Browne v. Fenestra, Inc., s. 72
| Decision Date | 01 January 1965 |
| Docket Number | Nos. 72,s. 72 |
| Citation | 375 Mich. 566,134 N.W.2d 730 |
| Court | Michigan Supreme Court |
| Parties | Lillia BROWNE, a minor, by Gladys Minnis, her next friend, Plaintiff and Appellee, v. FENESTRA, INC., a corporation, Montgomery Ward & Company, a corporation, and William R. McQuillan, jointly and serverally, Defendants and Appellants. , |
Dann, Rosenbaum, Bloom & Kaufman, Detroit, for plaintiff and appellee.
Cary, BeGole & Martin, by Lawrence A. Bohall, Detroit, for defendant Fenestra.
Butzel, Eaman, Long, Gust & Kennedy, Detroit, for defendant and appellant Montgomery Ward & Company; Addison D. Connor, of counsel.
Donald Wm. Sargent, Detroit, for defendant and appellant William R. mCquillan.
Before the Entire Bench.
Louvenia Johnson and her daughter, Gladys Minnis, owned a home situated on St. Aubin in Detroit. The separate two car garage on the premises was equipped with old fashioned folding doors. Mrs. Johnson desired to have them replaced with a modern overhead door she could handle. In September of 1958 she purchased such a door from defendant Montgomery, Ward & Co. The door had been supplied to Ward by defendant Fenestra, Inc. and was furnished by the latter for installation on the job. Mrs. Johnson did not know of Fenestra's part in the transaction until after the date of plaintiff's injuries. She was told at the time of purchase that 'a man would be out to install it.' By the contract of purchase Ward agreed, for the total consideration of $275.47, as follows:
'We are to supply and instal one sixteen foot Strand Steel receding garage door after reworking opening.'
Defendant McQuillan independently contracted with, or was hired by, defendant Fenestra to install the door the Johnson-Minnis residence. Fenestra, according to the proof, agreed to supply all door parts. McQuillan, according to the proof, agreed to supply all necessary lumber for 'working' or 'reworking' the garage door opening. McQuillan installed the new door sometime during the month of its purchase. Mrs. Johnson testified that the door worked properly thereafter, and that no trouble with it developed until, some three or four months next following the installation, the accident occurred which gave rise to this suit. She testified further that the 'lip' of the left 'rail' or 'track,' which carried the door to and supported its 'up' position, was bent at the time of installation. She testified that she noticed such bending and called it to defendant McQuillan's attention. On direct examination she testified:
'Q. To whom was it that you mentioned the matter of the bent rail?
'A. I mentioned it to Mr. McQuillan.
'Q. Himself?
'A. Yes.
'Q. Did Mr. McQuillan say anything to you?
'A. He said just it was okay, there was nothing wrong with it.
'Q. On which railing was that? The one of the railings on the left side of the garage or the one on the right side, as you faced the big door?
On cross-examination she testified:
'Q. Can you describe this bend in the rail for us please?
The plaintiff, a granddaughter of Mrs. Johnson, was 17 years of age on January 30, 1959. That day, on request of the grandmother, she attempted to close the door immediately after the grandmother had driven her car into the garage. The door fell on plaintiff, inflicting injuries and damages assessed by the jury at the sum of $15,000.
Plaintiff sued Ward, Fenestra and McQuillan generally on the theory of actionable negligence and of breach of a legally implied warranty of fitness. Her end position is that Ward by sued implied warranty of fitness and breach thereof became liable to her for personal injuries sustained; that Fenestra by supplying defective material and instructions to McQuillan, and McQuillan by defective workmanship, contributed together in causing the door to fall, and that all three defendants became jointly and severally liable for the injuries she sustained when the door fell. The jury agreed with plaintiff and returned a general verdict in amount as above, upon which verdict judgment was entered against the three defendants. They appeal separately.
The proof fully justified the jury's finding that Fenestra and McQuillan were separately guilty of negligence and that their separate acts of negligence contributed causally to the fall of the door. The jury had a right to find that Fenestra delivered on the job an overhead door, the rail of which was bent at a point on the lip in such manner as to permit the wheels carrying the door to 'run off the track' at an overhead point. As for McQuillan, and quite aside from the proof tending to show that he did not install the door properly after having 'reworked' the existing door opening, the jury could find and apparently did that he disregarded Mrs. Johnson's reference to the bent rail and that he went ahead with assurance to her that 'it was okay, there was nothing wrong with it.' All this was sufficient to justify the jury's verdict as against Fenestra and McQuillan, and to justify the trial judge's instructions on the issue of liability as charged against them.
1. We have tested the trial judge's charge to the jury in array with Fenestra's allegation that the judge erred 'in failing to instruct the jury as to the non liability of the defendant Fenestra for the acts of an independent contractor and in refusing to give defendant Fenestra's request to charge No. 15 or the equivalent thereof.' 1
During oral argument counsel for Fenestra conceded frankly that his request No. 15 was not a 'complete' statement of the law and that the trial judge did not err in refusing to grant same. He did claim that the judge was under affirmative duty to charge the jury as to the law applicable to Fenestra's 'independent contractor' defense of immunity from liability for the acts of McQuillan. Whether the judge was under such affirmative duty need not be discussed (see Sakorraphos v. Eastman Kodak Stores, 367 Mich. 96, 116 N.W.2d 227). The judge's affirmative duty was that of charging the jury only as to the presented question of negligence of Fenestra, in delivering an allegedly defective door on the job, and as to the question of causation if the jury found such negligence on the part of Fenestra. The judge did so charge, properly. We find no error here.
2. The important specifications of error submitted by defendant Ward have recently been...
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