Fisher v. Johnson Milk Co.

• Decision Date: 09 March 1970
• Docket Number: No. 35,35
• Citation: 174 N.W.2d 752,383 Mich. 158
• Parties: William L. FISHER, Plaintiff-Appellee, v. JOHNSON MILK COMPANY, Inc., a Michigan corporation, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 752

174 N.W.2d 752

383 Mich. 158

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

No. 35.

Supreme Court of Michigan.

March 9, 1970.

William L. Fisher, in pro. per.

Michaels, Ferris & Olzark, Mount Clemens, for defendant-appellant; Carl W. Huhn, Harper Woods, of counsel.

Before the Entire Bench, except T. G. KAVANAGH, J.

DETHMERS, Justice.

A reading of opinions of this Court written during the past 15 years may suggest that a majority of the Court as from time to time constituted, has viewed with disfavor the granting by trial courts of summary judgments for defendants in negligence cases. In the instant case, however, not a controverted question of fact is presented by the pleadings which, if resolved in plaintiff's favor, would entitle him to judgment against defendant. Accordingly, I would affirm the summary judgment for defendant entered in circuit court, reversed by the Court of Appeals. 13 Mich.App. 10, 163 N.W.2d 652.

On an unspecified date defendant, operating a milk business, sold to plaintiff, a practicing patent attorney, a wire carrier made to carry four half-gallon bottles of milk. Some time later plaintiff took that carrier, as he frequently had done before, to defendant's store and bought four half-gallon bottles of milk which were placed in the carrier. With his milk purchases in the carrier plaintiff drove home. It was a stormy, rainy, freezing day with icy street and walk conditions. Upon arriving at home, plaintiff got out of his car and proceeded to walk, carrying the carrier containing the bottles of milk in his right hand. He slipped and fell on the ice in such manner that the bottom of the carrier struck the sidewalk, causing the bottles to break. He extended his left hand to break his fall and the palm landed on pieces of a broken bottle, cutting and causing a severe injury to his hand. For resultant damages plaintiff brought this suit.

The theory of plaintiff's case is twofold. (1) Defendant was negligent (a) in selling a carrier which lacked a false bottom or other device designed to protect the bottles from breaking, (b) in failing to warn plaintiff of the danger on such an icy day of carrying the bottles in said carrier and (c) in not placing the bottles, two each, in large paper bags for plaintiff to carry chest high as had been done previously, before plaintiff had purchased the wire carrier. (2) Defendant was guilty of breach of warranty in selling plaintiff such carrier, which was unsafe, and representing it to be merchantable and fit for the purpose for which it was sold.

There was no inherent, hidden or concealed defect in the wire carrier. Its manner of construction, how the bottles would rest in it, and what might happen if it were dropped, upright, on a hard surface below, with the possibility that the contained bottles might break, was plain enough to be seen by anyone including a patent attorney as well as a milk dealer. There is no duty to warn or protect against dangers obvious to all. Jamieson v. Woodward & Lothrop, 101 U.S.App.D.C. 32, 247 F.2d 23. In so holding in support of the trial court's summary judgment for defendant that court said:

'* * * there are * * * on the market vast numbers of potentially dangerous products as to which the manufacturer owes no duty of warning or other protection. The law does not require that an article be accident-proof or incapable of doing harm. It would be totally unreasonable to require that a manufacturer warn or protect against every injury which may ensue from mishap in the use of his product. Almost every physical object can be inherently dangerous or potentially dangerous in a sense. A lead pencil can stab a man to the heart or puncture his jugular vein, and due to that potentiality it is an 'inherently dangerous' object; but, if a person accidentally slips and falls on a pencil point in his pocket, the manufacturer of the pencil is not liable for the injury. He has no obligation to put a safety guard on a lead pencil or to issue a warning with its sale. A tack, a hammer, a pane of glass, a chair, a rug, a rubber band, and myriads of other objects are truly 'inherently dangerous', because they might slip * * *. A hammer is not of defective design because it may hurt the user if it slips. A manufacturer cannot manufacture a knife that will not cut or a hammer that will not mash a thumb or a stove that will not burn a finger. The law does not require him to warn of such common dangers. * * *

'Surely a manufacturer is not negligent if he fails to utter a warning against a general possibility of danger, * * *. We do not agree with, and find no authority to support, a holding either that a manufacturer must utter a general warning of danger from mishap with an article such as this rope or that he must catalog injuries possible upon such a mishap.'

To say that it was negligence not to have supplied a carrier of a different type, when defendant was not obligated to furnish any kind of carrier at all, is scarcely supported by authorities cited by plaintiff or found by the writer. With no legal duty to supply a carrier so designed as to prevent bottles placed therein from breaking when dropped to a hard surface, the question of defendant's duty being one of law and not of fact, summary judgment for defendant was proper. Levendoski v. Geisenhaver, 375 Mich. 225, 134 N.W.2d 228. This is not the case of a piece of machinery, looking alright on the surface but containing a defect not observed or observable by plaintiff, which operated in such fashion, unexpectedly, as to be dangerous and to injure plaintiff.

In defendant's brief appears...