Diefenbach v. Great Atlantic & Pac. Tea Co.

• Decision Date: 07 June 1937
• Docket Number: No. 9.,9.
• Citation: 273 N.W. 783,280 Mich. 507
• Court: Michigan Supreme Court
• Parties: DIEFENBACH v. GREAT ATLANTIC & PACIFIC TEA CO. et al.

280 Mich. 507

273 N.W. 783

DIEFENBACH

v.GREAT ATLANTIC & PACIFIC TEA CO. et al.

No. 9.

Supreme Court of Michigan.

June 7, 1937.

Action by Edward Diefenbach against the Great Atlantic & Pacific Tea Company and Earl Hester. From a judgment in favor of the plaintiff, the defendants appeal.

Reversed without new trial.Appeal from Circuit Court, Saginaw County; Alfred P. Pierson, judge.

Argued before the Entire Bench.

Alfred Lindbloom, of Detroit, for appellant Earl Hester.

Charles R. Fox, of Detroit, for appellant Great Atlantic & Pacific Tea Co.

Alfred F. Myer, of Saginaw, for appellee.

CHANDLER, Justice.

The defendant, Great Atlantic & Pacific Tea Company, hereinafter referred to as the A. & P. Company, is a New Jersey corporation duly licensed to transact business in the state of Michigan, owning and operating a number of stores in this state. The defendant Earl Hester was an employee of said company, being manager of the meat department in a combination grocery store and meat market located in the city of Saginaw.

On October 16, 1934, plaintiff was sitting in a barber shop directly across from the A. & P. Company store in which the facts involved in this case arose. The proprietor of the barber shop noticed a disturbance in the store and remarked that ‘they must be chasing a rat over there.’ Very shortly thereafter plaintiff went across the street and entered the store. He testified that as he entered some one instructed him to hold the door closed. At this moment he noted that the clerks were engaged in pursuing a rat and were using clubs and broom sticks for this purpose.

The store in question faces the south and the window space between the doorway entered by plaintiff and the east wall of the building is used for the purpose of a meat display. There is also a glass meat display case and counter extending along the east side of the room at an angle to the wall, leaving a space or aisle between the window and the meat case or counter. On the day in question this space was at least partially filled with leaves, corn stalks, and pumpkins for decorative purposes.

Plaintiff held the door shut for a short time in accordance with the request that had been made when he entered. The rat had selected the corn stalks, leaves, and pumpkins as a haven of refuge. One or two of the clerks were in the aisle or space at the end of the meat counter attempting to locate the rat. The plaintiff claims that the rat ran from its place of hiding directly toward him and that he jumped upon it. According to the plaintiff, this action on his part was not motivated by a desire to participate in any sport which might have existed in exterminating the unfortunate rat, but rather to prevent the rat from biting him or running up his pant leg. Plaintiff then stepped off the rat which started to move around whereupon plaintiff stepped forward into the corn stalks and leaves and jumped upon him for the second time. At this point, the defendant Hester, who, unlike the other clerks, had selected a large fish knife as his weapon, approached in a crouching position from the end of the meat counter, saw the rat, dealt a blow with the fish knife, missed the rat, and struck plaintiff's left foot for which he seeks damages in this action. The defendant Hester testified that he saw the rat, but did not see the plaintiff and that he ‘didn't dream there was a foot there.’

Motions on behalf of both defendants for a dircted verdict were taken under advisement by the court under the Empson Act (Comp.Laws 1929, §§ 14531-14534). The jury returned a verdict for the plaintiff. Motions for a judgment notwithstanding the verdict and for a new trial were denied. Defendants appeal.

Numerous reasons are set forth by defendants for reversal of the judgment. It is first contended that at the time plaintiff sustained the injury of which he complains he was a mere volunteer and that therefore the defendant A. & P. Company is not liable for the act of its servant. On the other hand, it is plaintiff's claim that he enjoyed the status and rights of an invitee, that the defendant Hester was guilty of negligence, and that the A. & P. Company should be held to respond to him in damages therefor.

The plaintiff testified that when he left the barber shop and entered the store of the defendant that he did so for the purpose of purchasing groceries and denies that he entered the store merely for the purpose of observing the rat hunt or to participate therein. Although the plaintiff actually purchased no groceries, if he entered the store for the purpose of transacting business mutual to himself and the A. & P. Company he would undoubtedly enjoy the rights and status of an invitee and such a finding by the jury under those facts and circumstances alone would not be disturbed. But whatever may have been his status upon entering the store, we are of the opinion that when he participated in the killing of the rat he became a mere volunteer and under such circumstances the A. & P. Company is not liable for his injuries.

He was under no obligation to assist the clerks in the performance of their duties....