author: Per Curiam. M. J. Kelly, P.J.

text:
    AETNA CASUALTY & SURETY COMPANY v DUCKHAM
    Docket No. 78-258.
    Submitted November 2, 1978, at Lansing.
    Decided March 22, 1979.
    Philip Duckham contracted with Double A Products to remove trash from the Double A manufacturing plant. Duckham would leave a trash compacting truck at the Double A plant and would periodically empty the truck when necessary. John Johnson, a part-time employee of Duckham’s, went to the Double A plant to visit with the men there. He was not on the job at the time. While he was there, an employee of Double A experienced difficulty with the trash compactor truck, and Johnson offered his assistance. In an attempt to free the mechanism three of Johnson’s fingers were severed. Johnson petitioned for workmen’s compensation benefits against Duck-ham, Double A, and Double A’s insurer, Aetna Casualty & Surety Company. Duckham carried no workmen’s compensation insurance, in violation of statute. A redemption hearing was held at which Duckham denied any liability, alleging there was no employment relationship at the time of Johnson’s injury. Subsequently, a redemption settlement was entered into between Johnson and Double A. Aetna Casualty & Surety then commenced suit in a district court seeking indemnification from Duckham. The district court found that Johnson was not injured in the course of his employment, and denied indemnification. On appeal, the Jackson Circuit Court, Gordon W. Britten, J., affirmed. Aetna appeals by leave granted. Held:

    It is probable that but for Johnson’s employment relationship with Duckham, he would not have offered to help with the truck mechanism. His familiarity with the equipment, gained from his employment with Duckham, led him to offer the assistance which resulted in his injury. The injury, therefore, arose out of an employment relationship with the defendant, and Aetna has a right to indemnification from Duckham. The trial court’s finding of no cause of action was clearly erroneous.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 240-243.

       81 Am Jur 2d, Workmen’s Compensation §§ 109-111.

       82 Am Jur 2d, Workmen’s Compensation § 631.

       82 Am Jur 2d, Workmen’s Compensation § 427.

      Reversed.
    M. J. Kelly, P.J., dissented. He would apply a standard of review stricter than the "clearly erroneous” standard used by the majority, because the questions involved in this case customarily come before the Court of Appeals as an appeal from the Workmen’s Compensation Appeal Board, in which case the lower tribunal’s findings are to be upheld if there is any evidence in the record to support those findings (barring other error not present in this case). Also, it is not clear that Double A or its insurer, Aetna, qualifies as a principal under the statute which allows indemnification from a contractor. Judge Kelly would affirm.
    Opinion of the Court
    1. Workmen’s Compensation — Employment — Employment Relationship.
    Workmen’s compensation should be paid to an injured employee if the employment is the occasion of the injury, even though not the proximate cause; if it is possible to say that but for the employment relationship the injury would not have occurred, the employee is entitled to compensation.
    2. Workmen’s Compensation — Employment Relationship — Injury Arising from Employment.
    A party’s injury arose out of an employment relationship with a defendant where the employee was a part-time employee of the defendant, both before and after his injury, and was injured at a time when he was not on the job but was helping to load a garbage truck at a plant which contracted with his part-time employer and it was his familiarity with the equipment, gained from his employment with the defendant, that led him to offer the assistance.
    Dissent by M. J. Kelly, P.J.
    3. Workmen’s Compensation — Course of Employment — Findings of Fact — Clear Error.

      The question of whether an employee was injured in the course of his employment requires a weighing of the evidence and an assessment of the credibility of the witnesses, and where a trial court’s fíndings of fact in a case for indemniñcation for workmen’s compensation beneñts paid are supported by some evi

      dence in the record those ñndings should not on appeal be held to be clearly erroneous.

    4. Workmen’s Compensation —• Indemnity — Principal — Statutes.

      A person, ñrm or corporation, not engaged in the business of trash removal or trash compacting, which contracts for trash removal should not be considered a principal as to the employees of the trash remover for purposes of the statute which allows a principal to be indemniñed by a contractor undertaking "the whole or any part of any work undertaken by the principal” for any amounts paid by the principal as compensation to an injured employee of the contractor (MCL 418.171; MSA 17.237[171]).

      Davis & Fajen, for plaintiff.
    Before: M. J. Kelly, P.J., and J. H. Gillis and M. F. Cavanagh, JJ.
   Per Curiam.

By leave granted, plaintiff appeals from a circuit court order affirming a prior district court finding that plaintiff had no cause of action against defendant.

Plaintiff is the insurance carrier for Double A Products of Manchester, Michigan. Double A Products and defendant Duckham had entered into an agreement pursuant to which defendant agreed to haul trash from the Double A plant for a price fixed in the agreement. The course of dealing established the method by which the contract was to be carried out, namely, Duckham left a trash compacting truck at the Double A plant and, when it was full, either he himself or an employee of his would drive the truck to the dump, empty it, and return the truck to the Double A plant.

On April 14, 1966, one John Johnson, a part-time employee of the defendant employed on an "as needed” basis, who was a full-time employee of the Dempsey Company in Garden City, Michigan, was unable to report to his regular employment with the Dempsey Company because his automobile broke down. Johnson succeeded in driving his automobile, however, from his home in Jackson to Manchester. He first stopped at a bar and imbibed some alcoholic beverages.

Johnson then proceeded to the Double A plant. A Double A employee was loading defendant’s trash compactor, and Johnson rendered assistance. The truck mechanism was jammed and, in an attempt to free the device, Johnson caught his hand in the machinery and severed three fingers of one hand. The severed fingers were discovered in Johnson’s glove and surgically restored to his hand at the hospital.

Johnson instituted a petition for worker’s disability compensation benefits against defendant Duckham, who, in, violation of statute, carried no workman’s compensation insurance, as well as against Double A and its insurance carrier, Aetna Casualty & Surety Company.

Subsequently, a redemption hearing was held at which all parties were represented. Duckham’s attorney stated that Duckham denied liability under the act in that he denied there was an employment relationship at the time of Johnson’s injury. The attorney then stated that having denied liability on behalf of his client, he would not participate in the redemption hearing. Johnson and Double A then voluntarily entered into a redemption settlement. This was done despite the fact that Duck-ham’s attorney had specifically stated on the record of the redemption hearing that Duckham would deny any liability for reimbursement to Double A or its insurance carrier. Johnson’s petition for compensation against Duckham was not further pursued. Plaintiff thereafter commenced this suit seeking indemnification pursuant to MCL 418.171(2); MSA 17.237(171)(2).

The district court found, and the circuit court affirmed, that on the day in question Johnson was not an employee of defendant and was not injured in the course of his employment. In reaching this conclusion, the court found to be significant the facts that on the date in question Johnson was not requested to come in for work, did not report at defendant’s office nor punch in, was out drinking and decided to voluntarily visit the men at the Double A plant. Once it was determined that the employment relationship was not established, plaintiff’s claim for indemnification necessarily fell.

Four issues are raised in this appeal. Only one is of sufficient significance to merit discussion. Simply stated, we must determine whether the lower court’s decision that Johnson’s injury was not related to his employment with defendant was in error.

In Whetro v Awkerman, 383 Mich 235, 242-243; 174 NW2d 783 (1970), the Supreme Court concluded that in Michigan, if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid. Thus, in Whetro, the Court held that injuries caused by the devastating Palm Sunday, 1965, tornados were compensable under the worker’s compensation act.

In Nemeth v Michigan Building Components, 390 Mich 734; 213 NW2d 144 (1973), the Court held that where an employee was injured while working after hours with his employer’s equipment on a project with a fellow employee, his injury arose out of the employment relationship. The Court set out a "sufficient nexus” test. If it is possible to say that "but for the employment relationship” the injury would not have occurred, then the injured employee is entitled to compensation.

In a later case, Hicks v General Motors Corp, 66 Mich App 38, 44; 238 NW2d 194 (1975), lv den 396 Mich 838 (1976), this Court held that a plaintiff’s volunteering to do something outside of his working hours which was not a part of his assigned duties did not automatically remove him from the course of his employment.

Most recently, the Supreme Court allowed recovery by an employee who was struck by a car, off-premises, while walking across a street to a restaurant during his lunch break. McClure v General Motors Corp, 402 Mich 392; 262 NW2d 829 (1978). The Court stated, at 395:

"Here, too, 'it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured’. It was as an incident of the employment relationship that McClure found himself in the traffic lane on the Fleetwood Inn side of Fort Street approximately 50 to 75 yards from the factory during his lunch break on April 14, 1973.”

In the instant case the injured employee’s status as a part-time employee of defendant both before and after his injury is undisputed. His action in helping plaintiff’s insured’s employees load defendant’s garbage truck arose out of his employment relationship with defendant. It is probable that "but for the employment relationship”, the injured employee would not have offered to help plaintiff’s insured’s employees load the garbage truck. It was his familiarity with defendant’s equipment, gained from his employment with defendant, that led the injured employee to offer assistnace on the date of his injury. We hold under these circumstances, therefore, that the injury arose out of an employment relationship with defendant.

By statute, MCL 418.171; MSA 17.237(171), plaintiff has the right to seek indemnification from defendant for the amount paid to the injured employee as a result of the redemption settlement.

The district court’s finding of no cause of action was clearly erroneous and is. reversed. Appellant may tax costs.

M. J. Kelly, P.J.

(dissenting). There is a problem in this case with applying the "clearly erroneous” appellate standard of review. Usually we have a more rigid standard. This case does not come to us through the customary route of a grant of leave from the Workmen’s Compensation Appeal Board. If it had coiné that route our issues would be from a mix of three:

1. Has the appeal board made an error of law or applied an inproper legal standard?

2. Are the findings of fact by the appeal board supported by any reasonable interpretation of the evidence presented?

3. Did the appeal board trip over a jural relationship? (See Deziel v Difco Laboratories, Inc, 394 Mich 466, 475; 232 NW2d 146 (1975), citing 1 Wigmore, Evidence (3d ed), § 1, pp 2-3, entitled "Law and Fact, Distinguished”.)

There is no question but that if this dispute had been heard by the Workmen’s Compensation Appeal Board, and thence to this Court by grant of leave, we would have affirmed had the appeal board found that John Johnson, the employee, was acting in the scope of his employment. The authorities cited by the majority are ample support for such a finding.

If the appeal board had found, however, on these facts that the employee was not acting within the scope of his employment at the time of his injury, and his injury was therefore not compensable, would we reverse? I am inclined to answer in the negative. If there was record support for the appeal board to make the findings of fact that the district court made in the case at bar, I think I would be inclined to say, jural relationship notwithstanding, that the findings of fact were supported by some evidence in the record. Here are some of the district court findings:

"The plaintiff is the insurance carrier for Double A Products, of Manchester, Michigan. Double A Products and the Defendant had entered into an agreement wherein for a certain contracted price the Defendant would haul trash from the Double A Plant. The testimony established that on April 14, 1966, one John Johnson was a full time employee of a Dempsey Company in Garden City, Michigan, and worked on a part-time basis for the Defendant as needed. On the date in question, Mr. Johnson testified that he would have gone to his employment in Garden City had his automobile been operating. However, he did instead go from his home in Jackson to the city of Manchester, apparently driving his own automobile. He admitted he wasn’t quite sure how he got there, but other evidence established that his car was on the premises of Double A. He also admitted that he first stopped at a bar and had some alcoholic beverages to drink. He then went to the Double A plant where one of the Defendant’s trucks was left to be loaded with trash, and then subsequently to be removed by the Defendant. One of the Double A employees was apparently loading the truck, and Mr. Johnson gave him some assistance. In the process, Mr. Johnson’s hand was injured.
"As to whether or not on the day in question Mr. Johnson was an employee of Duckham and whether or not he was injured in the course of such employment, the court makes note of the following facts. Mr. Johnson testified that he did not on the day in question report for work to the Duckham company office; he did not punch in; he was not requested to come in for work; it was not his job to go to Double A Company to assist in the loading or removal of the truck from the premises; his job with the Defendant was a part time job, to be worked as needed; his normal job had he been working for the Defendant would have been on a company route truck, not as a driver, but as a garbage pick up man; Mr. Johnson further testified that he was not sure whether at the time he was working for Duckham; Duckham’s testimony was that he was not working for him that day; Mr. Johnson also testified that on the day in question he was working full time for another company; Mr. Johnson’s testimony further establishes that on that day he had been out drinking, and that he just wanted to visit the men at Double A, and did so, and was injured.”

As I perceive them on review the trial court’s findings affirmed by the circuit court were not clearly erroneous. It is a course of employment question which requires a weighing of the evidence and to some extent an assessment of the credibility of the witnesses. Mr. Johnson’s testimony was contradictory.

I am not at all satisfied that Double A Products was a statutory principal within the meaning of MCL 418.171; MSA 17.237(171) because the applicable provision applies where the principal, Double A in this case, hires a contractor, Duckham in this case, to execute "the whole or any part of any work undertaken by the principal”. Double A is not engaged in the business of trash removal or trash compacting, hence it is questionable whether in the first place Aetna Casualty & Surety Company was anything more than a volunteer. We really don’t have a record which develops this issue and we are ill-served by the defendant’s failure to participate in this appeal. But the record is clear that defendant rejected the agreement of the parties to redeem and refused to participate in the proceedings which were thereafter simply abandoned as to him. It is not readily apparent that a person, firm or corporation contracting for trash removal becomes a principal as to the employees of the trash remover. The fact of the redemption establishes nothing more than that Double A and its insurer, Aetna, bought peace for $4,000 from a willing claimant who had three fingers traumatically amputated and surgically restored.

There is record support for the "ordinary facts” (see Deziel v Difco Laboratories, Inc, supra) found in the courts below that:

A. Picking up the truck at Double A Products was the job of Philip Duckham and not the job of John Johnson.

B. John Johnson was a part-time employee called in on an as-needed basis.

C. Johnson was employed full-time by an entirely unrelated employer, Dempsey Company, in a different city.

D. Johnson went to visit friends at Double A Products.

E. He said his automobile was disabled but he somehow drove it to Double A Products.

F. Johnson had been imbibing alcoholic beverages in a bar before the accident complained of.

All of the above were perceived as facts below, and the trier of the facts was in the best position to observe the demeanor of the witnesses and assess their credibility. If, therefore, we were reviewing the appeal board on such findings, we would have to find an error of law or a jural relationship out of kilter. I see neither. I find that the trial court’s findings were not clearly erroneous and its conclusion that plaintiff failed to carry its burden of proof also is not clearly erroneous.

I would affirm.


source: Caselaw Access Project

author: Bronson, P.J. M. J. Kelly, J.

license: Public Domain

text:
    ESPERANCE v CHESTERFIELD TOWNSHIP
    Docket No. 77-3142.
    Submitted October 5, 1979, at Detroit.
    Decided April 16, 1979.
    Chesterfield Township, Macomb County, became eligible for three additional class C liquor licenses. The township board utilized a system of elimination ballots to determine which of 27 applicants would be granted the licenses. The ballots were secret and resolutions for each of the three successful applicants were then approved by roll call votes. Following the meeting, William Esperance brought an action against the township for a declaration that the board’s voting procedure was in violation of the Open Meetings Act, and seeking to have the board’s decision granting the licenses invalidated and to have the board enjoined from future use of this method of voting. The Macomb Circuit Court, Robert J. Chrzanowski, J., granted the defendant’s motion for summary judgment on the basis that the plaintiff failed to state a cause of action. Plaintiff appeals. Held:

    1. The section of the Open Meetings Act which allows a decision of a public body to be invalidated for violation of three enumerated subsections of the act is to be read in the disjunctive rather than the conjunctive. A violation of any one of the three subdivisions is sufficient to allow invalidation. Therefore, the plaintiff, who pled violation of only one subsection, did state a cause of action.
    . 2. The act is interpreted to prohibit a public body from voting by secret ballot.
    3. It is not necessary to invalidate the board’s decision merely because the act prohibits voting by secret ballot. A party seeking invalidation of a decision must allege not only a violation of the act but also that the violation impaired the rights of the public. Because the plaintiff failed to allege impairment of the rights of the public, the decision will not be invalidated.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes § 298.

       56 Am Jur 2d, Municipal Corporaitons, Counties, and Other Political Subdivisions § 161.
    Validity, construction, and application of statutes making public proceedings open to the public. 38 ALR3d 1070.

       56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 168-176.

      4. Under the circumstances, there is no real and imminent danger of irreparable injury requiring the issuance of an injunction.
    Affirmed in part, reversed in part.
    M. J. Kelly, J., dissented. He would not go so far as to declare that every vote taken at a public meeting must carry with it the identity of the voter. The act does not require that voting be carried out in any prescribed or formal manner. Judge Kelly also would find no requirement that the plaintiff must allege that a violation of the act impaired the rights of the public. Since the majority has found a violation in this case, he would remand to give the plaintiff the opportunity to prove an impairment of rights.
    Opinion of the Court
    1. Statutes — Construction — Words and Phrases — Conjunctive — Disjunctive.
    The use of the word "and” to join clauses in a statute usually connotes the conjunctive; however, where it is clear that the Legislature intended to have the clauses read in the disjunctive, the word "or” may be substituted for the word "and”.
    2. Statutes — Open Meetings Act — Public Bodies — Invalidation of Decision.
    Each of three subsections of the Open Meetings Act, listing requirements for meetings of public bodies, is an independent objective of the act; therefore, the violation of any one of those requirements by a public body in reaching a decision is, under the act, an independent basis for invalidating the decision (MCL 15.263[1], [2], [3], 15.270[2]; MSA 4.1800[13], [1], [2], [3], 4.1800[20][2]).
    3. Statutes — Open Meetings Act — Objectives — Secret Ballots.
    The Open Meetings Act was enacted to provide openness and accountability in government and is to be interpreted so as to accomplish this goal; in keeping with this objective, because the legislative history of the act supports the contention that the act was passed to combat secret voting, and because of the implicit requirement that all parts of a meeting be open to the public, the act prohibits a public body from voting by secret ballot (MCL 15.261 et seq.; MSA 4.1800[11] et seq.).

      4. Statutes —• Open Meetings Act — Public Bodies — Invalidation op Decisions — Court’s Discretion.
    Invalidation of decisions made by a public body in violation of the Open Meetings Act is discretionary with the court (MCL 15.270[2]; MSA 4.1800[20][2]).
    5. Pleading — Statutes — Open Meetings Act — Impairment op Rights op Public.
    A party seeking to have a decision of a public body invalidated because of a violation of the Open Meetings Act must allege not only that the public body failed to comply with the act, but also that this failure impaired the rights of the public (MCL 15.270[2]; MSA 4.1800[20][2]).
    Dissent by M. J. Kelly, J.
    6. Statutes — Open Meetings Act — Voting — Secret Ballot.

      There is no requirement in the Open Meetings Act that voting and balloting by a public body be done in any formal manner; absent such a requirement, a vote of a township board without revealing the identity of the voter is not per se a violation of the act (MCL 15.261 et seq.; MSA 4.1800[11] et seq.).

    7. Pleading — Statutes — Open Meetings Act — Impairment of Rights op Public.

      A party challenging the validity of a decision of a public body on the basis of an alleged violation of the Open Meetings Act need not allege that the violation impaired the rights of the public in order to state a cause of action, and where a violation of the act has been found, the plaintiff should be given the opportunity to prove an impairment of rights by offering proofs at trial (MCL 15.270[2]; MSA 4.1800[20][2]).

      Robert E. Childs, for plaintiff.

      Anthony, Hearsch, Biernat & Bucci, for defendant.
    Before: Bronson, P.J., and M. J. Kelly and D. C. Riley, JJ.
   Bronson, P.J.

The present case involves the proper interpretation to be given the recently enacted Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., specifically whether the act prohibits a public body from voting by secret ballot.

Due to an increase in population, defendant township became eligible for three additional class C liquor licenses. Approximately 27 people applied for the licenses and in order to trim the number of applicants to the three that would be granted the licenses, the township board utilized a system of elimination ballots. On the first elimination ballot the board members voted for 12 applicants and passed the ballots to the clerk who tallied the votes and announced the names of the 12 people who received the most votes. The clerk did not, however, announce which board members voted for which applicants nor did she record the votes in the minutes. This same procedure was repeated to reduce the number of applicants from 12 to six and finally from six to three. After the number of applicants had been reduced to three, individual resolutions for each successful applicant were approved by a roll call vote which was recorded in the minutes. Although plaintiff was present at the meeting, he raised no objection to this voting procedure.

Following the meeting, plaintiff commenced the present lawsuit, seeking a declaration pursuant to GCR 1963, 521 that the voting procedure used by the township board was in violation of § 3(2) of the Open Meetings Act. Plaintiff also sought to have the board’s decision granting the liquor licenses invalidated and to enjoin the board from using this method of voting in the future. Defendant township moved for summary judgment claiming plaintiff failed to state a cause of action under the act. The trial court granted the motion and plaintiff now appeals as of right.

In support of its motion for summary judgment defendant first alleged that plaintiff’s complaint failed to allege the statutory requirements set forth in MCL 15.270(2); MSA 4.1800(20X2) which are prerequisities to the invalidation of any decision of a public body under the act.

"A decision made by a public body may be invalidated if the public body has not complied with the requirements of § 3(1), (2) and (3) in making the decision * * *."

Defendant contends that since the Legislature used the word "and” the requirements are conjunctive, not disjunctive. According to defendant, plaintiff must plead and prove violations of all three sections before a decision can be invalidated, and since plaintiff only alleged a violation of § 3(2) he failed to state a cause of action.

While it is true that the use of the word "and” in a statute usually connotes the conjunctive, this rule is not an absolute.

"The popular use of 'or’ and 'and’ is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the meaning of the context.” Heckathorn v Heckathorn, 284 Mich 677, 681; 280 NW 79 (1938).

Therefore, when it is clear that the Legislature intended to have the clauses read in the disjunctive, the word "or” can be substituted for the conjunctive "and”. See Aikens v Dep’t of Conservation, 387 Mich 495; 198 NW2d 304 (1972). In Aikens, the Department of Conservation seized certain catches of perch on the grounds that the fish were undersized as they failed to meet the "in the round” length requirement of the following statute:

"(d) Perch, of a less length than 8 1/2 inches in the round and filleted perch of a less weight than 13/4 ounces; perch with heads and tails off of a less length than 5 1/2 inches; * * *” (Emphasis added.) MCL 308.14(1)(d); MSA 13.1505(1)(d).

The fisherman contended that because the statute used the word "and” the fish were not illegally caught unless they were less than 8-1/2 inches in the round and weighed less than 1-3/4 ounces when filleted, and were less than 5-1/2 inches in length with the heads and tails off. The Supreme Court, however, stated that a careful reading of the statute indicated that the Legislature intended to set up three separate tests, not one, and if the fish failed to meet any of the tests, the fish were illegally possessed.

The Aikens case is applicable to the present case. A careful reading of the statute shows that the Legislature intended that a decision of a public body could be invalidated for a violation of either § 3(1), (2), or (3), as each was an independent objective of the act.

Defendant’s interpretation of the statute would render it meaningless. Under such an interpretation, a public body would not be in violation of the statute if it made its decisions in public but deliberated in private or conversely, deliberated in public but made its decisions in private, or if it opened its meetings to the public, but held the meetings in a place which was inaccessible to the public. The Legislature clearly intended to make all three actions illegal, and intended to made any of the three violations an independent basis for invalidating the illegal actions. Plaintiff did not fail to state a cause of action for this reason.

Defendant next contends that the Open Meetings Act does not expressly prohibit secret ballots, but instead only requires that "[a]ll decisions of a public body shall be made at a meeting open to the public”. Therefore, according to defendant the township board complied with the act because even though it voted by secret ballot, the balloting was done at a meeting open to the public. We find this contention unconvincing.

Prior to enacting the current Open Meetings Act, the Legislature created a special committee to study the operation of the former open meetings law. The committee, in its report recommending passage of a new Open Meetings Act, decried the evils of secret voting by public officials.

"Secret voting by elected officials at every level in the government tends to foster an atmosphere of suspicion and mistrust of decision-making by public officials, whether it be real or imagined. Such an atmosphere is an intolerable impediment to respect for our public institutions as well as public officialdom and cannot be allowed to persist.
"As U.S. Senator Adlai E. Stevenson III of Illinois has observed, 'Excessive secrecy breeds distrust. It prevents accountability. It does violence to the principle of government based on the informed consent of the governed.’ ”

The legislative history of the act thus supports the contention that the act was passed to combat secret voting in all of its forms whether it be by closed meeting or by secret ballot.

In Wexford County Prosecutor v Pranger, 83 Mich App 197; 268 NW2d 344 (1978), this Court stated that the Open Meetings Act was enacted to provide openness and accountability in government, and is to be interpreted so as to accomplish this goal. Defendant’s interpretation of the act would not be in keeping with this objective. It can hardly be contended that a vote by secret ballot at an open meeting is any more open than a vote at a closed meeting. In either case the public official has shielded his stand from public scrutiny and accountability.

It should also be recognized that because the act requires all meetings to be opened to the public it implicitly requires that all parts of the meeting (unless specifically excluded by the act) also be open to the public. Clearly a public body could not open only the first five minutes of the meeting and then close the rest of the meeting and argue that it complied with the Open Meetings Act. Similarly, a secret ballot effectively closes part of a meeting to the public, since the balloting withdraws from public view an essential part of the meeting.

For these reasons, we hold that the Open Meetings Act prohibits a public body from voting by secret ballot, and the trial court erred in not granting plaintiff’s complaint for declaratory relief on this point.

Merely because secret balloting is prohibited by the Open Meetings Act does not automatically mean that the board’s decision in the present case must be invalidated, and that an injunction must issue restraining defendant from utilizing the procedure in the future.

Invalidation of decisions made in contravention of the act is discretionary with the court. Those seeking to have the decision invalidated must allege not only that the public body failed to comply with the act, but also that this failure impaired the rights of the public. MCL 15.270(2); MSA 4.1800(20)(2). This was not done in the present case. Plaintiff did not allege that the township board willfully or intentionally sought to violate the act. Nor is there any allegation that the board or any of its members were trying to cover up for misdeeds or to hide the identity of the persons for whom they voted. Since plaintiff failed to allege that the rights of the public were impaired by the secret ballot, he failed to state a cause of action under the act for invalidating the decision of the board.

Finally, the record indicates that the board acted in good faith in utilizing the voting procedure. There was no subterfuge involved, but instead the board adopted the procedure as an expedient, albeit improper, method of narrowing the field of applicants. Under this set of circumstances, there is no real and imminent danger of irreparable injury requiring issuance of an injunction. See Wexford County Prosecutor v Pranger, supra, at 205.

Affirmed in part and reversed in part. No costs, a public question being involved.

D. C. Riley, J., concurred.

M. J. Kelly, J.

(dissenting). I agree with the majority opinion insofar as it holds that the prerequisites to the invalidation of any decision of a public body listed in MCL 15.263(1)-(3); MSA 4.1800(13)(1)-(3) are disjunctive rather than conjunctive. However, I write to express my reluctance to go so far as to declare that every vote taken at a public meeting must carry with it the identity of the voter. The meeting of the township board was open and accessible, advance notice was given, and there is no claim that appellant or any member of the public was barred or hindered in attendance or in opportunity to address the public body. Had there been any request for a tally, the township board would have been called upon to respond; if it had refused, I believe the spirit of the Open Meetings Act would have been violated, but I would not go that far on this record.

The act has not prescribed procedures for the conduct of voting by public bodies. Nothing in the act requires that voting and balloting, if conducted in public, be announced publicly, conducted by "yes” or "no” vote, or accomplished in any formal way as plaintiff contends. Section 9 of the act does require that the minutes "shall include all roll call votes taken at the meeting”, but the act does not and cannot purport to dictate when a roll call vote is required or describe the formalities for conducting such a vote. Are we to say that, if there had been 100 such applicants, the act would be violated unless 100 roll call votes were taken, or 66, or 33?

I would prefer a far more detailed chronicle of the legislative processess underlying the act before finding a per se violation on these facts. There must be countless situations before public bodies calling for a process of elimination and if that is required to be accomplished with the same formality as is required for the adoption of a final decision, (e.g., a roll call vote), the ramifications might be, if not incalculable, certainly unduly burdensome.

Apart from my reluctance to find a violation of the act on these facts, I must also dissent from the majority’s ultimate disposition of this case after finding a violation. The majority holds that, although there was a violation of the act in the present case, "since plaintiff failed to allege that the rights of the public were impaired by the secret ballot, he failed to state a cause of action under the act for invalidating the decision of the board”. I respectfully disagree.

MCL 15.270(2); MSA 4.1800(20)(2) states:

"(2) A decision made by a public body may be invalidated if the public body has not complied with the requirements of section 3(1), (2), and (3) in making the decision or if failure to give notice in accordance with section 5 has interfered with substantial compliance with section 3(1), (2), and (3) and the court finds that the noncompliance or failure has impaired the rights of the public under this act.”

I perceive no requirement in the statute that the plaintiffs complaint must allege that the violation impaired the rights of the public, for it states that "[a] decision made by a public body may be invalidated if * * * the court finds that the non-compliance or failure has impaired the rights of the public”. Because this case was decided on a motion for summary judgment, the facts have not been fully explored. Although it seems unlikely from the facts already presented that plaintiff can demonstrate sufficient reason to invalidate this decision, he should nevertheless be given the opportunity to prove such facts, especially in view of the fact that the trial court and the parties addressed themselves almost exclusively to the issue of whether secret balloting was prohibited by the act and did not enter into a contest over the other facts of the case. Therefore, I would hold that as a violation of the act is found here, plaintiff should be given an opportunity to prove an impairment of rights by adducing proofs thereof.

       The liquor licenses were issued pursuant to MCL 436.1 et seq.; MSA 18.971 et seq. The applicants first applied to the Michigan Liquor Control Commission which in turn sought local approval of the applicants by the township pursuant to MCL 436.17; MSA 18.988.

       MCL 15.263(2); MSA 4.1800(13)(2).
      "All decisions of a public body shall be made at a meeting open to the public.”

       "Sec. 3. (1) All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act.
      "(2) All decisions of a public body shall be made at a meeting open to the public.
      "(3) All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as otherwise provided in sections 7 and 8.”

       MCL 15.263(2); MSA 4.1800(13)(2).

       The vote was by secret ballot even though each of the final three applicants was granted a liquor license by a roll call vote. This final vote was merely perfunctory, since the real decisions had already been made in the preliminary secret balloting.

       MCL 15.251 et seq.; MSA 4.1800(1) et seq.

       Special Senate Study Committee on Political Ethics, Final Report (1973), at 10.

       We are definitely not alone in interpreting the Open Meetings Act in this manner. In interpreting its own Open Meetings Act which was similar to Michigan’s in that it only required that "all public proceedings shall be open to any citizen of this state * * *” (Burns Indiana Statutes Annotated, Code Edition, 5-14-1-4), the Indiana Supreme Court also held that the statute prohibited secret balloting. State v La Porte Superior Court #2, 249 Ind 152; 230 NE2d 92 (1967).

       The fact that the Open Meetings Act prohibits secret balloting does not mean that all votes must be roll call votes. The act’s requirements are met when the vote is by roll call, show of hands, or any other method whereby the way the public official voted is made known to the public. For instance, in the present case if the board members’ names had been inscribed on the elimination ballots, so that in recording the votes in the official minutes the clerk could determine which board member voted for which candidates, the Open Meetings Act would be satisfied. This is so because even though the way the members voted would not be proclaimed aloud at the meeting, any interested person could determine how the board members voted by merely checking the official minutes.

       These are merely examples of some of the situations which could show_ an impairment of the rights of the public. These examples are not intended to constitute either an all-inclusive list or a list of mandatory allegations.


author: R. B. Burns, J.

text:
    PEOPLE v BRUCE RAMSEY
    Docket No. 77-3680.
    Submitted February 22, 1979, at Detroit.
    Decided April 16, 1979.
    Leave to appeal applied for.
    Bruce O. Ramsey was found guilty of second-degree murder but mentally ill, in a nonjury trial, Wayne Circuit Court, Peter B. Spivak, J. The defendant appeals alleging: 1) that he was prejudiced in the presentation of his defense by the trial court’s failure to grant his pretrial motion to dismiss the charge of first-degree murder because the trial court was inclined to reach a compromise verdict, 2) that he should have been acquitted of second-degree murder because the trial court found that he was mentally ill at the time of the offense, and 3) that the trial court’s findings of fact were clearly erroneous and are inadequate to aid review. Held:

    1. It was not an abuse of discretion for the defendant to be bound over for trial on a charge of first-degree murder as there was sufficient evidence from which it could be inferred that the killing was willful, deliberate and premeditated.
    2. The fact that the defendant was mentally ill at the time of the killing does not, as a matter of law, necessitate a finding of not guilty of murder.
    3. The clear error standard of review of a trial court’s finding of fact applies to criminal cases. However, due to the inadequacy of the trial court’s findings of fact, the Court of Appeals is unable to make that review. The matter is remanded for further fact finding.
    Remanded for findings of fact.
    1. Homicide — First-Degree Murder — Preliminary Examination — Magistrates — Discretion — Appeal and Error.
    The issue of whether there is sufficient evidence to hold a defendant for trial for first-degree murder is one addressed to a magistrate’s discretion and is reviewable only for abuse of discretion.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 449.

       40 Am Jur 2d, Homicide §§ 115, 292.

       76 Am Jur 2d, Trial §§ 1252, 1258.

       5 Am Jur 2d, Appeal and Error §§ 839-841.

      2. Appeal and Error — Homicide — Magistrates — First-Degree Murder — Evidence — Preliminary Examination.
    Review of a magistrate’s ruling that there is sufficient evidence to hold a defendant for trial for first-degree murder is limited to the preliminary examination transcript; testimony taken at trial may not be considered.
    3. Homicide —-First-Degree Murder — Mental Illness — Preliminary Examination — Discretion — Statutes.
    It does not necessarily follow that a person with a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life” is incapable of deliberation and premeditation; therefore, it was not an abuse of discretion for a magistrate to bind a defendant over for trial for first-degree murder where, while there was evidence presented from which it could be inferred that the defendant was mentally ill at the time of the offense, there was also evidence presented from which it could be inferred that the killing was willful, deliberate and premeditated (MCL 330.1400[a]; MSA 14.800[400a]).
    4. Homicide — First-Degree Murder — Malice Aforethought — Mental Illness.
    Mental illness and malice aforethought are not mutually exclusive mental conditions; while mental illness may factually negate a finding of malice aforethought in a particular case, it does not follow, as a matter of law, that a finding of mental illness necessitates a finding of not guilty of murder.
    5. Courts — Trial Courts — Findings of Fact — Bench Trial — Court Rules.
    A trial court, in actions tried without a jury, is required to find the facts specially and state separately its conclusions of law thereon (GCR 1963, 517.1).
    6. Appeal and Error — Findings of Fact — Bench Trial.
    A finding of fact by a court sitting in a bench trial is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed (GCR 1963, 517.1).

      7. Appeal and Error — Bench Trial — Findings op Fact.
    An appellate court is obliged under court rule, in criminal cases as well as in civil cases, to set aside clearly erroneous findings of fact made by a judge sitting in a bench trial even if there is sufficient evidence to sustain the verdict of a jury reaching the same conclusion (GCR 1963, 517.1).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

      Frederick W. Lauck (Daniel J. Henry, Jr., of counsel), for defendant on appeal.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   R. B. Burns, J.

Defendant was charged with the first-degree murder of his wife. MCL 750.316; MSA 28.548. Defendant presented an insanity defense at his bench trial. The trial court found him guilty of second-degree murder, MCL 750.317; MSA 28.549, but mentally ill, MCL 768.36; MSA 28.1059. Defendant appeals.

Evidence presented at trial indicates that defendant stabbed his wife to death, and then attempted suicide by stabbing himself three times. From defendant’s testimony and corroborating evidence it could be inferred that defendant believed his wife was possessed by a demon and that, when he stabbed her, he believed that she was already dead, and that he was attempting to cut the demon out and restore her to life. A psychiatrist who testified for the defense concluded that defendant was suffering from acute schizophrenia at the time of the incident and had been insane. Two psychiatrists, called by the prosecution in rebuttal, expressed contrary opinions.

The primary thrust of defendant’s argument on appeal is factual: that the trial court erred in finding defendant sane at the time of the homicide. The argument rests in part on several erroneous arguments concerning the law, raised in related issues. Thus, we will first discuss the related issues before reaching the primary issue on appeal.

Defendant argues that he was prejudiced in the presentation of his defense by the trial court’s failure to grant his pretrial motion to dismiss the charge of first-degree murder because the trial court was inclined thereby to reach a compromise verdict. Defendant relies upon the preliminary examination and trial transcripts to argue that the evidence of mental illness was compelling and asserts that a person who is mentally ill is incapable of "wilful, deliberate and premeditated killing”. MCL 750.316; MSA 28.548.

The issue of whether there was sufficient evidence to hold defendant for trial for first-degree murder was one addressed to the magistrate’s, discretion and is reviewable only for abuse of discretion. People v Karcher, 322 Mich 158, 162-163; 33 NW2d 744, 746 (1948). Review is limited to the preliminary examination transcript; testimony taken at trial cannot be considered. People v Charles D Walker, 385 Mich 565, 572; 189 NW2d 234, 237 (1971). While there was evidence presented at the preliminary examination from which it could be inferred that defendant was mentally ill at the time of the offense, there was also, evidence from which it could be inferred that the killing was willful, deliberate and premeditated. It does not necessarily follow that a person with a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life”, MCL 330.1400(a); MSA 14.800(400a), is incapable of deliberation and premeditation. We find no abuse of discretion.

Defendant argues that he should have been acquitted of second-degree murder because the trial court found that he was mentally ill at the time of the offense. The incorrect premise underlying this argument is that one who is mentally ill is incapable of forming the mens rea of murder. Mental illness and malice aforethought are not mutually exclusive mental conditions. While mental illness may factually negate a finding of malice aforethought in a particular case, see People v Lynch, 47 Mich App 8; 208 NW2d 656 (1973), it does not follow as a matter of law that a finding of mental illness necessitates a finding of not guilty of murder.

Defendant contends that MCL 768.36; MSA 28.1059, creating the "guilty but mentally ill” verdict, is unconstitutional. First, defendant argues that the definitions of mental illness, MCL 330.1400(a); MSA 14.800(400a), and insanity, MCL 768.21a; MSA 28.1044(1), are so vague and overlapping as to confer upon the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed. See People v Howell, 396 Mich 16, 20; 238 NW2d 148, 149 (1976). A reading of the statutes refutes defendant’s argument. Second, defendant argues that the evaluation and treatment provisions of the statute are illusory. This Court has previously held that such an argument is premature. People v McLeod, 77 Mich App 327; 258 NW2d 214 (1977), lv granted, 402 Mich 927 (1978). It would be inappropriate for this Court to possibly confuse the law by re-examining the correctness of the holding in McLeod where the issue is pending in the Supreme Court. We therefore do not reach the merits of the issue raised by defendant.

In an extensive review of the facts presented at trial, defendant argues primarily regarding the insanity issue that the trial court’s findings of fact were clearly erroneous. GCR 1963, 517.1. Defendant also raises a collateral issue, arguing that the trial court’s findings of fact are inadequate to aid review. GCR 1963, 517.1, People v Jackson, 390 Mich 621, 627; 212 NW2d 918, 921 (1973). Plaintiff, equating the scope of review of bench trial findings of fact with jury verdicts, asserts that, because there was conflicting evidence on the sanity issue, the trial court’s conclusion may not be disturbed. See, e.g., People v Palmer, 392 Mich 370; 220 NW2d 393 (1974), People v Szymanski, 321 Mich 248; 32 NW2d 451 (1948), but see, People v Beath, 277 Mich 473, 482-483; 269 NW 238, 242 (1936). Additionally, plaintiff argues that the trial court’s opinion indicates it was aware of the insanity-mental illness issue, resolved it, and a remand is not necessary to facilitate review. People v Jackson, supra. Thus, the parties raise two procedural issues which we must resolve prior to reaching the substantive issue of sufficiency of evidence: the scope of review, and the degree of specificity required of the trial court’s findings of fact to aid review.

GCR 1963, 517.1 requires the trial court, in actions tried without a jury, to "find the facts specially and state separately its conclusions of law thereon”. Fact findings are sufficient if "the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts”. In addition to requiring findings of fact, the court rule sets forth a standard of review of those facts:

"Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”

Construing the court rule in the civil context, the Supreme Court has held that a finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244, 245 (1976). Under this standard of review, the evidence in a nonjury case is subjected to a more rigorour review than that in a jury case. Id., Schneider v Pomerville, 348 Mich 49, 54-55; 81 NW2d 405, 408 (1957).

Under GCR 1963, 517.1, as construed in Tuttle, this Court could be required to reverse even where there is conflicting evidence, if left with a definite and firm conviction that a mistake has been committed. Thus, the standard of review under GCR 1963, 517.1 is broader than that stated in People v Szymanski, supra, and advocated by plaintiff.

It is unclear whether the Supreme Court has held that the clear error standard of GCR 1963, 517.1 applies in criminal cases. In People v Thomas, 387 Mich 368; 197 NW2d 51 (1972), the Supreme Court split over whether GCR 1963, 517.1 applied through GCR 1963, 785.1(1) to criminal cases. The primary focus of the plurality opinion taking the negative view was upon whether the fact finding portion of GCR 1963, 517.1 should apply to criminal cases, and there was no discussion of whether the scope of review in criminal cases ought to be expanded. However, the opinion did equate the scope of review in bench cases with jury cases, in discussing the lack of need for findings of fact. In People v Jackson, supra, the Court referred to People v Thomas, supra, stated that it was not binding under stare decisis, and held that in criminal cases, as well as civil cases, a judge who sits without a jury is obligated to articulate the reasons for his decision in findings of fact. The rationale for the holding was that findings of fact facilitate review by revealing the law applied by the fact finder.

It could be inferred that the Supreme Court in Jackson did not hold that the clear error standard of GCR 1963, 517.1 applies in criminal cases. The Court did not explicitly tie the fact finding requirement to the court rule. The court rule addresses two issues — fact finding, and review, while Jackson addresses only the issue of fact finding. The rationale advanced for the rule is narrow — to reveal the law applied, rather than to reveal whether the trial court’s findings of fact are clearly erroneous.

Nonetheless, we believe Jackson held GCR 1963, 517.1 applies in entirety to criminal cases. The reference to Thomas indicates the Court was addressing the same issue presented in Thomas— whether GCR 1963, 517.1 applies through GCR 1963, 785.1(1) to criminal cases. This Court has assumed that Jackson held that the court rule does apply in criminal cases. People v Brooks, 75 Mich App 448, 450; 254 NW2d 926, 927 (1977). Justice Levin, who authored the Jackson opinion, understood that to be the holding of Jackson, and has asserted that the clear error standard, as explained in Tuttle, applies in criminal cases. People v Garcia, 398 Mich 250, 271; 247 NW2d 547, 556 (1976) (Levin, J., dissenting). The majority in Garcia did not contradict Justice Levin’s interpretation of his opinion in Jackson. The rationale for a more exacting standard of review in bench cases than in jury cases enunciated in the civil context, that a jury is more likely to be right than a judge alone, Schneider v Pomerville, supra, applies with equal force to criminal cases. Finally, it would be hard to justify a lesser standard of review in a case in which a person’s liberty is at stake than in cases where only property is at stake.

Since GCR 1963, 517.1 applies to criminal cases, we have a duty to review for clearly erroneous findings of fact, despite the presence of conflicting evidence in this case. However, we find we are unable to make that review, due to inadequate findings of fact.

After concluding upon a review of the evidence that the prosecution failed to establish beyond reasonable doubt first-degree murder, the trial court stated:

"However, I do find the Defendant guilty of second degree murder and I find him guilty but mentally ill of that charge. I do not find him legally insane. I find, based upon the testimony of all three psychiatrists, that he may have had a number of problems and he may have been agitated but that he was not legally insane.”

Findings of fact serve two purposes. First, they demonstrate how the trial court resolved credibility issues and conflicts in evidence. Unless the trial court elucidates what it found to have happened, we cannot give regard to the court’s resolution of credibility issues, nor can we determine whether what the trial court found to be fact is clearly erroneous. GCR 1963, 517.1. Second, the findings of fact are necessary to reveal the law applied by the trial court. People v Jackson, supra.

The trial court’s findings of fact do not suit either purpose. One might infer from the trial court’s statement that the psychiatrists were in agreement as to defendant’s mental state. They were not. Additionally, the validity of their various opinions necessarily turn upon a determination of accuracy of the facts relied upon in the formation of their opinions. This in turn depends upon an assessment of the credibility of the lay witnesses who testified as to defendant’s mental state. The trial court’s opinion is woefully inadequate to aid review. Besides insanity, defendant raises fact issues on appeal concerning proof of malice aforethought, diminished responsibility, and lack of concurrence between the mens rea and actus reas of the crime. The trial court’s opinion does not address these issues. Finally, the trial court has not stated with sufficient clarity the law applied in this case.

Remanded for findings of fact. We retain jurisdiction.

       The majority resolved the sufficiency of evidence issue through application of the maxim that deference should be given the trial court’s assessment of credibility, a principle applicable to review under GCR 1963, 517.1. The standard of review stated by the majority opinion was a tautology — there was sufficient evidence to sustain the verdict if there was ample evidence to warrant a verdict of guilty. Garcia, supra, at 263; 247, NW2d at 552. It is unclear whether this tautology was intended as a statement of a lesser standard of review than that required by GCR 1963, 517.1.


author: D. F. Walsh, J.

text:
    PEOPLE v SMITH (ON REHEARING)
    Docket No. 77-4427.
    Submitted June 21, 1978, at Lansing.
    Decided April 16, 1979.
    Leave to appeal, applied for.
    Defendant Otis L. Smith was an inmate at Jackson Prison when he was transferred, in the custody of prison guards, to Foote Memorial Hospital in Jackson for medical treatment. While at the hospital defendant obtained the guard’s revolver, not knowing that the revolver had been secretly unloaded in accordance with prison regulations. Defendant pointed the revolver at the guard, warned him not to move or he would be killed, and, when the guard moved toward defendant, pulled the trigger twice. The guard wrested the revolver from defendant, and defendant fled from the ward. The guard pursued defendant, tackled him and returned him to the ward. Defendant was charged with assault with intent to commit murder, attempted murder, possession of a firearm in the commission of a felony and escape from prison.
    At the close of the prosecution’s proofs, defendant moved for directed verdicts of acquittal. The Jackson Circuit Court, Gordon W. Britten, J., dismissed the assault with intent to murder charge on the basis that the guard, knowing the revolver to be unloaded, knew the defendant did not have the means to assault him, dismissed the attempted murder charge on the ground that defendant’s acts did not fall within the acts prohibited by the statute, and refused to instruct the jury on the prison escape charge but rather instructed the jury under the general attempt statute as to attempted prison escape. A mistrial was declared when the jury was unable to reach a verdict on the attempted prison escape charge and the possession of a firearm in the commission of a felony charge.
    The people appealed, on leave granted, raising two issues: (1) whether, under the circumstances, the trial court erred in dismissing the assault with intent to commit murder and attempted murder charges; and (2) whether, under the circumstances, the trial court erred in instructing the jury under the general attempt statute rather than the prison escape statute. Subsequent to the release of an unpublished opinion on the questions briefed and argued by the parties, the Court of Appeals, on its own motion, granted a rehearing on the question of whether the Court may order retrial on the intent to commit murder and prison escape charges. Held:

      References for Points in headnotes

       6 Am Jur 2d, Assault and Battery § 20.
    40 Am Jur 2d, Homicide §§ 565, 566, 568-582.

       6 Am Jur 2d, Assault and Battery §§ 3-7, 10, 37.

       6 Am Jur 2d, Assault and Battery §§ 6, 10, 22, 32-36.

       27 Am Jur 2d, Escape, Prison Breaking, and Rescue §§ 1, 4.
    60 Am Jur 2d, Penal and Correctional Institutions § 1.

       4 Am Jur 2d, Appeal and Error § 268.

      1. The statutes providing for punishment for the crimes of assault with intent to murder and attempted murder define mutually exclusive crimes.
    2. A simple criminal assault is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery.
    3. A person is guilty of a criminal assault, notwithstanding the absence of an actual present ability to commit a battery, where the person intends to commit a battery and perpetrates acts sufficiently proximate to that end to constitute an attempt.
    4. A prison, for the purpose of the prison escape statute, includes a hospital to which a prisoner has been taken under custody for the purpose of medical care.
    5. The appeal of the prosecutor of the dismissal of the charges is barred by the double jeopardy clauses of the Federal and state constitutions because, although based on an erroneous interpretation of governing legal principles, the dismissal of the charges constituted acquittals on the merits.
    Appeal dismissed.
    1. Homicide — Criminal Law — Assault with Intent to Commit Murder — Attempted Murder — Statutes.
    The statutes providing for punishment for assault with intent to commit murder and attempted murder define mutually exclusive crimes, with attempted murder proscribing those attempts at murder not within the ambit of the assault with intent to commit murder statute because of the lack of an assault (MCL 750.83, 750.91; MSA 28.278, 28.286).
    2. Assault and Battery — Criminal Assault — Attempted Battery.
    A simple criminal assault is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery.
    3. Assault and Battery — Criminal Assault — Attempted Battery — Present Ability.
    A person is guilty of a criminal assault, notwithstanding the absence of an actual present ability to commit a battery, where the person intends to commit a battery and perpetrates acts sufficiently proximate to that end to constitute an attempt.
    4. Escape — Criminal Law — Statutes — Escape from Prison.
    A prison, for the purpose of the prison escape statute, includes grounds under the control of persons authorized by the Department of Corrections to have prison inmates under their care, custody, or supervision outside an institution for the purpose of medical treatment (MCL 750.193; MSA 28.390).
    5. Appeal and Error — Prosecutor’s Appeal — Double Jeopardy — Dismissal of Charges.
    An appeal by a prosecutor is barred by the double jeopardy clauses of the Federal and state constitutions where such appeal concerns the dismissal, during trial, by the trial court of charges on the basis of the trial court’s evaluation of the evidence and its legal sufficiency, even if the dismissal results from the trial court’s erroneous evidentiary ruling or erroneous interpretation of the governing legal principles.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Adams, Goler & Williams, for defendant on appeal.
    Before: R. B. Burns, P.J., and D. F. Walsh and M. E. Clements, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   On Rehearing

D. F. Walsh, J.

The prosecutor appeals from the trial court’s dismissal of three charges arising out of the defendánt’s unsuccessful escape from the custody of a prison guard. A preliminary statement of facts is necessary to our discussion.

Defendant, an inmate at Jackson Prison, had been transferred to Foote Memorial Hospital in Jackson for medical treatment. During his stay there he was in the custody of prison guards.

The incident occurred when Officer Eldridge, a prison guard, brought another inmate into the defendant’s ward. Once in the room, Eldridge, pursuant to prison regulations, proceeded to the restroom and secretly unloaded his revolver. When Eldridge returned, the second inmate created a disturbance, apparently distracting the officer sufficiently to allow the defendant to obtain the revolver. Thereupon, the defendant pointed the gun at Eldridge and told him not to move or he would kill him. When Eldridge stepped toward him, the defendant pointed the revolver at the guard’s chest and twice pulled the trigger.

After Eldridge wrested the gun from him, the defendant ran out of the room and down the corridor. Eldridge pursued, tackled the defendant, and returned him to the ward.

The information brought against the defendant charged him with assault with intent to commit murder, MCL 750.83; MSA 28.278, possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2), prison escape, MCL 750.193; MSA 28.390, and attempted murder, MCL 750.91; MSA 28.286.

At the close of the prosecution’s presentation of its proofs to the jury the defendant moved for directed verdicts of acquittal. The trial court dismissed the assault charge on the ground that Eldridge, knowing the revolver to be unloaded, knew that the defendant did not have the means to assault him. The attempted murder count was dismissed on the trial court’s ruling that the defendant’s act did not fall within the nature of the acts prohibited by the statute. The lower court also ruled that the people had not proven a completed escape, and, therefore, instructed the jury under the general attempt statute, MCL 750.92; MSA 28.287, rather than the prison escape statute.

Thus, the jury was instructed only on the charges of attempted prison escape and possession of a firearm in the commission of a felony. The trial court declared a mistrial and discharged the jury when they were unable to agree on a verdict.

On appeal the prosecutor raises two issues:

(1) Did the trial court err in dismissing the counts charging assault with intent to murder and attempted murder?

(2) Did the trial court err by instructing the jury only under the general attempt statute rather than under the prison escape statute?

I

The statutory provisions involved in the first issue are as follows:

"Any person who shall assault another with intent to commit the crime of murder, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any number of years.” MCL 750.83; MSA 28.278.
"Any person who shall attempt to commit the crime of murder by poisoning, drowning, or strangling another person, or by any means not constituting the crime of assault with intent to murder, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years.” MCL 750.91; MSA 28.286. (Emphasis added.)

Two things are apparent on the faces of the respective statutes. One is that they define mutually exclusive crimes. See, People v Cooper, 58 Mich App 284; 227 NW2d 319 (1975), rev’d on other grounds, 398 Mich 450; 247 NW2d 866 (1976). The other is that the attempt statute, MCL 750.91; MSA 28.286, is designed to proscribe and punish those attempts at murder not within the ambit of the assault with intent to murder statute, MCL 750.83; MSA 28.278, because of the lack of an assault. Perkins, Criminal Law (2d ed), p 119.

Given the plain language of the attempted murder statute, we find that the trial court clearly erred in dismissing both counts. Insofar as the evidence amply demonstrated that the defendant tried to murder the prison guard, he necessarily violated one of the above provisions: if by assault, he was guilty of assault with intent to murder; if "by any means not constituting the crime of assault with intent to murder”, he was guilty of attempted murder.

The question remains as to which statute applied to the defendant’s actions. Resolution of that issue turns on whether an assault was committed where the defendant, thinking that the revolver was loaded, attempted to discharge it into the chest of the prison guard, who knew that the weapon was not loaded.

In the recent case of People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978), the Supreme Court defined criminal assault as follows:

"We adopt what Perkins on Criminal Law (2d ed), p 117, says is the majority rule, namely 'a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery” ’.”

In the instant case the victim could not have had a reasonable apprehension of receiving an immediate battery because he knew that the gun was incapable of being fired. If the defendant was guilty of an assault it was because he attempted a battery.

There is little doubt that defendant attempted battery when he tried to discharge the revolver into the guard’s chest. However, the defendant argues that he nevertheless was not guilty of an assault because he lacked the "present ability” to carry out the battery. We believe that his argument misconstrues the case law upon which he relies.

Confusion regarding the so-called "present ability” requirement derives from certain language in the Supreme Court’s opinion in People v Lilley, 43 Mich 521; 5 NW 982 (1880). See People v Cooper, supra. In order to illustrate the inaccuracy of counsel’s interpretation of that case, we cite the passage in question in its entire context.

"The instruction as given would seem to lay down the general proposition 'that any intent to commit violence accompanied by acts which, if not interrupted, will be followed by bodily injury, is sufficient to constitute an assault, although the assailant may not be at any time within striking distance.’ Now there may be an intent to commit violence, and this accompanied by acts preparatory thereto, which if followed up would clearly constitute an assault, yet owing to the distance and surrounding circumstances, no possible assault would have been committed. Thus, one with a direct intent to do grievous bodily harm may purchase a deadly weapon, or having one he may, with like intent, put it in a condition to use with deadly effect. Yet if the act stop here, it may as a general proposition be said the party could not be convicted of an assault, and this irrespective of what may have caused the party to proceed no farther in the attempt. Other facts must be added, and this we shall see must be a present ability to carry out the intent. The act done must have been sufficiently proximate to the thing intended. It may be so remote, although a distinct and essential act, coupled with the intent, as to fall far short of constituting an assault. The act done must not only be criminal but it must have proceeded far enough towards a consummation thereof, and this must necessarily be a question for the jury under proper instructions. 1 Bishop Cr. L., ch 26; also § 323. So, clearly, where the intent is formed and some act done in performance thereof, but the party voluntarily abandons his purpose, or is prevented from proceeding farther, and this while at a distance too great to make an actual assault, he could not be convicted of an assault.” 43 Mich at 524-525. (Emphasis added.)

It is the italicized sentence that purportedly-established the "present ability” requirement. For the reasons hereinafter stated we reject the argument that an assault conviction requires proof that the defendant not only attempted a battery but also possessed the actual means to inflict that battery.

First, given the context of the "present ability” language in Lilley, it is apparent that the Court was discussing the necessity of the criminal act being sufficiently proximate to the intended battery to constitute an attempt. Lilley did not involve the question whether the defendant had the actual means to execute the battery, but whether the defendant’s acts had proceeded far enough toward that end to constitute an assault. To construe Lilley as supporting the instant defendant’s contention is to lift a sentence totally out of context and give it a meaning unintended by its author. We decline to do so.

Second, we have been unable to discover any Michigan case in which an assault conviction based upon an attempted battery was precluded merely because of the factual impossibility of executing the battery. But cf. People v Doud, 223 Mich 120; 193 NW 884 (1923).

Third, the rule urged upon us by the defendant has no rational foundation in law or in policy. Factual impossibility has never been a defense to a criminal attempt. People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975), People v Jones, 46 Mich 441; 9 NW 486 (1881). Furthermore, we perceive no good reason for exculpating a defendant charged with attempted battery because fortuitous circumstances unknown to him prevented his achieving his criminal object. The instant case amply demonstrates the absurdity of such a rule.

Accordingly, we hold that if a defendant intends to commit a battery and perpetrates acts sufficiently proximate to that end to constitute an attempt, he is guilty of a criminal assault notwithstanding the absence of his actual present ability to commit the battery. Thus, insofar as the evidence presented was sufficient to establish that the defendant committed an assault, the trial court correctly dismissed the count charging attempted murder, People v Cooper, supra, but erred by refusing to instruct the jury on the charge of assault with intent to commit murder.

II

The trial court refused to instruct for possible conviction of prison escape under MCL 750.193; MSA 28.390, because it found that subsection 3 of that statute did not prohibit attempted escapes. We need not address the precise issue raised by that ruling because we find that the defendant’s attempted escape was prohibited by subsection 1 of the above provision.

The statute under discussion reads as follows:

"Sec. 193. (1) Any person, being imprisoned in any prison of this state for any term, who shall break prison and escape, or break prison though no escape be actually made, Or shall escape, or shall leave the prison without being discharged from the prison by due process of law, or shall attempt to break prison or escape therefrom, shall be guilty of a felony, punishable by further imprisonment for not more than 5 years, such term of further imprisonment to be served after the termination, pursuant to law, of any sentence or sentences then being served. Such prisoner who shall break prison or escape or attempt to break prison or attempt to escape as aforesaid, shall be charged with that offense and tried in the courts of the county wherein are located the administrative offices of the prison or other penal facility to which the prisoner was committed or transferred, at the time of the breaking, escape, or attempt to break or escape.
"(2) The word 'prison’ as used in this section shall include any Michigan state prison, penitentiary, reformatory, state house of correction, camp constructed and maintained under the provisions of Act No. 274 of the Public Acts of 1949, as amended, being section 798.351 of the Compiled Laws of 1948, or any penal camp, except probation camps or probation recovery camps, and shall further include the grounds, farms, shops, road camps or places of employment operated by such institution or under control of the officers thereof, or the department of corrections, or of any police officers of this state, or of other persons authorized by the department to have prison inmates under their care, custody or supervision, either in an institution or outside an institution, whether for the purpose of work or medical care or otherwise.
"(3) Escaping from the lawful custody of any guard or prison official or employee while outside the confines of such prison shall be deemed to be a violation of this section. A person who is released from prison under a work pass program and who violates the terms of such release or who fails to return to his place of imprisonment within the time provided is guilty of a violation of this section. Any person violating the conditions of his parole shall not be deemed to be an escapee under the amendatory provisions of this act.” MCL 750.193; MSA 28.390.

Subsection 1 of the above statute prohibits inter alia any "attempt to break prison or escape therefrom”. By refusing to instruct the jury on anything but attempted escape under the general attempt statute, MCL 750.92; MSA 28.287, the trial court implicitly ruled that no violation of subsection 1 had been demonstrated. In view of the clarity with which that section includes attempts to escape from prison, we must assume that the court found that Foote Hospital did not constitute a "prison” as defined by subsection 2. That finding was erroneous.

In pertinent part, the statute defines a prison, inter alia, as including "the grounds * * * under control of * * * persons authorized by the department to have prison inmates under their care, custody or supervision * * * outside an institution * * * for the purpose of * * * medical care”. Under that definition the defendant was in prison at the time of the incident; hence, his actions were prohibited by subséction 1 of the statute.

Ill

Although based on the trial court’s erroneous interpretation of relevant legal principles, the rulings regarding the assault with intent to commit murder, attempted murder, and prison escape charges nonetheless amounted to acquittals on the merits on those charges. The trial court evaluated the prosecution’s evidence and determined that it was legally insufficient to support convictions of those offenses. The double jeopardy clause bars government appeal from such determinations. United States v Scott, 437 US 82, 97; 98 S Ct 2187, 2197; 57 L Ed 2d 65, 78 (1978). When a criminal defendant has been acquitted, retrial on the same offense is barred even if the legal ruling underlying the acquittal was erroneous. Sanabria v United States, 437 US 54, 64; 98 S Ct 2170, 2179; 57 L Ed 2d 43, 54 (1978), Fong Foo v United States, 369 US 141; 82 S Ct 671; 7 L Ed 2d 629 (1962). The essential character of an acquittal is not altered depending on whether it results from an erroneous evidentiary ruling or an erroneous interpretation of governing legal principles. United States v Scott, supra, at 98; 98 S Ct at 2197; 57 L Ed 2d at 79.

In this case, defendant did not elect to seek termination of the trial on grounds unrelated to his guilt or innocence of the charged offenses. Compare United States v Scott, supra. On the contrary, the trial court’s rulings led to erroneous resolutions in defendant’s favor on the merits of these charges. The double jeopardy clause absolutely bars a second trial on the charges to which those rulings were addressed. Sanabria v United States, supra, at 78; 98 S Ct at 2186; 57 L Ed 2d at 63.

In People v Keith Lester, 78 Mich App 661; 261 NW2d 33 (1977), this Court found that the defendant had been acquitted and that the prosecutor’s appeal was barred by the double jeopardy provisions of the Federal and state constitutions. Although Lester cited United States v Jenkins, 420 US 358; 95 S Ct 1006; 43 L Ed 2d 250 (1975), which was overruled by the Supreme Court in United States v Scott, supra, the result in Lester was fully supported by the Supreme Court’s holdings in the above cited cases. Under the Lester holding, the prosecution’s appeal in the instant case is barred by the double jeopardy clauses of the Federal and Michigan constitutions. Also see People v Killingsworth, 80 Mich App 45; 263 NW2d 278 (1977).

For the foregoing reasons the prosecution’s appeal in this case must be and hereby is dismissed.

       For a discussion suggesting the origin and development of the misunderstanding surrounding the "present ability” requirement, see Perkins, Criminal Law (2d ed), p 120.

       In a particularly cryptic opinion the Doud Court seemed to hold that where a defendant fires a gun at another, mistakenly believing the weapon to be loaded, he may be convicted of a simple assault but not a felonious assault. The Court did not favor us with any reasoning, but merely prefaced its holding with citations to a number of cases from foreign jurisdictions. Insofar as Doud involved a charge of felonious assault, which it apparently distinguished from simple assault in the manner already noted, we find its applicability limited to the precise issue that it addressed. See 2 Michigan Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education, 1977), Assault — Commentary, p 17-27.

       See People v Coleman, 350 Mich 268; 86 NW2d 281 (1957), for a discussion concerning the degree of consummation necessary to constitute an attempt.

       In so holding we are not eliminating the "present ability” requirement mentioned in Lilley and more recently in People v Sanford, 402 Mich 460; 265 NW2d 1 (1978); we are merely construing and applying it in a manner consistent with the intent of the authors of Lilley, with the historic common-law definition of assault, and with common sense.

       The instant case was argued before this Court in June 1978. At that time the Court considered all issues raised by the parties. The double jeopardy implications of the appeal were not discussed by the parties. An opinion was issued.
      On June 14, 1978, the United States Supreme Court decided several cases dealing with various aspects of the double jeopardy clause. Included were Sanabria v United States, supra, and United States v Scott, supra. In light of those cases, this Court, on its own motion, granted rehearing in the instant case to allow discussion of the double jeopardy implications of this prosecution appeal.
      Publication of the original opinion, which had been released to the parties, was held in abeyance pending resolution of this issue. Only this amended opinion will be published.