[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
I am unable to agree with the conclusion reached by Mr. Justice BOYLES. This case was tried by a circuit judge sitting without a jury. We should not reverse in such instances, unless the evidence clearly preponderates in the opposite direction.
As said in Hazen v. Rockefeller, 303 Mich. 536, 547, quoting from Detroit Trust Co. v. Hartwick, 278 Mich. 139,151:
"`It is the province of the trial judge in a nonjury case to draw legitimate inferences from the established facts and to weigh the probabilities from such established facts.'"
And quoting from Heppenstall Steel Co. v. Railway Co.,242 Mich. 464, 468:
"`This court has uniformly held that cases may be made by circumstantial evidence. This is not the adoption of the ruleres ipsa loquitur, a rule not favored by this court. It has always been the rule of this jurisdiction that the jury should be permitted to draw legitimate inferences from the established facts.'"
See, also, Barnowsky v. Helson, 89 Mich. 523
(15 L.R.A. 33); Elsey v. J.L. Hudson Co., 189 Mich. 135 (L.R.A. 1916 B, 1284); Macres v. Coca-Cola Bottling Co., 290 Mich. 567.
Again, as said in the Hazen Case, quoting from Hanson v.Economical Cunningham Drug Stores, Inc., 299 Mich. 434:
"`In reviewing a judgment entered by a trial judge sitting without a jury we are limited by the rule laid down in Jones v.Eastern Michigan Motorbuses, 287 Mich. 619. * * * This rule was recently summarized in Eagan v. Edwards, 294 Mich. 260, by the following quotation from Vannett v. Michigan PublicService Co., 289 Mich. 212, 218:
"`We have repeatedly said in cases tried without a jury that the trial judge is the trier of the facts and may give such weight to the testimony as in his opinion it is entitled to. In such cases we do not reverse unless the evidence clearly preponderates in the opposite direction.'"
The trial judge said:
"There is not one scintilla of evidence in the case to show that the owner of this building had ever, during the entire time of his ownership, made an inspection, or caused an inspection to be made of this parapet wall."
Defendant King testified that, after complaints from tenants that the center roof was leaking, he had the "flat part" repaired and he had the tinner "examine the rest of the roof and everything up there." King's own examination disclosed that there were leaks near the alley; and he stated that he "looked at the parapet walls" and no irregularity attracted his attention. He said: "I couldn't see anything wrong."
While the defendant may not have expressed himself too clearly, it is fair to conclude, as did the trial judge, that merely looking was not the sort of an examination required. This is particularly true in view of the testimony of a city building inspector who, after the accident, found fractures lower down in the walls, indicating that they had already existed prior to the collapse of the parapet.
A trial judge sitting without a jury may discredit the testimony of the owner of a building when other testimony indicates that he may have been mistaken, and we may not substitute our judgment in such an instance for that of the trial judge. In re Hallenbeck's Estate, ante, 21.
The record contains ample testimony to permit the conclusion that the parapet wall was improperly constructed and in need of repair at the time of the accident.
A meteorologist of the United States Weather Bureau testified that there was a high wind on the day in question and that at 3:33 p.m., about the time of the accident, its extreme velocity was 68 miles an hour at the Detroit City Airport, the highest velocity since a wind of 66 miles an hour on March 21, 1913.
The trial judge held that proper construction requires a factor of safety sufficient to resist a wind velocity of twice that experienced in the locality. He commented on the fact that at the time of the accident decedent and her companions were walking toward the north on the east side of the street along the two-story building, into the wind with their heads down, indicating that the wind was coming from the north and northwest. He stated that it was reasonable to conclude that a wind from either direction would cause the north and south parapet wall to fall inward upon the roof. He reasoned from the way the wall fell that it was impossible to say that the wind of itself blew the wall over into the street.
As stated in Hass v. Booth, 182 Mich. 173, 177, quoting from 1 Wood on Nuisances (3d Ed.), § 275, pp. 348, 350:
"`Every person in traveling upon a public street has a right to absolute safety, while in the exercise of ordinary care, against all accidents arising from obstructions of or imperfections in the street, and this applies as well to what is in the street as to what is over it. * * * It would seem that all signboards, cornices, blinds, awnings, and other
things projecting over a walk, or so situated with reference thereto that if they fall they may do injury to travelers, * * * are nuisances, unless so secured as to be absolutely safe, and the person maintaining them is liable for all injuries arising therefrom, except such as are attributable to inevitable accident.'"
In Bannigan v. Woodbury, 158 Mich. 206
(133 Am. St. Rep. 371), where a window glass fell from the third story of a building and injured a pedestrian, it was held that the unsafe condition of the windows as described in the declaration constituted a cause of action for which somebody should be held responsible, and that it was the duty of one in control and possession to keep the premises in a safe condition so as to protect travelers along the streets. See, also, Dombrowski v.Gorecki, 291 Mich. 678, 681, and Nezworski v. Mazanec,301 Mich. 43, 56.
In Detzur v. Stroh Brewing Co., 119 Mich. 282
(44 L.R.A. 500, 5 Am. Neg. Rep. 371), plaintiff was injured by glass falling from an upper story window in a building which stood but a few feet from the street. The court found that there was evidence to sustain "the inference that the injury resulted from a careless disregard of the broken and loosened condition of glass in a window above a street where pedestrians were frequently passing." On the subject of proximate cause, the court said:
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
I am unable to agree with the conclusion reached by Mr. Justice BOYLES. This case was tried by a circuit judge sitting without a jury. We should not reverse in such instances, unless the evidence clearly preponderates in the opposite direction.
As said in Hazen v. Rockefeller, 303 Mich. 536, 547, quoting from Detroit Trust Co. v. Hartwick, 278 Mich. 139,151:
"`It is the province of the trial judge in a nonjury case to draw legitimate inferences from the established facts and to weigh the probabilities from such established facts.'"
And quoting from Heppenstall Steel Co. v. Railway Co.,242 Mich. 464, 468:
"`This court has uniformly held that cases may be made by circumstantial evidence. This is not the adoption of the ruleres ipsa loquitur, a rule not favored by this court. It has always been the rule of this jurisdiction that the jury should be permitted to draw legitimate inferences from the established facts.'"
See, also, Barnowsky v. Helson, 89 Mich. 523
(15 L.R.A. 33); Elsey v. J.L. Hudson Co., 189 Mich. 135 (L.R.A. 1916 B, 1284); Macres v. Coca-Cola Bottling Co., 290 Mich. 567.
Again, as said in the Hazen Case, quoting from Hanson v.Economical Cunningham Drug Stores, Inc., 299 Mich. 434:
"`In reviewing a judgment entered by a trial judge sitting without a jury we are limited by the rule laid down in Jones v.Eastern Michigan Motorbuses, 287 Mich. 619. * * * This rule was recently summarized in Eagan v. Edwards, 294 Mich. 260, by the following quotation from Vannett v. Michigan PublicService Co., 289 Mich. 212, 218:
"`We have repeatedly said in cases tried without a jury that the trial judge is the trier of the facts and may give such weight to the testimony as in his opinion it is entitled to. In such cases we do not reverse unless the evidence clearly preponderates in the opposite direction.'"
The trial judge said:
"There is not one scintilla of evidence in the case to show that the owner of this building had ever, during the entire time of his ownership, made an inspection, or caused an inspection to be made of this parapet wall."
Defendant King testified that, after complaints from tenants that the center roof was leaking, he had the "flat part" repaired and he had the tinner "examine the rest of the roof and everything up there." King's own examination disclosed that there were leaks near the alley; and he stated that he "looked at the parapet walls" and no irregularity attracted his attention. He said: "I couldn't see anything wrong."
While the defendant may not have expressed himself too clearly, it is fair to conclude, as did the trial judge, that merely looking was not the sort of an examination required. This is particularly true in view of the testimony of a city building inspector who, after the accident, found fractures lower down in the walls, indicating that they had already existed prior to the collapse of the parapet.
A trial judge sitting without a jury may discredit the testimony of the owner of a building when other testimony indicates that he may have been mistaken, and we may not substitute our judgment in such an instance for that of the trial judge. In re Hallenbeck's Estate, ante, 21.
The record contains ample testimony to permit the conclusion that the parapet wall was improperly constructed and in need of repair at the time of the accident.
A meteorologist of the United States Weather Bureau testified that there was a high wind on the day in question and that at 3:33 p.m., about the time of the accident, its extreme velocity was 68 miles an hour at the Detroit City Airport, the highest velocity since a wind of 66 miles an hour on March 21, 1913.
The trial judge held that proper construction requires a factor of safety sufficient to resist a wind velocity of twice that experienced in the locality. He commented on the fact that at the time of the accident decedent and her companions were walking toward the north on the east side of the street along the two-story building, into the wind with their heads down, indicating that the wind was coming from the north and northwest. He stated that it was reasonable to conclude that a wind from either direction would cause the north and south parapet wall to fall inward upon the roof. He reasoned from the way the wall fell that it was impossible to say that the wind of itself blew the wall over into the street.
As stated in Hass v. Booth, 182 Mich. 173, 177, quoting from 1 Wood on Nuisances (3d Ed.), § 275, pp. 348, 350:
"`Every person in traveling upon a public street has a right to absolute safety, while in the exercise of ordinary care, against all accidents arising from obstructions of or imperfections in the street, and this applies as well to what is in the street as to what is over it. * * * It would seem that all signboards, cornices, blinds, awnings, and other
things projecting over a walk, or so situated with reference thereto that if they fall they may do injury to travelers, * * * are nuisances, unless so secured as to be absolutely safe, and the person maintaining them is liable for all injuries arising therefrom, except such as are attributable to inevitable accident.'"
In Bannigan v. Woodbury, 158 Mich. 206
(133 Am. St. Rep. 371), where a window glass fell from the third story of a building and injured a pedestrian, it was held that the unsafe condition of the windows as described in the declaration constituted a cause of action for which somebody should be held responsible, and that it was the duty of one in control and possession to keep the premises in a safe condition so as to protect travelers along the streets. See, also, Dombrowski v.Gorecki, 291 Mich. 678, 681, and Nezworski v. Mazanec,301 Mich. 43, 56.
In Detzur v. Stroh Brewing Co., 119 Mich. 282
(44 L.R.A. 500, 5 Am. Neg. Rep. 371), plaintiff was injured by glass falling from an upper story window in a building which stood but a few feet from the street. The court found that there was evidence to sustain "the inference that the injury resulted from a careless disregard of the broken and loosened condition of glass in a window above a street where pedestrians were frequently passing." On the subject of proximate cause, the court said:
"Counsel contend that if the glass fell by means of its being dislodged by the wind, the negligence of the defendant was not the proximate cause of the injury, and they complain of a refusal to instruct the jury that in such event the plaintiff should not be allowed to recover. The negligence complained of is the maintenance of a window in such a condition that the glass was liable to fall out; not necessarily from its own weight, but under the natural
conditions and strain to which it was likely to be subjected. It might not be negligent to leave a broken pane, if assurance could be given that it would be undisturbed by wind or by use. But wind is an every-day occurrence. It is a condition, not necessarily a cause, and one which should be taken into consideration before determining that a broken glass is not likely to fall. The wind may have been a concurring circumstance, but it cannot be said to have been the proximate cause, and the broken glass the remote cause. It cannot be true that a defendant who is liable if a defective glass falls from its own weight on a quiet day is to be relieved from responsibility because its fall is due to the pressure of a wind which should have been anticipated."
See, also, Wilmarth v. Michigan United Traction Co.,198 Mich. 428, 432.
The general rule is stated in 7 A.L.R. p. 205, as follows:
"A building abutting on a highway must be so constructed and maintained that it will not fall and injure persons lawfully on the highway. While the owner or person in control of such a structure is not an insurer, he is bound to use reasonable care and skill in the construction and maintenance of the building, and he is obliged to inspect from time to time. If the building or any part thereof, when constructed or purchased, is in an inherently dangerous condition so that it is liable at any time to fall and injure persons in the highway, or if it becomes in such condition by reason of use or mismanagement, it is a nuisance, and the person whose duty it is to remedy the defect must do so within a reasonable length of time after the creation of the nuisance."
See annotation of authorities in 7 A.L.R. p. 204 et seq., and 138 A.L.R. p. 1078 et seq.
Regardless of any difference as to the import of the testimony, we should not reverse unless the evidence
"clearly preponderates in the opposite direction." This I cannot say.
Appellant argues that damages for loss of earnings cannot be awarded, under 3 Comp. Laws 1929, §§ 14061, 14062, as amended by Act No. 297, Pub. Acts 1939 (Stat. Ann. 1944 Cum. Supp. §§ 27.711, 27.712), where there is no evidence that anyone entitled to bring the action suffered a pecuniary loss, and since the surviving husband is the only one to benefit, there must be evidence as to his age or life expectancy, the cost of maintenance of the deceased, and proof of pecuniary benefit from the deceased to him during her lifetime.
The record is silent as to the heirs at law of the deceased other than her husband, she being childless, and we are not informed about the condition of her estate. We are merely told that, as a music teacher, she had an earning capacity of from $25 to $30 per week, was 42 years old, with an expectancy of 26.72 years, and "did what she pleased with the money she earned."
The nature of the cause of action created by the amended act is discussed in Re Olney's Estate, 309 Mich. 65. As therein stated, the 1939 act does not repeal the death act (3 Comp. Laws 1929, § 14061 et seq. [Stat. Ann. § 27.711 et seq.]). Instead, the obvious purpose of the 1939 act was to enable a person to bring his action under this statute regardless of whether there was instantaneous death or survival of the injured person and to provide to what person or persons the damages recovered should be "distributed." See, also, In re Venneman'sEstate, 286 Mich. 368.
Here, the death was instantaneous, and as was said in theOlney Case, the surviving husband can recover for loss of services "less reasonable cost of her maintenance." See Gorton
v. Harmon, 152 Mich. 473 (15 Ann. Cas. 461). It should be noted that recovery in the cited case was under the provision of the death act that there can be recovery "for pecuniary loss," and the same provision is embodied in the 1939 act. This element of damages is recoverable in the instant case.
The administrator's right to recover is not limited to the pecuniary loss suffered by the husband for the value of his wife's services. The deceased had an established earning capacity as a music teacher and had she lived throughout her expectancy could have added to the worth of her estate in which her heirs at law would participate. Under the statutory provisions, supra, they would also participate in the distribution of the damages assessed and collected.
In Crook v. Eckhardt, 281 Mich. 703, where action was brought by the husband as administrator, the court sustained a "verdict of $6,558.90 covering the funeral expenses of $444 and the loss by a husband of services of his wife, a healthy married woman, aged 30, whose expectancy of life was 35.33 years." In that case the deceased was a school teacher and housewife and the defense was interposed that the record did not contain any proof of the pecuniary loss suffered by the husband and that the damages were excessive.
In the light of our discussion of the applicable law in theCrook Case, and our affirmation there of the damages assessed, the judgment entered in the instant case is affirmed, with costs to appellee.
STARR, C.J., and WIEST, BUTZEL, and SHARPE, JJ., concurred with BUSHNELL, J.