198 Mich. 501 | Mich. | 1917
Plaintiff was inj'ured on September 16, 1911, while working in defendant’s employ as a carpenter on a building in process of construction, by the
During the summer season of 1911 defendant was erecting a new factory building about 250 feet long at its Trombley avenue plant in the city of Detroit. Most of the construction work was done by independent contractors, but defendant also had in its own employ a force of carpenters to do certain of the wood work under the supervision of J. W. Butler, who took charge of the carpenter work for defendant as soon as the building was ready for that part of the construction. The Whitehead & Kales Company did the steel construction work under contract, which was early entered upon and had been completed when the accident happened. After its completion the Albrecht Company, which had the masonry contract, installed in the structure a freight hoist with which to carry on its work, and in so doing found it necessary to temporarily remove a small portion of the previously erected steel work, for which permission was obtained from the Whitehead & Kales Company. When through using the hoist at that place the Albrecht Company’s employees removed it and replaced the steel work. It was subsequently discovered that at this point one of the bolts used to fasten a steel beam or channel iron where one end of it rested on a truss was left out or not properly replaced. This beam, or channel iron, was at the top of the steel construction on the trusses which supported the roof, in which the carpenters were constructing supports for a cupola. When the accident occurred a force of carpenters, including plaintiff, had just completed a platform or scaffold preparatory to working upon the cupola above it. This was made by placing planks upon the channel irons, or steel beams, including the one which had not been bolted at one end, which it is claimed allowed it to spring in the center with the weight put upon it so as
Dr. Stockwell, who was called by defendant at the time of the accident, and attended plaintiff both at the hospital and afterwards at his home, testified that his injuries consisted of a laceration of the lower lip, a comminuted fracture of the middle left radius — one of the bones of the forearm — and fractures with considerable displacement of the os calcis bones in both ankles, which he diagnosed in his report as “probable results not good,” meaning the injury would be permanent ; that there was nothing in the report showing anything wrong with the collar bone, ribs, backbone, or the legs above the feet, and had there been it would have appeared in the chart as he went over the patient looking for all injuries. Dr. Povey, who was sent by plaintiff’s attorney to examine him some three years later, testified to finding indications and the effects of those described by Dr. Stockwell and other fractures, including both collar bones, with the right elevated and the left depressed, and the breastbone depressed; that both ankle joints had been fractured and stiffened so that 75 per cent, of the foot motion was lost without hope of recovery; that the spine had been injured and his whole nervous condition upset, and as a result of scar tissue formed in the spinal cord and nerves his whole body was affected with a muscular tremor. While there is a marked variance in the testimony of the physicians as to the extent of plaintiff’s injuries, it appears undisputed that they were serious, leaving him permanently crippled and totally incapacitated to
After remaining in the hospital about eight weeks plaintiff was taken to his home, where Dr. Stockwell continued to attend him professionally until about the middle of the following January. An office employee of the Cadillac Motor Company named Stanley called upon him occasionally at the hospital to see, as he stated, how he was getting along and to take him his regular wages as instructed by his employer. This he continued to do after plaintiff was taken to his home until the latter part of January, when he broached the matter of a settlement with plaintiff and the subject was discussed several times along lines upon which they do not agree, but later Mr. Sawyer, an attorney for the casualty company which insured defendant against loss resulting from injuries to employees, was called in, and their negotiations culminated in some kind of a settlement, the nature of which is in dispute. Under it payment was made to plaintiff of $2,500, less the amount he had already received from defendant, and he signed the following document, for which a printed form was used:
“Release.
“Received of Cadillac Motor Carr Co. this 27th day of January, 1912, the sum of twenty-five hundred ($2,500.00) dollars, in full satisfaction and discharge of all claims which I now have or may hereafter have on account of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the 16th day of September, 1911, while in the employment of the above. I am satisfied with this settlement.
“William Porth.
“Witnesses:
“Mrs. Sophie Porth,
“Address. 208 30th St.
“E. A. Stanley,
“Address. 1343 Cass Ave.”
(The italicized portions are in writing.)
Sawyer and Stanley testified that there were no as.surances for the future, or misrepresentations, and the bargain was as the receipt indicates, which was read over to. plaintiff before he signed it. Sawyer testified he himself read it to plaintiff, who was very nervous at the time and in bad condition with an injured arm, so “it is very probable that one of us assisted him in writing his name;” that after plaintiff had signed it his wife signed as a witness and then at his (Sawyer’s) dictation wrote over her husband’s signature his expression of satisfaction with the settlement. What was said, explained,, understood, and agreed to on that occasion and prior thereto is in marked dispute.
In October or November of that year plaintiff’s physical condition was such that his wife appealed to Stanley for help and he called Dr. Fay, a physician in defendant’s employ, to see him. The doctor said an operation would relieve his ankles, but that he was then too weak for such operation and he would treat him at home for a time. Plaintiff testified that Dr. Fay thereafter attended him more or less for about nine months.
In January, 1913, just after the expiration of a year from the date of the receipt in controversy, plaintiff’s wife appealed to Stanley for further assistance, and defendant began paying plaintiff, or his wife, $45 per month, which was continued until the following October, when further payment was refused by Mr. Eaton, manager of defendant’s welfare department, who had
Defendant’s counsel requested the court for a directed verdict on various grounds, especially urging that no original liability on the part of defendant was shown, that if there had been there was a complete settlement and, in any event, plaintiff could not recover because he had not repaid or tendered back the money received and receipted for in full settlement of his claim.
The court submitted the questions of original liability and settlement to the jury as issues of fact, with instructions that in case they found for plaintiff in a greater sum than the amount he had already received, the latter, with interest at 5 per cent, per annum, should be deducted from the former. A general verdict was returned for plaintiff in the “sum of $5,000 over and above the amount of money heretofore received by the said plaintiff from said defendant,” and judgment was entered thereon.
Defendant thereafter moved for a new trial contending amongst other reasons that, as shown by his affidavit, the testimony of a witness named Frank Dybalski touching notice given to defendant of the defect, alleged as the only foundation for plaintiff’s claim of negligence, was wrongfully interpreted and contrary to the facts as he knew them. Dybalski was one of the carpenters working with plaintiff at the time of
Counsel for appellant state in their brief, as a major premise, that “Porth necessarily is seeking to avoid the contract of January 27,1912;” assert that it was a contract of settlement in full, as evidenced by the pa
Plaintiffs repudiation is only directed to the paper he signed. Both parties say a contract was entered into shortly before this paper was signed, and that it was executed in full. Neither claims any fraud or mistake as to it. Their disagreement is as to its scope and terms. Plaintiff does not seek .to repudiate the contract he claims was made, but contends it was limited to his loss of time, extra expenses, and total incapacity for a year following the time it was entered into, with the matter of full or further compensation left open, owing to the uncertainty at that time as to the permanency of his injuries and the extent to which he would recover; while defendant claims the contract was a full and complete settlement, just as the receipt signed by him shows. He only claims fraud as to the paper he signed — that advantage was taken of his ignorance, inability to read, and confidence in Stanley and Sawyer, at whose request he signed the paper then produced under the assurance that it was only a receipt for the money they had just paid him according to the terms of the oral agreement, as he asserts it was made. The testimony of the witnesses is clearly in marked conflict both as to this and the terms of the contract to which it related. In such case it is not for the court to pass upon the probability of his story or the credibility of the witnesses, for his testimony, taken as true and viewed in the aspect most favorable to his contention, raises issues of fact for a jury both as to whether he was fraudulently deceived into signing the paper in question and the terms of the contract then entered into. Of a release given under a somewhat analogous contention, it was said in O’Neil v. Iron Co., 63 Mich. 690 (30 N. W. 688):
*511 “It is not the intention, but the effect upon the plaintiff of what 'was said, and done at the time the paper was signed, that is material here; for if the effect was to lead him to believe that he was signing a mere receipt, and call his attention away from the fact that he was signing so important a paper as an agreement for a release of defendant from liability, the result would be the same — he was deceived as to the true character of the paper he was signing. He testifies that he did not know that he was signing, and did not intend to sign, an agreement to release defendant from liability arising from its negligence.”
Plaintiff admits that he signed this release in the presence of his wife and the other witnesses, and received the amount there stated in payment for damages resulting to him from his injuries. He is presumed to have signed it .understanding^, and prima facie it must be taken as truly stating their agreement. The burden of proof is upon him not only to show by a preponderance of evidence that it is not true, but that he was fraudulently deceived and misled by what was done and said into believing that he was signing a mere receipt for the money paid under a contract different from that stated in it. If the contract was as he claims, and which he does not repudiate but affirms, we see no obligation resting upon him to return the money paid in settlement of it, as would be the case where a party seeking to repudiate a contract admittedly made claims he was fraudulently induced to so agree. Failing to prove by a preponderance of evidence that the contract was not as plaintiff’s witnesses testify and the paper he signed shows, he of course could not recover.
Plaintiff’s counsel urge that it was the duty of defendant at its peril to provide him with a reasonably safe place in which to work, and that its negligence is also shown by the fact that it had actual notice of the defect which made the place particularly dangerous,
It is to be noted that plaintiff and his fellow workmen had no part in constructing the steel frame of the building on which they were laying the plank for the floor, or so-called scaffold, from which to do the wood work above. The steel construction they were starting to use had been finished some time before by an independent contractor, as Butler testified. For the purpose of beginning the wood work in the roof defendant had accepted that steel work as done and ordered its carpenters upon it. While the rule of safe place as generally understood cannot be applied as the controlling principle in this case where plaintiff’s employment was in the erection of a new building, or construction work which in its progress necessarily undergoes frequent changes and involves extra risks which he is presumed to assume, yet the fact that he was directed to begin his work upon the top of this steel structure after it had been finished by an independent contractor with whom he had nothing to do does have a bearing on the question of his contributory negligence and the duty of his employer when ordering him to begin work at such a place.
So far as the record discloses Butler was the only representative of defendant on the premises in- authority. He was in charge of and superintending the work it was doing; notice could only be given to this corporation by notice to its authorized representative or agent in the line of that to which the notice related.
Upon that branch of the case defendant’s counsel requested the court to charge the jury that:
“If competent men were employed to replace the angle iron that had been removed and afterwards fell, and the Cadillac Motor Car Company had no notice that this work had been improperly performed, your verdict should be no cause of action.”
This the court refused and, after giving a general definition of negligence, charged the jury in part as follows:
“You are instructed that it is the duty of the employer to furnish its employees a reasonably safe place to work. A failure to do so would be negligence.
“If you find by a preponderance of the evidence that the cause of the scaffold falling was the failure to properly replace the channel irons, then you may find that the defendant was guilty of negligence.”
At conclusion of the court’s charge counsel for plaintiff suggested to the court that if the jury “should find for the plaintiff that they assess plaintiff at whatever amount barring the amount he has already received from the defendant; I think that will be the proper verdict.” To which the court replied, “Yes; it should be deducted from any amount.” Plaintiff’s counsel then said, “The clerk can do that.” This is charged by defendant as prejudicial error. It was at least confusing. Apparently there was no question as to. the amount which had been paid plaintiff. He testified that at the end of a year from the time he receipted for $2,500 defendant began to pay him $45 per month and continued the same for nine months, which, it is urged was in recognition of the contract of partial settlement he claims was made and his right to further compensation. If his version of the agreement and significance of the subsequent payments made to him prevailed, those payments with interest at 5 per cent, per annum should be deducted in case the damages found by the jury exceeded the total amount previously paid him. Not only were the jury uninstructed upon that subject, but the payments were liquidated amounts apparently conceded, and involved no issue of fact for the jury.. To leave this matter to the jury with general instructions involving figuring interest was confusing and prejudicial to a fair determination of the issues of fact proper for the jury to pass upon.
For the foregoing reasons the judgment is reversed and a new trial granted, with costs.