Ginsberg v. Wineman

• Decision Date: 04 March 1946
• Docket Number: No. 2.,2.
• Citation: 22 N.W.2d 49,314 Mich. 1
• Parties: GINSBERG v. WINEMAN.
• Court: Michigan Supreme Court

314 Mich. 1

22 N.W.2d 49

GINSBERG

v.WINEMAN.

No. 2.

Supreme Court of Michigan.

March 4, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Arthur Webster, Judge.

Action by Abraham Ginsberg against Andrew Wineman for injuries sustained in a fall on defendant's premises. From a judgment for plaintiff for $7,000, entered on a remitted verdict, defendant appeals.

Affirmed.

Before the Entire Bench.

LeRoy W. Belanger, of Detroit (Nelson S. Shapero, of Detroit, of counsel), for appellant.

James A. Markle, of Detroit, for appellee.

BUSHNELL, Justice.

Plaintiff Abraham Ginsberg was an employee of his son, Morris Ginsberg, who rented a store and basement at 12226 Dexter Boulevard, Detroit, from defendant Andrew Wineman. In the written lease dated February 28, 1941, it was agreed that the tenant should ‘keep at his own expense during the continuance of this lease, the said premises and every part thereof in good repair.’ The lease also provided that the lessor should have ‘the right to enter upon said premises at all reasonable hours for the purpose of inspecting the same, and in order to prevent waste, loss or destruction, may make such repairs thereto as may be necessary, and shall not be responsible to the ‘Tenant’ for any loss and damage that may accrue to his stock or business by reason thereof.'

The tenant is engaged in the business of cleaning, pressing, dyeing, and repairing clothing, his steam equipment being located in the basement. He has only partial use of this basement because of the necessity on the part of the second floor tenants to also have access to a common furnace therein. Shortly after Ginsberg moved into the premises he informed the landlord's representative, Sink, that the toilet seat, molding, and basement stairway needed some repairs. He claimed that as a result of this complaint one Ralph Cullen, then in the employ of Wineman Realty Company, visited the premises and inspected the stairway. Cullen then, according to Ginsberg, left the premises, came back with a hammer, worked on the stairway a while, and then told Ginsberg, in effect, that everything was all right. Cullen, who at the time of the trial was no longer in the employ of the Realty Company, denied making any repairs to the property, and especially to the basement steps. Defendant Wineman and the Ginsbergs had never met until the time of the trial. Wineman testified that he had never authorized nor directed Cullen to repair the premises, and stated that Cullen had never been in his personal employ. He said that Cullen had been in the employ, however, of the Wineman Realty Company, in which company Wineman is a stockholder and officer and which manages the various properties in which he is interested. He stated that the property on Dexter Boulevard was handled by Joseph E. Sink, also an employee of Wineman Realty Company. Sink testified that he negotiated the rental arrangements with Ginsberg and that Cullen worked under his direction. He denied ever having authorized or directed Cullen to make any repairs to the property, particularly the steps, and said he had no knowledge of such repairs.

Plaintiff Abraham Ginsberg for some years had been in the cleaning and pressing business in Bloomfield, New Jersey, and Toronto, Ontario. He gave up his business in Toronto and came to Detroit, where he was employed for a time by the Reliable Linen Service Company as a spotter at $35 per week. A few weeks before his accident he gave up his position in order to assist his son, under an agreement by which he was to receive $60 per week. He claimed that his average earnings while with the Reliable Linen Service Company and for outside overtime work totaled about $60 to $65 per week.

On August 18, 1941, Abraham Ginsberg started down the basement stairs of his son's place of business to do some steamcleaning, and just as he stepped on the second tread it ‘tipped right off’ and he fell the entire length of the stairway to the basement floor. According to Dr. Lester F. Kennedy, who attended him, plaintiff sustained an impacted fracture of the head of the left humerus, which when operated upon was found to be in about 20 or 30 fragments, with no piece large enough to be attached, thereby making it impossible to save any part thereof. As a result he suffered a 50 per cent. loss of a normally useful arm, of which he now has only forward and back motion, but no ability to elevate; and the grip of his hand is approximately 50 per cent. of what it was before the accident. Morris Ginsberg testified that before he called Sink the plank of the second step was loose so that the end protruding away from the wall could be lifted up and the nails would come up with the plank. Prior to the accident and after its repair by Cullen, he had not examined the step to see whether any new nails had been driven into it, but after taking his father to the hospital he examined the step closely and ‘noticed that when we shoved the nails to put the plank back, that the only thing that would happen, the nails would go back into the old nail holes,’ and that ‘apparently Mr. Cullen might have just knocked the nails back into the same holes, and just hammered them good and hard so that it looked all right.’ No new nails had been driven into the step, but the hammer marks could be seen where the old nails had been pounded down.

At the close of the testimony, defendant's motion for a directed verdict was taken under advisement and the disputed testimony was submitted to the jury, which returned a verdict for plaintiff in the sum of $8,756. Defendant's motion for judgment non obstante veredicto was denied, but upon a motion for new trial, in the light of defendant's claim that the verdict of the jury was grossly...