177 Mich. 524 | Mich. | 1913
The case made by the declaration
“(1) Because the declaration fails to allege any such state of facts or such active wrongdoing or wanton or gross negligence as make the defendant liable to the plaintiff under the license or permission granted by it to plaintiff’s émployer, Alfred Paulson,*526 permitting his employees, including plaintiff, to enter and use the stove in the blacksmith shop of the defendant for the purpose therein mentioned.
“(2) Because it appears from said declaration that, at the time the accident occurred resulting in the injury to the plaintiff, the premises were not being used in accordance with the permission granted to Alfred Paulson, the employer of the plaintiff.
“(3) Because it appears from the declaration that the plaintiff was guilty of contributory negligence as a matter of law.
“ (4) Because it appears from the declaration that the plaintiff did not belong to the class of persons which Act No. 37 of the Public Acts of 1909 (the violation of which by the defendant is charged to be negligence) is intended to protect.
“(5) Because it does not appear from the declaration that the defendant belongs to the class of persons who are required by said act to keep gasoline, naphtha, or benzine in the receptacles mentioned in said act and marked as provided therein.
“(6) Because it does not appear that the defendant violated said Act No. 37 of the Public Acts of 1909.
“(7) Because the failure to label the can containing gasoline, naphtha, or benzine was not the approximate cause of the injury.
“(8) Because under the facts as stated in the declaration the defendant owed no duty to the plaintiff to label said can in accordance with said statute.
“(9) Because it does not appear from the facts as stated in the declaration that the defendant was guilty of any negligence.”
The demurrer was sustained and a judgment was entered that plaintiff take nothing by his suit and that defendant go thereof without day. It does not appear that any amendment of the declaration was or is desired.
The case cannot be disposed of on the second, third, fifth, or sixth grounds of demurrer. Fairly ■ interpreted, the declaration charges defendant with a violation of the statute. The command of the statute is: “Every person purchasing gasoline, benzine or
The statute imposes a duty as a regulation of police, and it provides that, if the duty is neglected, a penalty, which may be a fine or imprisonment or both, may be imposed. It does not otherwise point out the consequences of its violation. The authorities recognize as a general rule that, where the duty imposed by a statute is manifestly intended for the protection and benefit of individuals, the common law, when an individual is injured by a breach of the duty, will supply a remedy if the statute gives none. See Barfoot v. White Star Line, 170 Mich. 349 (136 N. W. 437), and authorities cited in the opinion. The duty imposed by this statute is in fact calculated to protect, and we have no doubt was intended to protect, individuals.
It is said by appellant that the statute is intended for the protection of the public; that plaintiff “was rightfully upon the premises and, being a part of the whole public, was entitled to the protection of the statute.” But a duty owing to everybody can never become the foundation of private action at law until some individual is placed in a position which gives him particular occasion to insist upon its performance ; it then becomes a duty to him personally. Illustrating by the facts before us, whether defendant obeyed the statute was a matter of no personal consequence to plaintiff so long as he remained away from defendant’s blacksmith shop or, being rightfully in the shop, so long as he did not use defendant’s property to build a fire. Assuming that defend
In argument appellant seems to make, the answer to this question depend somewhat upon what Larson did. Larson, it is averred, found the can and poured some of its contents into the stove; plaintiff supposing that what the can contained was kerosene oil. The enterprise of building a fire was a joint one, undertaken for the benefit of both Larson and the plaintiff, and involved, on the part of both, the use of defendant’s oil. It is not a case where the can and its contents came rightfully into the hands of Larson for use. Both were on the premises of defendant by permission. Neither had been invited to use them, and neither of them had any business to transact with defendant there. The relation of each to the premises and to defendant was that of a licensee. Did defendant owe them the duty to see that his gasoline (or benzine, or naphtha) was kept in a red can? We think the answer must be “no” unless in giving permission to build a fire defendant ought to have considered that the men were likely to use his kerosene oil for that purpose and might suppose the can in question contained kerosene oil. The plaintiff has not averred a custom or practice in the locality or generally of starting fires in stoves with oil, by reason of which defendant ought reasonably to have anticipated that his licensees would search for his oil and use it to start a fire. We know of no general custom or practice to make such use of kerosene oil.
We conclude that the declaration -alleges no duty owed by defendant to the plaintiff, and therefore affirm the judgment.