Judges: Bird, Brooke, Kuhn, McAlvay, McÁlivay, Moore, Ostrander, Steere, Stone
Filed Date: 12/20/1913
Status: Precedential
Modified Date: 9/8/2022
Bird, J.
(concurring). I agree with Mr. Justice McAlvay that the case should be reversed, but I think the reversal should be placed upon the ground that Superintendent Chandler furnished or used defective and unsuitable material in the erection of the scaffold. As to this act, to wit, of furnishing materials to make a reasonably safe place for plaintiff, he was acting for the master with respect to a nondelegable duty. Van *652Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572). In the work of constructing the scaffold, had proper and suitable materials been furnished, his act was that of a fellow-servant. Beesley v. F. W. Wheeler & Co., 108 Mich. 196 (61 N. W. 658, 27 L. R. A. 266). The defendant made no showing that other and more suitable materials were furnished which might have been used for the support of the stringer in place of the decayed 12x12. In the absence of such showing on the part of the defendant, the presumption is that the materials used were the materials furnished, and the failure in this regard was the failure of the master.