Evans v. S. S. Kresge Co. , 290 Mich. 698 ( 1939 )

I do not entertain the views expressed in the opinion of Mr. Justice McALLISTER.

Liability of defendant, if any, must rest upon actionable negligence. Storekeepers are not insurers of the safety of customers. Filipowicz v. S. S. Kresge Co., 281 Mich. 90.

My Brother's opinion fails to recognize the distinction between conditions occasioned by acts of a storekeeper or his employees and acts of third persons. If a condition liable to cause personal injury to a customer is occasioned by the storekeeper or any employee, no notice thereof and time for remedy is necessary in order to fasten actionable liability. If a condition liable to cause personal injury to a customer is occasioned by another customer, then liability of the storekeeper must rest upon failure to exercise reasonable inspection likely to disclose the menace and neglect to make removal thereof.

The evidence does not show how or when the piece of meat got on the floor, but it is fair to assume that some patron at the lunch counter dropped it and, if so, it was the act of a third party and the mentioned rule in such a case applies. The fact that at other times pieces of meat and greasy paper napkins were upon the floor does not, without more, warrant a holding of want of inspection and negligence even in such instances and, much less, supply evidence of want of reasonable inspection and negligent failure to make removal of the piece of meat in the instance at bar.

The rule stated in Carpenter v. Herpolsheimer's Co.,278 Mich. 697, and in Filipowicz v. S. S. Kresge Co., supra, applies to this case. See, also, notation in 100 A.L.R. 744et seq.

The record does not establish liability on the part of defendant, and the judgment should be reversed without a new trial and with costs to defendant.

BUSHNELL and NORTH, JJ., concurred with WIEST, J. BUTZEL, C.J., did not sit.