Fisher v. Johnson Milk Co., Docket No. 3266

• Decision Date: 27 August 1968
• Docket Number: No. 2,Docket No. 3266,2
• Citation: 13 Mich.App. 10,163 N.W.2d 652
• Parties: William L. FISHER, Plaintiff-Appellant, v. JOHNSON MILK COMPANY, Inc., a Michigan Corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 652

163 N.W.2d 652

13 Mich.App. 10

William L. FISHER, Plaintiff-Appellant, v. JOHNSON MILK COMPANY, Inc., a Michigan Corporation Defendant-Appellee.

Docket No. 3266.

Court of Appeals of Michigan, Division No. 2.

Aug. 27, 1968.

Released for Publication Jan. 22, 1969.

William L. Fisher in pro per.

Steve S. Michaels, Michaels, Ferris & Olzark, Mt. Clemens, for defendant-appellee.

Before T. G. KAVANAGH, P.J., and BEER ^* and LEVIN, JJ.

T. G. KAVANAGH, Presiding Judge.

This is an appeal from summary judgment granted to defendant, dismissing plaintiff's action for breach of implied warranty and for negligence.

Plaintiff alleged that while carrying 4 half-gallon bottles of milk in a wire carrier (which had been sold to him by defendant at some earlier date) he slipped on ice, dropping the carrier which landed Upright, and fell upon a jagged edge of a broken bottle, thereby cutting his left hand. Plaintiff claimed that defendant, in selling such a carrier without the safeguard of a 'false bottom' to cushion the impact and prevent breakage of bottles if dropped, or in failing to warn of the dangers in carrying the bottles in the carrier on icy days, was guilty of negligence. Such negligence, plaintiff claimed, was the proximate cause of injury to his hand.

Plaintiff also claimed that failure to equip the carrier with safeguards made it unfit for the purposes intended and, consequently, not merchantable. Therefore it is alleged that defendant is guilty of a breach of implied warranty.

The trial court granted summary judgment on defendant's motion that plaintiff had failed to state a cause of action on which relief could be granted. On plaintiff's motion for rehearing the court said:

'The rather precise question here is whether the facts pleaded, viz: carrying glass bottles in a wire container on a known slippery, icy sidewalk which bottles broke when the plaintiff carrier slipped and fell on the ice, creates a set of facts wherein there is any jury question of improper design which was a proximate cause of the injury. Plaintiff's brief does not touch upon this subject.'

Appellant has, however, in his amended complaint of negligence and breach of implied warranty, raised material questions of defendant's obligation to anticipate and either to warn or to safeguard against mishaps which ensue while using this product.

Where negligence is asserted, in determining when a summary judgment should be granted for the defendant 'the test used is...