Bayne v. Everham

163 N.W. 1002, 197 Mich. 181, 1917 Mich. LEXIS 576
CourtMichigan Supreme Court
DecidedJuly 26, 1917
DocketDocket 124
StatusPublished
Cited by27 cases

This text of 163 N.W. 1002 (Bayne v. Everham) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bayne v. Everham, 163 N.W. 1002, 197 Mich. 181, 1917 Mich. LEXIS 576 (Mich. 1917).

Opinion

Stone, J.

This is an action to recover damages for the negligent killing of plaintiff’s intestate by the collapse, while under construction, of a portion of a reinforced concrete garage upon which he was employed as a carpenter in making and setting up forms and shoring, used in connection with the concrete work.

The defendant Cowhey was the owner of the premises, and, being desirous of erecting a garage upon it, he hired an architect named Molby to draw plans and specifications for such building.

The defendant Gabriel Reinforcement Company was *184 in the business of selling reinforcing steel for concrete construction work. It furnished the reinforcing steel for this building amounting to between $1,400 and $1,500, and was paid for the same by Cowhey’s check. Defendant De Lange was its manager. Defendant Everham was the contractor.

From a verdict and judgment for $7,500 against defendants Everham, Cowhey, and Gabriel Reinforcement Company, the last-named two defendants have appealed. Defendant Everham has not appealed, and a verdict was directed in favor of defendant De Lange.

The building where deceased lost his life is located on the north side of Larned Street, East, in the city of Detroit, on a lot 70 feet by 120 feet, which runs back to an alley parallel with the street. The building covered the entire lot. After consultation with the architect, Molby, and after consultation with the defendant De Lange, defendant Cowhey concluded to use the Gabriel system of reinforced concrete construction. Plans for the concrete work, specifying the amount, kind, and placing of reinforcing rods, the size and location of beams and columns, and the kind of floor construction were prepared by the Gabriel Reinforcement Company and delivered by it to Mr. Cowhey, These plans were introduced in evidence as Exhibit 2. Tracings and a blueprint showing the part of the building which collapsed are hereto attached. Both the architect’s plans and the steel reinforcement plans were submitted to the department of buildings of the city of Detroit. After being in the possession of the department for some days, they were approved and returned to Mr. Cowhey. No claim of negligence was made against defendant Cowhey in connection with the employment of either the architect or the Gabriel Company. After the form of construction was determined upon defendant Cowhey made the following contract with defendant Everham:

*185 “M. B. Everham,
“Successor to
“Hanneman Everham Co.,
“Contractors,
“Reinforced Concrete Structures,
“Detroit, Mich.
“Office: 707 Chamber of Commerce.
“Phone Cherry 223.
• “Aug. 14, 1912.
“Mr. Thomas E. Cowhey,
“309 Jefferson Ave.,
“Detroit, Mich.
“Dear Sir: I beg to submit this proposal for furnishing machinery and tools to build the following work in your garage building to be erected in East Lamed St. near Antoine:
“Reinforced Crete.
“Concrete walls.
“Concrete floors (first floor and basement).
“Second floor cement finish.
“Cinder fill on roof and cement finish.
“This work includes no steel or iron work except reinforcing steel. No sidewalks are included.
“I estimate the cost of material and labor to complete the above work to be $9,700.00, exclusive of my charge for doing the work. On this estimated cost you are to pay me 3 per cent, or $291.00, for the use of my machinery and equipment and for my supervision of the work.
“My estimate of $9,700.00 as the cost of this work is based on making the walls four (4) feet deep below first floor except at basement. You are to pay for all material and labor required in the work, including one civil engineer superintendent. You are to pay all hauling charges of my machinery and equipment, and such lumber as I have, to the work. I will pay for hauling my machinery and equipment away from the work.
“I will furnish without cost to you such lumber and plank as I have on hand (except the hauling) and all the lumber bought and used and resulting from the above-mentioned work shall belong to me. I will pay for hauling lumber away from the work.
“If the final cost of this work should exceed my estimate of $9,700.00, exclusive of my fee, I agree *186 that one-half of such excess shall be deducted from my fee of $291.00 and if one-half of excess cost should be $291.00 or more I am to get nothing for my supervision of the work or the use of my machinery and equipment, except that I am to get the lumber resulting from the work, and I am not to be held for more than $291.00 of excess cost.
“If I succeed in reducing the cost below my estimate of $9,700.00 you are to pay me one-half of such saving or reduction in cost in addition to the 3 per cent, on estimated cost of $9,700.00, and I am also to have the lumber used in and resulting from the work.
“Respectfully,
“M. B. Everham.”

The following is in the handwriting of Thomas E. Cowhey:

“Party of the second part agrees to complete said work by the 10th of October unless he is obstructed by some unforeseen obstacle that is not any fault of. his.
“Thomas E. Cowhey,
“M. B. Everham.”

Everham was a man of considerable experience, and it is not claimed that defendant Cowhey was negligent in contracting with him for this work. Some description of the construction will aid in understanding the situation.

The building to be erected was a two-story structure, with a roof so designed that at some future time it could be used as a floor. In the testimony upon the trial this, was referred to mostly as the third floor, but sometimes as the roof. The reinforcement consisted, of bars, rods, and wires designed and sold by the Gabriel Company, whose sizes, and locations were prescribed by the plan Exhibit 2. The entire weight of the structure was carried by a series of concrete columns, connected by concrete beams. The latter carried the weight of the floor slabs and the load supported *187 thereby into the columns. The clear height of the first story was about 14 feet from the floor to the bottom of the beams carrying the second floor, the collapse of a part of which caused the deceased’s death.

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Bluebook (online)
163 N.W. 1002, 197 Mich. 181, 1917 Mich. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayne-v-everham-mich-1917.