Peck v. Adomatis, 102.

• Decision Date: 08 December 1931
• Docket Number: No. 102.,102.
• Citation: 256 Mich. 207,239 N.W. 278
• Parties: PECK et al. v. ADOMATIS.
• Court: Michigan Supreme Court

256 Mich. 207

239 N.W. 278

PECK et al.

v.ADOMATIS.

No. 102.

Supreme Court of Michigan.

Dec. 8, 1931.

Appeal from Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Suit by Berdan Peck, a minor, by Paulina Peck, his guardian, and Paulina Peck, as assignee, against Mary Adomatis. From a judgment on a directed verdict for defendant, plaintiffs appeal.

Affirmed.

Argued before the Entire Bench.William K. Clute, of Grand Rapids, for appellants.

Michael Garvey, of Grand Rapids, for appellee.

WIEST, J.

October 4, 1929, defendant operated a grocery store on Quimby street in the city of Grand Rapids. The lot upon which the store was located ran back to Matthews court, and a path, from the court to the back of the store and to Quimby street, had for some time been used by customers and children. That morning defendant burned some rubbish in the bank yard, within three or four feet of the path, and, while in the store waiting on a customer, it is claimed that Berdan Peck, a boy then three years and nine months of age, came upon the lot, went near the fire, his clothing caught fire, and he was severely burned. This suit was brought to recover damages, and resulted in a directed verdict for defendant.

Negligence of defendant is claimed on two grounds: (1) Negligence in setting fire in violation of a city ordinance; (2) negligence in leaving the fire unguarded and exposing children, who might be frequenting the lot or passing along the path, to danger.

Counsel for plaintiff does not claim any aid from the so-called turntable doctrine, not accepted in this jurisdiction (Ryan v. Towar, 128 Mich. 463, 87 N. W. 644,55 L. R. A. 310, 92 Am. St. Rep. 481), but does claim that the use of the path and of the lot by children imposed an obligation on defendant not to create a danger, in proximity to the path, which would lure little children to harm or destruction should they venture too close to the fire or meddle with it. This last claim is, in effect, invocation of the attractive nuisance doctrine which is so closely related to the turntable doctrine as to lead some courts to recognize no distinction.

The city ordinance against fires, including bonfires, is the usual preventive measure, under the police power, with reference to acts with possible effects reaching beyond the limits of the situs of the fire and in no sense applicable to persons who interfere with a fire or intrude or enter the premises as licensees.

The boy had no legal right to go upon defendant's premises. At the most, he was a licensee. A bonfire upon one's own premises is not a nuisance per se. Violation, if any, of the ordinance was not negligence per se. Cook v. Johnston, 58 Mich. 437, 25 N. W. 388,55 Am. Rep. 703. The bonfire did not constitute a wrongful interference with any legal rights of the child, nor was it a nuisance in the sense of a wrongful act bringing injury to him while in the course of enjoyment of legal rights.

The accident here involved was in the fall of the year, and it appears that general permission had been given to burn leaves in the street. This brings us to the question of whether defendant was guilty of breach of duty toward the child in leaving the fire unattended. The child was not present when defendant left the fire. The duty then, if there was one, was owing to a possible infant intruder and meddler with the fire.

It is contended that defendant was guilty of actionable negligence in leaving the bonfire unattended at a place where children were wont to go upon the premises. No such duty is imposed by the common law or statute. Such duty has been imposed. Carr v. Southern Pa. Traction Co., 253 Pa. 274, 98 A. 554. But upon this question there is irreconcilable conflict of decisions, mentioned by Mr. Justice Fead in LeDuc v. Detroit Edison Co., 254 Mich....