Perl v. Cohodas, Peterson, Paoli, Nast Co.

• Decision Date: 13 November 1940
• Docket Number: No. 24.,24.
• Citation: 295 Mich. 325,294 N.W. 697
• Parties: PERL v. COHODAS, PETERSON, PAOLI, NAST CO.
• Court: Michigan Supreme Court

295 Mich. 325

294 N.W. 697

PERL

v.COHODAS, PETERSON, PAOLI, NAST CO.

No. 24.

Supreme Court of Michigan.

Nov. 13, 1940.

Action by Louis Perl against Cohodas, Peterson, Paoli, Nast Company, a Michigan corporation, for personal injuries allegedly received in a fall on defendant's premises. From an unsatisfactory judgment after the jury awarded plaintiff a verdict of $12,484 and the circuit court ordered a remittitur of $2,484, defendant appeals and plaintiff cross-appeals.

Affirmed.

WIEST, Judge, dissenting.Appeal from Circuit Court, Gogebic County; Thomas J. Landers, judge.

Argued before the Entire Bench.

Charles M. Humphrey and Charles M. Humphrey, Jr., both of Ironwood, for defendant and appellant.

Solomon W. Patek and Loonard J. McManman, both of Ironwood, for plaintiff, appellee, and cross-appellant.

McALLISTER, Justice.

Plaintiff brought an action for damages, claiming that he had sustained injuries from a fall on defendant's premises, resulting from the latter's negligence. On trial before a jury, he was awarded a verdict of $12,484. The circuit court denied defendant's motion for a new trial, but ordered a remittitur of $2,484. Defendant appeals, and plaintiff cross-appeals.

Plaintiff was formerly a warehouse foreman in the city of Ironwood, employed by a railroad company. Defendant is a corporation engaged in carrying on a wholesale fruit, vegetable, tobacco, and confectionery business in a warehouse in the same city. The warehouse joins the right of way and is served by a spur track of the railroad company with which plaintiff was employed.

On the south side of the warehouse, defendant maintains a loading platform about four feet above the level of the street and extending approximately 75 feet across the side of the warehouse. Two doors open from this platform into the warehouse. The platform is accessible from the street level by steps at its east and west ends. Over the platform is a large canopy which extends over a portion of the steps at the west end, and on which ice and snow collect during the winter months. A gutter runs around the eave of the canopy and drains through a downspout at the east end of the canopy. It is alleged that defendant negligently permitted the canopy to sag at the west end, where it extends over a part of the steps, so that in winter weather, notwithstanding the gutter, water dripped down on the steps, where it froze and formed icy ridges rendering the steps slippery and dangerous. It is further alleged that defendant knew of this condition and permitted it to continue.

About one o'clock in the afternoon of December 22, 1937, plaintiff went up on the platform, using the steps at the east end, for the purpose, he alleges, of recovering from defendant company, a thermometer for the railway, and to inquire the price of potatoes. Finding the platform doors locked, he continued across the platform and was in the act of descending the steps on the west end thereof, to enter the warehouse by a doorway at the street level beside the steps, according to his allegation, when he slipped and fell, his back and spine striking the steps and causing him severe injuries. He testified that he used care in going down the stps but that a light, thin snow covered the ice and he did not see it or know it was there until he placed his foot on it and slipped. Defendant denied the steps were in a dangerous condition, or that it had any knowledge thereof; and denied that plaintiff had any right to be on the platform, claiming that his presence was that of a trespasser, or, at most, a licensee. Defendant further alleged that a door at the street level was the proper means of public ingress and egress to the warehouse, and denied that the public and patrons were invited upon the platform.

Defendant contends that the court erred in submitting the question of its negligence to the jury; that plaintiff was guilty of contributory negligence as a matter of law; that error was committed by the trial court in its submission of evidence and instructions to the jury; that the verdict was excessive; and that it is entitled to a new trial because of the misconduct of a juror.

It appears from the evidence that when freight cars arrive in Ironwood, it is necessary for employees of the railroad company to take the temperature in cars containing foodstuffs and produce; that the thermometers are left in the cars and often removed by the consignees when they unload the car. It was plaintiff's duty, as foreman, to see that such thermometers were placed in the car. On many occasions prior to the accident he had gone to defendant's premises to recover them for the railroad company. At the time that he received his injuries, he claims that he was engaged on a trip to the premises of defendant company to secure from defendant a thermometer, as well as to purchase vegetables. He further claims that he usually went into the building through the doors leading from the platform in question. Defendant denied that plaintiff had any rights on the platform as an invitee, and was, at most, a licensee. The court submitted to the jury the question of whether plaintiff was an invitee or a licensee, instructing them that if plaintiff were an invitee, defendant owed a duty to use ordinary care to maintain the premises and platform steps in a reasonably safe condition for use by the plaintiff; that if he were a licensee, defendant's duty was merely to refrain from willful injury and to avoid exposing plaintiff to hidden perils.

Defendant claims that there was no evidence to show that plaintiff was an invitee,or that the public was invited to use the platform. It is said in 45 C.J. at p. 814, that a person is an invitee where, for the purposes connected with the business conducted on the premises, he enters any place of business. ‘A servant who enters premises on the business of his master, in which business the master and the owner or occupant have a mutual interest, occupies the status of an invitee.’ 45 C.J. p. 818. ‘An invitation to enter premises carries with it the duty toward the persons invited to provide reasonably safe means of ingress and egress.’ 45 C.J. p. 834.

In regard to defendant's contention on this phase of the case, its claim cannot be sustained. In addition to plaintiff's testimony that he had used the premises in the manner above set forth over a period of years, numerous witnesses testified that the public used the platform and entered the store through the doors opening thereupon. It also appeared from the testimony of former employees of the defendant that customers came into the store from the platform and that there was a general use of the platform doors for ingress and egress. In 45 C.J. p. 1327, it is said: ‘Inasmuch as the owner's duty of care toward trespassers, licensees and persons on the premises by invitation, varies, the status of the party injured, is often in issue, and, in such cases, where the evidence is conflicting or inconclusive, it is for the jury to determine into which class plaintiff falls, and whether defendant exercised toward him the decree of care to which, under the law, he was entitled.’

In Schmidt v. Michigan Coal & Mining Co., 159 Mich. 308, 123 N.W. 1122, 1123, plaintiff brought suit for personal injuries as a result of an explosion of a compressed air tank, located at the tipple of the defendant's mine. The evidence showed that plaintiff, a miner, in seeking employment at defendant's mine, was directed by the pit boss to return the following day. When he so returned, the tank exploded, resulting in plaintiff's injuries. The trial court had directed a verdict on the ground that the evidence showed that plaintiff was a trespasser, or a mere licensee. This court held that the question of whether plaintiff was a licensee or invitee, under the evidence, was one of fact to be submitted to the jury, and in passing upon the question said: ‘Plaintiff is entitled to have the evidence presented by his case to be given the most favorable construction it will bear in his favor, where a verdict has been directed against him. We are not able to say that, as a matter of law, there was no evidence of an implied invitation to go to the tipple on the day of the accident to consult the pit boss. A custom was shown that the usual thing for miners to do, at the Bay county mines, when seeking employment, was to go to the pit boss. Plaintiff had sought him out and was requested to return on Monday. On that day he went to the office, and from the evidence related by him relative to his conversation with the superintendent it appears that the pit boss was the one who furnished the information when men were needed in the mines. There was evidence to submit the question to the jury whether an express or implied invitation to go to the tipple and ascertain from the pit boss, might not be inferred from what the superintendent said. There is abundant authority to sustain the contention that where there is evidence, though contradicted, from which an invitation might be inferred, it is a question for the jury.’

Under the evidence, the court properly submitted to the jury the question of whether plaintiff was an invitee or a licensee.

With regard to whether the question of defendant's negligence should have been submitted to the jury, there was a considerable body of testimony from several witnesses that, over a long period of time, during winter weather, water had dripped from the end of the canopy directly upon the steps of...