Cheney v. Olender

• Decision Date: 05 October 1942
• Docket Number: No. 7.,7.
• Citation: 303 Mich. 129,5 N.W.2d 692
• Parties: CHENEY v. OLENDER et al.
• Court: Michigan Supreme Court

303 Mich. 129

5 N.W.2d 692

CHENEY

v.OLENDER et al.

No. 7.

Supreme Court of Michigan.

Oct. 5, 1942.

Action by Daisy Cheney against Abraham Olender and Rose Olender for injuries sustained by plaintiff while employed as a domestic in defendant's household. From a judgment for defendants entered upon their motion for judgment notwithstanding the verdict, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Guy A. Miller, Judge.

Before the Entire Bench, except WIEST, J.

Bernstein & Bernstein, of Detroit, for plaintiff and appellant.

Vandeveer & Haggerty, of Detroit (Fred L. Vandeveer, of Detroit, of counsel), for defendants and appellees.

NORTH, Justice.

Daisy Cheney, plaintiff herein, was employed by defendants as a domestic in their household. On or about June 6, 1939, while undertaking to do some ironing, which service was within the scope of her duties, she received an electric shock in consequence of which she was thrown to the floor and injured. She brought this suit and upon trial by jury obtained a verdict fixing her damages at $664.50. At the conclusion of plaintiff's proofs and again at the close of all the proofs defendants moved for a directed verdict. The trial court reserved its decision, but on motion for judgment non obstante veredicto ordered judgment entered in favor of defendants. Plaintiff has appealed.

On this appeal the testimony must be construed most favorably to plaintiff. She had been in defendants' employ approximately a year prior to the accident. Preparatory to doing some ironing with an electric iron on the day in question, plaintiff attempted to attach the extension cord of the iron by inserting the plug at the end of the extension cord into a socket of an electric fixture at the ceiling of a recreation room in the basement of defendants' dwelling. This was the place and the manner in which plaintiff throughout the period of her employment by defendants had performed this type of service. The insertion of the plug was accomplished by plaintiff while standing on the floor and reaching to the ceiling electric fixture. As plaintiff was attempting to so insert the electric plug on the day of the accident she received an electric shock, was thrown to the floor and injured. The negligence charged is that the electric fixture and electric socket were defective and were not properly insulated; that the electric socket and fixture became and for some time were somewhat loosened from the ceiling, and in poor mechanical condition; and further, that defendants were negligent in failing to repair the electric fixture and socket. Defendants are also charged with negligence in that they failed to comply with the following statutory provision: ‘Every dwelling and all the parts thereof shall be kept in good repair by the owner * * *.’ Comp.Laws 1929, § 2559 (Stat.Ann. § 5.2843). By their answer defendants denied the negligence and liability charged in plaintiff's declaration; and gave notice they would assert in their defense that plaintiff was guilty of contributory negligence and that she assumed the risk of the conditions present at the time and place of the accident and that she knew or ought to have known of such conditions and hence assumed the risks incident thereto.

Plaintiff testified concerning this electric socket that ‘it always was loose up there * * *. I didn't have no trouble any more than every time I put my iron up there it didn't heat. It was always bad.’ She further testified that about a month-4 or 5 weeks-before the accident she spoke to Mrs. Olender about the condition of which she now complains; but that: ‘It was just cause my iron didn't heat that I spoke to her.’ And according to plaintiff's testimony Mrs. Olender said: ‘she was going to get it fixed. She said she was going to get her electrician.’

For a number of years prior to the accident plaintiff had been employed as a domestic and in working in hotels. She was failiar with electric irons and knew how to use them. While testifying she said: ‘When I first went there it wasn't loose hardly, just a little bit. You could just turn it in it. The iron didn't heat good, that was what bothered me. It got worse all of the time. * * * In the homes I had been in and in working in hotels I had some experience with electric light bulbs. I also had some experience working with electric washers and other simple electric appliances. * * * I knew that I would be more sure of greater safety if it was fixed tight than when it was loose. I knew that if the wiring became loose enough when I touched it I might get a shock and that is why I spoke about it. * * * I knew that (the socket was loose) because every time I would get ready to iron, the iron wouldn't heat. * * * I didn't think about a shock. I complained because I wasn't getting no results from the iron.’

Plaintiff makes no claim there was any defect other than above indicated, but on the contrary testified that the electric iron, the cord and the plug as attached at the end of the cord were ‘all right.’

Among the grounds asserted by defendants in support of their motions for a directed verdict and for judgment non obstante are that plaintiff was guilty of contributory negligence as a matter of law, and...