Indiana Lumbermens Mut. Ins. Co. v. Matthew Stores, Inc.

• Decision Date: 04 September 1957
• Docket Number: No. 85,85
• Citation: 84 N.W.2d 755,349 Mich. 441
• Parties: INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, a foreign corporation, and Michigan Millers Mutual Fire Insurance Company, as subrogees of Dorr and Margaret Anderson, d/b/a Andy's Shopping Basket, Plaintiffs-Appellants, v. MATTHEW STORES, Incorporated, a Michigan Corporation, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 755

84 N.W.2d 755

349 Mich. 441

INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, a foreign corporation, and Michigan Millers Mutual Fire Insurance Company, as subrogees of Dorr and Margaret Anderson, d/b/a Andy's Shopping Basket, Plaintiffs-Appellants, v. MATTHEW STORES, Incorporated, a Michigan Corporation Defendant-Appellee.

No. 85.

Supreme Court of Michigan.

Sept. 4, 1957.

Reagh, Warren & Denfield, Lansing, for appellants.

Timothy M. Green, St. Johns, for appellee.

Before the Entire Bench, except BOYLES, J.

SMITH, Justice.

This case involves a collision between an ice cream truck and a supermarket. The plaintiffs are the subrogees of Dorr and Margaret Anderson, the owners of the supermarket, known as Andy's Shopping Basket. We will refer to them as though they were the store owners. The defendant's business, as far as pertinent to this litigation, involves the ownership of an ice cream truck and its operation by one Oral Good. The defendant's truck crashed into and partially through the front of the plaintiffs' store, causing considerable damage, and this litigation seeks reimbursement.

The market is located on US-27 at the westerly limits of the city of St. Johns at a point where North Clinton avenue intersects the highway. Most of the area immediately around the store is paved with asphalt and at the point where the accident occurred there is a sidewalk about 10 feet wide, raised 3 inches above the asphalt and extending along the side of the building. On the day in question, Oral Good, defendant's employee, 'turned off from North Clinton avenue and drove directly to the store.' Dorr Anderson was standing inside the market with Mr. Harper, a salesman, at about 9:15 a. m. Mrs. Wilma Bensinger and another employee of the market were also at work inside. At this moment they 'heard a terrific crash, sounded like the roof fell in.' When the parties recovered their composure, they discovered that the Matthews' ice cream truck 'was partially in the building.' Mr. Good, the driver, came into the store and talked with Dorr Anderson, who related the conversation to the court:

'Well, he was in quite a high state of upset or excitement I would say, and he said that he wasn't driving too fast, that he thought he was going to stop, and he felt he certainly would stop when he hit the building, he didn't expect the building to cave in.'

The plaintiffs' declaration charged that the driver 'approached said building in a negligent, careless and reckless manner, striking the northeast corner of said building, greatly damaging the same,' alleged specific duties on the part of the driver, and asserted that 'notwithstanding' such duties the defendant's agent drove in the careless, etc., manner described and damaged the building. The defendant denied the driving so charged and described, and asserted 'that any accident which may have caused injury to the subrogor's building was not caused through any act of negligence on the part of this defendant or its servant, but by an Act of God, the asphalt pavement around said subrogor's premises having become covered the night before by an icy condition of which this defendant's agent had no knowledge and could not see.' At the close of the plaintiffs' proofs the defendant moved for a judgment of no cause for action. This the trial court granted on the grounds that there were 'missing links' in the proofs. Motion for new trial having been made and denied, plaintiffs are before us on a general appeal.

Our problem here is the proof of negligence by circumstantial evidence. ¹

At the one extreme, it is clear that the happening of an accident alone is not evidence of negligence. Something more must be shown than the mere happening. At the other extreme, it is clear that we do not require direct evidence to establish each of the issues in a negligence case. In fact it is an unusual case where none of the issues confronting the jury (including duty, breach, and causal connection) is established, at least in part, by a process of inference from relevant and established facts. To the degree that we employ such a process of inference we are using circumstantial evidence. We do it constantly. The law would be paralyzed without it.

But we said that the mere happening of an accident, standing alone, is not evidence of negligence. Where, then, do we draw the line? We will start with the case of Alpern v. Churchill, 53 Mich. 607, 19 N.W. 549, 552. It cast a long shadow. Mrs. Alpern, the plaintiff, complained of the destruction by fire of certain buildings and alleged that the fire was caused by sparks from defendants' refuse burner, located nearby. Defendants conceded that, 'Prima facie, the plaintiff has made out a case to show that this fire did originate from the sparks from the burner of the defendants,' but by the court's instruction 'the case was made to turn upon the question whether there was any evidence tending to show negligence in the defendants, in the use of an imperfect or insufficient spark-catcher.' The jury was instructed to find for defendants. In reversing, Mr. Justice Cooley wrote as follows for a unanimous court:

'Proof that the injury probably resulted from sparks emitted from the burner was ample, but the judge was of opinion that this was insufficient to establish a liability unless there was some affirmative showing of negligence, beyond what might be inferred from the injury itself. And this, as a general principle, is no doubt true; the party counting upon negligence must adduce affirmative proof of it. Lake Shore etc. R.R. Co. v. Miller, 25 Mich. 274; Macomber v. Nichols, 34 Mich. 212; Grand Rapids etc. R.R. Co. v. Judson, ; Brown v. Congress & B. Street Railway Co., 49 Mich. 153, 13 N.W. 494. But we are not satisfied that there was in this case such an absence of evidence as the judge supposed. Negligence, like any other fact, may be inferred from the circumstances, and the case may be such that, though there be no positive proof that defendant has been guilty of any neglect of duty, the inference of negligence would be irresistible.'

Some 30 years later we decided the case of Maki v. Isle Royale Copper Co., 180 Mich. 624, 147 N.W. 533, 534. This involved a personal injury. Plaintiff, working in defendant's mine, was struck by a falling bucket. The bail of this bucket was attached to a chain which, in turn, was attached to the hook of the 'lower block' by a double knot in the chain. 'There was testimony,' states the opinion, 'to show that, if a chain were knotted in the way this chain was, it should also be bolted in order to be reasonably safe.' Was there a bolt there? The defendant insisted, as to this, that the record was absolutely blank. The trial court directed a verdict for defendant. In reversing, we held as follows:

'It is true that there is no positive direct testimony that there was no bolt in the knot at the time of the accident, but, having in mind the well-established rule that, in directing a verdict for the defendant, the facts in the case should be viewed most favorably to the plaintiff, can it be said that a reasonable inference cannot be drawn that the bucket fell because of the failure to furnish the knot with the necessary bolt? In this state, defendant's negligence cannot be presumed and must be proven, but we think the reasoning of this court in Schoeopper v. Hancock Chemical Co., 113 Mich. 582, 586, 589, 71 N.W. 1081, 1082, 1084, is applicable to the instant case. Justice Montogmery, speaking for the court, said:

"Defendants counsel contend that the cause of this explosion is a matter of mere conjecture, and it is said by counsel that it is not enough for plaintiff to prove circumstances consistent with her theory, but that these circumstances, and each of them, must preclude any other rational conclusion. This we take to be but another way of stating the proposition that the proof must exclude all reasonable doubt. It is hardly necessary to say that no such rule obtains in civil cases. It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v. Charles Wright & Co., 94 Mich. 283 ; Redmond v. Delta Lumber Co., 96 Mich. 545 . But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities and for drawing reasonable inferences better supported upon one side than the other. In this case there was no direct proof of any other probable producing cause of the explosion than such as was offered by theplaintiff.

* * * Negligence, like any other fact, may be inferred from circumstances. Alpern v. Churchill, 53 Mich. 613 ; Barnowsky v. Helson, 89 Mich. 523 [50 N.W. 989, 15 L.R.A. 33]. And, though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff's theory is the correct one, or whether it was sufficiently rebutted, was for the jury. Crosby v. Detroit, G. H. & M. Railway Co., 58 Mich. 458 ; Hagan v. Chicago, D. & C. T. J. Railroad Co., 86 Mich. 615 ; Woods v. Chicago & G. T. Railway Co., 108 Mich. 396 . The judgment will be reversed, and a new trial ordered.'

'See, also, La Fernier v. Soo River Lighter & Wrecking Co., 129 Mich. 596, 89 N.W. 353; Mirabile v. Simon J. Murphy Co., 169 Mich. 522, 135 N.W. 299; Maki v. Mohawk Mining Co., 176 Mich. 497, 142 N.W. 780.

'We have, in the instant case, the testimony above set forth and the physical fact that the bucket fell while it was empty and suspended upon the chain without being subjected to any unusual strain or jar. We are of the opinion that a reasonable inference supporting the plaintiff's theory of the case might properly be drawn by a jury, and that this question should have been submitted to the jury.' (Emphasis ours.)

We will...