Grant v. Maslen

• Citation: 151 Mich. 466,115 N.W. 472
• Parties: GRANT v. MASLEN.
• Decision Date: 17 March 1908
• Court: Supreme Court of Michigan

151 Mich. 466
115 N.W. 472

GRANT
v.
MASLEN.

Supreme Court of Michigan.

March 17, 1908.

Error to Circuit Court, Wayne County; Joseph W. Donovan, Judge.

Action by Archibald Grant, prosecuted after his death by John Grant, as administrator, against Andrew Anderson, prosecuted after his death against Frank Maslen, as executor. There was a judgment for defendant, and plaintiff brings error. Reversed, and new trial ordered.

Argued before McALVAY, C. J., and CARPENTER, GRANT, BLAIR, and MONTGOMERY, JJ.

[115 N.W. 472]

Fred A. Baker, for appellant.

William C. Stuart (A. H. Wilkinson, of counsel), for appellee.

McALVAY, C. J.

Archibald Grant, plaintiff's decedent, in 1894, entered into a certain paving contract with the city of Detroit. This contract, among other things, required the contractor to protect excavations with proper barriers and colored lights to prevent accidents, and to indemnify the city from damages arising by reason of negligence in that regard. The excavating was done by Andrew Anderson, defendant's decedent, as a subcontractor, at the price per cubic yard Grant was to receive under the contract. By reason of the negligence of this subcontractor in not putting up guards and colored lights, William Dooley, September 18, 1894, in the nighttime, drove with a delivery wagon into the excavation, and all of the bones of one of his ankles were fractured. He went about on crutches for three years and was permanently injured. In 1896, Dooley brought suit against the city of Detroit and Archibald Grant for damages for the injury he had sustained. The suit was discontinued as against Grant, and a judgment recovered against the city for $1,500 damages and costs amounting to $66.30. In 1898, the city brought an action against Grant to recover the amount it has paid in satisfaction of the Dooley judgment. The city obtained judgment for $1,995.72 damages and $43.30 costs. This judgment was affirmed by this court. Detroit v. Grant, 135 Mich. 626, 98 N. W. 405. In 1895, Andrew Anderson brought suit against Archibald Grant for balance due him on his subcontract for excavation over and above the sum of $1,200 which he had been paid, claiming $448.95 due and unpaid. Grant defended on the ground that it was Anderson's duty to guard the excavation and prevent accidents, and because of his negligence resulting in the Dooley injury he had been compelled to deposit a certified check of $421.65 before the board of public works would accept the pavement. On the trial of this case in the

[115 N.W. 473]

Wayne circuit court, there being no disputed facts, the court directed a verdict for defendant Grant. This judgment was also affirmed by this court. Anderson v. Grant, 114 Mich. 161, 72 N. W. 144. In 1904, Archibald Grant paid the judgment against him in favor of the city of Detroit in full, amounting to $2,220.96, and...