Fowler v. Hamilton Moving & Storage Co.

• Court: Michigan Supreme Court
• Writing for the Court: CARR
• Citation: Fowler v. Hamilton Moving & Storage Co., 324 Mich. 614, 37 N.W.2d 649 (Mich. 1949)
• Decision Date: 18 May 1949
• Docket Number: No. 9.,9.
• Parties: FOWLER et al. v. HAMILTON MOVING & Storage Co. et al.

324 Mich. 614

37 N.W.2d 649

FOWLER et al.

v.HAMILTON MOVING & Storage Co. et al.

No. 9.

Supreme Court of Michigan.

May 18, 1949.

Proceeding under the Workmen's Compensation Act by Louise Fowler and others, claimants, to recover compensation for the death of Henry Clayton Fowler, employee, opposed by the Hamilton Moving & Storage Company, employer, and the Massachusetts Bonding & Insurance Company, insurance carrier. From an award of compensation by the Department of Labor and Industry, the employer and insurance carrier appeal.

Case remanded to the Department with directions.

SHARPE, C. J., dissenting in part.

Appeal from the Department of Labor and Industry.

Before the Entire Bench.

Alexander, Cholette, Buchanan, Perkins & Conklin, Detroit, for appellants.

Charfoos, Gussin & Weinstein, Detroit, for appellees.

CARR, Justice.

I concur in the opinion of the Chief Justice other than his conclusion that the department was not in error in excluding the proffered testimony of the witness Harper. On the hearing before the deputy commissioner plaintiffs called Mr. Harper to testify in their behalf. After establishing that he was one of the partners of the Hamilton Moving & Storage Company, counsel for plaintiffs was permitted to cross-examine him. The cross-examination developed that at the time of the accident resulting in the death of Mr. Fowler the latter was working for the Hamilton Moving & Storage Company, assisting in the moving of a piano. Such testimony indicated an employer-employee relationship between the partnership and Mr. Fowler. Thereupon defendants undertook to show by Mr. Harper's testimony the nature of the relationship under which Mr. Fowler was working at the time. On objection this testimony was excluded, on the theory that it was incompetent under 3 Comp.Laws 1929, § 14219, Stat.Ann. § 27.914.

It has been repeatedly recognized in prior decisions of this court that the representatives of a deceased person may call the opposite party for cross-examination, but that if such course is followed the protection of the statute is waived to the extent of permitting the witness to testify fully with reference to the matters concerning which he has been cross-examined and rendering him competent as a witness against the examining party as to such matters. In Fox v. Barrett's Estate, 117 Mich. 162, 75 N.W. 440, 441, it was said:

‘The statute in question was designed to protect estates, by excluding the testimony upon the subject known equally to the claimant and deceased party. If, however, the representative of the deceased wishes, he may compel the living party to testify; but in that case he cannot prevent such party from giving a full explanation of the subject inquired about.’

In Gacesa v. Consumers' Power Co., 220 Mich. 338, 190 N.W. 279, 24 A.L.R. 675, the department of Labor and industry declined to consider certain testimony in a compensation case. The following quotation from the opinion indicates the situation:

‘The foreman of defendant, Mr. Howard, was called by plaintiff as a witness and interrogated as to the employment of deceased, his wage, and the circumstances of his death. Upon cross-examination of this witness over objection of plaintiff's counsel, defendant was permitted to put into the record further details of the employment of deceased, including instructions and orders given him. The Department of Lobor and Industry declined to consider this testimony, on the ground that it was equally within the knowledge of the deceased, and that the statute (Comp.Laws, § 12553) had not been waived by plaintiff in calling Mr. Howard as her witness. This ruling presents the first question in the case. We think the Department of Labor and Industry entertained an erroneous view. Plaintiff has called Mr. Howard as a witness and had interrogated him upon a subject equally within the knowledge of deceased, i. e., the employment of deceased, his duties, that he was under the direction of the witness. Having done this, the mouth of the witness could not be closed when he was interrogated further on the subject he had testified about on direct examination. Smith's Appeal, 52 Mich. 415, 18 N.W. 195;Beardslee v. Reeves, 76 Mich. 661, 43 N.W. 677;Lilley v. [Mutual Ben. Life] Insurance Co., 92 Mich. 153, 52 N.W. 631;Fox v. Barrett's Estate, 117 Mich. 162, 75 N.W. 440. In the lastcited case it was said by Mr. Justice Hooker, speaking for the court:

“There would be little justice in so construing the statute as to permit counsel for the estate to prove a part of a transaction by the claimant's own testimony, and then close the mouth of the witness as to the remainder. That seems to be what was attempted in this case. The court correctly held that, when a subject is gone into under such circumstances, it may be explained fully by the witness on redirect examination; and we are of the opinion that the case before us was within the rule.”

A similar question arose in Bishop v. Shurly, 237 Mich. 76, 211 N.W. 75, 78. In discussing the language of the statute forbidding the opposite party in interest to testify against the representatives of a deceased person as to matters equally within the knowledge of such deceased person it was said:

‘The term ‘matter,’ as used in the statute, means a fact or facts material to the issue being tried. The burden was on plaintiff to prove that a local anesthetic had been administered and that the deceased had passed away as a result thereof. The facts elicited by the plaintiff from Dr. Gaines, heretofore particularly stated, showed that a local anesthetic had been used, that deceased soon after collapsed, the efforts made to revive him, and his death about 50 minutes thereafter. These facts were all material to the issue. It is upon them that plaintiff bases her claim that the contract was breached by the defendant. Under the rule stated in the Fox case, we feel constrained to hold that, when plaintiff elicited these facts in the examination of the doctor, the defendant was entitled to have him fully explain what occurred in the operating room after the deceased had been brought there, prepared for the administration of ether. That a change in the form of the anesthetic to be used was then made is apparent. Why was it made? The reason therefor clearly is a ‘matter’ affecting the issue to be decided. We find no error in the ruling of the court permitting the doctor to testify relative thereto.'

The subject is discussed at some lenght in Billingsley v. Gulick, 256 Mich. 606, 240 N.W. 46, 79 A.L.R. 166, in which decisions from other States are cited. Among other decisions of like import are Kwiecinski v. Newman's Estate, 137 Mich. 287, 100 N.W. 391;Judd v. Judd, 187 Mich. 612, 154 N.W. 31;Rock v. Gannon Grocery Co., 246 Mich. 545, 224 N.W. 752;Shea v. Siller, 262 Mich. 279, 247 N.W. 182;Hayes v. Skeman, 269 Mich. 473, 257 N.W. 866;McTaggart v. Kurys, 318 Mich. 627, 29 N.W.2d 114;Rehm v. Interstate Motor Freight System, et al., 6 Cir., 133 F.2d 154, 159. The case of Jonescu v. Orlich, 208 Mich. 89, 175 N.W. 174, is readily distinguishable on the facts. There the defendant, called for cross-examination by the plaintiff, testified with reference to the contract of hiring between defendant and plaintiff's decedent. Thereupon defendant sought to testify as to instructions and warnings given to plaintiff's decedent, but having no connection with the contract between the parties. It was held that the objection to such testimony was properly sustained.

In the case at bar the principal question at issue had reference to the relationship between the Hamilton Moving & Storage Company and Mr. Fowler. Having elicited from the adverse party, Mr. Harper, testimony tending to bear on such relationship, the protection of the statute was so far waived as to permit the witness to testify as to the relationship existing at the time of the accident. The finding that the deceased was a partner working for wages irrespective of benefits was predicated on the terms of the insurance policy executed approximately two months before the accident occurred, together with the presumption that the condition once shown to exist was presumed to continue. Under such circumstances the excluded testimony may have been of controlling significance. Defendants were entitled to its benefits. Veek v. Wesley Freight Co., 306 Mich. 485, 11 N.W.2d 213.

The case should be remanded to the department of labor and industry with directions to set aside the award and to permit defendants to introduce the testimony in question, with costs of this appeal to defendants.

BUSHNELL, BOYLES, REID, NORTH, DETHMERS, and BUTZEL concur.

SHARPE, Chief Justice (dissenting).

Plaintiffs, Louise Fowler and her two minor children, are the widow and children of Henry Clayton Fowler who was killed in an accident resulting from a fall of a piano on March 3, 1947. Defendant Hamilton Moving & Storage Company is a copartnership consisting of Marshall Ray Harper and Henry Clayton Fowler. At the time of the accident, Fowler was assisting in moving a piano for the moving company.

Plaintiffs filed an application for hearing and adjustment of claim with the department of labor and industry naming the moving company as decedent's employer. A hearing was held on June 4, 1947, at which time it was shown that Henry C. Fowler and one Marshall R. Harper were partners in the Hamilton Moving & Storage Company; and that deceased was killed while engaged in work for the partnership.

An insurance policy covering employees of the partnership was introduced in evidence, a part of which reads as follows:

+-----------------------------------------------------------------------------+
                ¦Classification                  ¦     ¦Estimated   ¦Rate per      ¦Estimated ¦
                +--------------------------------+-----+------------+--------------+----------¦
                ¦Of Operations                   ¦     ¦Total       ¦$100 of       ¦Premium   ¦

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