Keiswetter v. Rubenstein

• Decision Date: 07 June 1926
• Docket Number: June Term.,No. 10,10
• Citation: 209 N.W. 154,235 Mich. 36
• Parties: KEISWETTER v. RUBENSTEIN et al.
• Court: Michigan Supreme Court

235 Mich. 36

209 N.W. 154

KEISWETTER

v.RUBENSTEIN et al.

No. 10, June Term.

Supreme Court of Michigan.

June 7, 1926.

Error to Circuit Court, Wayne County; De Witt H. Merriam, Judge.

Bill by Joseph D. Keiswetter against Sam Rubenstein and another. Judgment for plaintiff, and defendant Godfrey Hammel brings error. Affirmed.

Argued before the Entire Bench, except CLARK, J., not sitting. Payne & Payne, of Detroit (Tomas W. Payne, of Detroit, of counsel), for appellant.

Edmund M. Sloman, of Detroit, for appellee.

STEERE, J.

Plaintiff brought this action to recover damages from defendants for personal injuries inflicted on him by the collapsing of a small dwelling house in process of construction while he was at work in it as a plumber. The building fell without warning. Plaintiff was so caught and crushed by falling timbers as to suffer numerous broken bones. His injuries were serious and apparently permanent. He recovered a verdict and judgment against defendants in the circuit court of Wayne county for $6,000. Defendant Rubenstein took no appeal, but defendant Hammel has brought the case to this court by writ of error.

The extent of plaintiff's injuries or size of the verdict are not seriously questioned. The issue urged here by Hammel is that he cannot be held liable jointly with Rubenstein for injuries sustained by plaintiff through Rubenstein's negligence, or that of other employés working on the job under him, as Rubenstein was an independent contractor, constructing the building which fell, while plaintiff contends that as to him defendants were partners.

The record shows that at the time of this accident defendants were interested together in building a number of small houses on some lots in Detroit owned by Hammel, located on Hasse avenue in Mackinac Park of a described subdivision in the outskirts of Detroit. Their building project was going forward at the time of the accident under a written memorandum of agreement between them dated May 1, 1923.

By that agreement Hammel, as party of the first part, is introductorily named as the owner in possession of some 11 described lots, upon each of which it is stated ‘he desires to erect a one-story five-room and basement cottage, and sell the same with said land for profit.’ Defendant Rubenstein, as party of the second part, is described as a carpenter contractor, experenced in constructing houses of the type mentioned. Of their respective activities and obligations in connection with the proposed undertaking the contract specifies that Hammel shall provide the money or credit for carrying on the building enterprise, while Rubenstein shall devote his entire time to it, furnish plans, purchase the material, hire labor, and superintend the work, and shall also ‘assist first party in the sale of the lots after the completion of said dwellings.’ The agreement further provides:

‘First party shall receive all profits derived from the sale of said lots up to $500 per lot; if sufficient profits are derived, then said second party shall receive the second $500, or such part thereof as may be derived, and all profits above $1,000 shall be divided equally between said parties. Profits above mentioned shall consist of the difference between the cost of said land and dwellings and the net proceeds and sale; cost of building shall take into account office printing and other incidental expenditures, and the cost of the land shall be taken as $850 per lot plus general and special taxes. Both parties shall receive $50 per week during the time construction work is proceeding. All accounts should be kept by first party, open to inspection by second party at any reasonable time.’

The contract concludes with a statement that Hammel also owns an equity in 11 other lots in Mackinac Park subdivision, and the remote contingency that:

‘If upon completion of the first 11 lots first party is able to finance the erection of 11 additional dwellings upon the last-mentioned lots, second party is given the option and agrees to proceed with the erection of the additional dwellings upon the same terms as herein provided for the first 11 dwellings.’

The agreement is silent as to when construction should begin or end, but it was commenced that spring, with Rubenstein in charge, and when plaintiff was injured, on June 7, 1925, he was erecting the fifth cottage, which fell because of an absence of braces. The chief building inspector of the city testified that lack of bracing and the weight of men working on the roof and upon a scaffold outside caused it to collapse. He said that ‘Mr. Rubenstein, the man on the job, after a good deal of questioning, admitted he had the labor contract.’ He also produced the building permit taken out by Hammel as owner.

Plaintiff was a plumber employed by Steiner & Co., a plumbing and heating company which had a contract to do the plumbing work on these cottages. He testified that he had done the rough plumbing on the first four buildings, and, after finishing the fourth, began work on the fifth after Rubenstein told him it was ready. He had been in the building but a short time, and was laying out his work where the fixtures would be in the bathroom, when, without any warning, the building suddenly collapsed, and he was caught under the falling timbers.

As negligence in not properly bracing the building at that stage of its construction, while men were working upon and in it, is not questioned, nor the extent of plaintiff's injuries, the testimony upon both those subjects, expert and otherwise, is omitted. It is undisputed that Rubenstein was in direct charge of this construction, hired and discharged the employés, looked after procuring the material, and in general took and exercised on the premises the visible functions of a building contractor. He first procured plans of the proposed cottages, which were approved by Hammel, who, however, held the purse strings and personally paid all bills, including $50 per week to Rubenstein, and wages of the workmen according to the pay rolls Rubenstein turned over to him. He also drew from or charged to the building account his $50 per week provided for in the agreement, as well as office expenses, interest, insurance, mortgage expenses, legal expenses, commission, etc., aggregating over $5,000.

Hammel's business was that of a public accountant, at which he was employed while this work was going on. He had no experience in building, said he knew nothing about it, and did not assume to interfere with Rubenstein's building operations. He visited the place from time to time and conferred with Rubenstein, the last occasion being on the Saturday before the accident. Rubenstein's version of the general conduct of the work is as follows:

‘Mr. Hammel paid for the materials which went into the buildings. I ordered some of the materials, and Hammel ordered some. We talked together regarding the ordering of the material. Q. Did you discuss with Mr. Hammel who contracts were to be given to? A. No, sir. I ordered just wood, lumber. It was billed to Mr. Hammel and Rubenstein. Mr. Hammel ordered all the rest. Mr. Hammel came around the job, sometimes every day, sometimes twice a week-just looked around. He talked with me about the buildings and about the work. I ordered the plans and there were no changes. They were made before the contract was entered into. Mr. Hammel paid for the plans. There was no architect. I gave all my time while the buildings were being put up to that work, and did not work on any building for anybody else.’

In reply to this Hammel denied ordering any of the material or letting any of the subcontracts, but said Rubenstein reported them to him; he kept track of the accounts, and paid them for his own protection. He admits requesting Rubenstein to let the plumbing contract to ...