Opinion
Docket No. 6,741.
Decided April 27, 1970. Rehearing denied June 8, 1970.
Appeal from Montmorency, Philip J. Glennie, J. Submitted Division 3 December 4, 1969, at Grand Rapids. (Docket No. 6,741.) Decided April 27, 1970. Rehearing denied June 8, 1970.
Complaint by Carroll E. Jones and Mary Jones against Stanley Keetch and Jeanne Keetch for negligence and breach of implied warranty in the collapse of a chair. Directed verdict for defendants. Plaintiffs appeal. Affirmed on breach of implied warranty. Reversed and remanded on negligence.
Cicinelli, Mossner, Majoros, Harrigan Alexander, for plaintiffs.
Neal, Keil, Jakeway Frazenbaker, for defendants.
Before: J.H. GILLIS, P.J., and McGREGOR and QUINN, JJ.
This suit was commenced in circuit court, a jury trial demanded, and relief was sought under the theories of negligence and implied warranties for injuries sustained.
With a group of co-workers, plaintiff Carroll E. Jones rented several rooms in a motel from the defendants. While this group was in one of the motel rooms playing cards, the chair on which plaintiff Carroll E. Jones was seated collapsed and he injured his back in the resulting fall.
Defendants denied the allegations of liability and contended that Mrs. Keetch made daily rounds of the motel rooms for the purpose of cleaning and sweeping and that, during these rounds, she had occasion to notice loose chairs and tighten the same with tools which she carried with her. In addition, periodic inspections were made of all the motel rooms, usually about twice a year, for any deterioration or breakage of the equipment. The broken chair in question was not introduced in evidence, since it had been disposed of by the defendants, apparently without any intention of destroying it as evidence.
After plaintiffs had presented their case and rested, defendants advised the trial court that, since both defendants had testified during plaintiffs' presentation, they had no further testimony to offer, and rested. Defense counsel moved for a directed verdict of no cause of action and the motion was granted.
On appeal, plaintiffs allege that an implied warranty of fitness for purposes intended was breached by the defendants. Piercefield v. Remington Arms Company, Inc. (1965), 375 Mich. 85.
In this case we are not dealing with a product which was sold, as in Piercefield, supra, but rather with a piece of equipment, a chattel rented to the plaintiff Carroll E. Jones and other members of the public for use during their stay in a motel. We know of no Michigan case which has extended warranty of fitness into this area, and we choose not to so extend it at this time.
Plaintiffs contend further that they are entitled to jury consideration on the issue of negligence. This Court recognizes that negligence is rarely provable directly, but is a conclusion drawn from operative facts presented at trial. Barnowsky v. Helson (1891), 89 Mich. 523; Patrick v. Pulte-Strang, Inc. (1967), 8 Mich. App. 487. Plaintiffs' evidence showed that the chair was used in a reasonable, normal manner and that, without forewarning, the chair suddenly collapsed. Carroll E. Jones testified that he was sitting on the chair in a normal fashion, that the chair was not tilted or abused in any way, and that it suddenly collapsed.
In Muylaert v. Erickson (1969), 16 Mich. App. 167, Oscar F. Muylaert was injured when he fell from a ladder owned by the defendant while helping to paint defendant's house. The ladder was destroyed shortly after the accident, precluding plaintiffs from producing it at trial and precluding any examination which might have disclosed the defect and led to a determination of whether such defect was discernible by the defendant in the exercise of reasonable care. At pages 171, 172, the Court said:
"Without deciding whether defendant destroyed the ladder for the purpose of destroying evidence, the fact is that plaintiff's inability to produce the ladder was due to defendant's act and this act may not operate to plaintiff's detriment. We are thus not constrained to withdraw from the jury on the basis of insufficient evidence the question of whether defendant exercised ordinary care and prudence to render the ladder reasonably safe for plaintiff's use."
The present record discloses testimony by Carroll E. Jones that he informed the defendants that the chair had been broken and that he (Jones) expressed concern to the defendants about aggravation of prior back injury. The destruction of the chair thereafter by the defendants makes the language quoted above from Muylaert, supra, particularly applicable to the case at bar. We hold that plaintiffs were entitled to go to the jury on the issue of defendants' negligence.
We have re-examined Rose v. McMahon (1968), 10 Mich. App. 104, cited as controlling by defendants, and find it to be inapposite. A chair in a barroom is not analogous to the ladder in Muylaert nor to the motel chair in the instant case.
Reversed and remanded for new trial on the theory of negligence. Affirmed as to the theory of implied warranty. Costs to plaintiffs.
All concurred.