170 N.W.2d 30 (Mich. 1969), 1, Bilicki v. W. T. Grant Co.

Docket Nº:1.
Citation:170 N.W.2d 30, 382 Mich. 319
Opinion Judge:T. M. KAVANAGH, Justice.
Party Name:Rose BILICKI, Administratrix of the Estate of Joseph F. Bilicki, Deceased, and Rose Bilicki, individually, Plaintiffs-Appellants, v. W. T. GRANT COMPANY, Defendant, Third Party Plaintiff-Appellee, v. BENITEAU BIRD COMPANY, Third Party Defendant-Appellee.
Attorney:[382 Mich. 321] Albert Lopatin, Detroit, for plaintiffs-appellants; Norman L. Zemke, Detroit, of counsel. Feikens, Dice, Sweeney & Sullivan, Detroit, for Beniteau Bird Co. Alexander, Buchanan & Conklin, Detroit, for defendant, third-party plaintiff-appellee.
Judge Panel:Before the Entire Bench.
Case Date:September 03, 1969
Court:Supreme Court of Michigan
 
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170 N.W.2d 30 (Mich. 1969)

382 Mich. 319

Rose BILICKI, Administratrix of the Estate of Joseph F.

Bilicki, Deceased, and Rose Bilicki, individually,

Plaintiffs-Appellants,

v.

W. T. GRANT COMPANY, Defendant, Third Party Plaintiff-Appellee,

v.

BENITEAU BIRD COMPANY, Third Party Defendant-Appellee.

No. 1.

Supreme Court of Michigan.

September 3, 1969

Page 31

[382 Mich. 321] Albert Lopatin, Detroit, for plaintiffs-appellants; Norman L. Zemke, Detroit, of counsel.

Feikens, Dice, Sweeney & Sullivan, Detroit, for Beniteau Bird Co.

Alexander, Buchanan & Conklin, Detroit, for defendant, third-party plaintiff-appellee.

Before the Entire Bench.

T. M. KAVANAGH, Justice.

Plaintiffs Joseph F. Bilicki and his wife, Rose, appealed from summary judgment 1 granted by the circuit court and the decision of the Court of Appeals affirming the summary judgment. 10 Mich.App. 612, 157 N.W.2d 300.

All the parties agree to the fact that plaintiffs purchased a parakeet from defendant W. T. Grant Company, February 22, 1961, which had previously purchased it from third party defendant Beniteau Bird Company. The remaining facts are taken from the pleadings and depositions filed in the circuit court, particularly the depositions of the three medical experts. It is from the facts, or lack of facts, adduced from the depositions of the three doctors that summary judgment was granted.

Plaintiff Rose Bilicki deposed that in February 1961 she purchased a parakeet from defendant store. When she brought the bird home she noticed that he acted sickly in that he just 'sat there like he was in sort of a daze.' For the following three to four weeks she attempted to nurse the bird back to health, but he ate very little, acted listless and, after approximately three weeks, 'he couldn't breathe good. He was gasping for breath.'

Plaintiff further deposed that at approximately the same time, three to four weeks after the purchase of [382 Mich. 322] the bird, she became ill, suffered from headaches, loss of appetite, nausea, and had a temperature of 105 degrees. After an unsuccessful attempt by the family physician to treat plaintiff at her home, she was admitted to Ford Hospital. She was examined upon her admittance and informed by the examining doctor that she had psittacosis 2 and was put in isolation. Fourteen days later she was discharged from Ford Hospital, but was still debilitated and 'too weak to do much.'

The deposition of plaintiff Joseph F. Bilicki corroborated his wife's testimony. He additionally deposed that when he took his wife to the hospital the examining doctor, after inquiry as to whether they owned a bird and the taking of X-rays, informed plaintiff that his wife had 'parrot fever, which is very rare,' and that she would have to be isolated. Plaintiff related that he contacted the Dearborn Health Department and, after a delay of a couple of days, was instructed on how to dispose of the bird. He destroyed it according to instructions. The Health Department picked up the bird the next morning. It subsequently reported that the bird was too decomposed to determine if it was diseased.

Plaintiff further deposed that, approximately three days after his wife's return

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from the hospital, he suffered severe...

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