208 Mich. 89 | Mich. | 1919
Plaintiffs intestate, Laker Jonescu, met his death on January 29, 1917, by falling through a skylight on the roof of defendant’s building at 1192 Russell street, in the city of Detroit. He was a car
The negligence of defendant is said to be:
1. In not furnishing deceased with a safe place to work.
2. In not warning him of the existence and location of the skylight, concealed as it was with the covering of snow.
The defendant claims that the deceased was an independent contractor in the work he was doing and that the danger from stepping on the skylight was apparent to him. He also denies that Andrew had charge of the work for him.
The plaintiff had verdict for $6,000, on which judgment was duly entered. The defendant moved for a new trial, which was denied, and he now appeals, alleging many errors in the trial as well as in the denial of his motion for a new trial.
“Q. What else did Andrew say to you?
“A. Andrew was asked, ‘What is the matter that you did not tell him about the skylight up there?’ He said, ‘By God, I forgot about it.’ He told me there was snow there, three inches of snow — ”
This was received under objection, and a motion was afterwards made to strike it out, which was denied. It is conceded that the defendant was not then present. The defendant insists that even if Andrew had charge of the work for him and was his agent, the declarations of an agent after the fact are not binding on the principal. The plaintiff claims that it was competent as tending to show that Andrew, as such agent, had knowledge of the existence of the skylight and was thus under obligation to the deceased to warn him of the hidden danger. The claim of the plaintiff is thus stated in his brief:
“We contend that this testimony was competent for one purpose to show that Andrew Orlich, the superintendent of the job, and the vice-principal of defendant, who ordered and accompanied Jonescu upstairs to measure the porch for the railing, knew at the time of the existence of this skylight, and that it was hidden and covered by snow. This testimony was admitted by the court for that purpose only. In order for plaintiff to recover it was necessary to show as one of the elements of her case, that Andrew Orlich, the alter ego of defendant, knew at the time of the existence of this skylight, and that it was covered with snow, thereby preventing Jonescu from seeing or appreciating the dangers. Therefore, the cases cited by appellant on res gestse have no application.”
“The court was in error in permitting this deposition to be read. It was not offered for the purpose of impeaching Captain Maslin, but for the purpose of proving a substantive fact; that is, that Maslin knew the mine was in a dangerous condition when he ordered the men in there. It is conceded that it was no part of the res gestx. It has many times been held by this court that the declarations of an agent as to a past transaction are inadmissible to bind the principal. Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Mabley v. Kittleberger, 37 Mich. 360; Patterson v. Railway Co., 54 Mich. 91; Stebbins v. Township of Keene, 55 Mich. 552; Wormsdorf v. Railway Co., 75 Mich. 472 (13 Am. St. Rep. 453). It is true that, where the acts of the agent will bind the principal, then his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting a part of the res gestx.
“But counsel for plaintiff contend that Captain Maslin was the alter ego of defendant, and that his agency continued at the time his testimony was given before the coroner; therefore, whatever Maslin said in reference to the occurrence at the mine would be binding upon the defendant, though said long after the occurrence. If he can be said to be the alter ego, he was not clothed with authority to make admissions.”
The reason for this rule is well exemplified in this case. In an affidavit, filed by defendant in support of his motion for a new trial, one Draga Popov deposed that she was looking out of the window which overlooked the platform in question when Andrew and the deceased were on it; that they engaged in a scuffle, and deceased was thrown or fell over on the skylight. If this be true, it would account for Andrew’s making such a statement, in answer to the question of Korkes, as would place the liability for the injury and death of deceased on some one other than himself.
On plaintiff’s theory that Andrew was in charge of the work as agent of the defendant, he might have been called as a witness under the statute (3 Comp. Laws 1915, § 12554) and questioned as to his knowledge of the existence of the skylight and the fact that it was concealed by the snow. That defendant was greatly prejudiced by the answer given is apparent. By it the plaintiff got before the jury an admission by the alter ego of the defendant, and therefore, under the court’s instruction, binding on him, of the fact that he knew that the skylight was concealed, that it was dangerous, and that he neglected a duty in not advising deceased concerning it. For this error, the case must be reversed.
In view of a new trial, the other errors claimed by defendant, and which may again arise, will be con-. sidered. The plaintiff called the defendant for cross-examination under the statute above referred to, and questioned him at considerable length as to whether the deceased was employed by him by the day or was doing the work under a contract. On examination of defendant by his own counsel, he was asked“Q. In your talk with him when he was upstairs, did you or
Assignments 8, 9 and 10 allege error in the charge of the court in submitting to the jury the question as to whether or not deceased was an independent contractor. The concession made by defendant’s counsel when the case was presented in this court, that there was evidence tending to support the plaintiff’s claim which entitled it to be submitted to the jury, obviates any discussion of this question. The language complained of as to the preponderance of the evidence was unfortunate as it seemed to cast the burden on defendant of showing that the deceased
For the reason stated, the verdict and judgment will be set aside, with costs to defendant, and a new trial granted.