Serinto v. Borman Food Stores

• Decision Date: 11 May 1966
• Docket Number: No. 1,Nos. 262,263,s. 262,1
• Citation: 142 N.W.2d 32,3 Mich.App. 183
• Parties: Anthony SERINTO, Plaintiff-Appellee, v. BORMAN FOOD STORES, a Michigan corporation, Defendant-Appellant. Catherine SERINTO, Plaintiff-Appellee, v. BORMAN FOOD STORES, a Michigan corporation, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 32

142 N.W.2d 32

3 Mich.App. 183

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

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

Cal. Nos. 262, 263.

Court of Appeals of Michigan, Division No. 1.

May 11, 1966.

Lawrence A. Bohall, William A. Joselyn, of Cary, BeGole, Martin, Bohall & Joselyn, Detroit, for appellant.

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

Before LESINSKI, C.J., and QUINN and WATTS, JJ.

WATTS, Judge.

This is an appeal from judgments awarded to the plaintiffs in 2 suits tried concurrently. The theory was negligence, and the incident which gave rise to the motion was a fall taken by plaintiff in defendant's supermarket.

The facts as stated by defendant in its brief are undisputed.

On Good Friday, March 27, 1959, plaintiff Catherine Serinto was dropped off by her husband, plaintiff in the derivative suit, at defendant's Food Fair grocery market in Lincoln Park. The time was about 10:50 a.m.

The general layout of the store was described by Mrs. Serinto at the trial. The store was laid out in a square with about 5 aisles running from front to back. These aisles were bisected by an aisle down the middle from side to side.

Mrs. Serinto entered the store through the front door, got a shopping cart, and went to the meat counter. As she continued her shopping, Mrs. Serinto skipped aisle 2, turned into aisle 3 at the front of the store, traveled the entire length of aisle 3 to the back of the store, and turned into aisle 4 to proceed down that aisle toward the front.

Mrs. Serinto turned the corner into aisle 4 at the back of the store, took some articles off a shelf, took a few steps and slipped on what was subsequently shown to be a broken jar of mayonnaise and fell. This mayonnaise was located about a foot or a foot and a half from the display shelf on the left side as one faced the front of the store. It was creamish white in color, and the condition of the floor in the store (other than the area of the broken jar) was clean and clear, including aisle 4.

The store was almost empty of customers when Mrs. Serinto first went in, since it was to close at noon. She had been shopping about 50 minutes before she fell and in that time had not observed any stock boys on the floor.

There was a checkout counter at the front of the store directly down the aisle in which Mrs. Serinto fell. After the accident, she went to the cashier at that checkout counter and told her that she had slipped on a jar of mayonnaise 'back there' and fallen. From where the accident occurred, Mrs. Serinto could see the cashier at the checkout counter.

Mrs. Serinto testified that she was familiar with the sound of a jar breaking on the hard floor, and that during the approximately 50 minutes she was in the store, she had not heard anything resembling the sound of a jar breaking.

Mrs. Serinto brought suit in the lower court, claiming defendant Borman was negligent in carelessly allowing the broken jar of mayonnaise to be upon the floor of an aisle in which customers were invited to walk. Mr. Serinto brought a derivative suit on the same theory for medical expenses, loss of services and consortium. Defendant Borman denied negligence and denied that it had notice or knowledge of the presence of the mayonnaise.

At the trial with jury after the plaintiffs had concluded their proofs, defendant moved for a directed verdict, asserting that plaintiffs had failed as a matter of law to prove a Prima facie case on the issue of notice or knowledge of the presence of a dangerous condition. The court took the motion under advisement. Defendant did not offer proofs, and after both sides rested, renewed its motion for directed verdict which the court again took under advisement.

The jury returned a verdict in favor of Mrs. Serinto for $5,000, and for Mr. Serinto for $1,500. Judgments were entered, whereupon defendant filed a motion for judgment notwithstanding the verdict, reasserting that plaintiffs failed to prove a Prima facie case of knowledge of the dangerous condition. Motion was denied, and defendant appeals.

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? We hold that there was not and that the court erred in submitting the question to the jury.

In 2 Honigman and Hawkins, Michigan Court Rules Annotated, § 515, authors' comments, p. 530, an excellent discussion, which is concerned with directed verdict and judgments, gives a succinct and extremely helpful statement of the michigan rule covering the problem. After discussing the so-called 'scintilla rule' under which a scintilla of evidence will defeat a directed verdict, and emphatically rejecting this rule as Michigan law, the authors proceed to set forth the Michigan rule as follows:

'The most widely accepted contemporary formulation is that the trial judge should consider all of the evidence in the record, including that which supports and that which detracts from the issue in question, and, giving the party against whom the motion for a directed verdict is made the benefit of the most favorable interpretation of the evidence as a whole and the benefit of all reasonable inferences, should direct a verdict whenever he would have the duty to set aside a contrary verdict as being against the weight of the evidence.

'This rule does not allow the trial judge to direct a verdict whenever he might, or even would set aside a contrary verdict, but only when he would have the duty to set aside such a verdict and would be reversed for failing to do so. The important feature of this rule is that it enlarges the function of the judge by directing him to look at the evidence in the whole record and, thus, permits him to direct a verdict in the face of evidence which, standing alone, might be enough to sustain a contrary finding, but which leaves no room for reasonable minds to disagree when considered in the light of the overwhelming contradictory evidence in the record. See Joiner, Trials and Appeals (1957), § 526; Cavitch, Federal Courts--Directed Verdicts in Civil Actions (1949), 47 Mich.L.Rev. 974.

'While the language in Michigan decisions has not always been consistent, this last formulation appears most accurately to state the prevailing rule. See (22) MLP, Trial, §§ 159--160; (14 MLP,) Judgment, § 94 and cases digested under Michigan Decisions, infra. The particular verbalization of the rule may vary, and the formula, in any event, is not self executing. At best it describes an approach or a judicial attitude. The dominant characteristics of this approach or judicial attitude in Michigan are that the right to trial by jury must be preserved, but that the judge has the responsibility of considering the record as a whole in determining whether the evidence supplies any reasonable basis for a jury finding contrary to the requested verdict.

'The same standards which govern the judge's decision upon a motion for a directed verdict apply in the case of a motion for judgment notwithstanding the verdict, grounded on a challenge to the sufficiency of the evidence. Yacobian v. Vartanian (1922), 221 Mich. 25 (190 N.W. 641.)' (Emphasis supplied.)

We have thoroughly reviewed the record on appeal in the instant case and fail to find sufficient evidence to raise a question of fact as to defendant's notice of the dangerous condition.

Applying the Michigan rule...