Jones v. Keetch

• Decision Date: 30 August 1972
• Docket Number: No. 6,6
• Citation: 388 Mich. 164,200 N.W.2d 227
• Parties: , 91 A.L.R.3d 471 Carroll E. JONES and Mary Jones, Plaintiffs-Appellants, v. Stanley KEETCH and Jeanne Keetch, d/b/a Hillman Motel, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 227

200 N.W.2d 227

388 Mich. 164, 91 A.L.R.3d 471

Carroll E. JONES and Mary Jones, Plaintiffs-Appellants, v. Stanley KEETCH and Jeanne Keetch, d/b/a Hillman Motel Defendants-Appellees.

No. 6.

Supreme Court of Michigan.

Aug. 30, 1972.

Cicinelli, Mossner, Majoros, Harrigan & Alexander by Eugene D. Mossner, Saginaw, for plaintiffs-appellants.

Robert P. Keil, Flint, for defendants-appellees.

Before the Entire Bench.

BLACK, Justice.

This case involves what is claimed to have been a defective chair. The chair was owned and provided for their patrons by the defendant motel operators. With several fellow-workers plaintiff Carroll E. Jones was staying at the motel. At end of the workday four of the crew started to play pinochle in one of the rented rooms. They sat around 'something like a tea table'. After some 20 to 30 minutes of playing the rear legs of Mr. Jones' chair collapsed, causing him to fall on his fundament and suffer a ruptured disc. The injury necessitated a spinal fusion.

Plaintiffs, husband and wife, sued the defendants on two theories: (a) negligence and (b) breach of an implied warranty of fitness for intended use. The first trial resulted in a directed verdict and entry of judgment for defendants. Plaintiffs reviewed, with result shown by an opinion of Division 3 (23 Mich.App. 338, 178 N.W.2d 549 (1970)); that of retrial of plaintiffs' claim of negligence and denial of plaintiffs' claimed right to recover upon their charge of breach of an implied warranty.

The second trial resulted in a no cause verdict and entry of a second judgment for defendants. Upon second review plaintiffs successfully applied for bypass, pursuant to GCR 852 (384 Mich. 837).

The sole reviewable question readily appears in the opinion of Division 3. It is whether upon due pleading and submission of supporting proof plaintiffs may recover for breach of an implied warranty of fitness, such as they contended for during and since the first trial. Division 3 rightly found that no Michigan case has extended, directly at least, 'warranty of fitness into this area.' The Judges concluded that 'we choose not to so extend it at this time.' (23 Mich.App. 340, 178 N.W.2d 550). However, upon present review, we have decided that this is an appropriate case for alignment of Michigan with the general rule of the common law, set forth in 8 Am.Jur.2d Bailments, ' § 144. Implied warranty of fitness.', pp. 1039, 1040:

'It is the general rule that, in the absence of an agreement to the contrary, the bailor of a chattel to be used by the bailee for a particular purpose known to the bailor, impliedly warrants the reasonable suitability of the chattel for the bailee's known intended use of it. The rule of implied warranty has been adopted by statute in some jurisdictions. The implied warranty is said to be raised by the delivery of the chattel to the bailee, where the quality or fitness of the article for the use specified is not visible and the defect is not discernible by an ordinary observer. As a warranty against defects it has been said to extent to such faults and defects as would entirely prevent the contemplated use and enjoyment of the bailment, or render it dangerous, but not to those which would merely diminish its convenience and appropriateness for the use designed.' ¹

The quoted text lists a number of decisions and ALR annotations which, upon examination, tend clearly to support the stated general rule. The latest of these annotations appears in 68 ALR2d, pp. 850 et seq.:

' § 4. Implied warranty of suitability for known intended use.

'It appears to be the general rule that, in the absence of an agreement to the contrary, the lessor of a chattel to be used by the lessee for a particular purpose known to the lessor impliedly warrants the reasonable suitability of the chattel for the lessee's known intended use of it.' (p. 854).

Plaintiffs' counsel call attention to Schnitzer v. Nixon and Heath, d/b/a Cavalier Manor Motel, 439 F.2d 940 (C.A. 4, 1971) saying that its facts and reasoning are on all fours. We agree, adding only that in the specific circumstances presented both here and in Schnitzer, it matters not that the chattel comes to the possession of the plaintiff either as lessee or bailee. The general rule to be applied is the same, absent any one of its known exceptions. Schnitzer concludes (p. 942):

'These antecedents considered, we have no hesitancy in declaring the plaintiff entitled to succeed in Virginia on an implied warranty, negligence aside. It is but a fair placement of the innkeeper's responsibility to a guest under his roof.'

Upon strength of the stated general rule and the reasoning of the Fourth Circuit I vote to reverse and remand for trial of plaintiffs' theory of recovery upon warranty.

I would so order, with award of costs of all courts to plaintiffs.

SUPPLEMENT (August 24, 1972)

This Rule 852 appeal was duly assigned to the writer in accordance with our practice. It was submitted May 2, 1972. The foregoing opinion dealing with the reviewed merits, was delivered to the other Justices June 7. July 11 Justice Adams submitted his opinion (post 234) for affirmance. July 20 Justice T. G. Kavanagh submitted his opinion (post 235) for dismissal of the appeal. July 26, being judgment day for and upon submitted opinions, Justice Brennan held up the Court's decision for study and possible further writing. There being no such additional writing to date, I have decided by this supplement to respond to the opinions submitted July 11 and July 20.

The two opinions turn upon dual allegation (a) that plaintiffs' appeal to this Court came too late under GCR 1963, 853.2(3); upon dual allegation (b) that the opinion and judgment of the Court of Appeals on first appeal to that Court (23 Mich.App. 338, 178 N.W.2d 549) became 'the law of the case', ² and (c) upon allegation (Justice Adams only) that plaintiffs, by election Not to apply for leave to review the cited judgment of the Court of Appeals, thereby chose 'to accept the decision of the Court of Appeals'. The Justice writes that that choice 'estopped the plaintiffs from raising the issue of implied warranty . . .' (Let this last stand, naked and innocently shameless before all counsel who now must decide--at pain of estoppel--whether they should make prompt application for leave to review every aggrieving interlocutory order or judgment of the circuit court or of the Court of Appeals).

First: Just how may GCR 1963, 853.2(3) be applied in bar of the instant appeal? No application under that rule, delayed or otherwise, has been made by any party throughout the history of this case. Plaintiffs have sought instead, properly and successfully thus far, leave for bypass of the Court of Appeals under preceding GCR 1963, 852. That rule sets forth no time limit for filing of application thereunder except that same must be filed 'within 30 days after filing of the claim of appeal' (GCR 1963, 852.2(1)). Plaintiffs certainly did so file, on time.

May 7, 1971 our order granting plaintiffs' application for bypass was entered (384 Mich. 837). The Court's action was Unanimous and done in the face of defendants' unsupported objection that plaintiffs should have attempted to appeal the first time and, having failed so to do, were estopped to apply for bypass. Our conferential minutes read (May 3, 1971; Re Jones v. Keetch):

'Motion by Justice Black, supported by Justice Williams, that application for leave to appeal to this Court prior to decision by the Court of Appeals be granted. Motion carried.'

Although the purely procedural question Justice Adams and T. G. Kavanagh have considered in bar of the meritorious question was raised by the defendants in opposition to plaintiffs' application for bypass, the Court thought so little of it that no discussion thereof took place during the Court's conference on May 3, 1971. Instead, we concerned ourselves with the advisability of reviewing the warranty question Presently, rather than holding a much delayed case over for--possibly or probably--another 'we choose not to so extend it At this time' ³ provisional opinion by the Court of Appeals. Further, in the precedently submitted report to us by the assigned Supreme Court Commissioner, the question thus advanced was disposed of as follows:

'It by no means follows that our Court of Appeals would again come to the same conclusion in view of the growing body of cases. Defendants point out that the plaintiffs could have appealed from 23 Mich.App. 338, (178 N.W.2d 549) instead of accepting another trial based on negligence theory only. That does not count against them now. I see no need for by-pass.'

My memorandum to the Court dated March 26, 1971, and notes made upon return to the office from that May 1971 session of the Court, show that we disagreed Only with Commissioner Planck's view that the Court of Appeals, should it be left in charge of the then pending appeal thereto, probably would conclude Differently upon further consideration of the meritorious question. In opposition to that view I suggested by memo to the Court that 'Two trials of a case like this really ought to be enough without having had the controlling question definitely settled' and that 'Another panel probably would conclude as before, * * *.' The result was our unitary order for grant of bypass. Nonetheless, two Justices voting to enter that order say now, more than a year later, that we had no power so to do, GCR 1963, 853 considered. This surely means 'no jurisdiction', as 'jurisdiction' is known here moderne by People v. Holbrook, 373 Mich. 94, 128 N.W.2d 484 (1964) and Holbrook's painful explainer, People v. Carter, 379 Mich. 24, 148 N.W.2d 860 (1967), both per Adams, J.

Second: The named Brethren aver that the Court of Appeals, having ruled that 'We know of no Michigan case which has extended warranty of fitness into this area, and we choose not to so extend it at this time' (23 Mich.App. 338, 340...