*1 Dyk v. Utter. Van judgment therefore, this Court finds court sustained. lower should be having appellee filed costs, Affirmed. No not brief. J.,

Dethmers, Carr, and Ed- Smith, Black, C. JJ., concurred. wards, Voelker, Kavanagh, v. DETROIT & BANK COMPANY. WABEEK TRUST GALEA Overhanging Awning Public Sidewalk —Evidence. Nuisance — 1. building, awning from defendants’ injured fall Plaintiff, from public sidewalk, to establish an failed passing on he was while nuisance, appears where injuries for due through deliberate intervention suddenly came down agency. human some Negligence Awnings—Evidence. — 2. of trial preponderate did not Evidence owner, other de- bank, nonjury that defendant ease negligence guilty tenant, fendant, prospective were building which awning on respect manner with adjoining public injured plaintiff sidewalk. fell and Judgment Nonjury —Evidence. Case —Motion Trial — 3. in the to have viewed A is entitled interposes a motion to him when a defendant most favorable judgment in a ease. JJ., dissenting part. Kavanagh,

Black, Voelker, in Headnotes References for Points 285, Jur, 294. Highways Am25 '1] §§ Jur, Negligence Am 332. 38 3 Am '2] '3] § Appeal Jur, Error 817. (Wade

Appeal Wayne; EL), McCree, from Jr. (Docket April 1959. No. 31, Calendar Submitted 47,509.) 12, 1959. No. Decided October *2 against by Paul Detroit Bank Case Galea Wabeek subsequently designated Company, & Trust as Company, & Detroit Bank and Younis Abrams, Trust personal injuries answering Abraham, as Younis for awning public overhanging fall from sustained sidewalk. Dismissed to defendant Abraham. Judgment appeals. for defendant bank. Plaintiff Affirmed.

George plaintiff. Jones, for A. Long, (A. Kennedy Butsel, Eaman, Gust <& Hilli- counsel), Williams, ard for defendant bank. Krieger Chomshy, counsel), (Max L. Saul defendant Abraham. (dissenting part). On June Voelker, plaintiff walking

1955,the Galea down awning adjoining- in Detroit when an on an avenue building suddenly away broke from business its moorings juring breaking fell on nose in- him, and requiring 10 in the

his head and stitches 8-day stay hospital. an at the In latter and due against declaration the owner course he filed his bank (which premises testamentary held title to the trustee) prospective tenant of also awning premises basing-his which the fell, the case gence. from negli- theory on a of nuisance in addition to lia- Both defendants answer denied bility. Defendant owner further answered that dropped persons, awning or fell certain un- because attempted to to and unauthorized had known it, & Trust v. Detroit Bank Galea awning. came The case remove jury. without a before simple on his main case the The recounted produced accident. He also of his -circumstances shortly investigating police officerwho testified that talked workmen after the he had accident they taking down the ladder said had been who away building. awning from the The when it broke 2 men had removed bolts officerlearned suddenly collapsed cut when fell on The either Galea. officer was unable employed relate who the work- at least failed to testify did and there is men. The workmen no explanation in us for their the record before absence. representative of called also under the

owner bank for statute cross-examination 27.915]). (CL § [Stat Ann He testi- 1948, 617.66 *3 (4 days 23,1955 fied that on June before substance accident) premises the owner leased the the defendant the clothier,

Abraham, a on wholesale monthly while formal term was not basis; a to start until that the keys

July possession 1955, the and on to Abraham were, 23,1955, delivered so that June unspecified might repairs prep- certain and make purpose occupancy; that of his the arations for the inspection to be made owner caused 24th) day (June awning the and then of the next building securely and in it attached to the found good except fabric; hole burned the condition for a inspection the further dis- that after accident awning and the had been cut bolts closed awning arms and that and nuts removed from finally awning that neither the and down; was the bank representatives authorized had ever nor its tamper anyone or remove the or Abraham nothing awning the incident. about and knew [Oct,. tenant was likewise called for Abraham it is under and fair statute, cross-examination number of well- that in a rather extensive say that he about nothing he testified knew chosen words proofs At the conclusion of the plaintiff’s anything. for a dismissal as to- the 'defendant Abraham moved evidently treating himself, granted, which the The court motion as one for a directed verdict. on against the bank then considered the to it. The merits and found no cause for action as from the result below as here appealed pre- that he should have defendants, to both urging defendants, either on a theory vailed both of or of and also Abra- negligence nuisance granted. ham motion not have been first. will nuisance dispose theory We cannot actionable nuisance is possibly see where in this from both involved case. It seems the- plain down pleadings came the deliberate through intervention some- suddenly human If the of removal done care agency. job an action for lessly might support well negli or person persons responsible, but gence against still doesn’t constitute Mr. nuisance. See scholarly searching opinion Justice Carr’s whole nuisance illustrat doctrine, defining this nuisances, the main types giving numer ing ous where the landlord and tenant instances or may jointly not be in the- severally therefor, liable Saginaw Bluemer Central Oil & recent case Inc., Service, Gas 356 Mich 399. Under the proofs in this case court correctly concluded that *4 no action for nuisance any existed either . in this case. next- appeal consider as to the owner noted, bank. the trial court As was also the trier of the facts. It found against the plaintiff other that among things there was insufficient evi- Detroit Bank & Trust G-alea.v. n deneéto connect the defendant bank in manner say the accident. balance, On we cannot that preponderate way. the other The result reached below as to the defendant owner there- is affirmed, fore with costs to it. Lastly propriety we consider the of the court’s

n actionin granting the noted motion of the defendant opinion Abraham. No formal regard, filed this gather, by implication but we at that least, the court have felt somewhat constrained past this certain of our decisions testimony effect bound party adverse whom he chooses call cross-examination under the at statute, least where impeach is otherwise unable to or rebut testimony. While the court below thus had precedent undeniable for its we think action, evidently applied the rule thus stated and both too harsh and too broad. here is

This was lend to the defendant Abraham’s voluble denials and knowledge dignity weight claimed lack of possessed testimony would not have had the same been elicited from him in his own defense. present plaintiff,

In our view the aid loquitur, ipsa doctrine of res re- cently City Detroit, discussed Mitcham v. prima Mich 182, made out sufficient facie case to defeat the motion of the defendant Abraham, which motion we think the court under the circum- properly stances treated as one for the equivalent aof motion for directed verdict—of presently. which more This is tantamount to our' saying possible liability the issue of their properly should more have been left to trier facts to both defendants. A defense motion for a directed is in respects many essentially a demurrer to the evi Although by (CL [Stat dence. statute 1948, 618.14 *5 357 27.994]) nonjury § are to be tried “as

Aim cases jury, be” as cases tried it is near as practice accurate the more nsnal and normally called to refer to what would be cases a jury case as motion for directed (or, judgment alternatively, a motion for a sometimes entry judgment) when is motion the case nonjury. tried Hilliker v. Jewel Oil & Gas Co. See (on Shalogian, rehearing), 615; Mich Stolt v. Litsky, Publishing 435; 326 Mich and Hearst Co. v. 339 name, 642. the Mich But aside from difference in in legal

the considerations involved the motion largely are the same. (as point reached)

Once reach the have here we we prima, made out a showing, facie motion for should survive defense

peremptory victory, tagged by whatever go label, and should to the issues trier Making all facts. the due allowance for fact that quotation following- obviously talking is about jury a motion for a directed verdict in a case, we Callaghan’s Michigan Pleading- think 6 & Practice, p up judicial pretty 38.88, well sums true province of the trial court when confronted with judge a motion, such follows: “The trial can supplant jury. not, however, His is conclusion accordingly permitted one of law. not He is 'weigh’ only the evidence, but to determine whether any jury authority].” [citing there is issue If the defendant Abraham had not been called for cross-examination under the statute but had 'instead made his denials in own after defense opinion rested, in our the case gone should still have trier of facts. The normally result different when plaintiff, having prima once made out a facie uncertainty case, in an excess zeal caution or (in past decisions) view our of some of calls the Bank & Trust Detroit Galea the statute. under for cross-examination telling the the defendant of whether issue fact he decided one of remains truth still permit- statute Otherwise of the facts. the trier *6 time adversary ahead of ting cross-examination trusting unwary, trap a mere for the becomes a perjury, an in- the blandest to reward device getting speedily at the merits more strument controversy. Black has written Mr. Justice of a scholarly general eloquently opinion in effect his same history tracing of this stat- the curious beginning Monaghan Pavsner, 347Mich in v. ute page comment thereon in also, our See, at 527. supra, page City at Detroit, 198. Mitcham gnat, particular Perhaps strain a case we at in this judicial fact-finding already noted, since, as namely, individual, in one were united functions practical it matter a trial and as judge felt as he did that if the well be said in the exercise judicial motion, function his change unlikely his mind in will that he rather felt much different have that would future, or defend- had he denied the in fact finder his role as a judicial capacity at the trial below motion in his ant’s go on the merits to himself the case and instead lot think he should role fact finder—as we his dual separate, course, 2 But the roles are have done. may appear prospects practical dim the and however ultimately gain present .plaintiff will ever that this appeal, very principles on this the basic this were much our though involved are the same jury the distinction cases and in case, carefully all 2 must at times between the roles preserved. for a motion directed final word. The

One place proper All who law. our and needed vineyards are know there of the law toil in the many have even never dubious cases permitted go jury.

been But let alone to started, granting that, all the motion was never intended general jury as a substitute for a trial nor, indeed, happy labor-saving preoccupied as a device which judges might dreary prepar- trial ing avoid the task of delivering jury. instructions to a At the laboring point, destroy risk of we do not seek to simply proper motion, the and but to restore it to the relatively place enjoyed modest it once in our law. now turn back to the case at hand. upon Abraham’s motion entitled have viewed most favorable necessary his case. This included, of course, all or reasonable inferences therefrom. It seems rather improbable mysterious workmen were, example, daylight engaged in broad in the act of removing stealing an old used with a hole standing it it-—and then around after it had fallen pedestrian on the head of a to discuss the situation *7 investigating policeman. with an any In event the probable more and reasonable inference from the proofs appears ap- to be that someone with real or parent authority previously authorized awning. workmen to remove the the trial Since approximately court at time same on the same proofs in effect found a fact that the landlord had nothing any only do with such authorization, remaining candidate ap- discernible the horizon pears to have been the tenant, the defendant Abra- bluntly, suggest ham. possibility More we might lying. someone in this case have been That is an issue of fact and not one of law. do not We say that Abraham did hire these workmen or' that say only should be held liable in this ease. upon testimony, along favorable view of all the with the reasonable inferences to be drawn there- possible liability from, the issue of negligence for properly gone should more have to the trier of the Trust Detroit Bank & Galea that of defendant bank. The order as did facts, granting accordingly motion set is aside- Abraham’s proceedings, further in- remanded for the cause cluding if that Abraham, a new trial as should plaintiff. necessary, prove with costs JJ., concurred Kavanagh, Black Voel- KER, J. I with Mr. concur Justice Yoelk- C. Dethmers, holding no was made- nuisance

,er’s against finding either defendant and trial court’s against

of no cause for defendant hank preponderance against clear not the evi- is and, therefore, must be affirmed. dence, agree granted a not I do trial new defendant Abraham.

At the Conclusionof the the defendant hank calmly court, awaited decision. The as- the court’s jury, found, facts without a as stated trier of the “that there insufficient Mr. Justice Voelicer, any man- to connect the defendant bank evidence accordingly rendered ner with the accident” and judgment for it of no cause action. plaintiff’s proofs counsel

At the conclusion of display patience, Abraham, with less after made motion reviewing dismiss. pertinent commenting upon evi- even, stating granted think, motion, “I dence, regarding testimony in the most favorable plaintiff, that the defendant Abraham for the involved that the- From this is clear

here at all.” apply gathered, judge rule that not, as now did *8 testimony binding on- was defendant Abraham’s weight given added because' and must he plaintiff’s the statute. under witness called he was as weighing- indulged contrary, judge no the theOn testimony respect whatsoever,. process to his regarded testimony the in instead, the case in but, plaintiff. to the most favorable judge finding the trial The which made toas both namely, same, the defendants was there were no proofs to connect them with the accident. Plaintiff scarcely complain of fact that can the the court ar- at that as to rived determination defendant Abraham testimony by applying to the the ease the most test advantageous plaintiff, namely, to the “most favor- preponderance” able view” test rather than the “clear profit it test. new trial and can him to remand How the case for. application of the latter test, less favor- and more difficult him? able no It is answer “suggest possibility to someone this case,” presumably lying'” “might defendant Abraham, have been say presented

and to that this issue to fact tried as such not as one of law. As already respect testimony stated, to the truth of and determination of what were the facts, had the benefit of the most favorable test available to him. constitutionally guaranteed right to trial

jury presents jury involvements in cases when the judg- to direct a undertakes enter problem non ment obstante veredicto. There question deciding arises whether court, thus question though as law, were erred in has doing question actually so because the one of was jury, fact which have to been left the court thereby having deprived party losing of his con- right question stitutional determination by jury. parties When, here, have waived rights jury by voluntarily submitting their judge problem' jury, their case without sitting is absent. When facts, as trier of 1 of found a fact that defendants not shown be connected with the accident and we affirm that as not *9 Galea v. Detroit Bank & Trust of the preponderarme the clear evidence, no consti- tutional or other right infringed by the mere fact that selfsame in making the identical finding, those proofs, respect to the other defendant, and in inadvertently response to counsel’s ill-conceived motion, employs the nomen- clature and terminology more applies test, favorable to plaintiff, applicable to determination of In of law. the final questions analysis, the conclu- sion cannot be that when escaped the judge, as above noted, made the same finding respect favor both defendants, was, both instances, of fact making which was in accord with the clear preponderance the evidence. Plaintiff is not entitled to a second determination of this factual question. There no on the being proof record that connects either the accident or re- sponsibility therefor, the action of the lower court should be affirmed, with costs to defendants. JJ., concurred

Carr, Kelly, Smith, and Edwards, with Dethmers, C.