Bilicki v. W. T. Grant Co.
| Decision Date | 03 September 1969 |
| Docket Number | No. 1,1 |
| Citation | 382 Mich. 319,170 N.W.2d 30 |
| Parties | 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. |
| Court | Michigan Supreme Court |
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.
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,
Plaintiff further deposed that at approximately the same time, three to four weeks after the purchase of 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 from the hospital, he suffered severe headaches and his temperature rose to 103 degrees. He went to Ford Hospital and was examined, isolated, and treated 'for the same thing as my wife had.' He was released from the hospital after five days but was confined to his home for an additional weeks.
We examine the following depositions given by the three expert medical witnesses. It was upon these depositions that the circuit court concluded that there was no reasonable medical certainty that the plaintiffs had the disease of psittacosis and granted the summary judgment.
Dr. Frank Cox deposed that he treated plaintiff Rose Bilicki and made a provisional diagnosis of psittacosis. Upon cross-examination, Dr. Cox stated that the symptoms looked for in diagnosing psittacosis were 'fever cough, headache, nose bleed, liver and spleen palpable, and a history of contact.' While most of these symptoms were admittedly present in plaintiff's case, Dr. Cox agreed that 'In view of the failure of the rise in titer of the psittacosis complement-fixation test, a specific etiologic diagnosis cannot be made and it is thus probable that she had a nonspecific acute respiratory infection rather than psittacosis.' Dr. Cox admitted that the hospital records indicated a final diagnosis of 'psittacosis suspected.'
Dr. Edward Quinn deposed that he examined Rose Bilicki several times at the hospital and diagnosed her illness anatomically as 'bronchial pneumonia.' Dr. Quinn stated that psittacosis is a viral disease acquired from psittacine birds and that there are two tests to determine the presence of psittacosis--one a sputum test and the other a blood test called the complement-fixation test. He agreed that in the process of doing a serial study of the complement-fixation test, there would be a rising titer in the event of psittacosis. This test was administered to Rose Bilicki, but in the opinion of Dr. Quinn there was no diagnostically significant rise in titer, 3 and he concluded that Rose Bilicki did not have psittacosis. Dr. Quinn did admit, however, that he found Rose Bilicki's spleen was enlarged, which doesn't normally happen in pneumonia cases but is a symptom in psittacosis, and that the antibiotics used in treatment might have affected the blood as far as the complement-fixation test was concerned. When asked if he really wasn't sure in his own mind whether Rose Bilicki had psittacosis or pneumonia, Dr. Quinn responded:
'Again, you are using the words 'pneumonia' and
Dr. Quinn further deposed that Joseph F. Bilicki was admitted to the hospital on April 10, 1961. Both the sputum culture and complement-fixation tests were administered and, upon the negative results of both tests, the final diagnosis of his ailment was 'acute respiratory disease.'
Prior to hearing on the motion for summary judgment, plaintiffs filed an affidavit of Dr. Edward MacKenzie. The affiant stated that he had read the hospital records and that--based upon these records, the history of contact with a sick bird, and the results of the complement-fixation tests showing the rise and fall in titer 4--he concluded 'it would seem that Mrs. Bilicki did in fact have psittacosis.' At the hearing on the motion for summary judgment Dr. MacKenzie reaffirmed this conclusion, but further explained:
Upon questioning by the court, Dr. MacKenzie admitted that he was unable to form his opinion to a degree of reasonable medical certainty.
The circuit court granted summary judgment for the reason plaintif...
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