Paisley v. United Parcel Service, Inc., Docket No. 10555

• Decision Date: 23 February 1972
• Docket Number: No. 2,Docket No. 10555,2
• Citation: 38 Mich.App. 450,196 N.W.2d 813
• Parties: Richard L. PAISLEY and Lillian Paisley, as Guardian of Mary Paisley, a Minor, Plaintiffs, v. UNITED PARCEL SERVICE, INC., an Ohio corporation, Defendant-Third-Party- Plaintiff-Appellee, v. GULF OIL CORPORATION, Third-Party Defendant. Carleton HOLTZ, Third-Party Defendant/Third-Party Plaintiff-Appellant, v. REVCO, INC., Third-Party Defendant
• Court: Court of Appeal of Michigan — District of US

Page 813

196 N.W.2d 813

38 Mich.App. 450

Richard L. PAISLEY and Lillian Paisley, as Guardian of Mary

Paisley, a Minor, Plaintiffs, v. UNITED PARCEL SERVICE, INC., an Ohio corporation, Defendant-Third-Party- Plaintiff-Appellee, v. GULF OIL CORPORATION, Third-Party Defendant.

Carleton HOLTZ, Third-Party Defendant/Third-Party Plaintiff-Appellant, v. REVCO, INC., Third-Party Defendant.

Docket No. 10555.

Court of Appeals of Michigan, Division No. 2.

Feb. 23, 1972.

Released for Publication May 3, 1972.

Jerry J. Klaasen, Rosenburg, Painter, Stanton & Bullen, Jackson, for holtz.

Reginald S. Johnson, Johnson, Campbell & Moesta, Detroit, for United Parcel.

Richard L. Kralick, Hammond, Baker & Kralick, Adrian, for Paisley.

Bileti & Valenti, Detroit, for Revco.

Before McGREGOR, P.J., and FITZGERALD and QUINN, JJ.

McGREGOR, Presiding Judge.

Thie case is a familiar one by now, as it reaches us for the fourth time, in what is hopefully the last of its many journeys through the appellate machinery. Though the facts are, in substance, uncommonly simple, a barrage of legal maneuvers has rendered the case uncommonly confused. What began as a simple motor vehicle negligence case has ascended to the complexities of a multi-faceted action for contribution.

On September 2, 1965, Mary Paisley, then a 3-year-old child, was playing in back of a gasoline service station owned by Gulf Oil Corporation and leased by Carleton Holtz, when a delivery truck owned by United Parcel Service and driven by John Michelin arrived to do business with Revco. Michelin drove east through an alley, paused, and backed his truck up to a loading dock behind the Revco building. As he did so, he noticed Mary Paisley playing in the area behind Holtz' service station. This area, along with the paved apron to the loading dock, also belonged to Gulf Oil Corporation and was leased by Carleton Holtz. As Michelin loaded his parcels into the truck, he noticed Mary Paisley near the truck, whereupon he told her to get away from the truck. Having completed his loading, Michelin entered the cab of the truck and proceeded to make an entry in his logbook regarding the packages he had loaded. During the nearly 45 seconds it took him to do this, he did not observe Mary Paisley. When he started to drive away he did not see her or her tricycle. The truck moved about one length before he stopped and discovered Mary on the pavement under his truck. Mary received extensive injuries.

Plaintiffs commenced action against United Parcel Service on October 31, 1966, alleging negligence in the operation of the truck. Defendant United Parcel answered by way of general denial and counter-claimed for contribution, based on negligent supervision of Mary Paisley. Plaintiffs responded, asserting that the negligence of defendant United Parcel was 'the sole and proximate cause of the injuries sustained by Mary Paisley'.

Defendant United Parcel Service then filed a third-party complaint for contribution against Gulf Oil Corporation, Carleton Holtz, and Revco, Incorporated, setting forth in substance the theory of attractive nuisance. Gulf Oil Corporation moved for summary judgment, based on its lack of control of the premises involved. The trial court entered such summary judgment, which was affirmed on appeal. Paisley v. United Parcel Service, Inc., 14 Mich.App. 301, 165 N.W.2d 299 (1968). Revco, having likewise moved for summary judgment, based on lack of control of the premises, was granted such judgment by the trial court, which was affirmed on appeal. Paisley v. United Parcel Service, Inc., 17 Mich.App. 672, 170 N.W.2d 283 (1969).

In the interim, Carleton Holtz had moved for summary judgment, based on the assertion that plaintiffs' complaint did not allege concurrent or joint negligence and, therefore, defendant-third-party plaintiff United Parcel Service had not alleged facts sufficient to state a cause of action for contribution. This motion was denied. Holtz then filed a third-party complaint against Revco, alleging a joint tortfeasor claim for contribution. Revco moved for summary judgment on Holtz' third-party complaint for failure to state a cause of action. The trial court denied Revco's motion.

To recapitulate, the result of the foregoing procedures produced the following:

(1) Richard Paisley and Lillian Paisley, as Guardians of Mary Paisley, a Minor v. United Parcel Service, Inc. (for simple negligence in the operation of their truck).

(2) United Parcel Service, Inc. v. Carleton Holtz (for contribution as joint tortfeasor).

(3) Carleton Holtz v. Revco, Inc. (for contribution as joint tortfeasor).

At this juncture, defendant-third-party plaintiff United Parcel Service entered into and satisfied a $13,000 consent judgment with plaintiffs. Holtz and Revco then moved for summary judgment, based on the consent judgment. The trial court denied both motions. (Leave to appeal was denied to both Holtz and Revco by the Court of Appeals on May 25, 1970.) Holtz also moved for a summary judgment, based on defendant-third-party plaintiff's second-amended complaint. This motion was denied.

When the case proceeded to trial, only the claims of United Parcel Service and Carleton Holtz for contribution remained in issue. The jury returned a verdict in favor of defendant-third-party plaintiff United Parcel Service against third-party defendant Carleton Holtz, and in favor of third-party plaintiff Holtz against third-party defendant Revco. Holtz then moved for judgment notwithstanding the verdict or a new trial. The trial court denied both motions. Third-party-defendant-third-party-plaintiff Holtz brings this appeal as of right.

The basic issue on appeal is whether the trial court erred in denying third-party defendant Holtz' motion for summary judgment, based on defendant-third-party plaintiff's second amended complaint.

The third-party complaint by United Parcel Service is a complaint for Contribution. The fact that this second amended third-party complaint may set forth a cause of action on behalf of the initial plaintiffs does not dispose of third-party defendant's motion for summary judgment. In order to withstand a motion for summary judgment, this second amended third-party complaint by United Parcel Service must set forth a cause of action for contribution.

The action for contribution is founded solely on statute, for at common law, tortfeasors were allowed no right of conribution. M.C.L.A. § 600.2925(1); M.S.A. § 27A.2925(1) provides:

'Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share is entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment. Joint tortfeasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution. No person may be compelled to pay to any other defendant an amount greater than his pro rata share of the entire judgment.'

Third-party defendant Holtz was in fact summoned pursuant to GCR 1963, 204.1(1), as provided in the above-quoted statute. It is clear that the liability, if any, of third-party defendant Holtz to third-party plaintiff United Parcel is for contribution.

A careful reading of defendant-third-party plaintiff's second-amended complaint reveals that this complaint...