McIntyre v. Pfaudler Vacuum Fermentation Co.

• Citation: 133 Mich. 552,95 N.W. 527
• Court: Supreme Court of Michigan
• Decision Date: 23 June 1903
• Parties: McINTYRE v. PFAUDLER VACUUM FERMENTATION CO.

95 N.W. 527

133 Mich. 552

McINTYRE v. PFAUDLER VACUUM FERMENTATION CO.

Supreme Court of Michigan

June 23, 1903

Error to Circuit Court, Wayne County; Flavius L. Brooke, Judge.

Action by John McIntyre against the Pfaudler Vacuum Fermentation Company and the Detroit Safe Company. Judgment for plaintiff against the former company, which brings error. Reversed.

Orla B. Taylor and Gray & Gray, for appellant.

Hayes &amp Lawson and Tarsney & Fitzpatrick, for appellee.

CARPENTER J.

This is the second time this case has been before this court. The facts will be found fully stated in the former opinion reported in 89 N.W. 39. On the second trial a verdict was directed in favor of the Detroit Safe Company, and the plaintiff obtained a verdict and judgment against the Pfaudler Company. The latter company asks that court to reverse that judgment, for several reasons. It is claimed that the trial court should have directed a verdict in its favor on several grounds, viz.: First, the obligation to keep the scales in repair rested, not upon it, but upon the Detroit Safe Company; second, the undisputed testimony conclusively proved that the defective timber which caused the injury was put in new in 1893, that it was then sound and that no rule of diligence required its inspection before plaintiff was injured; third, it is claimed on this record, as on the former record, that plaintiff's load was too heavy for the scales, and not properly distributed, and that this was the occasion of plaintiff's injury; fourth, it is claimed that the court erred in instructing the jury in the particular hereafter mentioned in this opinion.

1. Did the obligation to keep the scales in order rest upon the Pfaudler Company, or upon the Detroit Safe Company? The platform of the scales was in a private alley, about 12 feet wide, situated between the building occupied by the Pfaudler Company, on the east, and that occupied by the Detroit Safe Company, on the west. The beam of the scales was in the office of the Detroit Safe Company. The scales were originally the property of the Detroit Safe Company, and it put these scales in the alley in 1890, while it had possession of the same under a lease from the Wesson estate. March 1, 1895, the safe company assigned this lease to James Sargeant, and on April 10, 1895, Sargeant assigned the same to the Pfaudler Company. At the time the lease was transferred to Sargeant, the safe company also delivered a bill of sale to him of 'all of the property known as the tank department of the Detroit Safe Company, including all tools and machinery and materials belonging to said department.' To this bill of sale were annexed schedules and inventories of the property conveyed. These did not mention the scales. After the transfer, the scales were looked after and controlled by the safe company, though both the safe company and the Pfaudler Company used the same without asking the permission of either. It is claimed by defendant, and its manager testified, that the scales remained the property of the Detroit Safe Company. In our judgment, the liability of the Pfaudler Company does not depend on its ownership of the scales. At the time of the injury, plaintiff was an employ� of the Shedden Cartage Company, engaged in conveying a load of steel to the Pfaudler Company. He was on the premises of the Pfaudler Company, using the scales to fulfill a contract in which said company and himself each had an interest. Under these circumstances defendant owed to plaintiff the obligation which an occupier of premises owes to one doing business with him on those premises by his invitation. The law which determines this obligation seems to have been settled in the case of Indemaur v. Dames, L. R. 1 C. P. 274; s. c., L. R. 2 C. P. 311. Plaintiff in that case was injured on defendant's premises, while there 'on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest.' Said the court: 'We are to consider what is the law as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation, express or implied. The common case is that of a customer in a shop, but it is obvious that this is only one of a class. * * * The class to which the customer belongs includes persons who go not as mere volunteers or licensees or guests or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business that concerns the occupier, and upon his invitation, express or implied. And with respect to such a visitor, at least, we consider it as settled law that he, using reasonable care on his own part for his own safety, is entitled to expect that the occupier...