Torma v. Montgomery Ward & Co.

Decision Date13 April 1953
Docket NumberNo. 2,2
Citation336 Mich. 468,58 N.W.2d 149
PartiesTORMA v. MONTGOMERY WARD & CO. et al.
CourtMichigan Supreme Court

William G. Cloon, Ironwood, for defendants-appellants.

Charles L. Santini and Louis J. Gregory, Ironwood, for plaintiff-appellee.

Before the Entire Bench, except BUTZEL, J.

CARR, Justice.

This is an action to recover damages resulting from the alleged negligence of defendants. On the 9th of March, 1948, defendant Montgomery Ward & Company was operating a store in the city of Ironwood, and was engaged in the business of selling goods, wares and merchandise to the public. Plaintiff's declaration alleged that on the day in question she undertook to return to the store a package that she had previously obtained there, and that she slipped and fell in the entranceway to the store, sustaining certain specific physical injuries. The pleading further averred that it was the duty of the defendants to maintain the premises in a safe condition for plaintiff's use, and that they had breached the duty. Answers denying liability were filed by defendants.

The case was tried before a jury. At the conclusion of the opening statement of plaintiff's counsel defendants moved for directed verdicts in their favor, claiming that the declaration did not sufficiently charge negligence and that the opening statement was subject to the same objection. The motions were denied. At the conclusion of plaintiff's proofs defendants made further motions for directed verdicts in their favor, asserting that the testimony introduced was insufficient to establish negligence on the part of the defendants and freedom from negligence, on plaintiff's part, contributing to the accident. The motion was taken under advisement as to defendants Skowronski and Montgomery Ward & Company, and was granted as to defendants Ernest and Clara Boileau.

The last named defendants were joined in the action on the basis of plaintiff's claim, set forth in the declaration, that they were the owners of the property in question and were, in consequence, charged with certain duties to the public in maintaining it in a reasonably safe condition. The record indicates that, in fact, they owned a part interest only, that their coowners were not joined in the action, that the property had been leased to Montgomery Ward & Company, and that under the terms of the lease the owners were not charged with any obligation in connection with the maintenance or operation of the store property. No appeal has been taken from the judgment entered in favor of defendants Boileau. Further reference to them is not required.

At the conclusion of the testimony in the case defendants Skowronski and Montgomery Ward & Company renewed their prior motion for a directed verdict on the ground that the evidence was not sufficient to justify a verdict against either. The motion was taken under advisement and the case submitted to the jury which returned a verdict in favor of plaintiff against both defendants in the sum of $7,500. Motions for judgment notwithstanding the verdict and for a new trial were made and denied. Said defendants have appealed claiming that the trial court was in error in refusing to direct verdicts in their favor. The further claim is made that, because of alleged errors in the course of the proceedings, they were entitled to a new trial.

The assertion of liability on the part of defendant Skowronski was based on the claim, set forth in the declaration, that at the time of plaintiff's accident said defendant was acting as store manager for Montgomery Ward & Company, and that as such she was charged with certain duties for the safety of plaintiff, which she failed to observe. The undisputed testimony on the trial disclosed the Mrs. Skowronski was not at the time of the occurrence the manager, such position being held by another employee. Neither did it appear that she was charged with any duties with reference to the maintenance of the entranceway. It must be held, in consequence, that no liability to plaintiff on her part was established. A verdict should have been directed in her favor.

This brings us to a consideration of the claims advanced on behalf of Montgomery Ward & Company, hereinafter referred to as the defendant. As before noted, the motion made on the trial following the opening statement of counsel for plaintiff was based on the alleged failure of the declaration, and the statement, to charge negligence. It is significant in this respect that answers to plaintiff's pleading were filed without any question being raised as to the sufficiency of the allegations of actionable negligence. That plaintiff was an invitee, as claimed by her, is not in dispute.

The declaration alleged the duty of the defendant to keep and maintain its place of business in a reasonably safe and proper condition to the end that customers and patrons entering or leaving the store would not be in danger of receiving injuries by slipping or falling because of any defective condition of the approach. It was further averred that defendant failed to observe the duties resting on it as invitor and specifically that it failed to remove accumulations of snow and ice from the entrance to the store, knowing that the accumulations were present and were dangerous to persons entering and leaving. Without discussing the matter in further detail, we are brought to the conclusion that the declaration was not open to the objection urged against it. The opening statement of counsel presented plaintiff's claims as set forth in her pleading and was sufficient in substance. The trial court was not in error in denying defendant's motion for a directed verdict based on the alleged insufficiency of the declaration and the statement.

In determining whether defendant was entitled to a directed verdict at the close of plaintiff's proofs the testimony introduced by her must be construed as strongly as possible in her favor. Loveland v. Nelson, 235 Mich. 623, 209 N.W. 835; Thompson v. Michigan Cab Co., 279 Mich. 370, 272 N.W. 710. As a witness in her own behalf plaintiff testified that she first entered the store of the defendant about 9:45 in the forenoon for the purpose of obtaining a package that she had previously ordered and which she had been advised was waiting for her. According to her statements, the weather at the time was 'moderately crisp, a little blue sky and a bit cloudy.' She made note at the time of the condition of the entranceway which contained ice and snow in the east portion thereof. The proofs disclose that such entranceway faced the east and was open. The approach itself was raised somewhat above the level of the sidewalk, and the step was protected by an angle iron which plaintiff testified was about 3 1/2 inches high at the highest point, and 3 inchs wide, the highest part being at the northerly edge of the entranceway, which plaintiff stated was approximately 8 or 9 feet in width. She claimed that she had no difficulty getting into the store notwithstanding the ice and snow in a part of the entrance, or in leaving it after she had obtained her package.

It was plaintiff's claim that after she had an opportunity to examine the contents of the package she concluded that they were not satisfactory. As a result she returned to the store of the defendant for the purpose of putting in a further order. The weather at that time, approximately 10:30 in the forenoon, was a little brighter and a little warmer than it had been on the occasion of her first visit. She described the condition of the vestibule or entrance at that time as 'slippery and icy and a little slushier than it was earlier in the morning.' She stated further that she saw the angle iron at the time but didn't notice any ice on it. In proceeding toward the door of the store she stepped on the angle iron. Her foot slipped and she fell. She testified that after getting up she looked to see on what she had slipped, and noticed a thin transparent coat of ice on the bar. She explained her failure to notice it before stepping on it on the ground that 'it was transparent, it was such a thin coat.' Further testimony by the plaintiff related to the nature and extent of her injuries and her physical condition thereafter. Other witnesses in her behalf, including two physicians, corroborated her claims with reference to pain and suffering, disability resulting from the fall, and the character of the injuries.

Construed in accordance with the rule above stated, may it properly be said that plaintiff failed to establish a prima facie case of liability on the part of the defendant? As invitor the defendant owed the duty to its customers and patrons, including the plaintiff, of maintaining its premises in a reasonably safe condition and of exercising due care to prevent and to obviate the existence of a situation, known to it or that should have been known, that might result in injury. In Blakeley v. White Star Line, 154 Mich. 635, 118 N.W. 482, 483, 19 L.R.A.,N.S., 772, this Court quoted with approval from Cooley on Torts (p. 605) as follows:

"One is under no obligation to keep his premises in a safe condition for [the visits of] trespassers. On the other hand, when he expressly or by implication invites others to come on his premises, whether for business, or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises safe for the visit."

Plaintiff testified positively to the presence of snow and ice in the entrance to defendant's store. It was her claim that a thin coating of ice on the angle bar was directly responsible for her slipping and falling. If the condition described in the testimony existed at 9:45, it is a fair inference in view of the weather conditions, that the entrance had not been swept out or scraped out that morning. Under the rule as stated by Justice Cooley there was...

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