Judis v. Borg-Warner Corp. (Norge Div.), BORG-WARNER

Citation339 Mich. 313,63 N.W.2d 647
Decision Date05 April 1954
Docket NumberNo. 19,BORG-WARNER,19
PartiesJUDIS v.CORP. (NORGE DIVISION).
CourtSupreme Court of Michigan

Sessions & Barlow, Muskegon, for appellant.

Fredric A. Grimm and Benjamin Marcus, Muskegon, for appellee.

Before the Entire Bench.

REID, Justice.

Plaintiff as administrator of the estate of his deceased son Tony Judis, claims damages for loss of necessary partial support by reason of the death by electrocution of decedent at defendant's manufacturing plant in Muskegon operated by defendant's Norge division, caused through negligence of defendant. Defendant denies its alleged negligence, denies that plaintiff had any legally enforcible right to even partial support by his deceased adult son, and claims error by submission of the case to the jury, error in the charge given, and in the court's refusal to give certain requests to charge the jury.

Plaintiff has lived since 1916 on his farm at Irons, Lake county, Michigan; his wife died in 1938; he remarried in 1948. Decedent was born October 10, 1926, and died January 17, 1950 at the age of 23; plaintiff's farm is 120 acres, is poor land and does not produce good crops; plaintiff testified, 'I got my body smashed and I don't feel good today, can't do no hard labor' he testified he 'had cataracts pretty bad.' The farm does not support plaintiff and his family; plaintiff was 66 years old when Tony, the decedent, died; decedent started to earn wages away from the farm 2 1/2 years before his death and at the time of his death was contributing $300 a year toward his father's (plaintiff's) support (an average of $25 a month), besides doing a considerable portion of the work on the farm.

There was a sufficient showing of pecuniary injury resulting from the death recoverable by plaintiff administrator under the death act, C.L.1948, § 691.581 et seq., Stat.Ann. § 27.711 et seq.

David L. Green, an independent contractor, does business as David L. Green Construction Company (hereinafter referred to as Green) in Muskegon; apparently at least part of Green's business is to repair and clean up manufacturing plants. Some of Green's employees on January 17, 1950, were engaged in work at defendant's plant in Muskegon; during the seven previous years Green had been engaged in (among other things) cleaning out the chimney or stack of defendant's plant in question, about twice a year, in pursuance of his (Green's) contractual relations with defendant. Decedent began working for Green on August 31, 1949 but was not present when the stack in question was cleaned out about that time; Mr. LeRoux and Mr. Draper, supervisory employees of Norge, were around when the 'hoe' in question (involved in the electrocution of decedent) and other instruments of defendant were being used to clean the stack on occasions previous to the occasion in question. Decedent's superior, Vanderweir, was under instructions from Norge. With the consent of defendant's supervisory employees, the tools of defendant were on former occasions, used by Green's employees in working at defendant's plant in question. The particular 'scoop' or 'hoe' in question was Norge equipment and Green's employees were privileged to use it at any time. It had been in use a good many years.

The chimney or stack in question was connected with boilers inside of defendant's plant, but was itself situated outside of the plant. To clean it out, it was necessary to make use of a door reached from the outside of the building; the dust that would arise when cleaning operations were begun in the stack, made it prohibitive for the person doing the cleaning to enter inside the stack; the accumulated ashes were first partly removed by a comparativel short handled shovel, but to reach the remaining ashes further back inside the stack, it was necessary to use a large scoop or hoe, the handle of which was 12 feet, 3 inches long. Opposite the door in the stack was a brick wall 4 1/2 feet away and 8 feet high; on top of the wall was a picket fence about 6 feet high, the pickets being spaced about 2 inches apart. Three transformers on the other side of the wall were invisible to decedent when he went to work at removing the ashes from the stack. There was no warning sign placed there, of danger from electric current from the transformers situated on the other side of the brick wall.

Vanderwier testified as to what instructions he gave decedent. His testimony does not include any statement that he warned decedent concerning the transformers, nor does it appear that any of Norge's supervisory employees gave any such warnings in their instructions to Green's employees. The jury could be justified in concluding that decedent did not know of the presence of the transformers.

Vanderwier testified:

'At the time of the death to Tony Judis I was employed as a carpenter for David L. Green. At that time I was the supervisor of the work being handled by David L. Green Construction Company at the Norge plant. I cannot recall whether Judis died the first or second day he was employed there. It was either the first or second day. Before that he had not been under my supervision. I was the one that instructed him and another man to clean out the stack. * * * 'Q. Were you [Tony's superior] given any warning by some one in a supervisory capacity at Norge as to the close proximity of the transformers, that it was dangerous there? A. No, sir. * * *

'Mr. Sessions [attorney for defendant]: David Green had a contract to clean out the stack and that is all.

'The Witness: It wasn't a contract. It was done on a cost-plus basis.

'The Court: You weren't there under employment by the Green Construction Company? A. We received our instructions from Norge Company. * * *

'Q. How did you expect Tony Judis to clean the back end of that stack if the tool that he had wouldn't reach it? A. Out beyond the coal pit of the Norge, or where they store their coal, there is a place called the ash dump, and there is a pit. I think that was previously used for fly ash or something. On an occasion or two I have had to clean that pit, and out there is a scoop similar to the one that Tony was using. However, it hadn't come to my mind to point out that particular scoop.

'Q. That particular scoop out there was Norge equipment, was it not? A. Yes.

'Q. You were privileged to use it at any time? A. Yes.

'Q. Tell me this, with regard to your doing work there at the Norge, is it not true you and your crew got your instructions from day to day from the Norge Corporation? A. Yes. If we were going to do any work connected with the boiler room, usually Mr. Draper would tell us what to do. If it was carpenter work or construction work, Mr. Duncan would tell us what to do; and if it was millwright, Mr. Swanson would tell us what to do.

'Q. None of that transpired through the David Green office, but directly under instruction of Norge supervisors? A. Mostly. * * *

'The Court: Did I understand he had completed cleaning out the stack before the accident occurred? A. He was finished. They figured the bottom of the stack was as clean as they could get it in that operation. The tool he was going to use next would have been a wooden-handled hoe or shovel. * * *

'Q. The relation, as far as the contract between David Green and Norge was that he would supply labor and Norge would direct what work was to be done? A. Yes. * * *

'Q. You testified you were privileged to use that tool out on the pit. Were you, in the course of your employment working there at the Norge Company, privileged to use any tool that was reasonably useful for a particular job? A. I have always been extended that courtesy by the Norge. * * *

'Q. And the way you did it was by pushing it [i. e., the 'hoe'] in past this brick wall sideways? A. And got it inside the stack.

'Q. As you ran it in, you could walk toward the door with it? A. That is right.

'Q. When you come out, you had to pull back at an angle, using the same pattern at which you went in, didn't you? A. Approximately the same.

'Q. All you could do was scrape around inside of the stack on the opposite end, isn't it? A. By lifting the poker over your shoulder, you could get the ash within reaching distance of your other implement.'

Decedent had grown up on a farm in a sparsely settled community and had been working apparently at common labor since he became about 20 years of age. The jury could be justified in concluding that decedent had no more than common knowledge as to electricity.

On the day of the accident, decedent was put to work at the job of cleaning the ashes out of the stack through the door in question; his superior Vanderwier who put him to work had received instructions from Norge (defendant). Decedent had not cleaned out the stack before. The jury could be justified in concluding that decedent did not know of the dangerous proximity of heavy charges of electricity on the other side of the brick wall. He proceeded to clean out the ashes and had gotten the work finished, except to take out some remaining ashes which he had drawn by the 'hoe' in question near to the door ready to be taken out with the shorter handled scoop shovel. Evidently he then lifted the iron handled hoe over his shoulder in the manner described by witness Vanderwier, to remove it from the stack, at which time the long iron handle went between two pickets on top of the brick wall, came in contact with some part of the transformer mechanism, and the electric current was still active along the iron handle in his hands when he was found dying or practically already dead, by his fellow employees. His death was caused by the electric current he then and there received. He had been working at the ash pit alone. It seems evident that decedent had gotten the long-handled hoe in question when he found that his short handled scoopshovel was insufficient to reach into the further recess of the stack; the hoe in question was the only implement around...

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