Bluemer v. Saginaw Central Oil & Gas Service, Inc., 1

• Decision Date: 06 June 1959
• Docket Number: No. 1,A,1
• Citation: 356 Mich. 399,97 N.W.2d 90
• Parties: Marvin K. BLUEMER, Plaintiff and Appellant, v. SAGINAW CENTRAL OIL & GAS SERVICE, INC., a Michigan Corporation, Defendant and Appellee. pril Term.
• Court: Michigan Supreme Court

Page 90

97 N.W.2d 90

356 Mich. 399

Marvin K. BLUEMER, Plaintiff and Appellant, v. SAGINAW CENTRAL OIL & GAS SERVICE, INC., a Michigan Corporation, Defendant and Appellee.

No. 1, April Term.

Supreme Court of Michigan.

June 6, 1959.

Martin & Martin, Saginaw, for appellant.

Weadock & Montgomery, Saginaw, for appellee.

Before the Entire Bench.

CARR, Justice.

This is an action for damages for personal injuries. The material facts are not in dispute but the parties disagree as to the inferences that may be drawn therefrom. The defendant corporation being the owner of certain premises in the city of Saginaw, Michigan, constructed thereon, prior to the events involved in the instant case, a gasoline service station. Said place of business was designed for use in the sale of gasoline, lubricating oils, and other products incidental to the use and repair of automobiles. Under date of November 1, 1949, it leased the premises in question to Gerald Machul to be used for the purposes for which the premises were intended. The lessee went into possession of the property and conducted business in accordance with the terms of the leasing agreement, operating under the name of 'Gerry's Super Service.'

On February 26, 1950, the plaintiff in the instant case went to the service station for the purpose of purchasing gasoline, and did so. It was his claim on the trial that he entered the building with the intention of going to the office and making payment there for his purchase. This necessitated his going through a passageway in which there was a trap door approximately three feet in width and seven feet in length, placed and intended for the purpose of permitting access to the basement where the heating plant for the building was located. Plaintiff claims that he was not aware at the time of the existence of the trap door, although he had gone through the passageway on prior occasions. He opened the door leading to the office and undertook to proceed, without noticing that the trap door was open. The result was a fall of several feet causing injuries of a severe nature, for which plaintiff seeks damages in this action. It was the claim of plaintiff on the trial that the open entrance to the basement was not guarded in any way, that there was no warning posted or otherwise given of the existence of the trap door, and that, because of the absence of sufficient light, he did not discover the danger.

The declaration filed in the cause on behalf of plaintiff alleged in the first count that the defendants, the lessor and the lessee, were conducting business on the premises, and that plaintiff was the invitee of each, that it was the duty of the defendants to maintain the premises in a reasonably safe condition for use by members of the public entering the station for business purposes, that such duty was owing to plaintiff, and that defendants were guilty of negligence constituting the proximate cause of the accident. A second count in the plaeding averred in substance that the entrance to the basement was constructed and maintained by the defendants in such manner as to constitute a continuing and inherent danger to the safety of persons properly on the premises, that the defendants were charged with knowledge of the danger and hazardous condition, of which plaintiff did not know, and that defendants failed in their duty to warn him by appropriate means of such condition or to provide proper safeguards.

At the conclusion of the proofs on the trial counsel for defendant Saginaw Central Oil & Gas Service, Inc., moved for a directed verdict in its favor on the ground that the codefendant, Machul, was in sole possession and control of the station in which plaintiff was injured, that he was the tenant of the premises, and that the landlord was not in possession or control of the station or of the business. The motion was granted and verdict directed accordingly. The case was submitted to the jury as to the liability of defendant Machul, and a verdict returned in the sum of $7,000. Plaintiff has appealed from the judgment entered in favor of the Saginaw Central Oil & Gas Service, Inc., claiming that the trial judge was in error under the proofs in the case in refusing to submit his right to recover damages from said defendant.

As before noted, the first count of the declaration filed by plaintiff was based on the claim that the business of operating the filling station was conducted by both defendants, that plaintiff was on the premises as their invitee, and that they breached the duty owing to him. It is not disputed that the trap door was left open on the occasion in question by an employee of the tenant. That such act was negligent is not open to question. It is contended on behalf of appellant that the appellee was under the circumstances disclosed by the proofs interested in the carrying on of the business. Emphasis is placed on the fact that gasoline and other products sold by the tenant were purchased, in accordance with an agreement, from appellee, and that, in effect, Machul was acting not merely for himself but for the other defendant as well in the carrying on of the business.

The precise nature of the relation created by the lease requires consideration of the instrument as executed by the parties, and apparently observed in the actual conduct of the business. Omitting formal parts, the instrument reads as follows, the appellee being designated as the party of the first part and the tenant as the party of the second part:

'The party of the first part agrees to lease to the party of the second part for the period of one year, the gasoline filling station and vacant property in the rear of 432 So. Washington Avenue in Saginaw, Michigan with the exception of a driveway right along the extreme easterly line of said vacant property, together with the equipment which is a part of the station. An inventory to become a part of this lease. The rental on the above described property to be $75.00 per month payable in advance. The first payment to be made upon the execution of this lease, the second payment to be made December 1, 1949 and subsequent payments the first of each month until this lease expires.

'The party of the second part is to have the option of renewal of this lease for a term on one year with a maximum of $25.00 per month increase in rental.

'The party of the first part agrees to maintain and keep in repair the building and equipment on the premises.

'The party of the second part agrees to operate said property as a gasoline filling station and render the regular services commonly found at a gasoline service station, namely--lubrication, tire repairs and minor repairs to motor vehicles. To keep the premises clean and orderly at all times and replace all broken glass.

'The party of the second part agrees as part of the lease to purchase his entire requirements of gasoline, motor oils and lubricants from the Saginaw Central Oil & Gas Service, Inc., its successors or assigns during the term of this lease. Failure to pay the rent on the above described property makes this lease void.'

It will be noted that the agreement did not reserve to the landlord the right to a control of either the premises or the business. The obligation assumed by it to maintain and keep in repair the building and equipment leased to Machul may not be construed as a reservation of such right of control. The operation of the filling station involving the rendition of services to the public was expressly assumed by the tenant, who was further charged with the duty of keeping the premises 'clean and orderly' at all times. The latter provision may be regarded as requiring the tenant to keep the trap door closed. Clearly an open trap door, so situated as to constitute a hazard to those using the premises, does not constitute operation in an orderly manner. The nature of the obligations assumed by the tenant under the lease was such as to indicate an intention that control of the business and of the premises should rest with him. The provision with reference to the purchase of gasoline and other products sold at the station does not affect the issue as to the right to control the operation of the business and the premises designed therefor.

In Samuelson v. Cleveland Iron Mining Company, 49 Mich. 164, 13 N.W. 499, the action was brought to recover damages for personal injury resulting in the death of plaintiff's intestate. Liability was asserted against defendant for failure to properly maintain roof supports in the mine, which was at the time being worked under written contract with a third party. Under the contract the mine was required to be worked in a careful and prudent manner and to the satisfaction of the owner's superintendent, and the expense of restoring it to proper condition in the event the party operating under the contract failed to do so was declared to be the liability of such party. It was specifically stated in the agreement that the relationship created was that of 'contractor and contractee', and not of master and servant. It was further specified that the operating party should guard against dangerous conditions developing from time to time, and should assume all risks of danger or accident from whatever cause arising, exercising proper precautions in connection with the operation of the mine. This Court affirmed judgment for defendant on a directed verdict on the ground that the proofs did not show that a hazardous condition existed at the time the contract for the working of the mine was made, and that the owner had not retained charge and control of the mine carrying with it responsibility for the negligent failure to guard against dangers.

In Brown v. Standard Oil Co., 309 Mich. 101, 14 N.W.2d 797, an action was brought by the plaintiff administrator to recover damages for injuries sustained by his intestate who was employed in a gasoline service station owned by defendant Standard Oil Company and...