Hill v. Harbor Steel & Supply Corp.

• Decision Date: 04 January 1965
• Docket Number: No. 7,7
• Citation: 374 Mich. 194,132 N.W.2d 54
• Parties: Alice HILL, Administratrix of the Estate of Woodrow Hill, Deceased, and Michigan Mutual Liability Company, Plaintiffs and Appellants, v. HARBOR STEEL AND SUPPLY CORPORATION, a Michigan corporation, and Genaral Dynamics Corporation, a foreign corporation, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 54

132 N.W.2d 54

374 Mich. 194

Alice HILL, Administratrix of the Estate of Woodrow Hill Deceased, and Michigan Mutual Liability Company Plaintiffs and Appellants, v. HARBOR STEEL AND SUPPLY CORPORATION, a Michigan corporation and Genaral Dynamics Corporation, a foreign corporation, Defendants and Appellees.

No. 7.

Supreme Court of Michigan.

Jan. 4, 1965.

Marcus, McCroskey, Finucan & Libner, by Thomas W. Finucan, Muskegon, for administratrix.

Landman, Grimm, Bradbury & Laurin, Lou L. Landman, Muskegon, for Michigan Mut. Liability Co. Mitts, Smith & Haughey, Grand Rapids (Sherman H. Cone, Grand Rapids, of counsel), for defendant and appellee, Harbor Steel Corp.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendant-appellee, General Dynamics Corp.

Before the Entire Bench.

SOURIS, Justice (affirmed in part, reversed in part).

Woodrow Hill was employed by Fisher Steel and Supply Company as a 'lead man', or working foreman, in its scrap yard. On the morning of December 24, 1958, while Hill and another Fisher Steel employee were preparing to put into operation a manifold welding unit, it exploded, killing Hill and his companion and injuring another workman.

The manifold welding unit had been designed and built for Fisher Steel by defendant Harbor Steel and Supply Corporation. The unit consisted of a steel framework which held 10 cylinders of oxygen and three cylinders of acetylene. Each cylinder was equipped with a valve which was designed, when closed, to prevent any gas from leaving the cylinders. The gases and their containers and valves were manufactured and furnished by the other defendant, General Dynamics Corporation.

All of the oxygen cylinders were individually connected to a single copper tube, and the acetylene cylinders were similarly connected to another tube. These two copper tubes then led into a metal cabinet attached to the framework supporting the cylinders. Inside the cabinet were two master valves by which the flow of gases from the tubes could be controlled.

From the master valves the oxygen and acetylene tubes ran to regulator valves, attached to each of which were two gauges. Two gauges were provided for each regulator so that the pressure of gas remaining in the cylinders as well as the gas pressure at the torch could be determined. From the regulator valves the two copper tubes ran to a reel to which they were permanently attached. Flexible hoses could then be attached to the tubes, the hoses culminating in the welding torch. On the torch were three valves, one controlling oxygen, one acteylene, and one used as a 'blow out' for air.

The metal cabinet served as a storage place for the welding torch and hoses when they were not in use. Although the cabinet was not air tight, it had no openings specifically designed to provide ventilation.

The welding unit was designed by defendant Harbor Steel and furnished by it to Fisher Steel because Harbor Steel wished to obtain Fisher Steel's orders for welding supplies and equipment. Harbor Steel retained ownership of the unit and made no charge for Fisher Steel's use of its equipment.

This action was brought jointly by Mrs. Hill as administratrix of her husband's estate and by Michigan Mutual Liability Company, the workmen's compensation insurer of Fisher Steel, against Harbor Steel and General Dynamics Corporation. The two-count declaration alleged that each of the defendants was liable in damages for breach of warranty of fitness for use and, in addition or alternatively, for negligence.

At the close of plaintiffs' proofs defendants moved for a directed verdict and the trial court dismissed the count for breach of warranty, but reserved its decision on the negligence count. The case was submitted to the jury on the negligence count along with a special question: 'Do you find that there was a defective valve in the acetylene cylinder at the time of the explosion?' The jury answered 'no' to the special question and returned a general verdict of no cause for action as to both defendants. Plaintiffs appeal from the trial court's denial of their subsequent motion for new trial.

I.

In dismissing plaintiffs' count for breach of warranty the trial judge stated that he was doing so because there was no privity of contract between the parties and further stated that '* * * I fell it is an out and out negligence case, I don't think that this theory of breach of warranty has anything to do with it.'

There was a time, of course, when lack of privity of contract between plaintiff and defendant was a defense to a suit for breach of warranty. ¹ Eventually the courts developed an exception to this harsh doctrine in the case of goods intended for human consumption. See Hertzler v. Manshum, 228 Mich. 416, 421-422, 200 N.W. 155. In Michigan this exception became the rule in Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873. In that case, tried to the court sitting without a jury, the trial court concluded that defendant manufacturer of defective cinder blocks, which had been bought by an independent contractor and used in the construction of plaintiff's cottage, had breached an implied warranty of merchantability. Nonetheless the trial court held against plaintiff because of a lack of privity of contract between plaintiff and defendant. We reversed, holding that the trial court 'should have permitted recovery either on a theory of negligence or implied warranty'. 353 Mich. 120, 135, 90 N.W.2d 873, 881.

In this appeal defendant Harbor Steel argues that actions for breach of warranty and for negligence are identical--that they are but different labels for the same set of liability-predicating facts. Harbor Steel cites our earlier decisional language in Hertzler v. Manshum, supra, 228 Mich. at 423, 200 N.W. 155, that the only essential difference between an action in negligence and one in warranty is that in the latter instance privity must exist. It argues that, since we abolished the requirement of privity in the Three Rivers case, there is no longer any distinction between actions for breach of implied warranty and actions for negligence.

As noted above, Three Rivers held that lack of privity of contract should not bar plaintiff's suit on an implied warranty. Into this straightforward ruling, the Court, unnecessarily and unfortunately in my view, injected a discussion of whether plaintiff could be allowed to recover damages on a negligence theory notwithstanding the fact that her declartion asserted only a claim for breach of implied warranty. The Court quoted the laguage from Hertzler v. Manshum, supra, already referred to, linking warranty and negligence, and concluded:

'* * * but if we have thus solemnly told litigants and their counsel that suing for breach of an implied warranty is in effect tantamount to suing for negligence (one might think, for one thing, that the burden of proof might in some cases be more onerous on the plaintiff in the latter situation) we lack the heart to banish this plaintiff in this case because she trustingly took us at our word. We suggest in the future, however, that, where warranted by the circumstances, such declarations should sound explicitly in negligence as well as for claimed breach of warranty.' 353 Mich. 120, 131, 90 N.W.2d 873, 879.

Thus, the Court did not, as defendant Harbor Steel contends, hold that actions for breach of implied warranty and for negligence are identical. Rather, it held that in the particular case then before it, because of the confusion crated by language im previous decisions, an action for breach of implied warranty was procedurally adequate to ground a recovery for negligence. For the future, however, plaintiffs were advised to plead both negligence and breach of implied warranty, an obvious affirmation of the Court's belief that the two are different.

In any event, Manzoni v. Detroit Coca-Cola Bottling Co., 363 Mich. 235, 109 N.W.2d 918, ² should have made clear the fact that actions for breach of implied warranty and for negligence are different. There, plaintiffs recovered in the trial court upon an implied warranty. Defendant appealed, urging that there was no distinction between a count in implied warranty and one in tort, and that, therefore, to recover plaintiffs must establish defendant's negligence, which they allegedly did not do. Mr. Justice Talbot Smith commented thusly upon this argument:

'The fallacy in what is urged is the assertion that there is no distinction between counts in warranty and in tort. Their similarity in the present context lies only in the fact that each is a remedy aimed at the liability of the manufacturer and that each may be grounded upon the presence of a deleterious or harmful substance (e. g., mouse, fly, snake, mold, animal or human organs or residue) in an article intended for human consumption. At this point, however, similarities end and distinctions take over. The warranty action, of ancient lineage, did not require a showing of negligence (though a showing of negligence, of course, did not defeat it) but it did require privity of contract. The negligence action, on the other hand, did not require privity but it did require that the plaintiff show a lack of due care with respect to the particular article, e. g., the bottle of Coca-Cola in the present case. * * *' 363 Mich. 235, 238, 109 N.W.2d 918, 920.

'* * * We are holding that in a suit upon a warranty theory it is not necessary to show negligence, but rather breach of the implied warranty * * *.' 363 Mich. 235, 241, 109 N.W.2d 918, 922.

Thus, contrary to Harbor Steel's thesis, actions based upon breach of warranty and upon negligence are not identical, the most salient difference being also the most obvious: In an action upon a warranty, negligence need not be proved as a prerequisite to recovery.

Although the facts of Manzoni involved a product intended for human consumption, ...