209 Mich. 89 | Mich. | 1920
This case is before us for a second time. See Porth v. Cadillac Motor Car Co., 198 Mich. 501. The facts, which are not in legal effect materially different upon this record than upon the former one, are fully stated in the former opinion and need not be here repeated. It should be stated, however,’ preliminary to a consideration of the questions raised, that the accident occurred on September 18,1911, prior to the enactment of the workmen’s compensation act (2 Comp. Laws 1915, § 5423 et seq.), and that the common-law defenses are available to the defendant. Upon the second trial plaintiff had judgment which the defendant reviews upon this writ of error. The grounds upon which reversal is sought, briefly stated, are as follows:
(2) That in construction work the master is not required to furnish a safe place.
(3) That defendant assumed the risk of using the channel iron as a support for the scaffold as it was only required to be strong enough for the purpose for which it was intended.
(4) That plaintiff assumed the risk of the scaffold falling and the negligence of his fellow-employees.
(5) That plaintiff was guilty of contributory negligence.
(6) That plaintiff’s cause of action was merged in a contract, and that he cannot recover in a declaration for tort.
(7) That the court erred in not crediting defendant with interest on the $2,500 paid to plaintiff.
(8) That the verdict is against the overwhelming weight of the evidence.
We will consider these questions in their order, having in mind the well settled rule that the former decision of this court settled the law of the case in so far as the questions were raised and disposed of in that decision. Culver v. Railroad Co., 144 Mich. 254; Curtiss v. Curtiss, 143 Mich. 676; Quirk v. Railway, 137 Mich. 493; Pierce v. Underwood, 112 Mich. 186.
1. While this question was not raised and argued upon the former hearing it was necessarily involved. We there said:
“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. The testimony tends to show that his position was such that notice to him of this defect in the steel work was notice to defendant.”
If this question is now open to defendant under the circumstances we are satisfied that sufficient appears.
2, 3, 4, 5. We will consider these grounds together. We think it may be stated that the doctrine of safe place as applied to construction work, and the question of assumption of risk, were fairly before the court and were determined when the case was here before; we have also pointed out that if plaintiff’s testimony and that of his witnesses was believed, Butler was not the fellow-servant of the plaintiff but was the representative of the master. At this point it should be stated that it is the claim of the plaintiff that he was below the level of where the scaffold was being laid, and that he handed the plank up to others; he was not at work and was not near the' point where the beam or channel iron was insecurely fastened — where the bolt was missing — and knew nothing of the defect. After the scaffold was laid, he came up from below, went upon it, when it fell. Unless we hold that it was his duty to inspect the channel iron and the manner in which it was bolted we do not perceive how we can say ás matter of law that plaintiff was guilty of contributory negligence. We think the duty to inspect did not rest upon plaintiff under the facts in this case.
But it is insisted that the doctrine of splitting causes of action should be applied; that plaintiff cannot split his cause of action; and that under his claim
7. After the proofs were in it was insisted by defendant’s counsel that the case should be submitted as the ordinary negligence case is submitted; that the jury if they found for the plaintiff should determine the amount’of the damages; that if a verdict was rendered for plaintiff the court should deduct from such verdict the amount defendant should be credited with and enter judgment for the balance. After some discussion this procedure was agreed to. The jury rendered a verdict for $8,000. The trial judge from this amount deducted the sum of $2,500 paid plaintiff January 27, 1912, nine monthly payments of $45 each, $405, interest on the last named sum $110.92, but declined to also deduct interest on the sum of $2,500, and directed the entry of judgment for $4,984.08. Defendant’s counsel cannot and does not question the propriety of this procedure; what he does assign error upon is the action of the trial judge in refusing to allow interest on the $2,500 paid plaintiff before and on January 27, 1912. Plaintiff’s counsel seek to sustain this action of the trial judge on the theory that this court held when the case was here before that tender of this sum to defendant was not necessary.
“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 ease the damages found by the jury exceeded the total amount previously paid him.”
Under the procedure adopted the jury found the amount the plaintiff was that day entitled to recover from the defendant, and all that he was entitled that day to receive. Manifestly if he had been paid a portion of that amount many years before, defendant was entitled to interest on the sum so advanced and paid. We so held when the case was here before. It is the law of the case; it should have been applied.
8. When the case was here before the question of whether the verdict was against the great weight of the evidence was raised. The case was reversed for other reasons and the question was not discussed. Counsel for defendant has made a most ingenious argument which might be persuasive if we were the triers of the facts. But we can reverse on this ground only when the verdict is clearly and manifestly against the weight of the evidence; we cannot reverse on this ground solely because we would have reached a different result. We should not overlook the fact that two juries have found the facts to be as claimed by the plaintiff, nor the further fact that two trial judges who saw the witnesses and heard their testimony have declined to disturb the verdicts. We have read this ample record consisting of 492 pages with this assignment of error in view and are not persuaded that the evidence so clearly and overwhelmingly preponderates in favor of the defendant as to justify us in setting aside this verdict.
