Welsh v. Ohanesian

Kelly, J. Plaintiff, a tenant, was injured in a fall which occurred on the front steps of defendant’s building. On the date of the accident (June 13, 1960) there was only one handrail on the stairs in question. In his action to recover damages plaintiff alleged general grounds of negligence and, specifically, that defendant violated section 42 of the State housing law1 which requires handrails on both sides of any stairway in multiple dwellings. Defendant’s answer denied such allegations and asserted contributory negligence as an affirmative defense. At the close of plaintiff’s proofs, defendant made a motion for directed verdict and the court reserved judgment. The case went to the jury solely on the basis of the lack of a handrail on the stairs. The trial judge charged the jury that the failure to have a handrail on both sides of the stairs was negligence per se as a violation of the State housing law, and the jury returned a verdict of $3,000 for plaintiff. After hearing argument of counsel the court granted defendant’s motion for judgment non obstante veredicto, stating that section 42 of the State housing law did not apply to defendant’s building, — 28 — as defendant’s building was constructed at least 15 years before the enactment of tbe housing law. Plaintiff moved the court to set aside the judgment non obstante veredicto or, in the alternative, to grant a new trial. Both motions were denied and the court of appeals has affirmed the judgment. See Welsh v. Ohanesian, 1 Mich App 290. On appeal plaintiff urges two points: First, that the State housing law (effective August 10, 1917) applies retrospectively to defendant’s building, which was constructed in about 1900; and, second, that the judgment non obstante veredicto deprived plaintiff of having the jury pass upon the question of whether defendant was guilty of common-law negligence. When originally enacted in 1917 the State housing law was divided into six articles, as follows: Article I — General Provisions, §§ 1-10; Article II — Dwellings Hereafter Erected, §§ 11-50a; Article III — Alterations, §§51-64; Article IV — Maintenance, §§ 65-88; Article V — Improvements, § § 89-97 ; Article VI — Requirements and Remedies, §§ 98-117. Appellant calls attention to the fact that “originally, in 1917 the housing act was enacted with 40 subsections which had 40 statutes involved in it,” and that the words “dwellings hereafter erected” were contained in each of the sections of article 2; that subsequently five sections, including section 42, which required handrails on both sides of any stairway in multiple dwellings, eliminated the words “in dwellings hereafter erected.” Appellant contends the appellate court’s opinion “completely negates the whole concept of the legislature” by finding that: — 29 — “Appellant’s argument that by the elimination of the words ‘hereafter erected,’ the legislature intended to make section 42 applicable to all multiple dwellings, regardless of when built, is untenable. In view of the title of the article in which these words appear, their removal merely eliminated a redundancy.” Welsh v. Ohanesian, 1 Mich App 290, 293. The importance of the title to the act in relation to all the sections under the title is commented upon in 1 Sutherland Statutory Construction (3d ed), § 1709, p 299, as follows: “Under the constitutional provision, a title is an indispensable part of every statute, and the expression of the subject of the act must be found, if at all, in the words of the title.” The Michigan Constitution of 1908, art 5, § 21, required that an act shall have but “one object, which shall be expressed in its title,” and this requirement of the Constitution was commented upon in Vernor v. Secretary of State, 179 Mich 157 (Ann Cas 1915D 128), where it was stated at page 160: “What is the constitutional test? We think it is that a title must embrace the object of the act, and • the body of the act must not be inconsistent with the title.” Likewise, in State Mutual Rodded Fire Insurance Co. v. Foster, 267 Mich 118, 121, it was said: “The body of the act must not contain provisions contrary to or not germane to the object stated in the title, since the title gives notice that no matters except those which it indicates will he found in the body.” This finding that the body of the act must not be , inconsistent with the title was also approved in — 30 — Arnold v. Ogle Construction Company, 333 Mich 652, 661: “The fact that the title was not changed except to cover the new provisions added to the act clearly indicates that the legislature did not intend to otherwise change the law.” The section in question (CL 1948, § 125.442 [Stat Anil 1958 Rev § 5.2813]) is not confined to the provision in regard to handrails being provided on both sides of the stairs, as the first paragraph of this section deals with grades, treads, and risers of stairs and their height, measurements, and proportions; the second paragraph deals with vertical rise of stairways; the third paragraph with length and width of landings and distance between risers on landings; the fourth paragraph deals with measurement of winders and stairs and has but one sentence that is most pertinent to this appeal, namely: “Hand-rails shall be provided on both sides of all stairs.” We stated in In re Davis’ Estate, 330 Mich 647, at page 651: “It is a fundamental rule of law that the legislature must give a clear, direct and unequivocal expression of its intent to that effect if the statute is to have retroactive effect.” We quote with approval from the trial court’s opinion granting motion for judgment non obstante veredicto and denying motion for new trial, as follows : “Had the legislature wished to make effective immediately CL 1948, § 125.442 (Stat Ann 1958 Rev § 5.2813), they could have done so easily by the. use of appropriate language, such as:. This amendment shall be effective immediately and shall apply to existing structures. — 31 — “This they have not done. Or, if the legislature had wished to make the handrail requirement applicable to existing structures, the amendment could have been placed under article V, Improvements (see In re Davis’ Estate, 330 Mich 647). “Finally, we are persuaded to our conclusion, also, by studying sections appearing immediately after the subject sections, CL 1948, §§ 125.443-125.447, 125.450a (Stat Ann 1958 Rev §§ 5.2814-5.2818 and 5.2822), all of which, it is clear, apply only to buildings hereafter erected. “It is therefore held that the amendment does not apply to structures existing at the time of passage, that is, 1923, and that plaintiff’s motion for judgment non obstante veredicto must be granted, without costs.” The title to article 2 has remained “Dwellings Hereafter Erected” from its original enactment down to the present time. The appellate court did not err in holding (p 293): “The trial court properly held section 42 did not apply to defendant’s rooming house.” Appellant’s contention that the judgment non obstante veredicto deprived him of having the jury pass upon all justiciable issues is also without merit. The question is more accurately presented by appellee: “Where plaintiff-appellant agreed at the time of trial that the case should go to the jury solely on the basis of a lack of handrail on the stairs in question, and made no objection to the charge, can plaintiff-appellant claim error in the charge?” Appellant, in his statement of facts, admits that: “Plaintiff agreed that the matter should go to the jury solely on the basis of the lack of a handrail on the stairs in question.” Whether other issues could have been presented to the jury cannot be argued on appeal since the jury charge was not objected to at the time of trial. — 32 — See GCR 1963, 516.2; Salvatore v. City of Harper Woods, 372 Mich 14, 19. The decision of the court of appeals is affirmed. Costs to appellee. Dethmers, Black, and O’Hara, JJ., concurred with Kelly, J. Footnotes [1] CL 1948, § 125.442 (Stat Ann 1958 Key § 5.2813).