Fontana v. Ford Motor Co.

• Citation: 270 N.W. 266,278 Mich. 199
• Decision Date: 09 December 1936
• Docket Number: No. 29.,29.
• Parties: FONTANA v. FORD MOTOR CO. et al.
• Court: Michigan Supreme Court

278 Mich. 199

270 N.W. 266

FONTANA

v.FORD MOTOR CO. et al.

No. 29.

Supreme Court of Michigan.

Dec. 9, 1936.

Action by Joseph Fontana against the Ford Motor Company and another. From an adverse judgment, the named defendant appeals.

Reversed, and new trial granted.Appeal from Circuit Court, Gogebic County; George O. driscoll, judge.

Argued before the Entire Bench, except POTTER, J.

Herbert J. Rushton, of Escanaba (Louis J. Colombo and George M. Clark, both of Detroit, of counsel), for appellant.

Derham & Derham, of Iron Mountain, for appellee.

BUTZEL, Justice.

Plaintiff had judgment for personal injuries which he claims he sustained while in the employ of defendant corporation (hereinafter referred to as defendant), when he was under eighteen years of age, and was engaged in a ‘hazardous employment,’ in violation of 2 Comp.Laws 1929, § 8326.

His claim is that in March, 1924, when he was seventeen years old, he was set to work, at night, taking short pieces of boards and wood products from an endless belt and gravity roller conveyer, running out from a sawmill, and loading them into a dump cart; the hind wheel of the cart had a diameter of about six feet; he was instructed to stand with one foot on a temporary platform of loose boards and the other on the hub of the dump cart wheel, take the products from the conveyor, and load them into the cart; the place was dark except for such light as came through the mill windows; as he was trying to load a thick and heavy six-foot board of green timber, the platform gave way, he fell, the board fell on him, and resulted in permanent injuries and total disability. Plaintiff has a rigid spine, caused by arthritis. Whether his condition is due to trauma or infection is a disputed issue of fact.

Defendant's first point is that the action is barred by the statute of limitations, 3 Comp.Laws 1929, §§ 13976-13978, which required commencement of suit within three years after plaintiff attained his majority. Summons was issued by the clerk April 14, 1931. After the testimony was concluded, the court reopened the case to permit plaintiff to show that the summons was put in the hands of a competent person for service on the same day. The court had discretion so to do, Deyo v. Detroit Creamery Co., 257 Mich. 77, 241 N.W. 244, and, under the circumstances of the case, which need no elaboration, there was no abuse of discretion.

Plaintiff claims he was born April 16, 1907, and therefore commenced the action seasonably. Defendant contends plaintiff was born April 16, 1906, and was about a year late in bringing suit.

Plaintiff testified that he was born April 16, 1907. His brother, five years older, said plaintiff would be twenty-eight in 1935, thereby setting his birth year as 1907. Defendant's claim of plaintiff's birth day is sustained by official city, county, and state birth records, and its claim of his birth year as 1906 is supported by the church records of plaintiff's baptism, his school records beginning at the age of five, the record of his registration as a voter in 1928, and his affidavit for a marriage license in 1929. Plaintiff's explanation of the discrepancy is that he entered school at four years of age, although registered as five, and he afterwards continued to use his ‘school age.’ He offered no explanation of the birth or baptismal records, nor does he attempt to impeach them for error. No witness having personal knowledge of the time of his birth was produced.

Defendant contends that, as against the record evidence, the testimony of plaintiff and his brother has no probative force as a matter of law and the record must be taken as conclusive proof of plaintiff's age, citing Webb v. Haycock, 52 Eng.Rep. 382; Denoyer v. Ryan (C.C.) 24 F. 77; Campbell v. State, 21 Okl.Cr. 242, 243, 206 P. 622, 29 A.L.R. 369;Meehan v. Supreme Council Catholic Benev. Legion, 95 App.Div. 142, 88 N.Y.S. 821;Hunt v. Order of Chosen Friends, 64 Mich. 671, 31 N.W. 576,8 Am.St.Rep. 855, none of which, however, sustains the contention.

In this state one is competent to testify to his own age, Cheever v. Congdon, 34 Mich. 296, his testimony, though rebuttable, is ‘best evidence,’ i. e., not secondary, Morrison v. Emsley, 53 Mich. 564, 19 N.W. 187, and it raises a question of fact, if denied by testimony or circumstances, Durfee v. Abbott, 61 Mich. 471, 28 N.W. 521;People v. Bernor, 115 Mich. 692, 74 N.W. 184;Schweitzer v. Bird, 204 Mich. 333, 170 N.W. 57. The testimony of plaintiff's brother is competent at least to his proximate age. Hancock v. Supreme Council Catholic Benev. Legion, 69 N.J.Law, 308, 55 A. 246.

Defendant cites no statute or authority which gives to any of the records produced greater probative force than that of ‘competent’ testimony. Plaintiff's voting registration and marriage affidavit are by way of impeachment of his claim as to his age. All the other testimony is strictly hearsay because no witness with personal knowledge of the facts was produced. Consequently, none of the proof is of such a superior legal character as to determine the fact and the issue necessarily is for the jury.

However, the finding of a jury in favor of plaintiff's claim of age would be against the great weight of the evidence. Plaintiff's mother lives with him and he did not produce her as a witness nor take her deposition. An inference arises that her testimony would have been unfavorable to him. This failure and inference, together with plaintiff's conduct (during all the time and on all occasions when he had no interest in misrepresenting it) in representing his age as the records proclaim it, and the fact that the record evidence is wholly unimpeached for errors, are of overwhelming force as against the bare statements of plaintiff and his brother. This requires reversal of the judgment and new trial.

Plaintiff contends, however, that although a jury should find he was born in 1906, the statute of limitations would not bar his action because defendant is estopped to plead the statute.

He testified that in 1927 he told Kuss, who had charge of injury claims for defendant, that he wanted to get paid for his injuries, and Kuss replied that it was not necessary for him to sue, but the company would give him light work and treatments and settle with him afterwards. Plaintiff did no work for defendant after January, 1928, nor does the record show that defendant furnished him any treatments after that time. He then had over two years to begin action.

Plaintiff further testified that on the occasion in 1927 he told Kuss his time was short and he wanted to settle, and Kuss replied that if he ever decided to sue, the company would not raise the question of time. He stated that in June, 1928, Remington, defendant's general superintendent, and again in March, 1930, Kuss, told him that if he decided to sue, the company would not raise the question of time. Plaintiff contends that defendant is estopped from pleading the statute of limitations because it lulled him into a sense of security and he permitted the statute to begin to run in reliance on defendant's promises.

We need not discuss all the claims of infirmity in plaintiff's contention. Two are sufficient.

Plaintiff relies on Renackowsky v. Board of Water Com'rs, 122 Mich. 613, 81 N.W. 581, in which, however, the board had adopted a resolution to pay the plaintiff before, and rescinded it after, the statute of limitations had commenced to run. After discussing this and numerous other cases, the court said in Klass v. City of Detroit, 129 Mich. 35, 88 N.W. 204, 206,95 Am.St.Rep. 407: ‘It is apparent from the foregoing that the usual rules pertaining to estoppel should be applied in such cases, and that the defendant will not be precluded from availing himself of such defense unless it can be fairly said that he is responsible for deceiving the plaintiff, and inducing him to postpone action upon some reasonably well grounded belief that his claim will be adjusted if he does not sue. In both of the cases cited by counsel such estoppel rested upon a promise to pay, and in one, if not...