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McClafferty v. Tide Water Associated Oil Co.

Decided: December 8, 1948.

BERNARD A. MCCLAFFERTY, PLAINTIFF,
v.
TIDE WATER ASSOCIATED OIL COMPANY AND FERD LINNEMAN, DEFENDANTS



Action at law.

Joseph L. Smith, J.s.c.

Smith

At the conclusion of the plaintiff's case the defendants moved for a dismissal of the action and the Court, at that time, reserved its ruling on that motion and directed the defendants to proceed with their defense.

After both sides rested the defendants then moved for a directed verdict in favor of the defendants as against the plaintiff and the Court now has that motion before it for disposition.

The plaintiff has discontinued as to the second and third counts.

Therefore, this motion is addressed to the first count of the second amended complaint. For the purposes of this motion, the Court must necessarily consider all of the pleadings as they are a part of the record. It must further necessarily consider all of the several allegations set forth in the complaint now

before the Court for consideration in connection with this motion.

The complaint alleges in the first count that on March 15, 1943, the date of the accident and for a long time prior thereto, the defendant, Tide Water Associated Oil Company, referred to hereafter as Tide Water, owned certain lands and premises constructed for and used as a gasoline service station, at the corner of Morris and Lincoln Streets, Phillipsburg, Warren County, New Jersey. This station was used for the purpose of selling Tide Water products and also for the purpose of performing various services for the public.

The complaint further alleges that this station was one of a number or chain owned by Tide Water, and it charges that prior to March 15, 1943, the defendant, Tide Water, leased the said station to one J. Stuart Hamlen, and that under and by virtue of said lease, said Hamlen, on March 15, 1943, date of accident, was operating this station.

The allegation in the complaint is that under the said lease that Tide Water agreed to make all repairs and replacements. The lease, itself, provides just the opposite to this allegation.

It is alleged, and the lease provides, for this tenant to permit the defendant, Tide Water, to enter and inspect the leased premises at any time.

The remaining allegations in paragraph 3(a) are contrariwise to the provisions of the lease.

A copy of the lease, and it is admitted it was reformed by the Court of Chancery, to include the station, is attached to the complaint and marked Schedule A. The lease, and the agreement of counsel, as to the ...


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