Mikulski v. Morgan

• Citation: 268 Mich. 314,256 N.W. 339
• Decision Date: 18 September 1934
• Docket Number: No. 64.,64.
• Parties: MIKULSKI v. MORGAN.
• Court: Supreme Court of Michigan

268 Mich. 314

256 N.W. 339

MIKULSKI

v.MORGAN.

No. 64.

Supreme Court of Michigan.

Sept. 18, 1934.

Appeal from Circuit Court, Kent County; Leonard D. Verdier, Judge.

Action by Chester Mikulski against Morgan, first name unknown, proprietor of Morgan's Beach. Judgment for defendant, and plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

Glocheski & Glocheski, of Grand Rapids (Wencel Milanowski, of Grand Rapids, of counsel), for appellant.

Mason, Alexander, McCaslin & Cholette, of Grand Rapids, for appellee.

POTTER, Justice.

Plaintiff sued defendant to recover damages for alleged injuries claimed in the first count of plaintiff's declaration to be due to defendant's negligence; and in the second count, to breach of an implied contract between the plaintiff and defendant. The case was submitted to the trial court upon a stipulation of facts, as follows:

‘On the 26th day of June, 1932, plaintiff was a patron of a beach operated by the defendant for the use of the public. A fee was charged to all customers and they were permitted to use the bath house and avail themselves of the privileges of the bathing beach and equipment. Plaintiff paid the required fee on the aforementioned date.

‘Part of the equipment provided for the use of the public was a device made by the defendant consisting of a ladder placed perpendicularly to a large gasoline tank, the ladder being held in position by four braces running from the tank to the side of the ladder. The braces formed an acute angle of approximately twenty degrees with the portion of the ladder to which they were attached, and this space between the braces and the ladder which formed the acute angle was an open space. The tank was weighted so that the ladder would stand perpendicular to the water. The practice of the bathers in using this piece of equipment was to have several of them hang on the rungs of the ladder so as to force the ladder to a position parallel with the water, and to the water level. Then, one person would hang onto the top rung of the ladder and the others would let go. This would swing the top man back and forth, or throw him into the water on the opposite side.

‘Plaintiff, with other bathers, caught hold of the rungs of the ladder. The ladder was brought down to the water and everyone let go. The plaintiff's left thumb caught in the space between the brace and the rung of the ladder, and when the ladder swung upwards, it tore off the plaintiff's left thumb.

‘Plaintiff suffered a great deal of pain occasioned by the loss of said thumb, and was forced to pay a doctor bill of $56.00, a hospital bill of $11.50, and was out of work for a period of two weeks, thereby suffering a loss of $30.00. Plaintiff lost his thumb which has impaired his effectiveness in using a typewriter, which was part of the plaintiff's vocation.’

The trial court found for defendant. Plaintiff appeals. The gist of plaintiff's claim is defen...