Where a contractor ignores plans and specifications for the painting of aggregate block and follows a method of his own, it becomes a question of fact for decision by the trial judge in the absence of a jury as to whether the plans and specifications contained the full terms of the contract and the interpretation of whether or not there had been a compliance with the contract by the defendant. We do not reverse with reference to findings of fact in a law case where the trial court decides disputed testimony unless it can be said the testimony clearly preponderates against the judgment of the lower court. Woodard v. Saginaw City Lines, Inc., 365 Mich. 273; Insealator, Inc., v. Wallace, 357 Mich. 233; Harden v. Widovich, 359 Mich. 566. A reading of the record and appendices in this case leads us to the conclusion there was sufficient evidence to warrant the trial judge's finding for the plaintiffs.

It became a fact question for decision by the trial judge in the absence of a jury as to whether a reasonably prudent bus driver would have acted in the manner this bus driver acted under the same or similar circumstances, in view of the degree of care owed the passenger — a business invitee. We do not reverse with reference to findings of fact in a law case where the trial court decides disputed testimony, unless it can be said the testimony clearly preponderates against the judgment of the lower court. Insealator, Inc., v. Wallace, 357 Mich. 233; Harden v. Widovich, 359 Mich. 566. There appears to be sufficient evidence in the record, if believed, to warrant the trial judge in finding for plaintiff.

Case remanded to circuit judge for assessment of damages. Greenough v. Greenough, 354 Mich. 508; Harden v. Widovich, 359 Mich. 566 and 361 Mich. 422. Costs to appellees. As added October 30, 1956, to become effective January 2, 1957.

Section 6 of Court Rule No 67 (1945) clearly states our requirements. In Miller v. Allen, 352 Mich. 95; Wilks v. Kempf, 352 Mich. 445, at pp 451-453; Greenough v. Greenough, 354 Mich. 508, at pp 521-528; Harden v. Widovich, 359 Mich. 566 at pp 569 and 570, this Court has clearly stated the consequences, both to the errant litigants and to the appellate process, of failure to comply with our rules. As amended.

This Court has repeatedly stated it will not reverse the judgment of the lower court unless the evidence clearly preponderates against the factual findings of the trial court. Attwood Brass Works v. Aero-Motive Manfg. Co., 361 Mich. 236; Harden v. Widovich, 359 Mich. 566. Here plaintiffs had the burden of proof to establish negligence on defendant's part which was the proximate cause of the damage. The lower court expressly found they failed to meet this burden.

Certainly there was testimony from which the court could find that plaintiffs had this notice. We do not reverse with reference to findings of fact in a law case where the trial court decides disputed testimony, unless it can be said that the testimony clearly preponderates against the judgment of the lower court. Insealator, Inc., v. Wallace, 357 Mich. 233; Harden v. Widovich, 359 Mich. 566. We cannot say upon this record that that is true.

The case will, accordingly, be remanded to the circuit court for investigation, recommendation and report to us under Court Rule No 70, § 5 (1945). See Greenough v. Greenough, 354 Mich. 508; Harden v. Widovich, 359 Mich. 566, report of circuit judge approved and adopted, 361 Mich. 422. See amendments, 347 Mich xxii, 355 Mich xiv. — REPORTER.

But plaintiff's appeal presents several questions for review which assume facts contrary to the trial court's findings of fact. Each of the trial judge's fact determinations, thus obliquely challenged, is supported by a clear preponderance of the evidence and will not be disturbed by this Court on review. Harden v. Widovich, 359 Mich. 566. Plaintiff, however, raises another question for review which merits comment. It contends: "The trial court found that plaintiff admitted defendant's allegation concerning the `custom in the trade' as controlling the question of acceptance in this case, but he failed to consider plaintiff's amended * * * [reply to defendant's answer] which denied the materiality of the `custom of the trade' because the relationship of the parties here was covered by written contractual documents."

Supplemental opinion filed September 26, 1960. On remand from Supreme Court for investigation, recommendation, and report to the Supreme Court pursuant to Court Rule No 70, § 5 (1945). See 359 Mich. 566, 571. Kelley Kelley, for plaintiffs-appellees.

We retain jurisdiction and remand the case to circuit court for determination of the amount of punitive damages. See Greenough v Greenough, 354 Mich. 508, 527-528; 93 N.W.2d 391 (1958); Harden v Widovich, 359 Mich. 566, 570-571; 103 N.W.2d 478 (1960), after remand, 361 Mich. 422; 105 N.W.2d 224 (1960); Thomson v City of Dearborn, 362 Mich. 1, 5; 106 N.W.2d 129 (1960); Harvey v Lewis, 364 Mich. 493, 494; 112 N.W.2d 500 (1961). Affirmed and remanded.