Konstantine v. City of Dearborn

• Decision Date: 07 June 1937
• Docket Number: No. 29.,29.
• Citation: 273 N.W. 580,280 Mich. 310
• Parties: KONSTANTINE v. CITY OF DEARBORN.
• Court: Michigan Supreme Court

280 Mich. 310

273 N.W. 580

KONSTANTINE

v.CITY OF DEARBORN.

No. 29.

Supreme Court of Michigan.

June 7, 1937.

Action in assumpsit by Frances Konstantine against the City of Dearborn. Judgment for plaintiff, and defendant appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Argued before the Entire Bench.

James E. Greene, Corp. Counsel, of Dearborn (Richard A. Hicks, of Dearborn, of counsel), for appellant.

Edward J. Dwyer and William J. Hennes, both of Dearborn, for appellee.

NORTH, Justice.

This is a suit in assumpsit by plaintiff against the city of Dearborn. In the first paragraph of her declaration she alleged that on the 9th day of January, 1930, the defendant hired her as a seamstress in the welfare department of the city and agreed to pay her at the rate of 50 cents per hour for her work. The foregoing was admitted by defendant's answer. In paragraph 2 plaintiff alleged that she worked for the city 3,438 1/2 hours and by so doing earned $1,719.25. Defendant denied this and affirmatively alleged that ‘the total amount of time which plaintiff worked for the city of Dearborn was 288 hours and that the amount of wages earned was a sum of $114.’ In paragraph 3 plaintiff alleged she had been paid on account $836.25 (probably $886.25), ‘leaving a balance due your plaintiff of $833.’ Defendant denied this and affirmatively alleged ‘that aid in the form of provisions, milk, fuel, rent and miscellaneous advances given to the plaintiff amount to $145.32, leaving a balance in favor of the city, now unpaid, of $31.32,’ and defendant asked judgment in its favor for this latter amount. The case was heard without a jury, and plaintiff had judgment for the amount alleged to be due her in her declaration, $833. Defendant has appealed.

The first question presented is whether there was abuse of discretion by the trial court in denying defendant's motion to amend paragraph 1 of its answer. The answer was filed November 17, 1934. On January 21, 1936, the cause came on for hearing, under rule 5 of the local rules of the Wayne county circuit court, upon the pre-trial docket. This preliminary hearing, presided over by Judge De Witt Merriam, was for the purposes indicated in the rule, which we quote in part: ‘Law cases will be called on this docket sometime before they are regularly reached for trial; for the purpose of settlement, disposition of preliminary motions, framing the issues and trial.’ As a result of this pre-trial hearing, at which the respective attorneys were present, a report was filed by the pre-trial judge that both parties were satisfied with the pleadings and that the pleadings should not be amended ‘unless necessary to support proofs offered-it's up to trial judge.’

The case was reached for a hearing on the merits on March 9, 1936. On March 6th counsel for defendant gave notice to plaintiff's counsel that upon the trial of the cause the defendant would ask to have its answer amended, setting forth a copy of the proposed amended answer wherein defendant denied the allegations of paragraph 1 of plaintiff's declaration, instead of admitting them as in the defendant's original answer. The proposed amended answer to paragraph 1 of the declaration was as follows: ‘Defendant denies paragraph one of plaintiff's declaration and states the fact to be that plaintiff applied for welfare aid and incidentally stated that she would be willing to work in return for the aid given her and that no contractual relationship of employer and employees existed at any time between plaintiff and defendant.’ On the day the case was reached for trial, the same having been assigned to Judge Joseph A. Moynihan, the question of amending defendant's answer was presented. Judge Moynihan referred the matter to Judge Merriam who had presided at the pre-trial hearing. Judge Merriam declined to act upon the proposed amendment, taking the position that it should be disposed of by the trial judge. The matter was again presented to Judge Moynihan and the proposed amendment denied. The case was then referred to a commissioner for the purpose of taking testimony as to the number of hours plaintiff had worked and the extent to which she had been paid. Defendant's application to amend the answer was renewed before the circuit court commissioner and by him denied. The scope of the proceedings before the circuit court commissioner is accurately indicated by the following statement in his findings: ‘* * * the only thing before me in this matter is the number of hours at 50 cents per hour the plaintiff worked for said city and whether or not any money or things of value was paid by the defendant to the plaintiff for said services.’ Evidently without being mindful of the allegations contained in plaintiff's declaration, the commissioner concluded from the testimony produced before him that the amount earned by plaintiff and unpaid with accrued interest thereon was $1,920.03; and he reported to the circuit court that plaintiff should be allowed to recover that amount. Objections were made to the report of the...