Polston v. S. S. Kresge Co.

• Citation: 324 Mich. 575,37 N.W.2d 638
• Decision Date: 18 May 1949
• Docket Number: No. 15.,15.
• Parties: POLSTON v. S. S. KRESGE CO.
• Court: Michigan Supreme Court

324 Mich. 575

37 N.W.2d 638

POLSTON

v.S. S. KRESGE CO.

No. 15.

Supreme Court of Michigan.

May 18, 1949.

Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Action by Hollie Polston against S. S. Kresge Company for injuries resulting when an employee of defendant lowered an awning which knocked down a ladder on which plaintiff was standing. From an adverse judgment, plaintiff appeals.

Judgment reversed and new trial granted.

Before the Entire Bench, except BUTZEL.

Elmer H. Groefsema, Detroit, for plaintiff-appellant.

Franklin D. Dougherty, Detroit, for defendant-appellee.

DETHMERS, Justice.

Defendant was the lessee of the ground floor of a two-story store building and of a ten foot strip across the front thereof covered by a sidewalk which extended in width beyond the strip onto the public right-of-way to a curb. There was nothing about the appearance of the sidewalk to indicate that the strip was not part of the public sidewalk and the defendant permitted the public to use it as such.

Plaintiff placed a ladder against the front of the building with its base resting on the ten foot strip and climbed up to wash a second story window, for which job plaintiff's employer had a contract with the building's owner. An employee of defendant came out of the store and lowered an awning in front of it, knocking down the ladder and causing plaintiff to fall and suffer injuries. Defendant's employee admittedthat from the position where he stood while lowering the awning he could have seen the ladder, but that he did not do so.

Plaintiff's suit for resultant damages was tried by the court without a jury. The court held plaintiff to have been a trespasser to whom defendant owed no duty other than to refrain from willfully and wantonly injuring him and, the latter not being claimed, found for defendant. Plaintiff appeals, contending that he was an invitee to whom defendant owed the duty to keep his premises in a reasonably safe condition for plaintiff's use, or, at least, a licensee to whom defendant owed the duty to use ordinary care to prevent injury to him arising from defendant's active negligence.

Was plaintiff an invitee, licensee or trespasser? Mere silence, acquiesence or permission standing alone does not establish an invitation, although a license may thus be created. Peck v. Adomaitis, 256 Mich. 207, 239 N.W. 278. From Hargreaves v. Deacon, 25 Mich. 1, it appears that damages for accidental injuries sustained on private premises resulting from the negligence of the owner may not be recovered by one on the theory that he is an invitee ‘unless the party injured has been induced to come by personal invitation, or by employment which brings him there, or by resorting there as to a place of business, or of general resort held out as open to customers, etc.’ By these tests plaintiff was not defendant's invitee. Members of the public in using the ten foot strip as a public sidewalk with defendant's knowledge, permission and acquiescence were, as such, not trespassers but licensees. Morrison v. Carpenter, 179 Mich. 207, 146 N.W. 106, Ann.Cas.1915D, 319;Douglas v. Bergland, 216 Mich. 380, 185 N.W. 819, 20 A.L.R. 197;Sylvester v. Grand Rapids Book-case Co., 169 Mich. 340, 135 N.W. 337;Burns v. Union Carbide Co., 265 Mich. 584,151 N.W. 925. The testimony shows that it had long been the custom in the community for window washers to place ladders on sidewalks in front of buildings in connection with their work and that defendant knew that this was being done, over a period of 13 years, at least once a month, by employees of plaintiff's employer on the walk here in question. While it is true that the depositing of rubbish or placing of barriers upon, or other uses of the strip inconsistent with the general purposes of the license, without the defendant's consent, would amount to trespass, 25 Am.Jur., Highways, § 137, nevertheless the license to use the strip for sidewalk purposes extended not only to use thereof for pedestrian travel, but also to other uses commonly made of such sidewalks which are not inconsistent with the license. Collins v. City of Chicago, 321 Ill.App. 73, 52 N.E.2d 473;Gilligan v. City of Butte, 118 Mont. 350, 166 P.2d 797;Beaulieu v. Tremblay, 130 Me. 51, 153 A. 353;Leighton .v Dean, 117 Me. 40, 102 A. 565, L.R.A.1918B, 922;Frostman v. Stirrat & Goetz Inv. Co., 65 Wash. 608, 118 P. 742;Schmitt v. City of Syracuse, 229 N.Y. 161, 128 N.W. 119,24 A.L.R. 763. This was particularly true of the kind of use made of the strip by plaintiff, in which defendant had acquiesced for 13 years. We are not in accord with defendant's contention that plaintiff's license to so use the sidewalk became revoked and that plaintiff in so using it became a trespasser during such time of the day as the sun might be shining upon the windows under the awning in question merely because it was established that defendant had on two occasions during the 13 year period complained to plaintiff's employer that rolling up the awning for the purpose of placing ladders while the sun was shining there would damage defendant's merchandise in the show windows and that defendant had for that reason asked plaintiff's employer to wash the windows earlier in the morning.

Although contending that plaintiff was a trespasser, defendant relies on such cases as Hargreaves v. Deacon, supra, Douglas v. Berglund, supra, and Lauchert v. American S. S. Co., D. C., 65 F.Supp. 703, as authority for the proposition that even as to licensees a property owner owes no duty of care other than that of refraining from willfully or wantonly injuring him. Those were not cases however, of active negligence, but of negligence in maintaining premises in a defective or dangerous condition. In the instant case, plaintiff charges defendant's employee with active negligence in lowering the awning in disregardof plaintiff's safety and without looking and observing the presence of plaintiff or the ladder upon which he stood. In Herrick v. Wixom, 121 Mich. 384, 80 N.W. 117,81 N.W. 333;Schmidt v. Michigan Coal & Mining Co., 159 Mich. 308, 123 N.W. 1122, and Verlinde v. Michigan Central Railroad Co., 165 Mich. 371, 130 N.W. 317, we held, to quote from the Schmidt case, that [159 Mich. 308, 123 N.W. 1123]:

‘* * * after the owner of premises is aware of the presence of a trespasser or licensee, or if in the exercise of ordinary care he should know...