Cachola v. Kroger Co., Docket No. 8695

• Decision Date: 22 April 1971
• Docket Number: No. 1,Docket No. 8695,1
• Citation: 32 Mich.App. 557,189 N.W.2d 112
• Parties: Robert CACHOLA, Jr., and Madeline Cachola, his wife, Plaintiffs-Appellants, v. The KROGER COMPANY, an Ohio corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 112

189 N.W.2d 112

32 Mich.App. 557

Robert CACHOLA, Jr., and Madeline Cachola, his wife Plaintiffs-Appellants, v. The KROGER COMPANY, an Ohio corporation, Defendant-Appellee.

Docket No. 8695.

Court of Appeals of Michigan, Division No. 1.

April 22, 1971.

Rehearing Denied June 1, 1971.

Leave to Appeal Denied Aug. 4, 1971.

Released for Publication Aug. 25, 1971.

A. R. Zeff, Zeff & Zeff, Detroit, for plaintiffs-appellants.

Plunkett, Cooney, Rutt & Peacock, Detroit, for defendant-appellee.

Before J. H. GILLIS, P.J., and R. B. BURNS and LEVIN, JJ.

R. B. BURNS, Judge.

Mrs. Cachola slipped and fell on a broken fruit jar and it contents while shopping at the defendant's supermarket. Defendant denied plaintiffs' charge of negligently operating the supermarket and, in addition, stated that Mrs. Cachola was not injured by the fall. Defendant also pleaded that Mrs. Cachola was guilty of contributory negligence.

Plaintiffs appeal from the jury's verdict of no cause of action. Plaintiffs claim three errors, only one of which will be discussed in this opinion.

Plaintiffs claim the trial judge erred when he denied plaintiffs' motion for a mistrial. The motion was made after defendant's counsel made the following statement:

'Dr. Prisbie, you're currently under indictment in the United States Federal Court for failing to report taxable income?'

Plaintiffs immediately moved for a mistrial. The trial judge sustained the objection but did not grant the motion for a mistrial.

'The Court: May I say, ladies and gentlemen of the jury, the issuance of an indictment is an allegation. One is presumed to be innocent until proven guilty beyond a reasonable doubt; so the issuance of an indictment in and of itself has no bearing in this cause unless there's some disposition. * * *

'You made a statement and, therefore, I'll instruct the jury to disregard it and you asked him if there was and I'm not going any further. Therefore, I'm telling the jury to disregard the question and I'll sustain the objection of Mr. Zeff.'

As stated in People v. Milkovich (1971), 31 Mich.App. 582, 585, 188 N.W.2d 124, 126:

'Although the court instructed the jury to disregard the testimony, by 'that time * * * the damage had already been done to defendant's cause in the minds of the jurors.' People v. Greenway (1962), 365 Mich. 547, 550, 114 N.W.2d 188, 190.'

The defense deliberately, with a calculated risk that the error would be declared harmless, injected a projudicial statement into...