281 N.W. 324 | Mich. | 1938
This is an action for damages for personal injuries suffered by plaintiff November 27, 1935. It appears that in September, 1935, plaintiff, a painter by trade, entered the employ of defendant Leach, who at that time was a decorating contractor. It was the duty of plaintiff to report for work each working day and he was paid 60 cents per hour for the time he actually worked. The business of Leach depended upon the number of jobs he was able to get. Leach had other men working for him under the same arrangement as plaintiff. In some of the jobs Leach was able to get, he used from one to six men to do the work. When Leach was not present, one Emil Thyme acted as foreman. It also appears that Leach and Thyme entered into an arrangement by which, during Leach's contemplated trip to Florida, Thyme would operate the business. Thyme used Leach's truck and equipment and was to pay for the telephone and rent of the building and office used by Leach.
Before Leach left for Florida, a Mrs. Smith called Leach to remove some wall paper and Leach gave the call to Thyme. When plaintiff reported for work on the day in question, Leach was not present, but Thyme asked plaintiff if he wanted to go out and remove some wall paper. Plaintiff consented to do the work and drove out to Mrs. Smith's and Thyme also drove out there in Leach's truck. Upon arrival at the Smith home, there was some dispute between Mrs. Smith and Thyme about the price; and upon it being adjusted, the work commenced. Plaintiff used a steaming machine which consisted of a steam boiler, heated by a gasoline torch. The machine when empty of water weighed about 60 pounds and when filled weighed about 125 pounds. Some of the paper to be removed was in an upstairs room, and *557 in order to get the machine upstairs it was necessary to carry it up a stairway about 32 inches wide. Plaintiff started to carry the machine upstairs and as he reached the third step the machine struck the riser, plaintiff lost his balance, slipped on some loose paper, and was injured. Immediately after the accident plaintiff felt faint, rested a while and later carried the machine upstairs without any further mishap. The day following the accident, plaintiff became sick, the diagnosis was a rupture of blood vessels in the stomach.
Leach had permitted his compensation insurance to expire and on the date of the accident, Thyme had not filed an acceptance under the compensation law.
The case is a master and servant injury case with the common-law defenses barred, 2 Comp. Laws 1929, § 8407 (Stat. Ann. § 17.141). At the close of plaintiff's proofs defendant made a motion for a directed verdict on the ground that plaintiff was not working for defendant at the time of the accident; and that, if so, no negligence was shown on the part of defendant. The trial judge reserved decision under the Empson act, 3 Comp. Laws 1929, § 14531 (Stat. Ann. § 27.1461). The cause was submitted to a jury who returned a verdict in favor of defendant.
Plaintiff appeals and contends that, on the day in question, plaintiff was in the employ of defendant as he (plaintiff) had no notice of the transfer of the business from Leach to Thyme; that the employment was for an indefinite term; and that the defendant failed to furnish other employees to help in the handling, moving and use of the steam machine and failed to keep the steps clean in the premises mentioned. *558
In considering the motion for a directed verdict we have in mind that the evidence must be viewed in the light most favorable to plaintiff (Yacobian v. Vartanian,
Under the provisions of the workmen's compensation law, as to an employer not under the act, certain of the defendant's common-law defenses have been abrogated, yet the plaintiff must prove negligence on the part of his employer before he can recover. 2 Comp. Laws 1929, § 8407 (Stat. Ann. § 17.141). In the case at bar plaintiff has attempted to do this by offering evidence to the effect that plaintiff was not provided sufficient help to carry the machine upstairs, yet the facts are that this particular machine was made to be carried by one person and was customarily done. This is substantiated by the fact that plaintiff carried the machine from the truck to the front porch of the house and after the injury plaintiff carried it upstairs and continued to use it. Plaintiff offered in evidence the testimony of one William Miller, but an analysis of his testimony shows that he never had a paper-removing machine similar to the one in question, nor had he ever used one. His testimony is not helpful to plaintiff.
The record is clear that the cause of the accident was plaintiff allowing the machine to hit the riser of the third step, causing him to lose his balance and slip on paper that had been placed there by plaintiff in his removal of paper from the walls and ceiling of the house. Nor do we think that there was any *559 obligation on the part of defendant to provide extra help to pick up a few scraps of paper which plaintiff could have done in a few seconds at the most.
The motion for a directed verdict should have been granted and the judgment is affirmed, with costs to defendant.
WIEST, C.J., and BUSHNELL, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. BUTZEL, J., did not sit.
