Love v. Brumley , 30 Mich. App. 61 ( 1971 )

30 Mich. App. 61 (1971) 186 N.W.2d 19

LOVE
v.
BRUMLEY

Docket No. 8857.

Michigan Court of Appeals.

Decided January 22, 1971.

Leitson, Dean, Dean, Segar & Hart, for plaintiffs.

Lacey & Jones (by William Smith), for intervenor plaintiff.

Martin, Bohall, Joselyn, Halsey & Rowe, for defendant.

Before: QUINN, P.J., and DANHOF and CARROLL,^[*] JJ.

DANHOF, J.

This is a personal-injury construction-site negligence action by the employee of a general contractor against a subcontractor. The principal issue on appeal is the application of the doctrine of assumption of risk. This was raised by the defendant as an affirmative defense in his answer. The trial court denied repeated motions to strike that defense.

This case was tried in April 1964, with instructions to the jury that if they found that plaintiff Earl Love was warned of the condition of the wall, then the jury could find that Earl Love had assumed the risk of walking on that wall. The jury returned a verdict of no cause of action in favor of the defendant.

Nearly a year later the Michigan Supreme Court held in Felgner v. Anderson (1965), 375 Mich. 23, 55, that the doctrine of assumption of risk was properly applicable only in certain defined areas, not here pertinent. The language of the Court made it clear that prospective effect was to be given its holding, without stating the exact time for the effectiveness, and the cases which followed have not made an exact determination of that time, Carey v. Toles (1967), 7 Mich. App. 195, 203.

One might have expected such a decision in Carey because Felgner, supra, was decided after the trial and closing arguments in Carey, but before the charge to the jury was given. Nevertheless, the Carey Court avoided setting the effective date of Felgner and held instead that on the facts of the case the doctrine was inapplicable.

Unlike the Carey case, the doctrine of assumption of risk was applicable to the facts of the present case if the jury found from the conflicting testimony that Earl Love was warned of the condition of the wall. Therefore, we must determine if Felgner has any application to cases tried before March 1, 1965, the date of the decision in Felgner. We hold that it does not apply retroactively so as to require the retrial of cases decided before March 1, 1965.

Plaintiffs also argued that it was error to permit evidence that plaintiff Earl Love's employer, a non-assessable party, was guilty of negligence. Reason and logic dictate that a defendant should not be precluded from placing the liability for an accident elsewhere. See DePriest v. Kooiman (1966), 2 Mich. App. 431, aff'd (1967), 379 Mich. 44. It was proper for the trial court to admit such evidence.

Plaintiffs' other issue on appeal is whether it was error for the trial judge to admit opinion testimony that it is "safer to use scaffolding" than "to walk walls". We hold that the testimony was relevant and competent. There was no error in its admission.

Affirmed.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.