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Zittrain Torts Playlist Spring 2013

Richard M. Farwell, Jr., Administrator of the Estate of Richard Murray Farwell, Deceased, Plaintiff-Appellant, v. Donald Keaton et al., Defendants-Appellees.

Headnote

Should we expect partners in a joint activity—in this case, chasing after girls—to have a duty to protect and aid each other? If someone provides aid, should courts impose a duty on the aiding party to provide a certain standard of care for the injured party? Plaintiff and the defendant on appeal were friends. Their attempt to approach two girls resulted in six boys chasing the pair back to the parking lot and severely beating the plaintiff. Defendant escaped unharmed, but returned later for his friend. Rather than take the plaintiff to the hospital, defendant applied ice to his head, drove him around for approximately two-hours and eventually left the plaintiff in the driveway of his grandparents’ house. Plaintiff’s grandparents discovered him the next morning and took him to the hospital. The plaintiff died three days later of an epidural hematoma (bleeding inside the skull).

1
240 N.W.2d 217
2
396 Mich. 281
3

Richard M. FARWELL, Jr., Administrator of the Estate of Richard Murray Farwell, Deceased, Plaintiff-Appellant,

v.

Donald KEATON et al., Defendants-Appellees.

4
No. 2.
Supreme Court of Michigan.
April 1, Rehearing denied 397 Mich 958. [#21952]1976.
5

[240 N.W.2d 218] [396 Mich. 284] Young, O'Rourke, Bruno & Bunn, by James C. Bruno, Detroit, for plaintiff-appellant.

6

William G. Jamison, Martin, Bohall, Joselyn, Halsey, Rowe & Jamieson, P.C., Deftroit, for defendants-appellees.

7

LEVIN, Justice.

8

There is ample evidence to support the jury determination that David Siegrist failed to exercise reasonable care after voluntarily coming to the aid of Richard Farwell and that his negligence was the proximate cause of Farwell's death. We are also of the opinion that Siegrist, who was with Farwell the evening he was fatally injured and, as the jury found, knew or should have known of his peril, had an affirmative duty to come to Farwell's aid.[1]

9

[396 Mich. 285] I

10

On the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to return an automobile which Siegrist had borrowed from a friend who worked there. While waiting for the friend to finish work, Siegrist and Farwell consumed some beer.

11

Two girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage them in conversation; they left Farwell's car and followed the girls to a drivein restaurant down the street.

12

The girls complained to their friends in the restaurant that they were being followed Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but Farwell was severely beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied to Farwell's head. Siegrist then drove Farwell around for approximately two hours, stopping at a number of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around midnight Siegrist drove the car to the home of Farwell's grandparents, parked it in the driveway, unsuccessfully attempted to rouse Farwell, and left. Farwell's grandparents discovered him in the car the next morning and took him to the hospital. He died three days later of an epidural hematoma.

13

At trial, plaintiff contended that had Siegrist taken Farwell to the hospital, or had he notified someone of Farwell's condition and whereabouts, Farwell would not have died. A neurosurgeon testified that if a person in Farwell's condition is taken to a doctor before, or within half an hour after, consciousness is lost, there is an 85 to 88 per cent chance of survival. Plaintiff testified that Siegrist told him that he knew Farwell was badly injured and that he should have done something.

14

[396 Mich. 286] The jury returned a verdict for plaintiff and awarded $15,000 in damages. The Court of Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and that he neither knew nor should have known of the need for medical treatment.

15

II

16

Two separate, but interrelated questions are presented:

17

A. Whether the existence of a duty in a particular case is always a matter of law to be determined solely by the Court?

B. Whether, on the facts of this case, the trial judge should have ruled, as a matter of law, that Siegrist owed no duty to Farwell?

18

A.

19

'A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.' Prosser, Torts (4th ed.), § 53, p. 324.

20

The existence of a duty is ordinarily a question of law. However, there are factual circumstances which give rise to a duty. The existence of those facts must be determined by a jury.[2] In Bonin v. Gralewicz, 378 Mich. 521, 526--527, 146 N.W.2d 647, [240 N.W.2d 220] 649 (1966), this Court reversed a directed verdict of no cause of action where the trial court had determined [396 Mich. 287] as a matter of law that the proofs were insufficient to establish a duty of care:

21

'Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise. When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate resolution, and they must be accompanied by an appropriate conditional instruction regarding defendant's duty, conditioned upon the jury's resolution of the fact dispute.'

22

This same rule was stated more recently in Davis v. Thornton, 384 Mich. 138, 142, 180 N.W.2d 11, 13 (1970). 'The trial judge in this case determined the defendant owed the pliantiff no duty. We believe this conclusion could properly be made only by a jury.'

23

B.

24

Without regard to whether there is a general duty to aid a person in distress, there is a clearly recognized legal duty of every person to avoid any affirmative acts which may make a situation worse. '(I)f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff's interests.' Prosser, Supra, § 56, pp. 343--344. 'Where performance clearly has been begun, there is no doubt that there is a duty of care.' Id. 346.

25

In a case such as the one at bar, the jury must determine, after considering all the evidence, whether the defendant attempted to aid the victim. [396 Mich. 288] If he did, a duty arose which required defendant to act as a reasonable person.

26

'Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it,' Prosser, Supra, § 37, p. 205. Whether those facts have been proved is a question for the jury.

27

'Professor Green argues that it is impossible in the nature of things for the duty problem to be decided by the jury, for it the court sends the issue to the jury this 'necessarily operates as a ruling that there is a duty or else he would never have submitted the case to the jury at all.' But that is not so. As in the case of any other issue, the judge will leave the question to the jury if it is a debatable one, but the jury may decide that (for example) plaintiff was beyond the apparent scope of danger from defendant's conduct, and so beyond the scope of the duty to perform it carefully, even where they are quite ready to find defendant's conduct clearly below the standard of reasonable care.' 2 Harper & James, The Law of Torts, p. 1060.

28

There was ample evidence to show that Siegrist breached a legal duty owed Farwell. Siegrist knew that Farwell had been in a fight, and he attempted to believe Farwell's pain by applying an ice pack to his head. While Farwell and Siegrist were riding around, Farwell crawled into the back seat and laid down. The testimony showed that Siegrist attempted to rouse Farwell after driving him home but was unable to do so.

29

In addition, Farwell's father testified to admissions made to him by Siegrist:

30

'Q. Witness, just before the jury was excused, I asked whether you had any conversation with Mr. Siegrist after this event occurred. You answered, 'Yes, the day [396 Mich. 289] after in the living room of Mrs. Grenier's (the deceased's mother) home.' Then, the jury was excused, and we made [240 N.W.2d 221] a special record, and now I would like to ask you some questions that I asked and that you answered out of the presence of the jury.

'A. Yes.

'Q. What did Mr. Siegrist say, how did the conversation go?

'A. I asked him why he left Ricky (the deceased) in the driveway of his grandfather's home.

'Q. What did he say?

'A. He said, 'Ricky was hurt bad, I was scared.' I said, 'Why didn't you tell somebody, tell his grandparents?' He said, 'I know I should have, I don't know." (Emphasis added).

31

The question at trial came down to whether, siegrist acted reasonably under all the circumstances. 'The Law of negligence is that an actor is held to the standard of a reasonable man. The determination of the facts upon which the judgment of reasonableness is based is admittedly for the jury.' Davis v. Thornton, 384 Mich. 138, 142--143, 180 N.W.2d 11, 13 (1970).

32

The jury in this case found that Siegrist did not act reasonably, and that his negligence was the proximate cause of Farwell's death.

33

"'In considering the question whether defendant was entitled to a directed verdict, the testimony must be construed as strongly as possible in favor of the plaintiff. The specific inquiry is whether this Court can say, as a matter of law, giving to plaintiff's proofs the strongest probative force to which they are entitled, that the evidence was not sufficient to justify submitting to the jury the questions of defendant's negligence and its knowledge or notice of the situation."' Clark v. Dalman, 379 Mich. 251, 263, 150 N.W.2d 755 (1967).

34

[396 Mich. 290] III 

35

Siegrist contends that he is not liable for failure to obtain medical assistance for Farwell because he had no duty to do so.

36

Courts have been slow to recognize a duty to render aid to a person in peril.[3] Where such a duty has been found, it has been predicated upon the existence of a special relationship between the parties;[4] in such a case, if defendant knew or should have known of the other person's peril,[5] he [240 N.W.2d 222] [396 Mich. 291] is required to render reasonable care under all the circumstances.[6]

37

In Depue v. Flatau, 100 Minn. 299, 111 N.W. 1 (1907), the Supreme Court of Minnesota reversed an order of the trial court dismissing the cause of action and said that if the defendants knew their dinner guest was ill, it was for the jury to decide whether they were negligent in refusing his request to spend the night and, propping him on his wagon with the reins thrown over his shoulder, sending him toward home.

38

The Sixth Circuit Court of Appeals, in Hutchinson v. Dickie, 162 F.2d 103, 106 (C.A. 6, 1947), said that a host had an affirmative duty to attempt to rescue a guest who had fallen off his yacht. The host controlled the only instrumentality of rescue. The Court declared that to ask of the host anything less than that he attempt to rescue his guest would be 'so shocking to humanitarian considerations and the commonly accepted code of social conduct that the courts in similar situations have had no difficulty in pronouncing it to be a legal obligation.'

39

Farwell and Siegrist were companions on a social venture. Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself. Siegrist knew or should have known when he left Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find him before morning. Under these circumstances, to say that Siegrist had no duty to obtain medical assistance or at least to notify someone of Farwell's condition and whereabouts would be 'shocking to humanitarian considerations' and fly in the face [396 Mich. 292] of 'the commonly accepted code of social conduct.'[7] '(C)ourts will find a duty where, in general, reasonable men would recognize it and agree that it exists.'[8]

40

Farwell and Siegrist were companions engaged in a common undertaking; there was a special relationship between the parties. Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself he had an affirmative duty to come to Farwell's aid.

41

The Court of Appeals is reversed and the verdict of the jury reinstated.

42

T. G. KAVANAGH, C.J., and WILLIAMS, concurred with LEVIN, J. [#21948]J., concur.

43

took no part in the decision of this case. [#21949]LINDEMER and RYAN, JJ., not participating.

44

FITZGERALD, Justice (dissenting).

45

The unfortunate death of Richard Farwell prompted this wrongful death action brought by his father against defendant, David Siegrist, a friend who had accompanied Farwell during the evening in which the decedent received injuries which ultimately cause his death three days later. The question before us is whether the defendant, considering his relationship with the decedent and the activity they jointly experienced on the evening of August 26--27, 1966, by his conduct voluntarily or otherwise assumed, or should have assumed, the duty of rendering medical or other assistance to the deceased. We find that defendant had no obligation to assume, nor did he assume, such a duty.

46

[396 Mich. 293] The facts of the case are accurately set forth in the Court of Appeals opinion.

47

'Factually, it appears that, on August 26, 1966, Richard Murray Farwell, deceased eighteen-year-old son of the plaintiff, visited the home of his friend, David Siegrist, a sixteen-year-old; that evening they drove to a trailer rental lot, where Siegrist was returning an automobile he had borrowed from a friend who was employed by the rental agency.

48

'Siegrist and Farwell planned to wait in the car until the friend had finished work and then 'drive around,' stopping at various restaurants and drive-ins. While [240 N.W.2d 223] they were waiting, Seigrist estimated that they consumed 'four or five' beers each.

49

'Shortly before nine o'clock p.m., two teenage girls walked past the car. After an unsuccessful attempt to engage them in conversation, Farwell left the car and followed the girls; Siegrist got out of the car and followed Farwell.

50

'When the girls reached a restaurant a short distance down the street, they apparently complained to those present that they were being followed. Defendants Ingland, Brock, Donald Keaton, Daniel Keaton, and at least two others in the restaurant began to chase Farwell and Siegrist, both of whom ran back to the trailer lot.

51

'Siegrist escaped by ducking into the trailer rental office, where he requested those inside to assist Farwell. They stepped out of the office and were confronted by the group which had been chasing Siegrist and Farwell. The two groups faced each other, but no violence ensued, and the two groups scattered.

52

'It was then discovered for the first time that Farwell had been caught and beaten by those who had been pursuing him and Siegrist; Farwell was found underneath his automobile in the lot.

53

'Farwell was taken to the trailer rental office, where Siegrist gave him a plastic bag full of ice for his injuries. Shortly thereafter, Farwell and Siegrist left the rental office and, between ten o'clock p.m. and midnight, they visited four different drive-in restaurants. [396 Mich. 294] While enroute from the third to the fourth restaurant, Farwell stated that he wanted to lie down, climbed into the back seat, and went to sleep. Around midnight, Siegrist drove the car to the home of Farwell's grandparents, parked it in the driveway, and attempted to rouse Farwell. When the latter merely made a sound as if 'in a deep sleep', Siegrist left with a friend who had followed him to the grandparents' house. The next morning, Farwell was found by his grandparents, apparently taken to a hospital, and died of an epidural hematoma.

54

'At the close of plaintiff's proofs, defendant Siegrist moved for a directed verdict on the grounds that he had no duty to obtain medical assistance for Farwell as a matter of law. In the alternative, the motion was based upon the proposition that plaintiff failed to establish that any conduct on the part of Siegrist proximately caused Farwell's death. The motion was denied.' 51 Mich.App. 585, 587-588, 215 N.W.2d 753, 754.

55

Following the jury verdict of $15,000 in favor of the plaintiff, defendant, arguing that the verdict was inconsistent with the weight of the evidence, moved for and was denied a judgment notwithstanding the verdict. The decision of the trial court was reversed by the Court of Appeals which found that the defendant never assumed, voluntarily or otherwise, the duty of obtaining medical assistance for the deceased. The Court stated that the facts in no way indicated that defendant knew, or should have known, that immediate medical attention was required. Consequently, as a matter of law the Court determined that defendant was under no duty to obtain medical treatment for the decedent.

56

Plaintiff argues that once having voluntarily undertaken the duty of caring for decedent, defendant could not discontinue such assistance if, in so doing, he left the decedent in a worse position than when such duty was assumed. Defendant's [396 Mich. 295] knowledge of the seriousness of decedent's injury and the failure to advise decedent's grandparents, the close personal relationship that existed between defendant and the decedent, and the supposition that the decedent relied upon defendant for assistance leads plaintiff to conclude that defendant did not act 'with the reasonable prudence and care of a reasonable man in the same or like circumstances'. Defendant's position is that there was no volunteered assumption of duty to care for the safety of the decedent. He argues that the facts within his knowledge on the evening of August 26, 1966, and the evidence introduced at trial failed to establish that defendant should have seen that Richard Farwell [240 N.W.2d 224] had suffered a potentially fatal injury requiring immediate attention.

57

Defendant did not voluntarily assume the duty of caring for the decedent's safety. Nor did the circumstances which existed on the evening of August 26, 1966, impose such a duty. Testimony revealed that only a qualified physician would have reason to suspect that Farwell had suffered an injury which required immediate medical attention. The decedent never complained of pain and, in fact, had expressed a desire to retaliate against his attackers. Defendant's inability to arouse the decedent upon arriving at his grandparents' home does not permit us to infer, as does plaintiff, that defendant knew or should have known that the deceased was seriously injured.[1] [396 Mich. 296] While it might have been more prudent for the defendant to insure that the decedent was safely in the house prior to leaving, we cannot say that defendant acted unreasonably in permitting Farwell to spend the night asleep[2] in the back seat of his car.

58

The close relationship between defendant and the decedent is said to establish a legal duty upon defendant to obtain assistance for the decedent. No authority is cited for this proposition other than the public policy observation that the interest of society would be benefited if its members were required to assist one another. This is not the appropriate case to establish a standard of conduct requiring one to legally assume the duty of insuring the safety of another. Recognizing that legal commentaries have expressed moral outrage at those decisions[3] which permit one to refuse aid to another whose life may be in peril, we cannot say that, considering the relationship between these two parties and the existing circumstances, defendant acted in an unreasonable manner.[4]

59

[396 Mich. 297] Plaintiff believes that a legal duty to aid others should exist where such assistance greatly benefits society and only a reasonable burden is imposed upon those in a position to help. He contends further that the determination of the existence of a duty must rest with the jury where questions of foreseeability and the relationship of the parties are primary considerations.

60

It is clear that defendant's nonfeasance, or the 'passive inaction or a failure to take steps to protect (the decedent) from harm'[5] is urged as being the proximate cause of Farwell's death. We must reject plaintiff's proposition which elevates a moral obligation to the level of a legal duty where, as here, the facts within defendant's knowledge in no way indicated that immediate medical attention was necessary and the [240 N.W.2d 225] relationship between the parties imposes no affirmative duty to render assistance. See Steckman v. Silver Moon, Inc., 77 S.D. 206, 90 N.W.2d 170, 64 A.L.R.2d 1171 (1958). The posture of this case does not permit us to create a legal duty upon one to render assistance to another injured or imperiled party where the initial injury was not caused by the person upon whom the duty is sought to be imposed.

61

The relationship of the parties and the question of foreseeability does not require that the jury, rather than the court, determine whether a legal duty exists. We are in agreement with the general principle advanced by plaintiff that the question of negligence is one of law for the court only when the facts are such that all reasonable men must draw the same conclusion.[6] However, this principle becomes operative only after the court establishes [396 Mich. 298] that a legal duty is owed by one party to another. Prosser's analysis of the role of the court and jury on questions of legal duty, recently quoted in Moning v. Alfono, Mich. (1975), bears repeating:

62

'The existence of a duty. In other words, whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other--or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. * * * A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant.' Prosser, Torts (4th ed.), § 37, p. 206.

63

Michigan recognizes that the question of duty is to be resolved by the court rather than the jury. Fischer v. Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752 (1970).

64

The Court of Appeals properly decided as a matter of law that defendant owed no duty to the deceased.

65

We would affirm.

66

COLEMAN, concurred with Fitzgerald, J. [#21945]J., concurs.

67

[1] The trial judge instructed the jury to determine whether Siegrist had voluntarily undertaken to render aid and, if he had, whether he acted reasonably in discharging that duty. Whether Siegrist be charged with the duty of a voluntary rescuer or the duty of a companion, the standard of care--whether he acted reasonably under all the circumstances--is the same and the instruction given was adequate.

68

[2] Of course, merely labeling a question as one of 'law' or 'fact' does not solve the dilemma.

69

'No two terms of legal science have rendered better service than 'law' and 'fact' * * *. They readily accommodate themselves to any meaning we desire to give them * * *. What judge has not found refuge in them? The man who could succeed in defining them would be a public enemy.' Green, Judge and Jury, p. 270.

70

[3] '* * * The law has persistently refused to recognize the moral obligation of common decency and common humanity, to come to the aid of another human being who is in danger * * *. The remedy in such cases is left to the 'higher law' and the 'voice of conscience,' which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or to compensate the victim.' Prosser, Torts (4th ed.), § 56, pp. 340--341.

71

'At the other end of the spectrum are cases where the peril to the plaintiff has come from a source in no way connected with defendant's conduct or enterprises or undertakings, past or present, but where the defendant has it in his power by taking some reasonable precaution to remove the peril. Here the law has traditionally found no duty, however reprehensible and unreasonable the defendant's failure to take the precaution may be. * * * There is no legal obligation to be a Good Samaritan.' Harper & James, The Law of Torts, § 18.6, p. 1046.

72

[4] Carriers have a duty to aid passengers who are known to be in peril (Yu v. New York, N.H. & H.R. Co., 145 Conn. 451, 144 A.2d 56 (1958)); employers similarly are required to render aid to employees (Anderson v. Atchison, T. & S.F.R. Co., 333 U.S. 821, 68 S.Ct. 854, 92 L.Ed. 1108 (1948); Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 50, 25 So. 793 (1898); Carey v. Davis, 190 Iowa 720, 180 N.W. 889 (1921)); innkeepers to their guests (West v. Spratling, 204 Ala. 478, 86 So. 32 (1920)); a jailer to his prisoner (Farmer v. State, 224 Miss. 96, 79 So.2d 528 (1955)).

73

Maritime law has imposed a duty upon masters to rescue crewmen who fall overboard. Harris v. Pennsylvania R. Co., 50 F.2d 866 (C.A. 4, 1931).

74

See Prosser, Torts, Supra; Harper & James, Supra, pp. 1048-1049.

75

[5] In the following cases the court specifically mentions not only the defendant's knowledge of but also his apparent indifference toward the other person's peril: Southern R. Co. v. Sewell, 18 Ga.App. 544, 90 S.E. 94 (1916); Adams v. Chicago G.W.R. Co., 156 Iowa 31, 135 N.W. 21 (1912); Cincinnati, N.O. & T.P.R. Co. v. Marrs' Administratrix, 119 Ky. 954, 85 S.W. 188 (1905); Fagg's Administrator v. Louisville & N.R. Co., 111 Ky. 30, 63 S.W. 580 (1901); Depue v. Faltau, 100 Minn. 299, 111 N.W. 1 (1907); Whitesides v. Southern R. Co., 128 N.C. 229, 38 S.E. 878 (1901).

76

[6] Prosser, Supra, p. 343.

77

[7] Hutchinson v. Dickie, 162 F.2d 103, 106 (C.A. 6, 1947).

78

[8] Prosser, Supra, § 53, p. 327.

79

__________

80

[1] It is at this point--plaintiff's unsuccessful attempt to arouse the decedent in the driveway--that counsel, during oral argument, believes that defendant volunteered to aid the decedent. Yet no affirmative act by defendant indicated that he assumed the responsibility of rendering assistance to the decedent. Consequently, there could be no Discontinuance of aid or protection which left decedent in a worse position than when the alleged 'volunteering' occurred. This would make operative the concession of plaintiff that where no duty is owed, the refusal to act cannot form the basis for an action in negligence.

81

[2] Defendant had no way of knowing that it was the severity of the head injury suffered by the decedent which caused him to crawl in the back seat and apparently fall asleep. The altercation combined with the consumption of several beers could easily permit defendant to conclude that decedent was simply weary and desired to rest.

82

[3] The most notable of which include: Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301, 56 A.L.R. 1123 (1928); Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); and Hndiboe v. McCarthy, 114 Ga.App. 541, 151 S.E.2d 905 (1966).

83

[4] Were a special relationship to be the basis of imposing a legal duty upon one to insure the safety of another, it would most probably take the form of 'co-adventurers' who embark upon a hazardous undertaking with the understanding that each is mutually dependent upon the other for his own safety. There is no evidence to support plaintiff's position that decedent relied upon defendant to provide any assistance whatsoever. A situation where two persons are involved in an altercation provoked by the party ultimately injured, the extent of which was unknown to the other, whose subsequent conduct included drinking beer and a desire to retaliate against his attackers would not fall within this category.

84

[5] Prosser, Torts (4th ed.), § 56, pp. 338--339.

85

[6] McCullough v. Ward Trucking Co., 368 Mich. 108, 117 N.W.2d 167 (1962); Barnbee v. Spence Brothers, 367 Mich. 46, 116 N.W.2d 49 (1962).