VANNOY v. CITY OF WARREN

Leave to appeal denied as to both defendants July 8, 1969.

R.B. BURNS, J.

Defendants appeal from a judgment entered upon a jury verdict for plaintiff. The basic facts of this case have been concisely set forth in Vannoy v. City of Warren (1965), 2 Mich.App. 78. 80:

"Plaintiff's deceased husband was an employee of the Nelson M. Sharrow Excavating Co., Inc., which had contracted with the defendant city of Warren to do certain work in connection with the installation of a sewer. On February 21, 1961, the plaintiff's decedent in the course of his employment descended into a manhole, was allegedly overcome by gas, and fell into 7 to 10 feet of water where he died. The plaintiff sued the city of Warren and its engineers, Johnson & Anderson, Inc., under the wrongful death statute alleging negligence on the part of each.

"Pursuant to court order, the defendants filed third-party complaints against the Sharrow Excavating Co., on the basis of an indemnity agreement."

In the conclusion of Vannoy v. City of Warren, supra, the Court agreed with the trial judge that the third-party defendant's motion for summary judgment should be denied because the construction of the indemnity agreement1 should await the trial. That trial has now been completed. Although the record is scant as to the "situation of the parties and the circumstances surrounding them"2 in relation to the indemnity agreement, the trial court decided that Sharrow's contract with the city did not "reveal any plain words or unmistakable terms indicating an intention to relieve the city of Warren or Johnson & Anderson or any other entity or person from the consequences of its or his own negligence." This decision is consistent with Geurink v. Herlihy Mid-Continent Company (1966), 5 Mich.App. 154. We find no reason for disturbing the trial court's order dismissing the third-party complaint.

The city contends that its affirmative defenses alleging negligence on the part of the deceased were not answered and are deemed admitted. GCR 1963, 111.5 provides that "averments in a pleading to which a responsive pleading is required * * * are admitted when not denied." An averment in the nature of an affirmative defense does not require a responsive pleading unless it expressly requests a reply. See GCR 1963, 1101.1 and 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Rule 110, § 2.A of Author's Comments, p 180. No such request was included in the city's pleading, and consequently the lack of response in this instance must be interpreted as a denial.

The city also contends that one of those affirmative defenses, contributory negligence, should have prevailed as a matter of law. One witness testified that it was contrary to established practice in this type of work for a man with the decedent's experience to descend a manhole without first checking for gas. However, conflicting testimony on this issue required the trial judge to submit the question to the jury.

Defendant Johnson & Anderson, Inc., argues that the cause of John Vannoy's death has not been established. This was also a question of fact, and there was ample evidence from which a jury could infer that death was caused by decedent's inhalation of methane or "sewer" gas.3

The city objected to the court's instructions which advanced plaintiff's theory that the city was vicariously liable for any negligence on the part of its independent contractor, Johnson & Anderson, if the jury found that plaintiff had proven the allegation4 that the deceased was engaged in an inherently or intrinsically dangerous activity. The rule that a city is exempt from liability caused by the negligence of its independent contractors (Lenderink v. Village of Rockford [1904], 135 Mich. 531) is subject to the exception that a contractee (the city) cannot evade the consequences of its failure to take proper precautions if the work to be done is inherently or intrinsically dangerous. Olah v. Katz (1926), 234 Mich. 112; Barlow v. Krieghoff Company (1944), 310 Mich. 195 and Mulcahy v. Argo Steel Construction Company (1966), 4 Mich.App. 116. The city concedes that the exception is correct when it applies to third persons but argues that it does not apply to the servants or employees of an independent contractor engaged in the inherently dangerous activity.

In Michigan the inherently or intrinsically dangerous activity doctrine is founded upon a theory which is closely akin to, but not exactly the same as,5 strict liability. The principle is applied "where 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." Inglis v. Millersburg Driving Association (1912), 169 Mich. 311, 321, 322. The doctrine imposes a nondelegable duty upon the party desiring the dangerous undertaking. See 23 ALR 1024. A distinction, as argued by the city, based upon the legal designation of injured parties, e.g. "third" persons or "others" as opposed to employees of independent contractors, violates the absolute character of the duty and is contrary to the Court's rationale set forth in Olah v. Katz, supra; Watkins v. Gabriel Steel Co. (1932), 260 Mich. 692; Utley v. Taylor & Gaskin, Inc. (1943), 305 Mich. 561 and McCord v. United States Gypsum Co. (1966), 5 Mich.App. 126.

Whether the performance of decedent's task was inherently and intrinsically dangerous was a question of fact which the trial judge properly submitted to the jury. It is ludicrous to intimate that working in an atmosphere of deadly, tasteless, odorless and colorless gas without any protective devices is not a dangerous activity. The factual questions concerning the presence of such a gas and other circumstances surrounding decedent's employment prompted consideration of the issue by the jury. See Olah v. Katz, supra, p 116; Sun Oil Company v. Kneten (CA 5, 1948), 164 F.2d 806; and Mallory v. Louisiana Pure Ice & Supply Company (1928), 320 Mo 95.

The city of Warren also challenges the following instruction:

"Until or unless it is obvious or apparent or should reasonably have been obvious or apparent that the engineer or contractor or both were not reasonably competent or had not employed reasonably skilled employees, the city owed no further duty to deceased unless you are convinced by a preponderance of the evidence that by custom and usage in this type of sewer construction the deceased could reasonably have relied on the city of Warren to check this manhole for gas." (Emphasis supplied.)

In view of our holding that the city could not delegate its responsibility to another when involved in an inherently or intrinsically dangerous activity, the above charge was more favorable to the city than it should have been and cannot be advanced as ground of error.

The city also assigns as error the giving of the following instruction:

"The law presumes, the law creates a presumption that a person who is deceased and is not able to come to the court and testify, the law presumes that he did use due care."

This presumption of due care does not arise when there are credible eyewitnesses to the accident. Cook v. Grand Trunk W.R. Co. (1966), 3 Mich.App. 112. There was an eyewitness to most of Vannoy's actions on the day of his death. The court did consider the legal effect of his testimony. This becomes readily apparent if the above fraction of the relevant instruction is quoted in context:

"However, that is not what we call an absolute presumption. That is rebuttable presumption which means the presumption may be overcome by evidence to the contrary. So in the absence of evidence to the contrary you have a right to presume that Mr. Vannoy was not negligent. However, if you think there is evidence which disproves that or tends to disprove it, then you will consider that evidence and you will weigh that evidence and weigh it and compare it against the presumption of due care and if the evidence does convince you by a preponderance of evidence that he was negligent, then that presumption disappears and Mr. Vannoy is no longer entitled then to that presumption."

Johnson & Anderson claims the trial court erred by submitting the following instructions to the jury:

"The duties owed by Johnson & Anderson to Mr. Vannoy were these — to make those inspections which a reasonably, competent engineer would make at such times and in such manner as a reasonably competent engineer would make under the same or similar circumstances. When I say same or similar circumstances I mean existence of another contract such as Sharrow contractor doing the work. I mean an agreement such as we have here. The second duty Johnson & Anderson owed to Mr. Vannoy was to see obvious derelictions of duty by the contractor, the Sharrow Company. They had a duty to see those derelictions that a reasonably competent engineer would see and to stop the work or order changes that a reasonably competent engineer would order stopped or changed."

The contract between the city of Warren and Johnson & Anderson states in part:

"Whereas the said party of the first part requires surveys, plans and specifications for said project and engineering supervision of its construction, and

"Whereas the parties of the second and third part are registered engineers, qualified to make such surveys, develop plans and specifications and to supervise construction of said project."

The contract documents for the sewer separation program were prepared by Johnson & Anderson, Inc. Under the terms of these documents the engineers, Johnson & Anderson, Inc., had broad authority to act as the city's representative at the working site. The engineer had general supervision and direction over work and the authority to stop work whenever necessary to insure the proper execution of the contract. They had the right to order the discharge of any contractor's employees who were incompetent or who refused or neglected to obey the direction of the engineer in anything relating to the work.

The documents contemplated the danger of gas and provided means of ventilation except where other methods were approved by the engineer. The contractor was directed to employ proper and approved means of detecting gas. There was testimony, although disputed, that gas had been present in the shaft, as well as sand and water, when this portion of the project was temporarily abandoned in 1960.

As stated in Associated Engineers, Inc. v. Job (CA 8, 1966), 370 F.2d 633, 645:

"We do not underestimate the difficulty and perhaps the closeness of this issue. The contract language is not so clear as it might be. Perhaps it would have been helpful had the record contained evidence of the manner in which these REA form contracts in the past have been construed by these and other parties. In the absence of evidence of that kind, we are reduced to linguistic analysis with some assistance from cases construing similar agreements.

"We feel that the engineer, Associated, in agreeing to supervise the construction of the project, undertook more than an obligation to assure that the end product conformed to specifications. It was to see that construction was `expeditious and economical'; it was to supervise the `manner' in which materials were incorporated; it was to determine whether the owner's interest required that any employee of the contractor be removed; it could require the contractor to effect changes in the number of employees and in the number or kind of tools and equipment; and the `manner of construction' of the project was subject to its `inspection, tests and approval'. * * *

"Each of these provisions imposes upon the engineer an obligation to do more than assure conformity to specification."

In our opinion it was not error for the trial court to submit to the jury the question of Johnson & Anderson's responsibility to perform reasonable inspections.

The other claims of error raised by the appellants involve the submission of issues to the jury and the court's instructions regarding those issues. Due to our foregoing rulings, these questions do not require discussion.

Plaintiff also filed a cross-appeal claiming that the trial court erred by not computing interest on the judgment from July, 1962, the date of the filing of the complaint (declaration), in accordance with CLS 1961, § 600.6013, as amended by PA 1965, No 240 (Stat Ann 1968 Cum Supp § 27A.6013). This specific issue has been ruled upon by this Court in Swift v. Dodson (1967), 6 Mich.App. 480 and Ballog v. Knight Newspapers, Inc. (1967), 7 Mich.App. 273, contrary to the plaintiff's position.

Judgment affirmed. No costs, neither party prevailing in its entirety.

LESINSKI, C.J., and FENLON, J., concurred.