Dym v. Merit Oil Corp...

• Decision Date: 24 February 1944
• Citation: 130 Conn. 585,36 A.2d 276
• Court: Connecticut Supreme Court
• Parties: DYM v. MERIT OIL CORPORATION.

130 Conn. 585

36 A.2d 276

DYM

v.MERIT OIL CORPORATION.

Supreme Court of Errors of Connecticut.

Feb. 24, 1944.

Appeal from Superior Court, New Haven County; Wynne, Judge.

Action by Beatrice Dym against the Merit Oil Corporation to recover damages for personal injuries alleged to have been caused by defendant's negligence. From a verdict and judgment for plaintiff, defendant appeals.

No error.

Frederick C. Hesselmeyer, of New Haven, for appellant (defendant).

Joseph E. Klau, of Hartford (William M. Pomerantz, of Hartford, on the brief), for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, DICKENSON, and DALY, JJ. (Judge EDWARD J. DALY of Superior Court sat for Judge ELLS).

DICKENSON, Judge.

The plaintiff fell into a grease pit on premises maintained by the defendant as a gas station and brought this action for personal injuries. It was tried to the jury, the verdict was for the plaintiff, the defendant moved to set it aside, the motion was denied and the defendant appeals therefrom and from the judgment, assigning error in the charge and in the finding.

The jury might have found the following facts: The defendant operates a large gasoline service station at the corner of two city streets, both heavily traveled, where gas and oil are sold, cars are greased and tires are inflated. It maintains a building used as an office and store room. Attached to this building are rest rooms or toilets which are entered by outside doors, one marked ‘Ladies' and the other ‘Men.’ There are three grease pits parallel to the south side of the building, each approximately seventeen and one-half feet long, three and one-half feet wide and six feet deep. There is a metal frame along the edge of each pit about four and one-half inches high. On the northerly side of the northerly pit there is a post at each end, two feet four inches from the edge of the pit. The purpose of these posts is to support a chain to guard the pit. A similar arrangement exists for supporting a chain in front of all three pits. The northerly pit is eleven and one-half feet south of the building. Along the northerly edge of this pit it was oily and greasy.

The plaintiff was riding in an automobile driven by one Johnson, as his guest. She sat beside her husband on the right rear seat of the car and Mrs. Johnson sat on the front seat with her husband. The plaintiff requested the driver to stop at a rest room. He drove on to the defendant's premises, stopping his car between the northerly pit and the building. It was shortly after 7 p. m. on November 23. The headlights of the car were on. There was a light in the defendant's building but none outside on the premises, where it was dark. Johnson was a patron of the station, having bought supplies there and had his car greased, and he and passengers in his car had used the toilets on prior occasions during business hours. He got out of the car followed by his wife and Dym. The latter walked around the rear of the car to assist the plaintiff to alight. Her side of the car was two to three feet from the edge of the pit. While she had occasionally crossed the premises in the day time, she had never used the rest room and did not know of the presence of the pits, nor was this pit visible to her. She alighted from the car, took two or three short steps away from it to permit the closing of the door, which opened back, turned to go to the rear of the car, slipped on the oil or grease and fell into the pit. Both Johnson and Dym knew it was there but did not warn her. The defendant's station was customarily closed at 7 o'clock in the evening by putting up a chain in front of the pits, three feet from the ground, placing a ‘No Parking’ sign on the chain and turning off all outside lights, leaving a night light inside the building which lighted the interior and partly lighted the platform on which the building stood. While Johnson had some doubt whether the station was open and drove in to find out, the plaintiff believed it was and intended to use the toilet if available. Admittedly the toilet doors were unlocked, there was no chain beside the pit and the ‘No Parking’ sign was not in place on the chain in front of the pits, though the defendant claimed to have closed the station in the customary manner.

The defendant concedes, as it must, that had the accident occurred at a time when the station was in full operation the plaintiff would have been an invitee. She was a guest of one of its patrons and the toilets were patently there to be used by such persons. Wingrove v. Land Co., 120 W. Va. 100, 108, 196 S.E. 563, 116 A.L.R. 1197. The defendant contends, however, that the station was fully closed and gave this appearance; that the plaintiff should have known this; that she was a trespasser or at best a gratuitous licensee; and that she assumed the risk of entering and alighting from the car and was guilty of contributory negligence in her movements.

The defendant would not be liable to the plaintiff if she was a trespasser or a gratuitous licensee. Hayes v. New Britain Gas Light Co., 121 Conn. 356, 357, 185 A. 170; Olderman v. Bridgeport-City Trust Co., 125 Conn. 177, 181, 4 A.2d 646; Girard v. Kabatznick, 128 Conn. 520, 524, 24 A.2d 257. To constitute her an invitee, it must appear that she was expressly or impliedly invited to use the defendant's premises. Her position was identical with that of her driver in this respect. If he was an invitee, his passengers were invitees. There is no claim of express invitation, and in determining whether there was an implied invitation the question is: What could the driver of her car reasonably conclude from the defendant's conduct of its premises? Bunnell v. Waterbury Hospital, 103 Conn. 520, 529, 131 A. 501. The driver might be found to have been impliedly invited if he came to the premises under either of two sets of facts: First, because he “was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to...