Greenlees v. Owen Ames Kimball Co.

• Decision Date: 04 October 1954
• Docket Number: No. 84,84
• Citation: 66 N.W.2d 227,46 A.L.R.2d 1205,340 Mich. 670
• Parties: , 46 A.L.R.2d 1205 C. Ray GREENLEES, Plaintiff and Appellant, v. OWEN AMES KIMBALL COMPANY, a Michigan corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 227

66 N.W.2d 227

340 Mich. 670, 46 A.L.R.2d 1205

C. Ray GREENLEES, Plaintiff and Appellant, v. OWEN AMES KIMBALL COMPANY, a Michigan corporation, Defendant and Appellee.

No. 84.

Supreme Court of Michigan.

Oct. 4, 1954.

Rosemary Scott, Grand Rapids, for plaintiff and appellant.

Allaben & Davids, Grand Rapids, for appellee.

Before the Entire Bench.

REID, Justice.

Plaintiff as third party beneficiary sued defendant for damages to plaintiff's fur garments on display in his place of business. The suit is brought under P.A.1937, No. 296, C.L.1948, § 691.541 et seq. Stat.Ann. § 26.1231 et seq.

Plaintiff's statement of the facts involved in the case is as follows:

'The plaintiff operates his business as furrier on the basement floor of the building known as the McKay Tower, formerly known as the Grand Rapids National Bank Building. He is a tenant of the Frank D. McKay Realty Company, a Michigan corporation. The leased premises consist of a fur display and salesroom with workroom adjacent. This area is divided into four inter-connecting portions. The entry-way is about 18 feet square. This opens into the main display room which is 18 feet by 28 feet. Leading from this room is a vault with safety deposit boxes used by the plaintiff as a storeroom for fur coats and fur materials and used also by other tenants of the building for safe keeping. To the right of the main room is a workroom about 15 feet by 40 feet. This room has wood paneling along its north side in which there is storage space used by the plaintiff and other tenants of the building. In this storage area, there was a safe four feet square embedded in concrete and connected to a night depository chute which extended to the first floor lobby.

'The lease between the plaintiff and the frank D. KcKay Realty Company specified that the lessor would not be responsible for stoppage of plumbing, elevator, or heating apparatus during reasonable business hours or 'for stoppage for needful repairs or improvements when occasioned by any casualty.' The lease also specified that the lessor would not be liable for any damage due to the building becoming out of repair. The lessor retained the right to enter the premises to make repairs, additions or alterations 'as may be necessary for the safety, improvement or preservation' of the building. Attached to the lease were rules and regulations applying to the lessee pertaining to the obstruction of passageways, movement of bulky articles, disturbance of the occupants of the building, and movement of safes according to the rules of the lessor and the right of the lessor to make additional rules and regulations. The rider to the lease specified that the lessee agreed to permit ingress and egress of tenants specified by the lessor into the lessee's rental space so that storage space might be available to the other tenants.

'In September, 1952, the defendant wrote Mr. Frank D. McKay a letter which is set forth as plaintiff's proposed exhibit No. 2. In the letter, the defendant agreed to furnish labor and material to repair the lobby of the building according to the specifications prepared by the architect employed by the Frank D. McKay Realty Company. The feature of this contract of prime importance in this suit states:

"All work to be performed as per plans and specifications prepared by your architect and in such a way as to cause a minimum of disturbance to the daytime operations in the building.'

'There was no written agreement specifying the removal of the safe in the area adjacent to plaintiff's leased premises. The building superintendent of the landlord stated that the particular items of work to be done were made by verbal arrangement. In October, 1952, agents of the defendant appeard in plaintiff's place of business to rmeove the safe by use of electric chisels. The removal of the safe was part of the alterations of the first floor lobby area. Subsequent to the removal of the safe in December, 1952, provision was made by the agents of the defendant for installation of electrical equipment to operate the doors installed on the first floor. On this occasion, also, the agents of the defendant entered plaintiff's place of business.

'The sixteen-floor McKay Tower was used exclusively for rental purposes by tenants of the Frank D. McKay Realty Company, which had offices on the first floor opening off of the lobby.

'According to the agents of the Frank D. McKay Realty Company, that company furnished no supervision of the work that was done by the defendant. It gave no notice to tenants. There is a conflict of testimony as to whether or not the plaintiff received oral notice of the work to be done prior to the beginning of that work in areas adjacent to the area rented by the plaintiff. The building superintendent stated that he hauled out materials no longer needed by the defendant, gave dropcloths to the agents of the defendant and instructed cleaning women to clean up dust and debris as the work progressed and after it was finished. The building superintendent stated that the plaintiff was the only tenant bothered by the work done by the defendant.

'Plaintiff claims damages for the dust caused on the two occasions when work was done by the defendant which resulted from the drilling into the walls of the building.

'At the time of the introduction of plaintiff's proposed exhibit No. 2, the letter containing the contract between the defendant and the Frank D. McKay Realty Company, counsel for the defendant objected. The testimony set forth in the record was limited to facts bearing upon that contract and not upon the cause or measure of damages of the plaintiff. In determining the admissibility of this evidence, the court sustained the objection of defendant on the ground that the proposed exhibit did not set forth a contract under which the promisor assumed a direct obligation to the plaintiff. The plaintiff was held by the court to be an incidental beneficiary who could not, because of this status, maintain this action. On this ground, a judgment dismissing the cause of action was...