Dombrowski v. Gorecki

• Decision Date: 20 December 1939
• Docket Number: No. 1.,1.
• Citation: 291 Mich. 678,289 N.W. 293
• Parties: DOMBROWSKI v. GORECKI.
• Court: Michigan Supreme Court

291 Mich. 678

289 N.W. 293

DOMBROWSKI

v.GORECKI.

No. 1.

Supreme Court of Michigan.

Dec. 20, 1939.

Action by Jerome Dombrowski, an infant, by Julius Dombrowski, his next friend, against Pelagia Gorecki and another for injuries sustained in a fall through an open grating on a sidewalk abutting defendants' premises. From an order dismissing the action as against the named defendant, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Robert M. Toms, judge.

Argued before the Entire Bench.

Charles M. Weingarden, of Detroit (Bresnahan & Groefsema, of Detroit, of counsel), for plaintiff and appellant.

Monaghan, Crowley, Clark & Kellogg, of Detroit, for defendant and appellee.

SHARPE, Justice.

Plaintiff, Julius Dombrowski, as the next friend of Jerome Dombrowski, an infant, brought suit in the circuit court of Wayne county against Joseph Gorecki and Pelagia Gorecki, his wife, in which it is charged that on the 20th day of October, 1937, the defendants were the owners of a building in the city of Detroit; that the defendants conducted a grocery store in the lower floor and basement of the building; that there is a concrete sidewalk adjacent to one side of the building; that into this sidewalk there is an iron grate so constructed that it can be opened for the purpose of lowering merchandise into the basement of the building; that on the day above mentioned at about the hour of 8 p. m., plaintiff's son of age of 12 years while walking along said sidewalk fell into the opening and received severe injuries.

It is charged that it was negligence on the part of defendants to allow the grate to remain open without setting up suitable danger lights in order to warn the walking public that a danger existed there. The defendants filed an answer in which it is stated that they own the premises by the entireties; and at the same time defendantPelagia Gorecki, the wife of Joseph Gorecki, filed a motion to dismiss the cause of action against her for the reason that she is a married woman; and that she and her husband own the property by the entireties.

The trial court granted defendant Pelagia Gorecki's motion to dismiss and plaintiff appeals.

The sole question in this case relates to the liability of a wife who owns property abutting a sidewalk with her husband by entireties for injuries sustained on the adjoining sidewalk due to alleged negligence in maintenance of the abutting property.

Plaintiff contends that the husband and wife jointly conducted the grocery business; and that the wife as one of the partners committed the acts of negligence alleged.

In Farmer's Co-Operative Creamery Co. v. Huhn, 241 Mich. 23, 28, 216 N.W. 370, 372, we said:

‘The doctrine of the common law as to the disability of married women precludes a partnership between husband and wife.

“The important and sacred relations between [husband] and wife, which lie at the very foundation of civilized society, are not to be disturbed and destroyed by contentions which may arise from such a community of property and a joint power of disposal and a mutual liability for the contracts and obligations of each other.' Artman v. Ferguson, 73 Mich. 146, 40 N.W. 907,2 L.R.A. 343, 16...