Noble v. Detroit Taxicab & Transfer Co.

• Decision Date: 23 March 1923
• Docket Number: No. 17.,17.
• Citation: 192 N.W. 709,222 Mich. 414
• Parties: NOBLE v. DETROIT TAXICAB & TRANSFER CO.
• Court: Michigan Supreme Court

222 Mich. 414

192 N.W. 709

NOBLE

v.DETROIT TAXICAB & TRANSFER CO.

No. 17.

Supreme Court of Michigan.

March 23, 1923.

Error to Circuit Court, Wayne County; Theodore J. Richter, Judge.

Action by Thomas A. Noble against the Detroit Taxicab & Transfer Company, a corporation. Judgment for defendant, and plaintiff brings error. Judgment reversed, and new trial granted.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Walter M. Nelson, of Detroit (Harry L. Diehl, of Detroit, of counsel), for appellant.

A. W. Sempliner, of Detroit, for appellee.

CLARK, J.

On October 27, 1914, plaintiff, an experienced woodworker, was operating, in defendant's shop, a machine commonly known as a ‘jointer.’ In an opening in its table was a metal head into which were set knives, over which head, when revolving, the timber to be machined was passed. In the operation plaintiff's hand came in contact with the revolving head and he was injured. The most serious negligence charged, in substance, is that the machine was dangerously out of repair. The claimed lack of repair is set forth at great length and relates to nearly all parts of the machine and to its bed. Plaintiff's most significant testimony in this regard, stated generally, is to the effect that the belt from the power shaft to the pulley of the machine was old, weak, and of insufficient width, resulting in an uncertain and irregular motion of the head when in operation; that this motion was aggravated by a lack of babbitting of the shaft of the machine; and that further difficulty and danger were added to plaintiff's work by vibration due to weak and worn bed to which the machine was poorly and insecurely fastened. He also testified that the metal head used was square, and that it should have been round, and that the use of an unsuitable square head added to the danger and increased the opening into which his hand went. A lack of a suitable guard is also averred. The declaration also avers that neither plaintiff nor defendant, at the time in question, had signified acceptance of the Workmen's Compensation Act, and during the trial plaintiff sought to amend by striking out this averment, but leave was not given, and to support this averment plaintiff testified that no notice, as required by the act, had been posted in the shop at the time of the accident. A purported certificate by the secretary of the department of labor and industry that defendant had not accepted the provisions of this act was offered in evidence and excluded. Defendant's plea contained no notice that it had elected to pay compensation under the act. On motion, a verdict was directed in favor of defendant, and judgment entered, on the ground that plaintiff had offered no proof in support of his averment that the parties were not under the Workmen's Compensation Act. Plaintiff brings error.

We think it unnecessary to review the various proceedings, mistrials, and orders permitting plaintiff to amend, by which the present declaration was finally produced, being of the opinion that the permitting of the several amendments, though latterly somewhat indulgent, was not an abuse of discretion, and that at the instant trial plaintiff was rightfully in court with a declaration stating a case of actionable negligence.

Plaintiff need not have inserted in his declaration the averment that the parties were not under the Workmen's Compensation Act. The statement was surplusage. He was not required to negative an anticipated defense. In this state an employer may elect to pay compensation. If he so elects, such election is a matter of affirmative defense in a common-law action by an employee for an injury arising out of and in the course of the employment. Employers, except of household domestic servants and farm laborers, if they do not so elect, are deprived of certain defenses in such common-law actions. See section 5423 et seq., C. L. 1915. But there is no presumption that an employer has so elected. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49. We think the rule applicable under our statute is stated in Salvuca v. Ryan & Reilly Co., 129 Md. 235, 98 Atl. 675:

‘The real question properly before us is whether the employee, if he sues, must set out in his declaration the failure of the employer to comply with the requirements of the Act, or that he is not subject to its provisions, or whether the defendant should plead the facts he claims protect him from suit, or rely on them in his defense. We are of opinion that the burden should be and is on the defendant to show that he has complied with the Act and is subject to its provisions. If he has complied, he can easily plead and prove the fact, and the plaintiff ought not to be required to alleged in his declaration and prove the negative-that the defendant has not complied.’

And see Kampmann v. Cross (Tex. Civ. App.) 194 S. W. 437.

Counsel for defendant cite Krisman v. Johnston City, etc., Mining Co., 190 Ill. App. 612, and Hodges v. Swastika Oil Co. (Tex. Civ. App.) 185 S. W. 369. A reading of those cases will show that they are clearly distinguishable on statutory grounds. And this may be said of Beveridge v. Illinois Fuel Co., 283 Ill. 31, 119 N. E. 46; Id., 206 Ill. App. 145.

Plaintiff because of such negative and unnecessary averment did not assume the burden of proof as to the matter. It is said in 2 Abbott's Trial Brief, p. 902:

‘Plaintiff by inserting in the complaint matter not essential to his cause of action, but intended to negative an anticipated defense, does not assume the burden of proof as to that matter. But if the answer sets up that defense, the defendant must prove it.’-citing Murray v. New York Ins. Co., 9 Abb. N. C. 309;Id., 85 N. Y. 236;Coburn v. Travelers' Ins. Co., 145 Mass 226, 13 N. E. 604; and see Lewson, Plead. & Prac. 152; Lesher v. U. S. Fidelity & Guaranty Co., 239 Ill. 502, 88 N. E. 208.

Plaintiff seeks a ruling upon the admissibility of certain testimony. He sought to prove knowledge of and notice to defendant of the dangerous condition of this machine as operated without repair. Meeting objections of counsel and adverse rulings by the court he made, not in the presence of the jury, the following offer which was refused:

‘Mr. Nelson: I want to show that April 28, 1914, on the same machine, for the same reason, and without any change in the condition of the machine intervening, that John Hilts, who is here as a witness, suffered the same or a more serious injury to the same hand on this...