Wight v. H. G. Christman Co.

Citation221 N.W. 314,244 Mich. 208
Decision Date01 October 1928
Docket NumberNo. 15.,15.
PartiesWIGHT et al. v. H. G. CHRISTMAN CO. et al.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Error to Circuit Court, Ingham County; Charles B. Collingwood, Judge.

Action by W. Gurdon Wight and others against the H. G. Christman Company and another. Judgment for defendants, and plaintiffs bring error. Reversed, and new trial granted.

Argued before the Entire Bench. Brown & Kelley and Fred L. Warner, all of Lansing, for appellants.

Thomas, Shields & Silsbee, of Lansing (Clayton F. Jennings, of Lansing, of counsel), for appellee H. G. Christman Co.

POTTER, J.

W. Gurdon Wight and Pearl A. Wight, his wife, were the owners of a dwelling house in Lansing, together with the contents therein. The house was insured in the Fire Association of Philadelphia, and the contents in the Wolverine Insurance Company. North and west of the premises of the Wights, the H. G. Christman Company contracted to build a building. John F. Gohr, doing business as Lansing Excavating Company, was engaged to do the excavating for this building. To do it he operated a steam shovel, the steam for which was generated by coal. It is plaintiffs' claim that sparks were communicated from this steam shovel to the building of Wight and wife, setting fire to the same and causing damage to the house and contents, which was adjusted and paid by the Fire Association of Philadelphia and the Wolverine Insurance Company, and they subrogated to the rights of the Wights against the H. G. Christman Company and Lansing Excavating Company. Suit was instituted by the Wights and the insurance companies against defendants. There was verdict and judgment for defendants. A motion for a new trial was made and denied, and plaintiffs bring error, assigning 24 reasons for reversal grouped under eleven heads:

1. Plaintiffs contend the verdict was against the great weight of the evidence. The defendants were charged with negligence. Defendants' negligence depended on the jury's finding upon disputed facts. Burroughs v. Ploof, 73 Mich. 607, 41 N. W. 704;Fox v. Spring Lake Iron Co., 89 Mich. 387, 50 N. W. 872;Scharman v. Bay County Bridge Com., 158 Mich. 77, 122 N. W. 1098,123 N. W. 1106. The determination of facts is peculiarly the jury's province (Daleiden v. Stevens, 235 Mich. 111, 209 N. W. 94), and becomes a question of law only when the facts are undisputed. The credibility of witnesses and the truthfulness of their statements are for the jury. Conkey v. Carpenter, 106 Mich. 1, 63 N. W. 990; Holmes v. Deppert, 122 Mich. 275, 80 N. W. 1094;Lincoln v. Felt, 132 Mich. 49, 92 N. W. 780;Plefka v. Detroit United Railway, 155 Mich. 53, 118 N. W. 731. We think we ought not to disturb the verdict, because of the weight of evidence.

2. The court charged the jury:

‘It becomes the duty of the plaintiffs to convince you by preponderance of the evidence, that the fire did originate from sparks or cinders coming from this steam shovel. You are not to guess on this matter. You are to be governed by the evidence only.’

This is alleged as error. It is error to permit a jury to find a fact unsupported by evidence. Bonner v. Grand Trunk Western Railway Co., 191 Mich. 313, 158 N. W. 3. Juries are to judge and decide upon evidence-not to guess in default of evidence. County of Marquette v. Ward, 50 Mich. 174, 15 N. W. 70;Baird v. Abbey, 73 Mich. 347, 41 N. W. 272;Hoffman v. Loud, 111 Mich. 156, 69 N. W. 231;Swift v. McMullen, 169 Mich. 1, 134 N. W. 1109. The use of the language complained of was not error.

3. It is claimed the court erred in charging the jury as follows:

‘Now, negligence is the want of ordinary care. Negligence in the operation of the steam shovel is the failure to use the care ordinarily employed by a careful and prudent man. To find any negligence on the part of the defendants, you must be convinced by the evidence and by a preponderance thereof that the defendants, or either of them, failed to use the care in the operation of that steam shovel which an ordinarily prudent and careful man would use,’

-and in not charging, as requested by plaintiffs, as follows:

‘I instruct you that negligence may be defined as follows: ‘A failure of duty to observe that degree of care which the law imposes for the protection of interests likely to be injuriously affected by the want of it.’'

The definition of negligence requested by plaintiffs was approved in Kendrick v. Towle, 60 Mich. 367, 27 N. W. 567,1 Am. St. Rep. 526, and Webster v. Symes, 109 Mich. 1, 66 N. W. 580. Negligence is absence or want of ordinary care (Woods v. Chalmers Motor Co., 207 Mich. 556, 175 N. W. 449), the failure to do what a reasonable and prudent person would ordinarily do under the circumstances, or doing what such a person under the circumstances would not do. It may result from omission or commission. 1 Thompson on Negligence (2d Ed.) par. 2. The want of ordinary care. Negligence in the conduct of a tug is the failure to use the care ordinarily used by careful men. Montgomery v. Muskegon Booming Co., 88 Mich. 641, 50 N. W. 729,26 Am. St. Rep. 308. There was, we think, no error in this instruction to the jury. It might have been given in the language requested by plaintiff, but it was properly covered.

4. Plaintiff alleges the court erred in charging the jury:

‘If, from the evidence and by the preponderance thereof, you find that the fire did start from sparks from this steam shovel and that it was caused by the negligent operation of the steam shovel, then you go to the question of responsibility, Who was responsible for that condition?’

The burden of proof was on plaintiffs to establish the negligence of defendants by a preponderance of the evidence. If but one of the defendants was found negligent, it was for the jury to determine which one was responsible for the negligent operation of the steam shovel, and therefore liable to respond in damages for plaintiffs' loss. There was no error in this instruction.

5. The court charged the jury that if Gohr was an independent contractor, Christman Company was not liable.

‘An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to control by his employer as to the means by which the result is to be accomplished, but only as to the result of the work.’ 26 Cyc. p. 1546; Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, 183 N. W. 11.

Gohr was employed to excavate for a foundation for a building. It was immaterial to Christman Company whether it was done by hand, teams and scraper, a gasoline motor operated shovel, or a steam shovel. Where the contract is plain, unambiguous, and undisputed, whether one is an independent contractor is a question of law for the court. Collias v. Detroit & Northern Michigan Building & Loan Association, 220 Mich. 207, 189 N. W. 866. The test of whether Gohr was an independent contractor or an employee of Christman Company was the right of the Christman Company to control and direct the performance of the work. Van Simaeys v. George R. Cook Co., 201 Mich. 540, 167 N. W. 925;Collias v. Detroit & Northern Michigan Building & Loan Ass'n, 220 Mich. 207, 189 N. W. 866. The general rule is thus stated in 1 Thompson on Negligence (2d Ed.) par. 621:

‘It is a general rule that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third persons to unusual danger, according to the contractor's own methods, and without being subject to control except as to the results of his work, and subject to other qualifications hereafter stated-will not be answerable for the wrongs of such contractor, his subcontractors, or his servants, committed in the prosecution of such work.’ Van Dam v. Doty-Salisbury Co., 218 Mich. 32, 187 N. W. 285, 29 A. L. R. 729.

The terms of the contract between Gohr and Christman Company were indefinite, and the question of supervision to be exercised by the Christman Company and the extent thereof was for the jury.

The mere fact that Gohr was an independent contractor would not of itself excuse Christman Company from liability. Where one owes a duty to another, he cannot acquit himself of liability by delegating performance of the duty to an independent contractor. Peerless Manufacturing Co. v. Bagley, 126 Mich. 225, 85 N. W. 568,53 L. R. A. 285, 86 Am. St. Rep. 537;Lauer v. Palms, 129 Mich. 671, 89 N. W. 694,58 L. R. A. 67;Blickley v. Luce's Estate, 148 Mich. 233, 111 N. W. 752;Inglis v. Millersburg Driving Ass'n, 169 Mich. 311, 136 N. W. 443, Ann. Cas. 1913D, 1174;Van Dam v. Doty-Salisbury Co., 218 Mich. 32, 187 N. W. 285, 29 A. L. R. 729;Olah v. Katz, 234 Mich. 112, 207 N. W. 892. The Christman Company was principal contractor for the erection of the building on the premises in question and cannot evade liability by the mere fact it hired Gohr to do excavating with a steam shovel. It was bound to see that the excavating, which as a part of its contract it was bound to do, was not done by a subcontractor in a negligent manner. Inglis v. Millersburg Driving Ass'n, 169 Mich. 311, 136 N. W. 443, Ann. Cas. 1913D, 1174;Olah v. Katz, 234 Mich. 112, 207 N. W. 892.

In Inglis v. Millersburg Driving Ass'n, 169 Mich. 311, 136 N. W. 443, Ann. Cas. 1913D, 1174, the exception to the general rule is pointed out. The language of Covington, etc., Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N. E. 618,76 Am. St. Rep. 375, was expressly approved, and it is said that:

‘A duty is imposed upon the employer in doing work necessarily involving danger to others, unless great care is used, to make such provision against negligence as may be commensurate with the obvious danger. It is this duty which cannot be delegated to another so as to avoid liability for its neglect.’

In Olah v. Katz, 234 Mich. 112, 207 N. W. 892, the negligence of...

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