Morris v. Lewis Mfg. Co.

• Decision Date: 05 September 1951
• Docket Number: No. 67,67
• Citation: 28 A.L.R.2d 214,331 Mich. 252,49 N.W.2d 164
• Parties: , 28 A.L.R.2d 214 MORRIS v. LEWIS MFG. CO. et al.
• Court: Michigan Supreme Court

Page 164

49 N.W.2d 164

331 Mich. 252, 28 A.L.R.2d 214

MORRIS v. LEWIS MFG. CO. et al.

No. 67.

Supreme Court of Michigan.

Sept. 5, 1951.

John Wendell Bird, Lansing, for plaintiff and appellant.

Smith & Brooker, Bay City, for defendants and appellees.

Hubbard, Fox & Thomas, Lansing, for defendants and appellees, Aldrich.

Before the Entire Bench.

SHARPE, Justice.

Plaintiff brought action against defendants Clinton D. Aldrich, Doris Aldrich and Lewis Manufacturing Company for the death of Walter R. Morris, Jr., a minor, age 7, who was killed on December 29, 1946, while playing on property owned by defendants Aldrich.

On December 29, 1946, defendants Clinton D. Aldrich and Doris Aldrich were the owners of a lot in the city of Lansing, Michigan, upon which they were building a house. Upon that date, the house had been partially completed. Piled upon the property were various building materials, including lumber which had been purchased from Lewis Manufacturing Company. The lot was accessible to children and for some time had been used by children as a playground. On or prior to the day in question, a load of lumber had been delivered and piled by an employee of defendant lumber company in such a manner that it could be dislodged easily. Plaintiff's son came upon the property to play and while so playing the lumber fell upon him causing injuries, resulting in his death a short time later.

Plaintiff, after being appointed administrator of his son's estate, commenced an action to recover damages for the death of his son. Defendants Aldrich filed a motion to dismiss plaintiff's declaration for the reason that said declaration is insufficient in substance to state a cause of action either under the common law or the statutes of the State of Michigan against these defendants or either of them.

The cause came on for hearing on defendants' Aldrich motion to dismiss. After arguments, the trial court entered and order dismissing plaintiff's declaration, holding that if the child was a trespasser or licensee, defendants Aldrich were under no obigation to keep the premises safe for use of children as a playground. The court also held that a pile of lumber is not an 'attractive nuisance.' The declaration was amended by adding an allegation that the boy was an invitee. All defendants filed separate motions to dismiss for the same reasons as in the prior motion. They were granted by the trial court.

Plaintiff appeals and urges that on a motion to dismiss, material allegations of fact in a declaration and the necessary inferences to be drawn therefrom must be considered as true as well as being viewed in the light most favorable to plaintiff; and that the amended declaration including the following allegations states a cause of action:

'That the said piles of lumber, building materials, and supplies negligently and carelessly piled and erected as aforesaid were open to access by said plaintiff's decedent and readily accessible to him and within his reach; that the said lumber and other materials and supplies were piled in such a way as to make them especially attractive to the deceased and to other children, and that the said lumber and materials and other construction upon said property of the defendants Aldrich as an attractive and dangerous instrumentality did in fact attract the said deceased to danger and to his death as hereinafter set out. * * *

'That because of the circumstances aforesaid, and the fact that said deceased and other children, his playmates, had used the said premises as a playground previously for a considerable period, and had been permitted with the knowledge and consent of the said defendants, their agents and employees to continue to use said premises as a playground after digging thereon had been commenced and construction was going on, the said deceased, at the time of the accident which caused his death, was an invitee as to whom the said defendants owed the duty of adequate supervision, warning, and exercise of due care in the piling and maintenance of said lumber, material, and supplies in such manner that said piles would not collapse and injure plaintiff's decedent or other invitees; that, finally, deceased was not a mere licensee or trespasser, but an invitee as aforesaid to whom defendants owed as higher standard of duty than to a mere trespasser or licensee.'

The substance of these allegations contained in plaintiff's amended declaration is that under the facts alleged the child was an invitee to whom defendants owed a higher standard of duty than is owed to a mere trespasser or licensee.

The amended declaration alleges that defendant lumber company delivered lumber and piled it upon the lot along with other building materials; that children played on the lot and in and about the building materials with the knowledge and consent of d...