114 N.W.2d 236 (Mich. 1962), 39, Hardaway Auto Owners Ins. Co., Intervenor v. Consolidated Paper Co.

Docket Nº39.
Citation114 N.W.2d 236, 366 Mich. 190
Opinion JudgeKAVANAGH, Justice.
Party NameWilliam HARDAWAY, Plaintiff and Appellee, Auto Owners Insurance Company, Intervenor Plaintiff and Appellee, v. CONSOLIDATED PAPER COMPANY, a Michigan Corporation, Defendant and Appellant.
Attorney[366 Mich. 192] Ward, Plunkett & Cooney, Detroit, for defendant and appellant. Kelman, Loria, Downing & Craig, Detroit, for plaintiff and appellee.
Judge PanelBefore the Entire Bench, except OTIS M. SMITH and ADAMS, JJ.
Case DateMarch 19, 1962
CourtSupreme Court of Michigan

Page 236

114 N.W.2d 236 (Mich. 1962)

366 Mich. 190

William HARDAWAY, Plaintiff and Appellee,

Auto Owners Insurance Company, Intervenor Plaintiff and Appellee,

v.

CONSOLIDATED PAPER COMPANY, a Michigan Corporation,

Defendant and Appellant.

No. 39.

Supreme Court of Michigan.

March 19, 1962

Page 237

[366 Mich. 192] Ward, Plunkett & Cooney, Detroit, for defendant and appellant.

Kelman, Loria, Downing & Craig, Detroit, for plaintiff and appellee.

Before the Entire Bench, except OTIS M. SMITH and ADAMS, JJ.

KAVANAGH, Justice.

This action was brought to recover damages for injuries allegedly suffered by the plaintiff William Hardaway on January 18, 1957, when he put his right hand into an unguarded wall fan in the basement of defendant's plant in Monroe, Michigan.

Plaintiff's declaration was filed and served April 8, 1959. He alleged defendant was guilty of negligence by violating its duty to maintain the premises in a reasonably safe and proper condition for persons legally thereon. He further alleged defendant's failure to comply with the statute requiring proper safeguards to be installed before placing machinery [366 Mich. 193] or equipment in operation. 1 Defendant filed an answer on June 24, 1959. On July 11, 1959, intervening plaintiff filed its declaration and defendant's answer thereto was filed July 23, 1959.

Defendant did not plead the affirmative defense of contributory negligence, nor did defendant raise any question of negligence or contributory negligence on plaintiff's part in either answer.

Since depositions were completed in September, 1959, defendant had all the factual information necessary to make a motion to amend.

No attempt was made to raise the defense of contributory negligence despite Court Rule No. 23, § 3a, which had been in effect since June 1, 1958, reading in part as follows:

'In all negligence cases tried after the effective date hereof, the contributory negligence of the plaintiff shall be deemed to be a matter of affirmative defense to be pleaded and proved by defendant.'

Pretrial was held on January 27, 1960, and defendant orally moved to amend its answer so as to [366 Mich. 194] plead the affirmative defense of contributory negligence. The time of the pretrial was 3 years and 9 days after the date of the injury.

The trial court denied the motion to amend on March 2, 1960, by written opinion, giving 2 reasons for the denial: (1) Since plaintiff was barred by the statute of limitations from asserting a cause of action based on negligence of plaintiff which occurred on January 18, 1957, defendant should be

Page 238

barred from asserting the same matters in an affirmative defense of this action after the 3 years had run. (2) That allowance of such an amendment is within the discretion of the court.

The court held defendant had not made a sufficient showing on which to invoke a judicial discretion. He further found defendant did not assert it was not aware of facts to plead such defense even in its original answer. Nor does defendant assert it was unaware of sufficient facts prior to the running of the statute to enable it to plead such defense.

On the trial of the case it developed that plaintiff Hardaway, a general laborer, was engaged in pouring a new concrete floor over an old floor in the basement of defendant's plant. A fan was located on the North wall near the stairway. It was set in an opening in the wall. The blades on the fan were from 24 to 32 inches in diameter. There was no guard over the fan or over the opening in which it was set. Testimony disclosed it was located at or near shoulder height so far as plaintiff Hardaway was concerned. Hardaway was about to leave the basement when one of defendant's employees called, 'Hey, Willie.' Plaintiff turned to the left and pointed with his right hand and his fingers were severely injured by the blades of the fan.

Plaintiff introduced hospital records and x-ray plates which were admitted subject to the usual evidentiary restrictions as to hearsay matters. Somehow,[366 Mich. 195] the jury had these hospital records and x-ray plates in the jury room during their deliberations. Immediately after the jury returned with their verdict, defendant moved for a mistrial on this ground, which was denied by the court.

At the conclusion of testimony the court, having ruled out the question of contributory negligence, held the defendant was guilty of negligence as a matter of law by reason of its violation of the statute in that it had failed to properly guard the fan. The court, therefore, directed a verdict in favor of plaintiff and submitted solely the question of damages to the jury.

The jury returned a verdict for $10,000.

Defendant moved for a new trial. The court denied the motion and defendant appealed.

Defendant contends the court erred in not allowing defendant to plead, to prove, and to argue contributory negligence and also in holding defendant was guilty of negligence as a matter of law. It further argues the court erred in permitting the hospital records and x-ray plates to go into the jury room. Defendant also asserts the court erred in certain portions of the jury charge.

The granting or refusal of permission to amend pleadings is within the discretion of the trial court and, in the absence of abuse of this discretion, the ruling of the trial court will not be disturbed. Jackson City Bank & Trust Co. v. Blair, 333 Mich. 399, 53 N.W.2d 493, 32 A.L.R.2d 920; Cook v. Wolverine Stockyards Co., 344 Mich. 207, 73 N.W.2d 902; Graham v. Thorman, 354 Mich. 629, 93 N.W.2d 264; Ensley v. Associated Terminals, Inc., 304 Mich. 522, 8 N.W.2d 161; Standard Oil Co. v. Riddell, 267 Mich. 375, 255 N.W. 212; Berston v. Gilbert, 180 Mich. 638, 147 N.W. 496; Randall v. Douglass, 321 Mich. 492, 32 N.W.2d 721; Grant v. National Manufacturer &...

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