Warren v. McLouth Steel Corp.

• Decision Date: 26 January 1982
• Docket Number: 46069 and 47151,Docket Nos. 45980
• Citation: 314 N.W.2d 666,111 Mich.App. 496
• Parties: Bertrum F. WARREN, Plaintiff-Appellee, v. McLOUTH STEEL CORPORATION, A Foreign Corporation, Defendant-Appellant And Third-Party Plaintiff-Appellee, v. VALLEY CONSOLIDATED INDUSTRIES, INC., Third-Party Defendant-Appellant. 111 Mich.App. 496, 314 N.W.2d 666
• Court: Court of Appeal of Michigan — District of US

Page 666

314 N.W.2d 666

Bertrum F. WARREN, Plaintiff-Appellee, v. McLOUTH STEEL CORPORATION, A Foreign Corporation, Defendant-Appellant And Third-Party Plaintiff-Appellee, v. VALLEY CONSOLIDATED INDUSTRIES, INC., Third-Party

Defendant-Appellant.

Docket Nos. 45980, 46069 and 47151.

111 Mich.App. 496, 314 N.W.2d 666

Court of Appeals of Michigan.

Submitted Dec. 9, 1980.

Decided Nov. 30, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 499] Dice, Sweeney, Sullivan & Feikens, P.C., Detroit, for plaintiff-appellee.

Charfoos & Charfoos, P.C. by David S. Robinson, Jr., Detroit (Hayim I. Gross and Richard J. Dimanin, Southfield, of counsel), for McLouth Steel Corp.

Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark, Farmington Hills, for Valley Consol. Industries, Inc.

Before V. J. BRENNAN, P. J., and KELLY and J. H. GILLIS, JJ.

V. J. BRENNAN, Presiding Judge.

This case involves an appeal by defendant, McLouth Steel Corporation (hereinafter McLouth), from a jury verdict finding it liable for injuries sustained by plaintiff, Bertrum F. Warren. It further involves an appeal by third party defendant, Valley Consolidated Industries, Inc. (hereinafter Valley), from a jury verdict finding it liable for indemnification to third-party plaintiff, McLouth.

McLouth initially contracted with Valley for repair of an oxygen process vessel and installation of a charging deck and heat shields. During the course of performance of this work, Bertrum F. Warren, an employee of Valley, was seriously injured when he fell from a steel beam in a plant owned by McLouth. Warren instituted suit against [111 MICHAPP 500] McLouth alleging negligence on the part of McLouth.

McLouth, in turn, added Valley as a third-party defendant seeking, inter alia, common law and contractual indemnification.

On May 3, 1979, a Wayne County Circuit Court jury returned a verdict in favor of Warren and against McLouth in the amount of $750,000 less 10 percent for Warren's comparative negligence. The jury also found in favor of McLouth against Valley on both contractual and common law indemnification. Thereafter, the trial court granted McLouth's motion against Valley for costs and expenses incurred in the action.

We address first the issues raised on appeal by McLouth.

At trial, plaintiff's counsel called McLouth's employee Victor Gagne to testify pursuant to the opposite party statute, M.C.L. § 600.2161; M.S.A. § 27A.2161. Gagne, an employee of McLouth for 22 years, was a field engineer at the time of the accident. After plaintiff's examination, counsel for McLouth questioned Gagne eliciting from him, inter alia, that McLouth was a safety conscious company and that he knew of no other serious injuries occurring to outside contractors engaged in such repair work. He also testified that McLouth was the 12th or 15th largest steel company. Plaintiff's counsel then recross-examined Gagne as to a number of subsequent accidents which had occurred at McLouth's plants which involved outside contractors. He also questioned Gagne as to the size and pecuniary worth of McLouth.

On appeal, McLouth raises a number of issues relating to this testimony given by Gagne during the latter cross-examination by plaintiff's counsel. We find no merit to them, either individually or [111 MICHAPP 501] collectively. McLouth first contends that the testimony as to subsequent accidents was so prejudicial as to deprive it of a fair trial. Had such evidence been introduced to prove McLouth's negligence, we would find it error. However, this evidence was admitted to prove an issue collateral to defendant's negligence. Upon reading the record, it seems obvious that the testimony was only allowed to impeach the credibility of Gagne as to his statements that "McLouth is one of the most safety conscious companies there is" and to impeach his testimony that during his 22 years at the plant he would have been informed of any injury to an employee of an outside contractor. Having first raised these issues on its examination of Gagne, McLouth should not be allowed to complain when plaintiff's counsel attempted to impeach this testimony on cross-examination. See Grist v. The Upjohn Company, 16 Mich.App. 452, 482-483, 168 N.W.2d 389 (1969), lv. den. 382 Mich. 768 (1969).

Similarly, on the same rationale we reject McLouth's argument that testimony elicited by plaintiff on recross-examination as to the size of the defendant corporation and the number of employees it employs deprived defendant of a fair trial. We again note that it was McLouth who initially "opened the door" on this issue and cannot now complain when plaintiff tested defendant's witness's credibility on cross examination.

Finally, we note that McLouth did not object at trial to plaintiff's closing argument when he alluded to the safety and size of the corporation. Therefore, McLouth is precluded from raising the propriety of this argument for appellate review. Tiffany v. The Christman Co., 93 Mich.App. 267, 282, 287 N.W.2d 199 (1979), George v. Travelers Indemnity Co., 81 Mich.App. 106, 116, 265 N.W.2d 59 (1978).

[111 MICHAPP 502] McLouth next argues that the trial court erred as a matter of law in not granting its motion for a directed verdict on the issues of retained control and inherently dangerous activity.

In considering a motion for a directed verdict, a trial court is required to view the evidence in a light most favorable to the non-movant, Tiffany v. The Christman Co., supra, 93 Mich.App. 284, 287 N.W.2d 199, Armstrong v. LeBlanc, 395 Mich. 526, 532, 236 N.W.2d 419 (1975), and the trial court should deny such a motion if the facts, when so viewed, indicate that reasonable minds could differ, Johnson v. Grand Trunk W. R. Co., 58 Mich.App. 708, 713, 228 N.W.2d 795 (1975). Furthermore, "(i)n reviewing denial of a directed verdict for defendant on completion of plaintiff's proofs, this Court considers proofs and reasonable inferences therefrom in the light most favorable to the plaintiff". Signs v. The Detroit Edison Co., 93 Mich.App. 626, 631, 287 N.W.2d 292 (1979), Humenik v. Sternberg, 371 Mich. 667, 669, 124 N.W.2d 778 (1963).

We first consider the propriety of denial of a directed motion as to retained control. The lead case in Michigan on retained control is Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974). The Supreme Court recognized that, while ordinarily an owner is not responsible for injuries caused by a carefully selected contractor to whom he has delegated work, this rule does not apply if he has not truly delegated but has retained control of the work. The Funk Court relied on the following factors in concluding that a jury could properly hold the owner liable on a retained control theory.

"General Motors exercised an unusually high degree of control over the construction project from its very inception. Its internal divisions drew up the building plans, wrote the contractual specifications, and acted as [111 MICHAPP 503] architectural supervisor. It directly hired several of the contractors, including Ben Agree, wrote the contracts agreed to by those contractors, and only later assigned the contracts to Darin and Armstrong.

"Arthur Collins, General Motors' representative, testified that he could order Darin and Armstrong to terminate any prime or subcontractor within twenty-four hours. General Motors also retained the right to continue hiring additional subcontractors and then, if desired, assign their contracts to Darin and Armstrong for coordination with the other contractors.

"Collins-daily at the job site-interpreted the contract specifications and plans for Darin and Armstrong. Aided by other General Motors on-the-spot inspectors, he ensured that the 'general conditions' and other provisions of the contract were being fulfilled. These included safety requirements, quality and performance of the work, fire protection, price restraints and completion deadlines." Funk, supra, 105-106, 220 N.W.2d 641. (Footnote deleted.)

In the instant case evidence introduced at trial for plaintiff indicated, among other things, that McLouth's employee, Victor Gagne, inspected the work on a daily basis; that McLouth wrote the contract used by Valley, supplied Valley with materials and wrote the specifications for the work to be done; and that McLouth also send out instructions to bidders, received bids and selected the contractor. It also retained the right to discharge employees of a contractor who loitered in other parts of the plant.

We find this evidence sufficient to withstand defendant's motion for directed verdict. Tiffany, supra. Hence, we conclude that the trial court did not err in submitting the issue to the jury.

Similarly, we find that the trial court did not err by denying McLouth's motion for a directed verdict on the issue of inherently dangerous activity. Whether the activity being analyzed is inherently [111 MICHAPP 504] dangerous is a question of fact to be determined by the jury. Dowell v. General Telephone Co. of Michigan, 85 Mich.App. 84, 91, 270 N.W.2d 711 (1978), lv. den. 405 Mich. 803 (1979). It is clear from a reading of the transcript that the plaintiff produced evidence as to the hazardous elements of the job and job site. Therefore, we concur with the trial court's decision to submit the issue to the jury. Further, we reject McLouth's contention that the doctrine of inherently dangerous activity, as a matter of law, is inapplicable to an independent contractor or an employee of an independent contractor. See Dowell v. General Telephone Co., supra, Funk v. General Motors Corp., supra, 392 Mich. 136, 220 N.W.2d 641, dissent of Chief Justice Coleman.

In summary, we conclude that none of McLouth's alleged errors, either individually or collectively, warrant reversal. We thereby affirm the verdict and judgment rendered in favor of Warren against McLouth. Valley appeals from the verdict and judgment finding it liable to the third-party plaintiff,...