Serinto v. Borman Food Stores

• Decision Date: 06 May 1968
• Docket Number: No. 45,45
• Citation: 380 Mich. 637,158 N.W.2d 485
• Parties: Anthony SERINTO, Plaintiff and Appellant, v. BORMAN FOOD STORES, a Michigan corporation, Defendant and Appellee. Catherine SERINTO, Plaintiff and Appellant, v. BORMAN FOOD STORES, a Michigan corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 485

158 N.W.2d 485

380 Mich. 637

Anthony SERINTO, Plaintiff and Appellant, v. BORMAN FOOD STORES, a Michigan corporation, Defendant and Appellee.

Catherine SERINTO, Plaintiff and Appellant, v. BORMAN FOOD STORES, a Michigan corporation, Defendant and Appellee.

No. 45.

Supreme Court of Michigan.

May 6, 1968.

Jerry P. D'Avanzo, Southgate, for appellants.

Cary, BeGole, Martin, Bohall & Joselyn, by Lawrence A. Bohall, Detroit, for appellee.

Before the Entire Bench.

KELLY, Justice.

A jury awarded plaintiff Catherine Serinto damages for an injury she received when she stepped and fell on a broken mayonnaise jar on the floor of defendant Borman Food Stores, and damages in her husband's suit for medical expenses, loss of services and consortium. The trial court refused defendant's motion for directed verdict at the close of plaintiffs' proofs and, also, refused a motion for judgment notwithstanding the verdict.

The Court of Appeals set forth the issue by stating (3 Mich.App. 183, 188, 142 N.W.2d 32, 33):

'The sole issue raised in these appeals is whether or not the plaintiffs proved a prima facie case of notice or knowledge as a matter of law. Stated another way, the question is: Was there enough evidence to raise a question of notice or constructive notice on the part of the defendant so that the matter should have been submitted to a jury for determination.'

The sole question presented to this Court is: Did the Court of Appeals err in answering the above question in the negative, holding there was not enough evidence for the court to submit the question to the jury?

Carpenter v. Herpolsheimer's Co. (1937), 278 Mich. 697, 271 N.W. 575 (Syl 1), distinctly and concisely sets forth defendant's duty as a storekeeper, as follows:

'It is the duty of a storekeeper to provide reasonably safe aisles for customers and he is liable for injury resulting from an unsafe condition either caused by the active negligence of himself and his employees or, if otherwise caused, where known to the storekeeper or is of such a character or Has existed a sufficient length of time that he should have had knowledge of it.' (Emphasis ours.)

The only testimony offered to prove defendant's negligence was the testimony of plaintiff Catherine Serinto, and re sume of this testimony is set forth in 3 Mich.App. 183, 187--188, 142 N.W.2d 32. The following facts are sufficient for this opinion:

Plaintiff Catherine Serinto entered defendant's store about 10:50 on Good Friday morning, March 27, 1959, with a shopping list she had prepared to take care of food and meat needs not only for Easter, but for the following week; after she had proceeded back and forth in three of the five shopping aisles, selecting articles from shelves so high she could not see from one aisle to another, she turned to enter the aisle where mayonnaise, pickles, et cetera, were displayed, and slipped and fell on a broken mayonnaise jar that was on the floor a foot or a foot and one half from the shelf; she did not see the jar or the mayonnaise on the floor before she slipped and fell; the floors in the store were 'clean and clear' and the mayonnaise that was spilled on the floor from the broken jar 'was a creamish white, * * * the same as the floor'; she was familiar with the sound of breaking glass or the sound that a glass jar would make if it fell on a hard floor; and she had been in the store about 45 to 50 minutes prior to the accident and during this time she did not hear anything resembling the sound of a jar breaking.

Appellants contend the testimony that, during the 45 or 50 minutes plaintiff Catherine Serinto was in the store, she had heard no sound resembling the jar breaking would justify reasonable minds in inferring that the broken jar was on the floor before she entered the store, and 'defendant should have known of its existence after 45 to 50 minutes, and that this failure constituted negligence.'

Appellee calls attention to the fact that there was no testimony as to what extent the jar was broken before Mrs. Serinto's fall, and contends there was no testimony to sustain plaintiffs' contention that the jar fell from a shelf with a clearly audible smash; that the jar could have rolled off a shopping cart; could have fallen from a shelf a few inches from the floor; could have dropped from the hand of a customer who partially arrested its fall, yet fallen far enough to crack the glass sufficiently to scatter the mayonnaise, and concludes with the statement: 'To find constructive notice from this record, we have first to infer that the jar fell, secondly, infer that it made a noise and finally, infer that the noise was such that Mrs. Serinto at some undefined distance, concentrating as she states she was upon her own shopping and her shopping list, would have heard it. * * * To permit a jury to infer notice from these things, is simply to permit speculation in the place of proof.'

Plaintiffs rely on 'negative evidence,' defined as 'evidence to the effect that a circumstance or fact was not perceived,' ¹ to sustain the requirement that they proved constructive notice.

Granting due favorable view to plaintiff Catherine Serinto's testimony that she did not hear any sound, the absence of which was and is requisite to her theory of recovery, the fact remains that what she related in such regard constitutes valueless negation within the rule which this Court applied in Dalton v. Grand Trunk Western Railroad Co. (1957), 350 Mich. 479, 87 N.W.2d 145. In Dalton, as here, no witness heard what the plaintiffs said did not occur (the timely blowing of the whistle of the oncoming train), yet the Court ruled unanimously that the plaintiffs had failed to make out a submissible case of causal negligence. The reason given was the same as that which we now assign (pp. 485--486, 87 N.W.2d p. 149):

'The mere fact of nonhearing, standing alone, ordinarily has no probative value whatever as to the occurrence, or nonoccurrence, of the event. Many of us did not hear the bombs falling on Pearl Harbor. Thus the burden upon him who relies upon negative testimony is marked: he must show the circumstances pertaining to the nonobservance, the witness' activities at the time, the focus of his attention, his acuity or sensitivity to the occurrence involved, his geographical location, the condition of his faculties, in short, all those physical and mental attributes bearing upon his alertness or attentiveness at the time. We expressed this principle in Lambert v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., 209 Mich. 107, 113, 176 N.W. 453, in which we held, per Fellows, J.:

"This analysis of the cases shows that in those relied upon by the plaintiff it was held that where the witnesses testified that they were listening, their attention was upon the train, its coming was upon their minds and they were paying heed to it, that then their testimony makes a case for the jury. This upon the theory that if they were listening, giving the train heed and attention, the probabilities are they would have heard the signals if they had been given."

This quotation was followed by an extended discussion of the authorities which have dealt with negative testimony and the circumstances under which such testimony will or will not make out a jury question of negligence and causation.

Plaintiff Catherine Serinto's testimony did not meet this negative testimony test and we do not agree with appellants' contention that her testimony that, during the 45 or 50 minutes she was in the store, she heard no sound resembling that of a jar breaking, would justify reasonable minds in inferring that the broken jar was on the floor before she entered the store.

The Court of Appeals did not err in concluding that there was not sufficient evidence to justify submitting to the jury the question of defendant's notice of the existence of the broken mayonnaise jar on the floor of defendant's store.

Affirmed. Costs to appellee.

DETHMERS, C.J., and BLACK, SOURIS and BRENNAN, JJ., concurred with KELLY, J.

BLACK, Justice.

Like Division I (3 Mich.App. 183, 142 N.W.2d 32), Justice Kelly has applied correctly our case law to plaintiffs' theory of recovery and has found that theory wanting. I accordingly vote with Justice Kelly to affirm.

There is more to be said though, the precedential future considered in conjunction with a conceded fact. That fact is that defendant had immediate notice of plaintiff Catherine Serinto's fall and of the condition which caused it; hence full opportunity of timely investigation and submission of proof stemming from that investigation. The following portion of the pretrial summary will suffice to point up my allusion:

'Defendant's Version:

'On or about March 27, 1959, defendant operated a grocery store at 3647 Dix in the city of Lincoln Park. Defendant was informed by plaintiff about an accident or fall at about 11:15 a.m., on March 27, 1959. Defendant's manager inspected the area where the plaintiff, Catherine Serinto, claimed she had fallen and noted a broken jar of mayonnaise or salad dressing on the floor in an aisleway of defendant's store. The mayonnaise or salad dressing appeared fresh and smooth and was located in an area where the product itself was not shelved.

'Defendant claims that it had no notice or knowledge of the presence of the broken jar of mayonnaise or salad dressing on the floor prior to the plaintiff's alleged accident, that the jar had apparently been dropped by a customer shortly before plaintiff's alleged fall as the debris was located in an area where the product was not shelved and the product appeared fresh and smooth, that defendant exercised reasonable care in the maintenance of its premises and was, therefore, not negligent, and that the plaintiff, Catherine Serinto, was negligent. Defendant claims that plaintiff was negligent in her failure to see the presence of the broken jar of mayonnaise or salad dressing, in her failure to make...