Fleegar v. Consumers' Power Co.

• Decision Date: 04 April 1933
• Docket Number: No. 127.,127.
• Citation: 262 Mich. 537,247 N.W. 741
• Parties: FLEEGAR v. CONSUMERS' POWER CO.
• Court: Michigan Supreme Court

262 Mich. 537

247 N.W. 741

FLEEGAR

v.CONSUMERS' POWER CO.

No. 127.

Supreme Court of Michigan.

April 4, 1933.

Appeal from Circuit Court, Genesee County; James S. Parker, Judge.

Action by Mabel E. Fleegar against the Consumers' Power Company. Judgment for plaintiff, and defendant appeals.

Judgment reversed and new trial granted.

Argued before the Entire Bench.

Carton & Gault, of Flint, for appellant.

Doran & Pearson, of Flint, for appellee.

POTTER, Justice.

Plaintiff sued defendant to recover damages in the sum of $25,000 for defendant's negligence in carelessly and willfully performing its work in making gas connections to plaintiff's house in this-that it sent an unskilled and incompetent workman to make the connection and turn on the gas; sent a man who failed to carefully perform the work in that he failed to use reasonable precaution to ascertain whether the pipes and equipment used in conjunction with the gas on the premises were in proper condition to be used without injury to plaintiff; failed to keep the gas pipes used to supply gas to plaintiff's house in reasonable and proper repair, and did not use that degree of care commensurate to the danger of escaping gas which it was its duty to avoid. Plaintiff alleges she was injured by being overcome or asphyxiated by escaping gas, became extremely nervous and run down, her heart was affected, she has frequent singking or fainting spells, her eyesight has been seriously impaired, she has severe and painful headaches and was compelled to be away from her business a great deal, causing irreparable loss of business and has incurred expenses for unrses, doctors, and medicines.

Defendant denies due care on the part of plaintiff; admits it was requested to turn on gas at her premises and did so; denies all negligence charged; denies plaintiff was injured by its negligent acts; alleges if she was injured it was not in any way due to defendant's negligence nor to escaping gas from defendant's pipes. The case was tried before the court without a jury. The trial court found the testimony showed by a preponderance there were leaky gas jets on the second floor of plaintiff's house, and those leaky gas jets furnished the gas which overcame plaintiff. This finding, if sustained at all by the declaration, must be by paragraph 9 which alleges defendant herein and its agent failed to ascertain and to use reasonable precaution to ascertain whether or not the pipes and equipment used in conjunction with the gas on the premises in question were in such condition that gas would flow into the same or through the same without injury to the person or persons occupying the premises. There was judgment for plaintiff for $6,879.50. A motion for a new trial was made on behalf of defendant on the ground the findings of the trial court were against the great weight of the evidence, against the preponderance of the evidence, and the judgment was excessive. This motion was granted, unless plaintiff filed a remittitur within ten days, which she elected to, and the judgment stood at $5,879.50 and costs, from which judgment defendant appeals.

Appellant claims the judgment entered is erroneous in that the court's findings were against the preponderance of the evidence, because plaintiff was guilty of negligence which was the proximate cause of her injury and of contributory negligence, and that the judgment, as entered, was excessive. Appellee accepts appellant's statement of the questions involved, but insists the judgment of the trial court be affirmed.

Plaintiff called Clayton Gehring, an employee of defendant as a witness, under the statute, and he was fully examined as to what he did in turning on the gas at the premises. The statute, section 14220, Comp. Laws 1929, provides: ‘Hereafter in any suit or proceeding in any court of law or equity in this state, either party, if he shall call as a witness in his behalf, the opposite party, employee or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers at true.’

Under the law as it existed prior to the enactment of this statute, one who placed a witness on the stand vouched for his credibility, was bound by his answers, and barred from impeaching him. Under this statute an employee of the opposite party may be called and cross-examined without the party calling him being bound by his answers, or prevented from impeaching him; but Gehring was a witness for the plaintiff, not for defendant; Jones v. Pere Marquette Ry. Co., 168 Mich. 1, 133 N. W. 993, and his testimony being in the case, must be weighed and considered the same as that of any other witness. Kalamazoo v. Standard Paper Company, 182 Mich. 476, 148 N. W. 743; and though plaintiff was at liberty to contradict his testimony, Cook v. M. C. R. R. Co., 189 Mich. 456, 155 N. W. 541, she was bound thereby, Aphoresmenos v. McIntosh, 189 Mich. 680, 155 N. W. 715, except so far as such testimony was contradicted. Swank v. Croff, 245 Mich. 657, 224 N. W. 393.

Gehring testified to facts showing he complied with the rule established by the Michigan Public Utilities Commission in testing the piping and appliances of defendant company; that he went further and after he turned on the meter went through the house to see whether or not any of the gas jets were open, but none of them were open and the gas pipe in the kitchen was capped. No one directly disputes this testimony. Plaintiff relies, to recover, upon the testimony of plaintiff who testified she was familiar with the odor of illuminating gas and it was illuminating gas that overcame her; of Lillian Edgar who said she was acquainted with the odor of illuminating gas, and the gas which overcame plaintiff smelled like illuminating gas, though she would not swear it was; Arthur Edgar who was in the house afterward, who said he could detect the odor of illuminating gas; of Evelyn Lang who cared for plaintiff after she was removed from the house to her home and who said she was familiar with the odor of illuminating gas, could smell the odor on plaintiff's...