defendants does not violate section 10.1(c) because it would not reduce their accrued benefits but merely eliminate their entitlement to those benefits.  Further, the appellants note that Eschbacher and Gray did not render sufficient service to be entitled to share in contributions for any year after December 31, 1975.  Thus, all of the contributions to the defendants' accrued benefits were made at a time when the contract embodied in the profit-sharing plan contained an enforceable forfeiture condition, section 12.7.  The retroactive application, in the appellants' view, did not add a condition to Eschbacher's and Gray's entitlement to benefits under the plan.

18
We agree with the defendants that the dichotomy between an elimination of entitlement and a reduction in benefits is a distinction without a difference.  The elimination of an entitlement is nothing more than a one hundred percent reduction in accrued benefits.

19
We also disagree with the appellants concerning the impact of section 12.7 of the original plan in this case.  The restated or post-ERISA plan in section 10.1(c) allows amendments to the plan only where an employee's accrued benefits are not reduced to less than he would have been entitled to "if he had resigned from the employ of the (e)mployer on the day prior to the effective date of such amendment."  In this case, the day prior to the effective date of the amendment in question was December 31, 1975.  If Eschbacher and Gray had resigned on that day, their accrued benefits could have been forfeited under the terms of section 12.7 with its one-year prohibition against competitive conduct.  But, as noted above, the two defendants were not given a notice to cure their violation until some twenty-seven months after they terminated their relationship with Tubular Steel.  Although this is within the three-year restriction contained in post-ERISA section 14.14, it is beyond the time that a former employee was similarly restricted under section 12.7.

20
The failure of the appellants to provide notice to the defendants within one year of their departure is obviously critical.  Because of the committee's untimely notice, the accrued benefits of the defendants are reduced by the application of section 14.14 from what they would have received if they had resigned before the effective date of the amendment.  Nor can it be said that section 12.7 did not require notice within the one-year period.  Section 12.7 expressly states that a former employee who is allegedly violating the no-compete rule shall be given written notice of a right to cure and it is only when this notice goes unheeded that benefits may be forfeited.  See n.2, supra.

21
It is this difference in the timing of the notice required under the two provisions and the fact that the defendants did not receive timely notice under the requirement of section 12.7 that leads to our conclusion.  The application of section 14.14 creates a reduction in accrued benefits and thus is a violation of section 10.1(c).7

22
In reaching this conclusion, the magistrate relied upon Rochester Corp. v. Rochester, 450 F.2d 118 (4th Cir. 1971); Evo v. Jomac, Inc., 119 N.J.Super. 7, 289 A.2d 551, 555-57 (Law Div.1972); Rosploch v. Alumatic Corp., 77 Wis.2d 76, 251 N.W.2d 838, 841-44 (1977).  These cases are helpful in that they express the harshness with which the retroactive amendment can operate but these opinions are not dispositive of the issue raised in this appeal.  We emphasize that our analysis is an interpretation of the contracts involved, i. e., we do not decide the issue of whether this amendment violates section 204(g) of ERISA, 29 U.S.C. § 1054(g), as suggested by the defendants.

B. Remedy

23
The second main conclusion reached by the magistrate, and adopted by the district court, was that the plaintiffs had anticipatorily breached the contract to the extent that defendants could receive immediate distribution of their accrued benefits in a single payment if they so chose.  We disagree with this conclusion.

24
Normally the benefits under the Tubular Steel profit-sharing plan are not distributed until the employee reaches sixty-five years of age.  At that time the employee may elect to receive a lump-sum payment or select from several other forms of distribution.  At this point the committee maintains that it has not formally declared a forfeiture while the defendants assert that this has already been done.  The defendants rely upon two letters which are not a part of the record and, according to the plaintiffs' reply brief, are merely a technical statement of the plaintiffs' position in this matter which was requested by the defendants' counsel.  The plaintiffs also make the unequivocal representation that "the (c)ommittee has not reallocated the benefits subject to (s)ection 14.14, (that the committee) does not intend to do so without the authority of the court, and has continued to furnish Eschbacher and Gray with statements of the accrued benefits in their individual accounts."  Based on these representations, it is clear that no breach has occurred.  In this declaratory judgment action the plaintiffs have merely sought to have their responsibilities to Eschbacher and Gray clarified.  There is no indication that the committee will not abide by the decision of this court and provide the benefits in the manner envisaged by the profit-sharing plan.8 Because there is no anticipatory breach, the remedy of a lump-sum payment is not required.

25
Further, ERISA provides that a participant may bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his right to future benefits under the plan."  29 U.S.C. § 1132(a)(1)(B).  The terms of the plan in the case at bar are that the administrator has the discretionary power to commence the payment of benefits prior to the time Eschbacher and Gray reach sixty-five years of age but it is not required to do so until that time.  See n.8, supra.  Our discussion above demonstrates that the defendants' right to receive the benefits at age sixty-five is intact.  It is also clear that under the terms of the plan no immediate lump-sum payment is mandated and thus benefits are not now due.9

26
In summary, we affirm the district court's holding that the application of section 14.14 of the post-ERISA plan in order to forfeit benefits accrued to the two defendants would violate section 10.1(c) of the restated plan.  Further, we reverse the district court in regard to its conclusion that a lump-sum payment would be required if the defendants so desired.

27
Affirmed in part; reversed in part.

1
 The Honorable Edward L. Filippine, United States District Judge for the Eastern District of Missouri, presiding

2
 Section 12.7 of the original plan states:
A participant whose continuous employment with the Company is terminated prior to his normal retirement date and either: (i) who is employed by the Company as a salesman, or (ii) whose compensation from the Company, as defined in section 2.6, for the fiscal year in which such termination occurs or either of the two fiscal years next prior thereto, is $6,000.00 or more, irrespective of the nature of such participant's duties with the Company, shall be subject to the condition that he shall not, for a period of twelve (12) months from and after such termination or for the period from and after such termination and prior to his normal retirement date, whichever is the shorter, directly or indirectly, engage in or be interested in, whether as employee, agent, owner, independent contractor, stockholder or otherwise, any business or activity within the United States which is determined by the Board of Directors of the Company to be competitive with any business carried on by the Company at the time of the termination of such former participant's employment.  At any time prior to the expiration of whichever of the aforesaid periods is applicable, the Board of Directors of the Company, in order to ascertain whether or not such former participant has violated the aforesaid condition, may require of such former participant written answer to such written interrogatories as the Board of Directors may in its discretion determine to propound to such former participant relative to such former participant's observance or non-observance of the aforesaid condition, any such interrogatories to be sent to such former participant by certified mail, return receipt requested, addressed to the last known address of such former participant.  If such former participant shall fail to deliver to the Board of Directors, or its designated agent for such purpose, complete and truthful answers to each and every such interrogatory within the time limited therefor, as set forth in connection with such interrogatories, or, if the answers to such interrogatories shall disclose that such former participant has violated the aforesaid condition, or, if independently of any such interrogatories, the Board of Directors shall determine that such former participant has violated the aforesaid condition, the Board of Directors shall require such former participant to cure such violation on or before the date set forth in written notice given by the Board of Directors to such former participant by certified mail, return receipt requested, addressed to the last known address of such former participant, and, if such former participant shall fail to cure the violation set forth in such notice on or before the date therefor set forth in such notice, the amount to which such former participant and his beneficiaries would thereafter otherwise be entitled to receive under the plan shall be forfeited and such former participant and his beneficiaries shall have no further interest in the plan.

3
 For example, initially it was thought that the no-compete forfeiture clauses, also known as "bad boy" provisions, were not permissible under ERISA.  See Keller v. Graphic Systems, 422 F.Supp. 1005, 1008-09 (N.D.Ohio 1976); Ellis v. Lionikis, 377 A.2d 1208 (N.J.Super.Ct.Ch.Div.1977); Lee, ERISA's "Bad Boy" Forfeiture for Cause in Retirement Plans, 9 Loy.Chi.L.J. 137 (1977).  Cf. Hepple v. Roberts & Dybdahl, Inc., 622 F.2d 962 (8th Cir. 1980) (upholding a "bad boy" provision as not violative of ERISA)

4
 Section 14.14 of the restated plan provides:
Notwithstanding any provision in this Plan to the contrary, a Participant whose employment with the Employer terminates prior to his Normal Retirement Date, and who completed fewer than ten (10) Years of Service prior to said termination, shall be subject to the condition that he shall not, for a period of thirty-six (36) months from and after such termination or for the period from and after such termination and prior to his Normal Retirement Date, whichever is the shorter, directly or indirectly, engage in or be interested in, whether as employee, agent, owner, independent contractor, stockholder or otherwise, any business or activity within the United States which is determined by the Board of Directors of the Employer at any time within said period to be competitive with any business carried on by the Employer.  At any time prior to the expiration of whichever of the aforesaid periods is applicable, the Board of Directors of the Employer, in order to ascertain whether or not such Former Participant violated the aforesaid condition, may require of such Former Participant written answer to such written interrogatories as the Board of Directors may in its discretion determine to propound to such Former Participant relative to such Former Participant's observance or non-observance of the aforesaid condition, any such interrogatories to be sent to such Former Participant by certified mail, return receipt requested, addressed to the last known address of such Former Participant.  If such Former Participant shall fail to deliver to the Board of Directors, or its designated agent for such purpose, complete and truthful answers to each and every such interrogatory within a time specified therefor, as set forth in connection with such interrogatories, or, if the answers to such interrogatories shall disclose that such Former Participant has violated the aforesaid condition, or, if independently of any such interrogatories, the Board of Directors shall determine that such Former Participant has violated the aforesaid condition, the Board of Directors shall require such Former Participant to cure such violation on or before a date set forth in written notice given by the Board of Directors to such Former Participant by certified mail, return receipt requested, addressed to the last known address of such Former Participant, and, if such Former Participant shall fail to cure the violation set forth in such notice on or before the date therefor set forth in such notice, the amount to which such Former Participant and his Beneficiaries would thereafter otherwise be entitled to receive under the Plan shall be forfeited and such Former Participant and his Beneficiaries shall have no further interest in the Plan.  If the amounts payable to such Former Participant and his Beneficiaries are by virtue of an annuity contract and if the rules of the insurer permit, the Trustee, upon written direction from such Board of Directors, shall cause the insurer to pay to the Trustee the commuted value of such contract, and the Administrator shall allocate all sums so received by it in accordance with the provisions for allocation contained in Section 6.2(c).  If the amounts payable to such Former Participant and his Beneficiaries are held by the Trustee in a Retirement Fund, the Administrator, upon written direction from such Board of Directors, shall allocate the amount in such Retirement Fund in accordance with the provisions for allocation contained in Section 6.2(c).  The Board of Directors of the Employer, in accordance with uniform principles consistently applied, may enforce the aforesaid condition at any time within the period of the aforesaid condition or waive the breach of the aforesaid condition, as it in its sole discretion may determine.

5
 The magistrate noted that Eschbacher's account balance was $38,491.52 and Gray's was $16,542.62

6
 The magistrate relied upon Hoefel v. Atlas Tack Corp., 581 F.2d 1, 7 (1st Cir. 1978), cert. denied, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979); Minnesota Amusement Co. v. Larkin, 299 F.2d 142, 153 (8th Cir. 1962); Burch v. Union Life Ins. Co., 319 S.W.2d 908, 912-13 (Mo.App.1959); Stopford v. Boonton Molding Co., 56 N.J. 169, 265 A.2d 657 (N.J.Sup.Ct.1970); 4 A. Corbin, Corbin on Contracts, § 954 at 831-32 (1951)

7
 We also note that Miller v. Associated Pension Trusts, Inc., 541 F.2d 726 (8th Cir. 1976), relied upon by appellants, is readily distinguishable.  In Miller, this court held that a pension trust's failure to provide a former employee with the procedural safeguards mandated by the profit-sharing plan prior to declaring a forfeiture of benefits did not prejudice the former employee nor did it demonstrate that the administrator of the pension fund acted in bad faith.  Id. at 729.  In the case at bar, a different issue is presented.  Here the question is whether the retroactive application of section 14.14 would create a change in conditions such that section 10.1(c) of the restated plan is violated.  The failure of the plaintiffs here to give notice demonstrates the clear difference between section 14.14 and section 12.7 is such that a violation of section 10.1(c) exists.  Obviously, the lack of notice was prejudicial here because it meant that the defendants were subject to a forfeiture under section 14.14 but would not have been under section 12.7

8
 Section 7.8(b) of the post-ERISA plan provides:
If a Participant's entitlement to benefits arises under ... (Section) 7.4 (termination of Participant's employment before age 65 for reason other than disability or death), the payment of the Participant's benefits must commence within a reasonable time which shall be not more than 60 days after the later of the close of the Plan Year in which occurs:
(i) The date on which the Participant or Former Participant attains age 65, or
(ii) The date on which the Participant's employment terminates after he attains age 65.  (emphasis supplied)
Section 7.7 of the post-ERISA plan provides:
Upon a Participant's entitlement to benefits under * * * Section * * * 7.4, he shall file with the Administrator a written request specifying:
(a) When he wishes to receive payment of benefits,
(b) Which of the methods provided below  for payment of his benefits he would prefer.
The Administrator shall determine when payment of a Participant's benefits is to commence and the method by which his benefits will be paid and shall direct the Trustee accordingly.  The Administrator shall exercise his sole and absolute discretion in making any determinations under this section, subject only to the special rules of Sections 7.8 and 7.9, and shall not in the exercise of such discretion be bound in any manner whatsoever by a Participant's request under this section.

9
 ERISA states that payment of benefits shall begin not later than, in this case, the date on which the participant attains age 65.  See 29 U.S.C. § 1056(a).  A terminated participant may not compel payment of his benefits prior to the latest date set forth in the statute unless the terms of the plan mandate earlier distribution.  See Tanuggi v. Grolier, Inc., 471 F.Supp. 1209, 1216-17 (S.D.N.Y.1979); Riley v. Meba Pension Trust, 452 F.Supp. 117, 120-21 (S.D.N.Y.), aff'd, 586 F.2d 968, 972 (2d Cir. 1978).  In the case at bar, the plan does not mandate earlier distribution


172 N.W.2d 624 (1969)
184 Neb. 838
Stephen F. KRANTZ, Appellant,
v.
MARGE'S MUFFLERS, INC., Appellee.
No. 37214.
Supreme Court of Nebraska.
December 5, 1969.
*625 Young, Holm, McEachen & Hamann, Omaha, for appellant.
Gross, Welch, Vinardi, Kauffman, Schatz & Day, Omaha, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
BOSLAUGH, Justice.
This is an action by Stephen F. Krantz to recover damages for personal injuries sustained by him in an accident at the defendant's automobile repair shop in Omaha, Nebraska.
*626 On January 4, 1965, the plaintiff, who is a used car dealer, brought an automobile to the defendant's shop to have its exhaust system repaired. The automobile was placed on a lift or hoist and raised so that the exhaust system could be inspected. Later, while the automobile was being lowered the plaintiff's foot was caught underneath the hoist and injured.
The jury returned a verdict for the defendant. The plaintiff's motion for new trial was overruled and he has appealed. The assignments of error relate to the overruling of the plaintiff's motions for a directed verdict, the instructions to the jury, and rulings on objections during the plaintiff's cross-examination of the defendant's employee.
The work area of the defendant's shop contained four hoists arranged in two rows so that automobiles could enter from the north and south sides of the building and be placed on the hoists. Each hoist consisted of a platform supported by four posts located at the corners. The platform was raised and lowered by a winch and cable system operated by an electric motor. It required 48 seconds for the hoist to be lowered. There was an aisle 6½ feet wide between the hoists on the north and south sides of the shop. When the platform was lowered, a bar or cross-member at the front of the hoist rested on the concrete floor of the shop.
The plaintiff was familiar with the defendant's shop and the way cars were lifted. On the day of the accident the plaintiff's automobile entered the shop from the south and was placed on a hoist. The plaintiff then went into the office or waiting room while the automobile was inspected to determine what repairs were needed.
Terry Hinze, an employee of the defendant, testified that he examined the muffler, exhaust pipe, and tailpipe on the automobile and found no defects in them. Hinze then asked the plaintiff to come to the shop area, and the plaintiff and Hinze went underneath the automobile and inspected it. Hinze climbed up on the hoist, started the engine, and had another employee plug up the tailpipe. This procedure disclosed that the defect was in the center head or intake manifold area.
Hinze climbed down from the hoist and told the plaintiff that the defect was in the engine area and not in the exhaust system. Hinze said that if the plaintiff would step out from underneath the car, he would lower the hoist and the plaintiff could see where the defect was located.
The switch which controlled the hoist was located at the northwest corner of the hoist near the left front corner of the automobile. Hinze testified that the plaintiff was clear of the hoist before he began to lower the automobile. The plaintiff was standing north of or in front of the hoist and to the left of Hinze as the automobile was being lowered. Hinze was watching the hoist as the automobile was being lowered and the plaintiff was not in the vision of Hinze. There was some evidence that the plaintiff was looking at the engine when the hoist came down on his right foot.
The plaintiff testified that the engine had been started with the car on the hoist before he was asked to come to the shop area to see where the defect was located. The plaintiff said that he was underneath the hoist looking at the automobile when he felt the hoist coming down. The plaintiff was backing out from under the hoist and had "almost made it" when he felt himself lunging backwards, caught hold of the top of the radiator of the car, and pulled himself back. The plaintiff said that he straightened himself out, but as the hoist went on down, "my foot was just in the wrong place" and the bar caught his foot. The plaintiff's right big toe and part of the second toe were crushed in the accident.
The evidence was in conflict as to how the accident happened and presented questions for the jury as to negligence and contributory negligence. The plaintiff's motions *627 for a directed verdict were properly overruled.
The plaintiff contends that the trial court erred in failing to give two requested instructions concerning the duty of the operator of a car lift. The first requested instruction stated that it is the duty of the operator of a car lift to keep a proper lookout and to see what is plainly before him. The second requested instruction stated that a car lift is a dangerous instrumentality and that a slight deviation from the standards of care will constitute negligence.
The trial court instructed generally with respect to negligence and contributory negligence but gave no specific instruction as to the duty of lookout with respect to either party. However, the trial court did instruct that the defendant was required "to exercise that degree of care, precaution and vigilance in its actions and operations on the premises which the circumstances justified and reasonably demanded." The trial court further instructed that the defendant was not required to "warn of an open and obvious danger" and the plaintiff was "not entitled to anticipate that he would be warned of a risk that should have been open or obvious to him in the exercise of ordinary care."
The duty to maintain a proper lookout was a part of the duty to use due care and was applicable to both parties. It was not limited to the defendant alone as suggested in the first requested instruction. Under the circumstances in this case the trial court was not required to give the requested instruction.
Although a car lift might be considered to be a dangerous instrumentality in one sense of the term, the duty upon the defendant was to exercise reasonable care under the circumstances while operating the lift. The trial court was not required to instruct the jury that even a "slight deviation from the standards of care" would constitute negligence. It is not error to refuse a requested instruction if the legal principles therein announced are either incorrectly stated or inapplicable to the issues involved. Frazier v. Anderson, 143 Neb. 905, 11 N.W.2d 764.
The plaintiff contends that the trial court should have instructed the jury in regard to the doctrine of sudden emergency even though such an instruction was not requested. The doctrine is not applicable where, as in this case, the emergency is caused in part by the negligence of the party claiming its benefit. Schwartz v. Hibdon, 174 Neb. 129, 116 N.W.2d 187.
During the cross-examination of Hinze, plaintiff's counsel inquired at length concerning a pre-trial deposition. As to many of the questions asked there was no variance between the testimony at the trial and the testimony in the deposition. On two occasions the trial court sustained objections to the questions asked because the previous answers did not tend to impeach the witness.
The plaintiff now complains that he was prevented from proving that the witness had stated, in his deposition, that he asked the plaintiff to come to the shop area to observe the source of the noise. Hinze had testified on direct examination that he asked the plaintiff to come to the shop area "and we went underneath the car."
There was no prejudice in the ruling. Although the objection was sustained, no motion was made to strike the testimony and no admonition was given to the jury. There was an offer of proof but no ruling made. The cross-examination continued and the plaintiff's counsel made further inquiry concerning the pre-trial deposition.
Although a witness may be impeached by proof of previous inconsistent statements, counsel should not be permitted to read at length from pre-trial depositions during cross-examination where there is no substantial variance in the testimony. The trial court in this case did not abuse its *628 discretion in attempting to keep the cross-examination within proper bounds.
The judgment of the district court is affirmed.
Affirmed.


       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                          JUDGMENT RENDERED JULY 24, 2013

                                      NO. 03-11-00678-CV

                                Rhett Webster Pease, Appellant

                                                v.

               Texas Department of Family and Protective Services, Appellee

           APPEAL FROM 21ST DISTRICT COURT OF LEE COUNTY
       BEFORE CHIEF JUSTICE JONES, JUSTICES PEMBERTON AND ROSE
             DISMISSED AS MOOT -- OPINION BY JUSTICE ROSE

THIS DAY came to be submitted appellee’s motion to dismiss for mootness the appeal in the

above cause, and the Court having fully considered said motion is of the opinion that same

should be granted. IT IS THEREFORE ordered that said motion is granted and that the appeal

is dismissed. It is FURTHER ordered that the appellant pay all costs relating to this appeal,

both in this Court and the court below, and that this decision be certified below for observance.


944 F.2d 908
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.David C. ELLARD, Petitioner-Appellant,v.Chase RIVELAND, Secretary of the Washington Department OfCorrections Respondent-Appellee.
No. 91-35082.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 9, 1991*.Decided Sept. 19, 1991.

Before WRIGHT, FARRIS and TROTT, Circuit Judges.

1
MEMORANDUM**

2
David Ellard, a Tacoma, Washington tire dealer with contracts with the Tacoma School District ("TSD"), was convicted of theft in Washington State Superior Court in 1984.   Ellard's habeas corpus petition was dismissed in district court.   We affirm.

3
Ellard first argues that Jury Instruction 22 was unconstitutional because it allowed the jury to convict for the criminal acts of others, and it left out the action elements of accomplice liability.   We find the instruction only states a necessary but not a sufficient condition for conviction--it tells the jury not to convict unless it finds specific intent, it does not tell the jury to convict if it finds specific intent.   Moreover, jury instructions are to be read in the "context of the overall charge."   United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988) (citations omitted) modified on other grounds, 872 F.2d 334 (9th Cir.1989), cert. denied, 110 S.Ct. 71 (1989).   Jury Instruction 23 fully spells out the elements of theft.

4
Second, Ellard claims that Jury Instruction 16 was unconstitutional under  State v. Shipp, 610 P.2d 1322, 93 Wash.2d 510 (1980) and allowed the jury to convict because of mere negligent ignorance.   We find Instruction 16 was not defective under Shipp.   Moreover, even though the instruction did not use the word "actual knowledge," "knowledge" has an ordinary and accepted meaning, which is actual knowledge.   Shipp, 610 P.2d at 1326.

5
Third, Ellard argues that he was denied ineffective assistance of counsel.   Ellard must (1) show that his attorney's errors or omissions reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent attorney, and (2) affirmatively establish prejudice as a result of the attorney's conduct."   United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.1985) (citing Strickland v. Washington, 466 U.S. 655 (1984)), cert. denied, Moore v. United States, 474 U.S. 979 (1985).

6
Ellard argues that his counsel's conduct was ineffective because of his counsel's failure to (1) object adequately to evidence of bad acts;  (2) take exception to the trial court's jury instruction;  (3) request a limiting instruction to this evidence;  and (4) request a continuance before the cross-examination of the assistant state auditor.

7
The record demonstrates that his attorney did object to this evidence, see 4 RP 94-99, and the court ruled bad acts evidence was admissible under Washington Evidence Rule 404(b).   The record shows also that Ellard had direct complicity in the TSD transactions.   He has not shown that the result would have been any different if a limiting instruction had been given.   Moreover, Ellard has not shown any prejudice, nor has he shown that his counsel's long cross-examination of the assistant state auditor rendered his conduct less than that of a reasonably competent attorney.

8
Finally, Ellard argues that the aggregation of these errors made his trial fundamentally unfair.   Lincoln v. Sunn, 807 F.2d 805, 814 n. 6 (9th Cir.1987).   This claim is meritless.

9
AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.   Fed.R.App.P. 34(a);  Ninth Circuit Rule 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


        In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                         No. 14-715V
                                  Filed: February 12, 2016

*************************                                UNPUBLISHED
CHARLES THOMAS, administrator of          *
the Estate of CHERYLL THOMAS,             *
deceased,                                 *
                     Petitioner,          *              Special Master Gowen
v.                                        *
                                          *              Attorneys’ Fees and Costs
SECRETARY OF HEALTH                       *
AND HUMAN SERVICES,                       *
                                          *
                     Respondent.          *
                                          *
*************************
Lawrence R. Cohan and David J. Carney, Anapol Weiss, Philadelphia, PA, for petitioner.
Alexis B. Babcock, United States Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

        On August 8, 2014, Charles Thomas (“petitioner”) filed a petition as administrator of the
Estate of Cheryll Thomas, deceased, for compensation under the National Vaccine Injury Act of
1986, 42 U.S.C. §§ 300aa-10 et seq. (2012) (“Vaccine Act”). Petitioner alleged that as a result
of receiving an influenza (“flu”) vaccination on September 21, 2012, Ms. Thomas suffered
chronic inflammatory demyelinating polyneuropathy (“CIDP”). Petition at Preamble. On
February 4, 2016, the undersigned issued a dismissal decision on petitioner’s motion. Judgment
entered on February 5, 2016.

        On February 10, 2016, the parties filed a Stipulation of Fact concerning attorneys’ fees
and costs. Petitioner requests a total award of attorneys’ fees and costs of $38,000.00. Stip. of
Fact ¶ 5. Pursuant to General Order #9, petitioner’s counsel also represents that petitioner did
not incur any out-of-pocket litigation costs in this matter. Id. at ¶ 4. The parties’ stipulation
indicates that respondent does not object to the amended amount of $38,000.00 in attorneys’ fees

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post this decision on the United States Court of Federal Claims' website, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14
days to identify and move to delete medical or other information, that satisfies the criteria in § 300aa-
12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a
proposed redacted decision. If, upon review, I agree that the identified material fits within the
requirements of that provision, I will delete such material from public access.

                                                   1
and costs that petitioner is requesting. Id. at ¶ 3.

        The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. §
300 aa-15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS
the request for approval and payment of attorneys’ fees and costs.

        Accordingly, an award should be made as follows:

              (1) A lump sum of $38,000.00 in the form of a check payable jointly to
                  petitioner and petitioner’s counsel of record, Lawrence Cohan.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance herewith.2

        IT IS SO ORDERED.

                                                  s/ Thomas L. Gowen
                                                  Thomas L. Gowen
                                                  Special Master

2
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.

                                                      2