Genesee Merchants Bank & Trust Co. v. Payne

Decision Date25 September 1968
Docket NumberNo. 17,17
PartiesGENESEE MERCHANTS BANK AND TRUST COMPANY, Guardian of the Estate of Mary Ann Blaisdell, Plaintiff-Appellant, v. Carroll PAYNE and Margaret Payne, Defendants-Appellees.
CourtMichigan Supreme Court

Leitson, Dean, Dean, Abram, Segar & Hart, Flint, by Robert Abram, Flint, for appellant.

Robert Taylor, Carl M. Riseman, Detroit, of counsel, for appellants.

Before the Entire Bench.

KAVANAGH, Justice.

This case is here on appeal from a judgment of the Court of Appeals, which reversed the judgment of the trial court in favor of plaintiff. 6 Mich.App. 204, 148 N.W.2d 503.

Plaintiff filed a complaint in the circuit court of Genesee county seeking to recover for personal injuries suffered by its ward, Mary Ann Blaisdell, a slightly retarded 6-year-old child, while on defendants' premises.

Defendants Payne agreed to care for Mary Ann and the other Blaisdell children while their mother and father visited another child in the hospital. Defendants drove the Blaisdell children to the Payne residence and the children of both families played together in and about the Payne house and yard. Mary Ann severed her Achilles tendon on some object in the yard. The next day a large, sharp piece of glass (the top of a fruit jar) was discovered in the vicinity in which the injury occurred.

Trial of the matter was before the court without a jury and resulted in a $2,500 judgment in favor of plaintiff. The trial court's opinion read in part as follows:

'The court will find the minor child has sustained personal injuries on October 18, 1963, and on the premises of the defendant at 2226 Lodge Road. The court will also find that the plaintiff was invited upon the defendant's premises by the defendant. The court should also find that the defendants owed a duty to this infant plaintiff to maintain the premises in a reasonably safe condition, and to prevent the existence of any situation which the defendants knew or should have known might result in injury.

'The court will also find that it is reasonably foreseeable that broken glass or a number of other objects in the area where the children play can be a hazardous condition.

'From the testimony and also from exhibits 3 and 4 the court will find the Defendants were negligent in that they allowed a number of articles to remain in the area where the infant was playing, and the court should find for the record that the Defendants negligence was the proximate cause of the injury involved.

'The plaintiff may have a judgment in the amount of $2,500, and may tax costs.' (Emphasis added.)

Defendants appealed to the Court of Appeals, making two assignments of error. The first assignment was that at the trial the plaintiff introduced discovery depositions of both defendants over an objection properly made. Defendants assert that these depositions should not have been admitted, since the defendants were present in court.

The second question raised can best be stated in two parts:

(1) What duty did the defendants owe the plaintiff's ward?

(2) Does the record contain evidence which would support the finding that this duty was breached?

The Court of Appeals found the use of the depositions was proper. It found there was no evidence which would support a finding that a duty was breached since the record fails to show what caused the injury. The Court of Appeals reasoned that fact-finders may not indulge in conjecture and that the fact that an accident occurred did not establish negligence, and concluded that the record contained nothing that did establish negligence. That court then reversed the judgment of the trial court. Plaintiff is here on leave granted June 8, 1967.

In Baith v. Knapp-Stiles, Inc. (1968), 380 Mich. 119, pp. 125, 126, 156 N.W.2d 575, p. 578, this Court stated:

'We have repeatedly held in law cases tried without a jury, that the trial judge may give such weight to the testimony as in his opinion he feels it should receive. In McCarty v. Mercury Metalcraft Co. (1964), 372 Mich. 567, 577, 127 N.W.2d 340, 344 (129 N.W.2d 854) we said:

"This Court, in reviewing controverted issues of fact in a law case tried without a jury, does not consider the case De novo as if it were in equity. Schneider v. Pomerville, 348 Mich. 49, 81 N.W.2d 405.'

'In such cases we do not reverse unless the judgment is against the clear preponderance of the evidence. Allen v. Kroger Grocery & Baking Co. (1944), 310 Mich. 134, 16 N.W.2d 691; Marquette Lumber Co. v. Burke (1944), 308 Mich. 698, 14 N.W.2d 544; Stevenson v. Brotherhoods Mutual Benefit (1945), 312 Mich. 81, 19 N.W.2d 494; Wagschal Associates, Inc., v. West (1961), 362 Mich. 676, 107 N.W.2d 874; Liberty Mutual Insurance Company v. Bay City (1962), 367 Mich. 8, 116 N.W.2d 199; Siller v. Laitila (1963), 370 Mich. 373, 121 N.W.2d 825; Lud v. Sams (1963), 371 Mich. 680, 124 N.W.2d 800; Insurance Company of North America v. Schuneman (1964), 373 Mich. 394, 129 N.W.2d 403.

'These rules apply equally to the Court of Appeals.'

Therefore, the first question before this Court is whether a judgment in favor of the guardian of a 6-year-old child, who severed her Achilles tendon while on defendants' premises, is against the clear preponderance of the evidence as a matter of law. The record discloses that the area of defendants' premises where the plaintiff's ward received her injury contained: a glass bottle top with other pieces missing; a broken lamp; cinder blocks; swings; a roller coaster track; old torn out metal steps; a storm window; bicycles; tin tubs; watering hose; a dilapidated dog house.

The record further discloses that defendant Carroll Payne took the 6-year-old child to the hospital, and that the hospital 'emergency case record' stated the infant 'cut left heel on glass' at the home of a friend. The location of the glass, as testified to by defendant Margaret Payne, and the place where the child was playing when injured, as testified to by defendant Carroll Payne, were in the same area. The record shows the 6-year-old child was slightly mentally retarded, and that defendants had complete control and supervision of her at the time of the accident. The child testified, 'They came over to our house and took us there, and then I got cut. I went out doors and got cut.' The trial court observed the scar on the injured child's leg. Plaintiff's exhibits 1 through 4, showing the condition of the premises, disclose 'the jungle' in which the child was permitted to play. Exhibit 3 is reproduced here.


See Kroll v. Katz (1964), 374 Mich. 364, 132 N.W.2d 27, involving a somewhat similar use of a picture.

We must hold, as did Justice Black in Barnes v. Beck (1957), 348 Mich. 286, 292, 83 N.W.2d 228, that this record discloses arguable testimony and inference supporting and opposing the trial judge's findings as outlined. We are consequently obligated to rule that the judgment entered on such findings passes muster against challenge.

The weight given to and inferences to be drawn from the exhibits and the testimony are for the judge in a law case tried without a jury. We do not reverse unless we find the trial court's decision is against the preponderance of the evidence. Neither can the Court of Appeals.

In the instant case we cannot say the judgment of the trial court was against the clear preponderance of the evidence. The Court of Appeals invaded the function of the trial court as a fact-finder. In so doing, it committed error.

The question dealing with the admission of the depositions of the defendants, even though they were present in court, was correctly decided by both the trial court and the Court of Appeals. Ruhala v. Roby (1967), 379 Mich. 102, 150 N.W.2d 146.

We do not pass upon the liability of the defendant Margaret Payne by reason of the tenancy by the entireties ownership of the property, since the issue was not raised in either the Court of Appeals or this Court.

The order of the Court of Appeals is reversed and the case is remanded to the trial court for re-entry of its judgment. Costs to plaintiff.

BLACK, Justice (for reversal).

I think this case is governed by Restatement's view of the duty owing by the possessor of land to 'young' children, no matter the status of the latter as invitees, licensees, or trespassers. For the case of a youngster of tender years, even though he is a technical trespasser (which all agree is not the case here), Restatement declares (Restatement, Torts, Negligence, § 339, p. 920):

'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'

The fact is that the legal status of this infant plaintiff, said by the trial judge (and tacitly echoed by Division 2; 6 Mich.App. at 208, 209, 148 N.W.2d 503) to be that of an invitee, is neither controlling nor relevant. Whether one or the other, defendants owed the child that common law duty, demonstrated well by quoted section 339, which was commensurate with all of the circumstances shown in evidence including the nature of the cause of her injury and the little girl's presumptive inability to fully comprehend and hence protect herself from what actually...

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8 cases
  • Kessler v. Mortenson
    • United States
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    • December 5, 2000
    ...the Restatement has been adopted or whether the state has retained its own rule. See e.g., Genesee Merchs. Bank & Trust Co. v. Payne, 381 Mich. 234, 161 N.W.2d 17 (1968) (Black, J., dissenting); Everett v. White, 245 S.C. 331, 140 S.E.2d 582 (1965). As far as we can tell, seven states have ......
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    ...(see, e.g., Conn.Gen.Stat.Ann., § 52--557a; Genesee Merchants Bank & Trust Co. v. Payne, 6 Mich.App. 204, 148 N.W.2d 503, affd., 381 Mich. 234, 161 N.W.2d 17; Daire v. Southern Farm Bur. Cas. Ins. Co., 143 So.2d 389 (La.App.); cf. the cases noted Supra abolishing the common-law distinctions......
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    ...eliminate the danger or otherwise to protect the children.' One of the opinions for reversal of Genesee Merchants Bank & Trust Company v. Payne, 381 Mich. 234, 242--243, 161 N.W.2d 17, 22 (1968), states as 'Since original section 339 was adopted and promulgated by the American Law Institute......
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    • May 5, 1998 hoc ergo propter hoc (after this, therefore in consequence of this) that is impermissible. Genesee Merchants Bank & Trust Co. v. Payne, 381 Mich. 234, 248, 161 N.W.2d 17 (1968) (Kelly, J.); Kaminski v. Grand Trunk W. R. Co., 347 Mich. 417, 79 N.W.2d 899 (1956); Knowles v. Knowles, 185 ......
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