This case has resulted from an accident occurring on November 13, 1954, in which plaintiff sustained physical injuries. His claimed right for damages was based on allegations in his declaration that the accident occurred, and the consequent injuries were suffered, as a result of the negligence of an employee of defendant corporation. Defendant by its answer denied that there was negligence on the part of the alleged employee, further asserting
The accident in question was somewhat unusual in nature. The parties are not in accord as to the responsibility for the occurrence, nor as to preliminary dealings between the parties. At the time, and for several years prior thereto, defendant corporation was engaged in the business of selling water pumps in Muskegon county. Plaintiff was also engaged in selling pumps and installing them. It appears that prior to the date of the accident some negotiations were had between defendant and plaintiff with reference to the latter purchasing from defendant pumps for which he had purchasers and orders for installation. It was the claim of the plaintiff on the trial that in the course of their negotiations, which resulted in an agreement whereby plaintiff was to handle defendant's pumps, he was assured by a representative of defendant that in the event of trouble in connection with work of installation defendant would take care of the necessary service and install any pump that plaintiff sold. On behalf of defendant a continuing agreement to render such service was denied.
The record discloses that plaintiff sold a pump to a customer for use in a well. Said customer and plaintiff installed a pipe some 63 feet in length to
Mr. Bourdon followed the instructions given to him, and he and plaintiff removed the unsatisfactory pump preparatory to replacing it. The equipment necessary to be used in the operation was taken to the place by Mr. Bourdon and there unloaded. Included was a timber pry pole, a clamp or vise, and a chain. Having removed the jet pump, the drawing from the well of the pipe to which said pump had been attached was attempted. The upper end of said pipe was in a pit approximately 4 feet square and 3-1/2 feet in depth, which the owner of the property had caused to be prepared as a part of the project. One end of the chain was fastened around the pry pole, which was operated on blocks, and Mr. Bourdon went down into the pit and there
The deposition of Mr. Bourdon was taken by plaintiff for purposes of discovery under Court Rule No 35, § 6 (1945),
It is the claim of defendant on appeal that Mr. Bourdon was shown by the great weight of the evidence in the case to have been the employee of the plaintiff at the time the accident occurred, and that, in consequence, if there was in fact negligence on the part of said employee, defendant was not responsible therefor. The trial court submitted the issue to the jury which manifestly accepted plaintiff's version of the arrangement between the parties and, likewise, his claim as to the purpose for which Mr. Bourdon was sent to the place where the water pumps were to be exchanged. In view of the contradictory nature of the testimony relating to the matter a jury question was presented. It rested with the trier of the facts to evaluate the proofs and to determine the dispute accordingly. It may not be said that the finding of the jury was contrary to the great weight of the evidence.
The charge given by the trial judge presented clearly and definitely the claims of the parties. Our examination and consideration thereof lead us to the conclusion that it was not open to objection on the part of the defendant. See White v. Bye, 342 Mich. 654, in which the legal principles applicable in the determination of an issue with reference to the loaning of an employee were discussed at some length. It may be noted in passing that Mr. Bourdon's testimony as set forth in his deposition indicates rather clearly that he was directing the work of removing the pipe from the well. It is also significant that defendant furnished the tools and equipment necessary to be used in the exchange of the pumps. To some extent the manner in which the work was handled tended to corroborate the claim
Defendant further contends, as in the trial court, that the Bourdon deposition should not have been received in evidence, particularly in view of deponent's death prior to the trial, and that the court was in error in permitting plaintiff to testify as to matters equally within Mr. Bourdon's knowledge. Attention is directed to CL 1948, § 617.65 (Stat Ann § 27.914), which provides in part that:
"And when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent of the corporation, nor when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation (or its assigns) shall any person who is or has been an officer or agent of any such corporation be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person."
Apparently the objection rests, in part at least, on the theory that Mr. Bourdon was an officer or agent of defendant corporation and represented it in some way in dealings with the plaintiff. It will be noted that the inhibition of the statute makes no reference to employees. If, therefore, Mr. Bourdon was an employee only, rather than an agent, the statute did not apply. No claim is made that he had anything to do with the making of any contractual undertaking between plaintiff and defendant. He was given instructions by the latter with reference to the work of removing the jet pump and substituting
"The witness was an employee and not an officer or agent of the corporation in any respect. His testimony was competent. Brennan v. Michigan Central R. Co., 93 Mich. 156; Krause v. Equitable Life Assurance Society of the United States, 105 Mich. 329; Wallace v. Fraternal Mystic Circle, 121 Mich. 263; Storrie v. Grand Trunk Elevator Co., 134 Mich. 297; Rousseau v. Brotherhood of American Yeomen, 177 Mich. 568."
It is a fair conclusion also that some of the matters to which Mr. Bourdon testified in his deposition were within the knowledge of officers of the corporation, and had the deponent been an officer or agent the statute would not have barred plaintiff's testimony as to such matters. Lawson-Erb Lumber Co. v. Graham Paige Co., 283 Mich. 252, 257.
The claim that plaintiff was not entitled to offer in evidence the deposition of Mr. Bourdon is not well founded. Had the deponent been living at the time of the trial he might have been called as a witness. The taking of his deposition was authorized by Michigan Court Rule No 35, § 6 (1945).
"At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a
"(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: * * * (b) that the witness is dead."
Defendant corporation was represented at the taking of the deposition of Mr. Bourdon, and it was properly received in evidence on the trial. We find no error with reference thereto.
Under the conflicting proofs in the case it may not be said that defendant's employee was guilty of negligence, or that plaintiff was contributorily negligent, as a matter of law. Issues of fact with reference to negligence and proximate cause were raised and were properly for determination by the jury. The charge given by the trial court fairly presented the matters in dispute and, considered in its entirety, was not open to objection. Appellant complains that certain requests were not given, but we find that they were substantially covered in the general charge and that defendant was not prejudiced by the omission to advise the jury in the exact language of the requests. Neither may it be said that the verdict rendered was against the great weight of the evidence.
The verdict of the jury is not open to objection on the ground that the amount thereof was excessive under the proofs. That plaintiff sustained a severe facial injury is not open to question. He underwent pain and suffering as a result of his physical injuries, and the treatment thereof. There was medical testimony indicating a slipping, or subluxation, involving the 4th and 5th vertebrae in the neck, that such condition caused pain, and that it would be
It was also plaintiff's claim, supported by his testimony, that he was damaged because of inability, resulting from his injuries, to pursue his business activities. Complaint is made by appellant that the court was in error in receiving plaintiff's testimony with reference to such damages over the objection that the records kept by him were the best evidence. We think such issue is determined adversely to appellant's contention by the decision of this Court in Couyoumjian v. Brimage, 322 Mich. 191. The application of the "best evidence" rule did not bar the testimony based on plaintiff's personal knowledge of the matters to which he testified. The various items to be considered by the jury in fixing the amount of its verdict, including medical and hospital bills, were carefully submitted by the trial judge, and we find no error in the charge as given. Neither is there anything in the record before us suggesting that the verdict was obtained by improper methods or that anything occurred during the course of the trial that might have resulted in bias or prejudice on the part of the jury.
We are impressed that the case was fairly tried, that no error prejudicial to appellant occurred in the course thereof, and that the verdict rendered was within the scope of the proofs. The judgment from which the appeal has been taken is affirmed, with costs to plaintiff.
DETHMERS, C.J., and KELLY, SMITH, BLACK, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.