Haynes v. Monroe Plumbing & Heating Co.

• Decision Date: 27 August 1973
• Docket Number: No. 2,Docket No. 13518,2
• Citation: 211 N.W.2d 88,48 Mich.App. 707
• Parties: Madeline HAYNES, Administratrix of the Estate of Carl Haynes, Deceased, Plaintiff-Appellee, v. MONROE PLUMBING & HEATING COMPANY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 88

211 N.W.2d 88

48 Mich.App. 707

Madeline HAYNES, Administratrix of the Estate of Carl

Haynes, Deceased, Plaintiff-Appellee, v. MONROE PLUMBING & HEATING COMPANY, Defendant-Appellant.

Docket No. 13518.

Court of Appeals of Michigan, Division No. 2.

Aug. 27, 1973.

Released for Publication Oct. 18, 1973.

Leave to Appeal Denied Jan. 28, 1974.

Joseph J. Bileti, Bileti & Valenti, Detroit, Zemke, Lustig & Leikin, Southfield (Norman L. Zemke, Southfield, of counsel), for defendant-appellant.

Donald A. Turner, Detroit, Wilson, Portnoy, Basso, Keller & Avadenka, Bloomfield Hills (Frances R. Avadenka, Bloomfield Hills, of counsel), for plaintiff-appellee.

Before FITZGERALD, P.J., and V. J. BRENNAN and O'HARA,* JJ.

FITZGERALD, Presiding Judge.

This is an appeal from a wrongful death action in which plaintiff's decedent (hereinafter called plaintiff) was granted a jury verdict of $155,573.97. Plaintiff was employed by Consolidated Paper Company in Monroe, Michigan as a maintenance pipe fitter. Defendant Monroe Plumbing & Heating Co., in addition to rendering plumbing and heating services, is also engaged in steam process piping. Plaintiff alleges that sometime prior to July 10, 1966, defendant negligently and in breach of implied warranty altered certain steam pipes in Consolidated's plant which resulted in the bursting of a steam pipe which killed plaintiff.

Virgil Parker, plaintiff's foreman, was the only witness to the accident. Parker heard vibrations in a steam pipe and directed plaintiff to close the valve. As he reached for the valve, the pipe burst. Plaintiff was knocked against the wall by the water and steam which was released under great pressure. Parker ran to the powerhouse, shut the line off, and returned to the plaintiff lying unconscious on the floor directly beneath the valve. The direct cause of death was determined to be a fractured skull, though scalding was indicated as an antecedent cause.

Defendant supplied Consolidated with approximately 25 welders, pipe fitters, and plumbers at any given time. These employees were sent in response to Consolidated's request, and they received instructions from Consolidated's engineers. Though under the direction and control of Consolidated, defendant supplied its own foreman whose responsibility was to provide direct supervision over defendant's employees.

John Sabo was a licensed master welder employed by defendant. Sometime prior to July 10, 1966, he received instructions to cut off a section of pipe and seal the end by welding a steel plate over the opening. It was his decision as to the type of weld to be performed. He also determined which employees would perform the weld and when the work was to be done. The weld remained perfectly intact after the accident, and a subsequent inspection revealed the pipe burst one and one-half inches from the weld. Sabo had experience with other high-pressure steam lines and recognized the necessity for having drain traps installed in the system.

Plaintiff's expert witness, John Crankshaw, testified as to the actual cause of the accident. In every steam system it is necessary to remove condensation from the line prior to operation. This is accomplished by bleeding water out of the steam pipes through drains or traps which are opened and closed depending upon the level of condensation. When a pipe valve is opened, the water volume is pushed by the steam until it fills the diameter of the pipe. The steam pressure accelerates the water which causes excessive pressure to be exerted on the pipe. By removing 500 feet of piping and sealing off the open end, the system became inherently dangerous because the drain traps which had relieved the condensation had been removed with the severed pipe section. He further stated it is fundamental to a master plumber that drain traps are required when a pipe section is sealed off.

Contradictory testimony was received from Allan Duval and George Lockwood, engineers employed by Consolidated. Duval stated he instructed the pipe fitters to sever the line and install a plate. He indicated there were three or four traps or drains in operation on the day of the accident. Lockwood testified that no accidents had occurred on the five or six occasions during which the valve was opened previously. In his opinion, the valve was opened too rapidly. He agreed with Duval that the system was equipped with an adequate number of drains and traps.

Defendant's motion for directed verdict following the submission of plaintiff's proofs, and motion for judgment Non obstante veredicto following the verdict were denied. Defendant now appeals, alleging several errors which will be discussed Seriatim.

Defendants argue that the trial court abused its discretion in allowing plaintiffs to reopen the opening statement and read to the jury from its pleading. The trial court is given very wide discretion in ruling upon the content and presentation of opening statements. GCR 1963, 507.1; Coon v. Williams, 4 Mich.App. 325, 144 N.W.2d 821 (1966). It is permissible to supplement opening statements to the jury to eliminate any possible question as to the sufficiency of content provided no new issues are introduced into the case and issues previously raised are not extended. Turnbull v. Roseland Park Cemetery Association, 341 Mich. 677, 68 N.W.2d 753 (1955). Defendant seeks to distinguish Turnbull from the instant case in stating that plaintiff's counsel's purpose in reopening his statement to the jury was an oversight in failing to read to the jury from the pleadings. The record does not so indicate. Plaintiff's counsel testified he sought to provide the jury with technical allegations of negligence that would be presented to them. No attempt was made to introduce novel arguments or to extend issues previously raised. Moreover, defendant's attorney was permitted to reply to these additional statements, thus eliminating any possible prejudice that may have resulted to defendant.

Defendant objects to plaintiff's reading from the pleadings during the extension of his opening statement. He cites Scripps v. Reilly, 35 Mich. 371 (1877), where plaintiff was not permitted to read to the jury evidence otherwise inadmissible because it was neither relevant nor competent if offered as evidence relating to the issue before the court. Defendant in the instant case does not object on those grounds. Rather, he argues that the pleadings represent allegations for which proof is required, and should not be considered as evidence. At no time does defendant contend, nor does a review of the pleadings read to the jury indicate, that any evidence was presented which otherwise would have been inadmissible as prejudicial, irrelevant, or incompetent. The pleadings subsequently read to the jury merely clarified the parties' positions by amplifying their respective arguments. We are unable to conclude that the trial court abused its discretion or that prejudicial error occurred by admitting into evidence portions of the pleadings which were read to the jury.

Objection is made to plaintiff's use of a mock exhibit depicting the pipes and valves of the steam system involved. Central to this issue is the distinction between the use made of the exhibit and whether or not it was offered into evidence. We deal here with demonstrative evidence designed to assist jurors in visualizing the schematic configuration of the steam system, and not an exact scale representation sought to be introduced into evidence. The use of a similar aid was permitted in Jackson v. Sabuco, 21 Mich.App. 430, 436, 175 N.W.2d 532, 535 (1970).

'Error is also alleged in that defense counsel was permitted to make a blackboard sketch of the Starlight Room while cross-examining plaintiff. In response to plaintiff's objection, the trial court ruled, 'It is understood it is only a drawing and he is not trying to make it to scale.' The use of visual aids of this type is left to the trial judge's discretion. McCormick, Handbook of the Law of Evidence, p. 386, citing Finch v. W. R. Roach Co., 295 Mich. 589, 295 N.W. 324 (1940). Any alleged inconsistencies or inaccuracies in the sketch were raised in the presence of the jury. There was no abuse of discretion.'

Finch, supra, cited by defendant, discussed the admissibility into evidence of a mock-up of a ladder from which plaintiff fell. The instant case does not involve this question since no offer was made to introduce the schematic mock-up into evidence. The trial court acted within its discretion in permitting the jury to visualize the network of pipes and valves after properly cautioning them that the representation was not constructed to scale.

Denied the opportunity to depose plaintiff's expert witness, John Crankshaw, defendant contends it was error to allow his testimony at trial over objection. GCR 1963, 302.2(1) prevents a witness who refuses to offer testimony when deposed by his adversary from later testifying at trial. ¹

We agree with plaintiff that the trial court did not abuse its discretion in denying defense counsel's oral request to depose plaintiff's expert witness. The denial of this request was based upon defense counsel's knowledge of the proposed expert witness, together with the fact that the motion was made in the middle of a lengthy trial. The Michigan Supreme Court upheld the trial court's decision in denying defense counsel's motion for discovery in Klabunde v. Stanley, 384 Mich. 276, 281--282, 181 N.W.2d 918, 920--921 (1970), in stating:

'Whatever rights any party may have to obtain pretrial discovery, such rights are always subject to the trial judge's right and duty to control the flow of litigation. Standing alone, the fact that the lawsuit was then five years old when the trial judge denied discovery satisfies us that there was not an abuse of discretion in its denial. GCR 1963, 301.7 providing that discovery may not be had after the pretrial conference without special motion for good...