Gerkin v. Brown & Sehler Co.

CourtSupreme Court of Michigan
Writing for the CourtSTEERE
Citation143 N.W. 48,177 Mich. 45
PartiesGERKIN v. BROWN & SEHLER CO.
Decision Date30 September 1913

177 Mich. 45
143 N.W. 48

GERKIN
v.
BROWN & SEHLER CO.

Supreme Court of Michigan.

Sept. 30, 1913.


Error to Circuit Court, Livingston County; Selden S. Minor, Judge.

Action by Henry C. Gerkin against the Brown & Sehler Company. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.

Argued before STEERE, C. J., and MOORE, McALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ.

[143 N.W. 48]

Cleland & Heald, of Grand Rapids, for appellant.

Shields & Shields, of Howell, for appellee.


STEERE, C. J.

This was an action of tort, wherein plaintiff recovered, in the circuit court of Livingston county, a judgment against defendant in the sum of $500, as compensation for injuries resulting to plaintiff from wearing a fur-lined coat with a dyed, or blended, collar, which, it is claimed, poisoned his neck, face, and hands, causing him great suffering, and seriously injured his health.

Plaintiff bought the coat, which had on it a dyed muskrat fur collar, on December 13, 1910, from Young Bros., a firm of local retail dealers in Howell, Mich., where he resided. They bought it about a month previous, in the regular course of merchandizing, from defendant, a business concern in Grand Rapids, Mich., engaged in jobbing fur coats, robes, blankets, etc., and in manufacturing harness and collars. The local dealers were regular customers of defendant. The coat was sold to them by one of defendant's traveling men, who, it is claimed, represented to them in plaintiff's presence, in their store, at the time he took their order, that defendant manufactured the coat; that it was guaranteed in every particular, was made out of good material, and would give good service.

Exception is taken and error assigned on the admission of testimony as to these representations by the traveling salesman. Plaintiff produced no other evidence that defendant manufactured the coat. Aside from this

[143 N.W. 49]

testimony, the undisputed evidence was clear and positive that defendant did not make the coat, nor know how it was made; had never dyed furs, nor manufactured fur garments, but had purchased the coat, with others, on the market in New York from Wasserman & Shecket, the manufacturers, who procured the fur ready dyed from a firm of fur dealers.

Plaintiff's declaration, as it stood until both parties had rested their case during the trial, charged, and was framed upon the theory, that defendant was engaged ‘in the manufacture and sale * * * of blankets, robes, and fur coats, fur-lined coats, and saddlery,’ and had sold this fur-lined coat, ‘so manufactured as aforesaid,’ knowing, when it was manufactured, and when it was sold, that the coloring used and material of which the collar was made were ‘so poisonous and yet so concealed as to become eminently and necessarily dangerous to the life and health of those wearing the same.’

Defendants pleaded the general issue, and its primary defense, to the support of which its evidence was chiefly directed, was that defendant did not make the garment, was not a manufacturer, but a jobber, and bought the article in the usual course of trade, in the eastern market, with no knowledge of how, or, at the time, by whom the fur was dyed.

At the conclusion of plaintiff's testimony, and again after both parties had rested, defendant's counsel moved for a directed verdict in its favor, on the ground that there was no competent evidence to go to the jury on the charge that it had manufactured the coat, or that any injurious dyes were used in its manufacture by defendant, or any one else; in that connection moving that the court strike out all testimony, previously objected to, touching statements by the traveling salesman to the local dealers, to the effect that defendant had manufactured the coat.

In disposing of this motion, the trial court expressed the view that defendant would not be bound by such statements of its agent so far as plaintiff was concerned, he being a third party not participating in the transaction in which the representations were made, saying to counsel: ‘Under this declaration, as it now stands, I have grave doubts about the plaintiff being entitled to recover-that the declaration alleges that Brown & Sehler are the manufacturers. I think, if that question should come before the jury, the court would be obliged to instruct the jury that the evidence is that they are not the manufacturers.’ This ruling would, in effect, remove from the case and render unimportant the testimony excepted to, and which it was moved to strike out.

Following this intimation of the court, made after both parties had rested, counsel for plaintiff asked leave to amend his declaration by adding a count charging that defendant was, at the time of the sale, ‘engaged in the business of selling at wholesale and jobbing fur-lined coats of the description in the two counts in this declaration, knowing that the fur-lined coats were dangerous, contained poisonous and deleterious substances.’ This amendment was opposed on the ground that it introduced a new issue, and stated an entirely new and different cause of action from the one on which the case had been tried, requiring a different and additional line of testimony not then available, and which could only be obtained from New York, where the fur was dyed and the coat manufactured, and where the necessary witnesses then were; that, the declaration having charged defendant, as a manufacturer, with making this coat and dyeing the fur, proof of such charge was necessary to entitle plaintiff to recover, and proof to the contrary was a complete defense, for which defendant had prepared, and which it had successfully made, and was then entitled to the benefit of; further asking and urging that, if in any event the court in its discretion should hold it proper to grant the amendment, a continuance over the term be allowed to enable defendant to procure further testimony rendered necessary by such amendment.

After argument the amendment asked for by plaintiff was allowed on April 18th, and the trial postponed until the next Monday, April 22d, to allow defendant to produce further testimony; plaintiff being directed, in the meantime, to put in typewriting, file, and serve the amendment, which had been orally presented by counsel and taken by the stenographer. A copy of said amendment was served upon defendant's attorney on Saturday, April 20th. It charged defendant as a dealer with knowledge, instead of as a manufacturer.

On Monday, April 22d, defendant's counsel presented in proper form a motion, asking continuance of the case over the term for the following reasons: ‘(1) After the close of the testimony in said cause, and after the court had announced that he would be obliged to direct a verdict in favor of the defendant, the plaintiff was permitted to amend his declaration so as to require an entirely different defense on the part of the defendant. (2) That the defendant is not prepared to make such defense. (3) That the defendant was surprised by the amendment to the declaration of said plaintiff. (4) That some of the witnesses needed by the defendant to make a defense to the amended declaration reside in New York, and it is impossible to procure their attendance or deposition in time for the trial of said cause.’

This motion was based upon and supported by affidavits containing the usual averment of merits, and showing, amongst other things, that in a preliminary correspondence over this contention, had before suit was begun, defendant's counsel took pains to distinctly notify plaintiff's counsel that defendant did

[143 N.W. 50]

not manufacture the coat, and therefore, when plaintiff's declaration was filed charging it as the maker, had assumed and believed such charge was understandingly made, intended, and relied upon; that the defense accordingly prepared to meet that controlling issue, and a motion to amend at the trial was consequently a complete surprise; that every effort had since been made in the time allowed to get the desired testimony by wire and long distance telephone, the services of an attorney in New York being engaged to that end, but owing to the distance between the place of trial and New York it was impossible to have the witnesses before the court in person, or their depositions in time for resumption of the trial as set. The affidavits also stated, in part and in general terms, what it was expected to prove by the witnesses whose testimony was desired, and that, amongst other things, defendant, as a result of recent investigation, expected to prove by the dyer of the fur used in the coat complained of that there were no poisonous or deleterious ingredients used in the dyeing, and the fur was harmless to any one wearing it.

The court denied this motion for continuance, on condition that the plaintiff admit that the dye master, if present, would testify as stated in the affidavit (which plaintiff's counsel thereupon admitted), holding that defendant's attorneys knew or ought to have known that such an amendment was, under the liberal statute of amendments, likely to be made, and should have prepared their case to meet it.

[1] The proposed amendment did not change the identity of litigants nor the form of action, nor, strictly speaking, introduce a new cause of action; it charged that defendant committed the same tort in a different capacity. It was within the scope of section 10268, Comp. Laws 1897, for the court, in its discretion, to allow...

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44 practice notes
  • Gregory v. Cincinnati Inc., No. 98284
    • United States
    • Supreme Court of Michigan
    • August 15, 1995
    ...renders the product defective even if the design chosen does not render the product defective. See Gerkin v. Brown & Sehler Co., 177 Mich. 45, 57-58, 143 N.W. 48 (1913); Comstock, supra; American Law of Products Liability, 3d, § 32:2, pp. 17-19. This warning includes the duty to warn ab......
  • Wooderson v. Ortho Pharmaceutical Corp., No. 55655
    • United States
    • United States State Supreme Court of Kansas
    • April 27, 1984
    ...v. Land O'Lakes Creameries, Inc., 209 F.Supp. 177 (D.Minn.1962), aff'd 319 F.2d 352 (8th Cir.1963); Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 (1913). But see Winthrop Laboratories Division of Sterling Drug, Inc. v. Crocker, 502 S.W.2d 850 (Tex.Civ.App.1973)." 270 Or. ......
  • McEwen v. Ortho Pharmaceutical Corp.
    • United States
    • Supreme Court of Oregon
    • November 15, 1974
    ...v. Land O'Lakes Creameries, Inc., 209 F.Supp. 177 (D.Minn.1962), aff'd, 319 F.2d 352 (8th Cir. 1963); Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 (1913). But see Winthrop Laboratories Division of Sterling Drug, Inc. v. Crocker, 502 S.W.2d 850 II. WAS THERE EVIDENCE OF BREACH......
  • Continental Ins. v. Page Engineering Co., I-X
    • United States
    • United States State Supreme Court of Wyoming
    • December 5, 1989
    ...brake problem. The duty to provide a post-sale warning was derived from the earlier Michigan case of Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 "When the fact is once established and demonstrated by experience that a certain commodity apparently harmless contains conce......
  • Request a trial to view additional results
44 cases
  • Gregory v. Cincinnati Inc., No. 98284
    • United States
    • Supreme Court of Michigan
    • August 15, 1995
    ...renders the product defective even if the design chosen does not render the product defective. See Gerkin v. Brown & Sehler Co., 177 Mich. 45, 57-58, 143 N.W. 48 (1913); Comstock, supra; American Law of Products Liability, 3d, § 32:2, pp. 17-19. This warning includes the duty to warn ab......
  • Wooderson v. Ortho Pharmaceutical Corp., No. 55655
    • United States
    • United States State Supreme Court of Kansas
    • April 27, 1984
    ...v. Land O'Lakes Creameries, Inc., 209 F.Supp. 177 (D.Minn.1962), aff'd 319 F.2d 352 (8th Cir.1963); Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 (1913). But see Winthrop Laboratories Division of Sterling Drug, Inc. v. Crocker, 502 S.W.2d 850 (Tex.Civ.App.1973)." 270 Or. ......
  • McEwen v. Ortho Pharmaceutical Corp.
    • United States
    • Supreme Court of Oregon
    • November 15, 1974
    ...v. Land O'Lakes Creameries, Inc., 209 F.Supp. 177 (D.Minn.1962), aff'd, 319 F.2d 352 (8th Cir. 1963); Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 (1913). But see Winthrop Laboratories Division of Sterling Drug, Inc. v. Crocker, 502 S.W.2d 850 II. WAS THERE EVIDENCE OF BREACH......
  • Continental Ins. v. Page Engineering Co., I-X
    • United States
    • United States State Supreme Court of Wyoming
    • December 5, 1989
    ...brake problem. The duty to provide a post-sale warning was derived from the earlier Michigan case of Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 "When the fact is once established and demonstrated by experience that a certain commodity apparently harmless contains conce......
  • Request a trial to view additional results

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