Reed v. A. C. McLoon & Co.

• Court: Maine Supreme Court
• Writing for the Court: Before DUFRESNE; WEATHERBEE; WEBBER
• Citation: Reed v. A. C. McLoon & Co., 311 A.2d 548 (Me. 1973)
• Decision Date: 09 November 1973
• Parties: Duane A. REED, an infant, by his next friend, Philip Reed, and Philip Reed, Individually v. A. C. McLOON & COMPANY.

Page 548

311 A.2d 548

Duane A. REED, an infant, by his next friend, Philip Reed and Philip Reed, Individually v. A. C. McLOON & COMPANY.

Supreme Judicial Court of Maine.

Nov. 9, 1973.

Hart & Stinson, by Ronald A. Hart, Roger R. Therriault, Bath, for plaintiff.

Mahoney, Desmond, Robinson p Mahoney, by Robert F. Hanson, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, and ARCHIBALD, JJ.

WEATHERBEE, Justice.

This is an action instituted by the minor Plaintiff against the Defendant company, seeking to recover for personal injuries suffered by the Plaintiff in a fall from a fuel tank owned by the Defendant. His father, Philip Reed, also seeks consequential damages. At trial before a jury, the Superior Court Justice directed a verdict for the Defendant at the close of the Plaintiffs' evidence, and from that ruling the Plaintiffs appeal under M.R.C.P., Rule 73(b).

Although there is only a suggestion of trespass to land in the Plaintiffs' complaint for negligence, the pre-trial memorandum and evidence at trial demonstrate that the case was based on both negligence and trespass. In granting the motion for a directed verdict, the trial Justice ruled as a matter of law that Defendant was not a trespasser and held that the evidence did not demonstrate actionable negligence of the Defendant, thereby foreclosing jury consideration of these two issues. The Plaintiffs' case is best comprehended by examining the relevant facts.

The minor Plaintiff, his parents, and several brothers and sisters resided for the summer in a home on Criehaven Island off the central Maine coast. The Plaintiff father had purchased this property in 1962 from Roscoe Fletcher, who in turn had bought the realty from the Defendant company in 1952. The realty consisted of approximately nine acres on the end of the island, and on it were some dwellings, a wharf, fuel pumps and lines and several fuel storage tanks.

The Plaintiff father's ownership of the above is subject to an exception in favor of the Defendant found in the father's 1962 warranty deed ¹ from Roscoe Fletcher. This exception had also been incorporated into the deed ² from the Defendant to Mr. Fletcher ten years before. The exception language follows:

'Excepting and reserving from the entire premises above described the right of A. C. McLoon & Co. to use the wharf adjacent to above described premises and to keep and maintain a lobster car moored thereto, together with the right to erect and maintain and remove a gasoline storage tank on the above described premises or wharf adjacent and the right to sell gasoline therefrom and to use the wharf therefor and to lay and maintain all the necessary piping and to do any and all things necessary to fulfill all the foregoing purposes, as set forth in deed of A. C. McLoon & Co., to Roscoe L. Fletcher. . . .'

The Defendant company is mainly a supplier of bottled gas, fuel oil and gasoline. For this purpose, the Defendant maintained the above described tanks, pumps and lines on the Plaintiff father's land. In fact, until 1965, the Plaintiff father worked for the Defendant in the fuel business but stopped when it became unprofitable for him. While so employed, the father sold petroleum products from these tanks, and the Defendant repaired and maintained the equipment itself. After 1965, neither the Defendant nor the father ever made use of any of the equipment still located on the Plaintiff father's property.

The minor Plaintiff's injuries were received when he fell from a fuel tank situated approximately thirty-five feet from the house. This tank had been used to store kerosene until 1965 and had continued to sit idle since then. It was a 2000 gallon model about six feet high and was located just outside the dwelling area fenced in by the Plaintiff father. The Plaintiff, then about four years old, climbed over the fence, then on the tank and began to swing from a pole extending upward from the tank. He lost his balance and fell, hitting his head on an earthen crock located on the ground. Ownership of the crock is in dispute. ³ The Plaintiff shattered the crock and received severe lacerations of the face. He was rushed by boat in apparently semiconscious condition to a mainland hospital, where stitches closed the wounds. A picture submitted by the Plaintiff shows that the wounds have left scars extending across the nose and cheek toward the left ear lobe.

Since the trial Justice granted the Defendant's motion for a directed verdict, on appeal we consider the evidence presented most favorably in support of the Plaintiffs' positions. While so doing, we seek to determine if there is sufficient evidence from which a jury, while taking account of every justifiable inference, could reasonably find for the Plaintiffs in this case. E. g., Isaacson v. Husson College, Me., 297 A.2d 98, 101 (1972); Boetsch v. The Rockland Jaycees, Me., 288 A.2d 102, 103-104 (1972).

We sustain the Plaintiffs' appeals and remand the case to the Superior Court for a new trial. ⁴ Because we find that the jury should have been allowed to pass on the trespass issue, we do not reach the question of negligence.

The Justice's granting of the Defendant's motion for directed verdict was foreshadowed by his earlier rulings during the trial which, in effect, precluded the Plaintiff's reliance on trespass. The Justice construed the exceptions in the deed to Plaintiff father which permitted Defendant to maintain 'a gasoline storage tank' on the property, 'to sell gasoline therefrom', and 'to do any and all things necessary to fulfill the foregoing purposes' to authorize the Defendant to maintain the kerosene storage tank (along with several gasoline storage tanks not directly involved in this action). He found this language to the unambiguous and excluded any extrinsic evidence bearing on the parties' intentions concerning the kerosene tank, effectively removing the trespass issue from the case. The Justice, deciding that the deed allowed the Defendant to carry on 'the oil business' on the entire premises, ruled that the Defendant had not violated any of the terms of the exception grant. Thus, according of the Justice, the defendant had a lawful right under this exception to keep the kerosene storage tank on the Plaintiff's land. Consequently, the Defendant could not a trespasser and could not liable to the Plaintiff on any theory of trespass to land. ⁵

We have often stated that construction of a deed is a matter of law for the Court. E. g., Susi v. Davis, 133 Me. 354, 177 A. 610 (1935). Of course, in construing deeds we hope to determine the intentions of the parties to the deed as expressed in the instrument. Hinds v. Hinds, 126 Me. 521, 140 A. 189 (1928). We agree with the lower court that the deed 'speaks for itself' and does not require extrinsic evidence to shed light on any ambiguity in wording. However, we respectfully disagree with the Justice's conclusion as to the deed's meaning.

The clause quoted above which describes the exception and reservation in favor of the Defendant is clear on its face. The clause excepts and reserves to the Defendant from the entire premises the following rights:

1) to use the wharf;

2) to keep and maintain a lobster car moored to the wharf;

3) to erect, maintain, and remove a gasoline storage tank on the premises or wharf;

4) to sell gasoline from the premises or wharf;

5) to lay and maintain all necessary piping;

6) to do any and all things necessary to fulfill all the foregoing purposes.

These excepted rights are specific, except for the last. The explicit language of the deed gave the Defendant a right to maintain a single gasoline storage tank on the property. (Defendant did maintain not one but several such gasoline tanks.) The deed gave the Defendant no right to maintain a kerosene storage tank there. The final one (6) is general but refers explicitly to the previously enumerated rights, (1) through (5). Thus, guided by the familiar principle of ejusdem generis, we must interpret it in...