Leitelt Iron Works Ex Rel. Michigan Mutual Liability Co. v. De Vries

119 N.W.2d 101, 369 Mich. 47
CourtMichigan Supreme Court
DecidedJanuary 11, 1963
DocketCalendar 16, Docket 49,232
StatusPublished
Cited by21 cases

This text of 119 N.W.2d 101 (Leitelt Iron Works Ex Rel. Michigan Mutual Liability Co. v. De Vries) 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
Leitelt Iron Works Ex Rel. Michigan Mutual Liability Co. v. De Vries, 119 N.W.2d 101, 369 Mich. 47 (Mich. 1963).

Opinions

Black, J.

Numerous errors are assigned as supporting plaintiff-appellants’ appeal for retrial of this jury-decided suit for wrongful death. That the case was not tried as it might have been is fairly concludable. That the brand of reversible error should be stamped on 1 or more of such assigned errors does not necessarily follow.

When collateral matters of no relevance are voluntarily injected into a jury-tried civil case, and the ultimate loser finds himself objecting to that which his collateral venture has inevitably drawn before the jury, his objection usually forms no base for an allegation of reversible error. Trouble for these appellants started when they elected to join as parties plaintiff in prosecution of the cause which allegedly arose when the decedent expired. That such parties, [50]*50agreeing together, were possessed of the right to so proceed is expressly declared in the first paragraph of the so-called third-party amendment of 1952 (CLS 1956, § 413.15 [Stat Ann 1960 Rev § 17.189]). That they might better have left the fiduciary to prosecute the suit as sole plaintiff, with damage inquiry directed exclusively to the true measure of what if anything was legally recoverable in behalf of the decedent’s estate and his dependents, is now but doleful hindsight.

The decedent was a veteran rigger employed by plaintiff Leitelt Iron Works. He was Leitelt’s “lead man,” that is, he was in charge of “outside work” when Leitelt undertook to do rigging and overhead metal construction for others. Leitelt was engaged by the city of South Haven to remodel an elevator designed to carry coal to and from 2 coal silos, 72 feet high, on the premises of the city’s power plant. The job undertaken by Leitelt required the services of a heavy crane and crane operator. Leitelt engaged defendants for such purpose on an hourly basis.1 When the crane with operator arrived, and was finally set up for work with boom 110 feet in length, the decedent advised the defendant operator that he “wanted to ride the hook to the top” in order that he, decedent, might check the working height of the boom.

The “hook” is a weight-lifting assembly connected by steel cable — over the end of the boom — with a cable-winding drum. The drum is a part of the crane and is controlled by the crane operator from his seat in the cab of the crane. The hook assembly consists of a steel hook and a steel casting, weighing-together about 100 pounds. The hook is attached to the casting- by means of a crossbolt linking an [51]*51“eye” bored through the upper portion of the hook with 2 “eyes” bored through the lower flanges of the casting. The casting provides an opening, at the top, through which the far end of the crane’s cable is threaded down, around, and out again at the top. A steel wedge is inserted, inside the casting, in such manner as to press such looped end of the cable firmly between the wedge and the upward converging inner walls of the casting, thus fastening the hook assembly to such end. Looking at the exhibit drawings, it is readily perceivable that, the cable having been properly threaded through and wedged inside the casting, the greater the lifting pull the more secure becomes the fastening of cable to hook assembly. See sketch at the margin, furnished by agreeing counsel.

The threading and fastening of the cable to hook assembly was done by the decedent, 2 of his fellow employees, and the defendant crane operator. For plaintiffs it is claimed that the crane operator was responsible for what turned out to be a defective job of securing defendants’ cable to their hook assembly. For defendants it is claimed that decedent and his coemployees were exclusively responsible therefor. The proofs on that score presented, for jury determination definitely, the issues of negligence and contributory negligence as charged by the respective parties. Thus we pass summarily plaintiffs’ contention that the trial judge should Have directed a verdict of liability.

The hook assembly and cable having been linked as indicated, decedent stepped into the hanging hook and, holding to the taut cable, signalled “lift” to the crane operator. Standing thus with weight bearing on the hook, the decedent was carried to a height near the top of the silos. Then, the lift having been stopped, the hook assembly suddenly slipped free from the cable. The assembly and the decedent [52]*52plunged to the ground. Death ensued shortly after.

The initially posed question is whether Judge Vander Ploeg erred reversibly when he permitted the defendant crane operator to testify, over objection, to certain matters of which the decedent is said to have had like knowledge. Two phases of the operator’s testimony are questioned as incompetent under the statute. The first dealt with operation by him of the crane from start of the lift to the time of tragedy. The second was testimonial relation of the fact and result of a “test” made by him during the trial. The “test” disclosed effort to ascertain— by repeating the process of lifting a like hook with like equipment—-how long in point of estimated time it took to lift the decedent and the hook assembly up to the height where the cable slipped free.

The first of these phases presents the question directly. The second depends upon solution of the first since both arise from that part of the crane operator’s testimony which, in sum, described how he manipulated the crane’s operating mechanism and lifted decedent and the hook assembly to the height and point of calamity. It was shown that decedent was “watching” the crane operator during the lift. Upon that premise and the assumption that decedent knew the lifting- speed as well as did the operator, and knew as well whether there was anything unusual about the lift and its stop, it is contended that certain questions propounded to the operator drew forth incompetent testimony. 3

As a sort of prelude to discussion and determination of the posed question, we observe that trial judges have no easy task when called upon to rule [54]*54that question after question, addressed to an opposite party survivor in a tort case, call or do not call for answers which as to actual fact are equally known to the decedent. The point came to initial full treatment in Noonan v. Volek, 246 Mich 377, 381, 382, a typical suit for negligence. The Court said that the statutory bar, in its application to tort cases, “is fraught with difficulty in determining what knowledge the deceased had of a particular event, for the bar is not up until it affirmatively appears that the fact, if true, was known to the deceased.” Noonan was followed and applied in the cases of Hanna v. McClave, 271 Mich 133, 140; In re Boyer’s Estate, 281 Mich 618, 620; Kalbfleisch v. Perkins, 282 Mich 27, 29; Benaway v. Pere Marquette R. Co., 296 Mich 1, 5, and, while it is not too easy to reconcile some of them with Case v. Klute, 283 Mich 581, 584, 585 ; Quick v. Western Michigan Transportation Co., 294 Mich 402, 407, 408; Davis v. Jermstad, 350 Mich 439, 442; and Gabrish v. Morse, 361 Mich 39, 41, 42, two dependable conclusions stand forth. They are that knowledge of the decedent cannot be “inferred” (Noonan at 382; Hanna at 140; Lapachin v. Standard Oil Co.,

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Bluebook (online)
119 N.W.2d 101, 369 Mich. 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leitelt-iron-works-ex-rel-michigan-mutual-liability-co-v-de-vries-mich-1963.