Vickers v. American Oil Co.

• Court: Court of Appeal of Michigan
• Writing for the Court: O'HARA
• Citation: Vickers v. American Oil Co., 182 N.W.2d 592, 26 Mich.App. 245 (Mich. App. 1970)
• Decision Date: 26 August 1970
• Docket Number: Docket No. 8059,No. 1,1
• Parties: Lewis H. VICKERS and Dollie Vickers, Plaintiffs-Appellants, v. The AMERICAN OIL COMPANY, a Maryland corporation, Defendant-Appellee

Page 592

182 N.W.2d 592

26 Mich.App. 245

Lewis H. VICKERS and Dollie Vickers, Plaintiffs-Appellants, v. The AMERICAN OIL COMPANY, a Maryland corporation, Defendant-Appellee.

Docket No. 8059.

Court of Appeals of Michigan, Division No. 1.

Aug. 26, 1970.

Released for Publication Jan. 5, 1971.

Peter F. Cicinelli, Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiffs-appellants.

G. Cameron Buchanan, Alexander, Buchanan & Conklin, Detroit, for defendant-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and O'HARA, JJ. ^* O'HARA, Judge.

This is an action based on contract. On September 1, 1964, the parties entered into a written agreement whereby plaintiff Lewis Vickers agreed to sublease a gasoline service station from defendant. The lease, by its terms, provided in pertinent part:

'Lessee hereby covenants and agrees as follows:

'1. That Lessee has examined and knows the condition of said premises and the buildings, equipment, machinery and appliances situated thereon, acknowledges that he has received the same in good order and repair (except as otherwise specified), and that no representations as to the condition or repair thereof have been made by Lessor or anyone representing Lessor.

'2. That Lessee * * * will keep said premises, buildings, equipment, machinery and appliances, together with the adjoining sidewalks and entrance driveways in good order and repair; * * *.

'3. Lessor, its agents and employees shall not be liable for any loss, damage, injuries, or other casualty of whatsoever kind or by whomsoever caused, to the person or property of anyone (including Lessee) on or off the premises, arising out of or resulting from Lessee's use, possession or operation thereof, or from defects in the premises, whether apparent or hidden, or from the installation, existence, use, maintenance, condition, repair, alteration, removal or replacement of any equipment thereon, whether due in whole or in part to negligent acts or omissions of Lessor, its agents or employees; and Lessee for himself, his heirs, executors, administrators, successors and assigns, hereby agrees to indemnify and hold Lessor, its agents and employees, harmless from and against all claims, demands, liabilities, suits or actions (including all reasonable expenses and attorneys' fees incurred by or imposed on the Lessor in connection therewith) for such loss, damages, injury or other casualty. * * *

'IT IS FURTHER MUTUALLY COVENANTED AND AGREED AS FOLLOWS:

'13. That no obligation, agreement or understanding on the part of either party to be performed shall be implied from any of the terms and provisions of this lease, all obligations, agreements and understandings being expressly set forth herein.'

In their amended complaint, dated February 22, 1968, plaintiffs alleged that at the time the lease was entered into, a certain defect was present in the driveway area, to wit:

'* * * that the area immediately surrounding said gasoline pumps was paved with concrete; that adjacent to and at a tangent to said concrete paving was another smaller portion of driveway, paved with concrete; that surrounding said abutting pads of concrete, the area was paved with blacktop, including the triangular area formed by the joining of the said two concrete pads.

'That the defect in the driveway area consisted of a depression in the driveway, wherein the triangular blacktop area formed by the joining of the concrete pads was lower than the surface of said concrete pads.

'That said defect was approximately two (2) inches deep, or more.'

Plaintiffs further alleged that, both prior and subsequent to plaintiffs' signing the lease, assurances were given by defendant's agents that necessary repairs to remedy the defective condition in the driveway would be made. On March 10, 1965, plaintiff Lewis Vickers tripped on the concrete lip, fell, and sustained severe and allegedly permanent back injuries. As a result, plaintiffs instituted this action for damages, alleging that Lewis Vickers's injuries were a result of 'the breaches of covenants, promises and agreements' of defendant. ¹

Filed in support of the amended complaint was an affidavit, signed by Lewis Vickers, which read, in part, as follows:

'3. That (at the time the lease was entered into) there existed a certain defect in the driveway area of said property, more particularly located at the edge of the concrete pad in front of the salesroom, and that such defect was made known to Mr. E. J. Cannon, ² sales representative of the defendant American Oil Company, who on behalf of the defendant American Oil Company covenanted and agreed to repair same.

'4. That your deponent continued to remind the said Mr. Cannon, agent of the defendant American Oil Company, of their promise to repair said driveway, and further received from other sales representatives of the defendant American Oil Company the same promises and covenants that said driveway defect would be repaired by the American Oil Company.

'5. That said defendant American Oil Company through its agents, servants, and employees failed to repair said defect as they had promised.'

On March 7, 1968, defendant answered and filed a motion for summary judgment alleging that plaintiffs had failed to state a claim upon which relief could be granted in light of the express provisions of the lease. On May 3, 1968, plaintiffs answered defendant's motion and alleged that 'all of the duties and obligations, promises and covenants are not shown in said lease agreement' and that 'the terms and provisions of the lease * * * were modified at the signing of said lease, and thereafter, prior to plaintiff's injury, in that certain exceptions were made with respect to repairs of certain defects existing in, on, and about the leasehold premises at the time of said agreement of September 1, 1964, which repairs, notwithstanding the written terms of said lease, were agreed by defendant's agents, servants, and employees, to be undertaken and remedied by said defendant American Oil Company * * *.' In addition to incorporating by reference the affidavit of Lewis Vickers (see fn. 3), plaintiffs attached to their answer as exhibits certain inter-office memoranda of defendant. In these memoranda, dated October 2, October 14 and November 27, 1964, the subject of the defect in question was discussed along with several other maintenance problems existing at the gas station. It is apparent from these memoranda that defendant was negotiating with the Owner of the property and that the owner had agreed to undertake the repair of the driveway. An additional memorandum, dated May 19, 1965, read as follows:

'Subject: Driveway at Lou Vickers. The driveway is in bad condition; a letter (652) dated in 11--64 stated the need for repairs and the fact that the property owner had been notified. I recommend that the driveway be repaired immediately and the bill sent to the property owner. The reason for this recommendation is the fact that the dealer (Lou Vickers) and a customer has suffered injuries from this and there are lawyers already...