Parrish v. B. F. Goodrich Co.

• Decision Date: 29 March 1973
• Docket Number: Docket No. 14606,No. 1,1
• Citation: 207 N.W.2d 422,46 Mich.App. 85
• Parties: , 12 UCC Rep.Serv. 660 Betty PARRISH and Dorothy Fink, Plaintiffs-Appellants, v. B. F. GOODRICH, COMPANY, a New York corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 422

207 N.W.2d 422

46 Mich.App. 85, 12 UCC Rep.Serv. 660

Betty PARRISH and Dorothy Fink, Plaintiffs-Appellants, v. B. F. GOODRICH, COMPANY, a New York corporation, Defendant-Appellee.

Docket No. 14606.

Court of Appeals of Michigan, Division No. 1.

March 29, 1973.

Rehearing Denied May 9, 1973.

Released for Publication May 30, 1973.

Gary C. Berger, Zeff & Zeff, Detroit, for plaintiffs-appellants.

Harvey, Kruse & Westen, Detroit, for defendant-appellee.

Before LESINSKI, C.J., and J. H. GILLIS and PETERSON, ^* JJ.

J. H. GILLIS, Judge.

Plaintiffs, Betty Parrish and Dorothy Fink, sued defendant, B. F. Goodrich Company, to recover for personal injuries sustained when a tire on plaintiff Parrish's vehicle blew out. Defendant, in a motion for accelerated judgment, contended that since the injuries occurred in Ohio, that state's two-year statute of limitations barred both plaintiffs' causes of action in Michigan. The trial court agreed. Plaintiffs appeal as of right. We reverse.

Plaintiffs' complaints are nearly identical and were filed March 10, 1972. They each allege two theories of liability arising out of the accident in question which occurred March 23, 1969, in Ohio. In the first count of each complaint plaintiffs alleged defendant negligently designed and manufactured the tire. The crucial paragraph in the second count of each complaint reads:

'That the defendant herein warranted in the design, manufacture, assembly, inspection and sale of the aforesaid tire, that such tire was fit for the ordinary and general purposes for which it was intended and was therefore of merchantable quality; and was also fit for the specific purpose for which it would be used.'

The tire was purchased at an authorized retail outlet in Michigan more than three years prior to commencement of this suit, according to an affidavit of plaintiff Parrish filed below.

We are convinced the trial court correctly ruled the Ohio statute of limitations on actions to recover for personal injuries ¹ barred plaintiffs' causes of action for negligence. Connelly v. Paul Ruddy's Equipment Repair & Service Co., 388 Mich. 146, 200 N.W.2d 70 (1972), holds a cause of action for damages arising out of a tortious injury to a person Accrues when all the elements have occurred and can be alleged in a complaint. Thus, plaintiffs' causes of action for negligence accrued when the accident occurred in Ohio. While suit was brought in Michigan, and generally our procedure would govern such a claim, M.C.L.A. § 600.5861; M.S.A. § 27A.5861, ² directs our attention to the Ohio statute of limitations, which bars the claim. See Pusquilian v. Cedar Point, Inc., 41 Mich.App. 399, 200 N.W.2d 489 (1972).

However, plaintiffs' allegations of breach of implied warranties is not readily amenable to the same summary analysis. The difficulty in determining where such a cause of action accrues is due in large part to historical difficulty in determining whether it sounds in tort or contract. The problem is aggravated by the addition of the Uniform Commercial Code. As Professor Prosser writes:

'The adoption of this particular device (implied warranty theory) was facilitated by the peculiar and uncertain nature and character of warranty, a freak hybrid born of the illicit intercourse of tort and contract. 'A more notable example of legal miscegenation could hardly be cited than that which produced the modern action for breach of warranty. Originally sounding in tort, yet arising out of the warrantor's consent to be bound, it later ceased necessarily to be consensual, and at the same time came to lie mainly in contract." Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099, 1126 (1960).

To the extent characterization of a warranty theory into a niche of named form of action is necessary ³ to determine where it accrued, we first make it clear that, as a procedural matter, the law of Michigan applies. Levine v. Levine, 209 F.Supp. 564 (D.Del., 1962); Willard v. Wood, 135 U.S. 309, 10 S.Ct. 831, 34 L.Ed. 210 (1890); Marks v. Kindel, 41 F.2d 584 (C.A. 6, 1930). See also Restatement, Conflict of Laws, § 587, p. 703.

Michigan has treated actions for breach of warranty seeking recovery for personal injury as sounding in tort.

'The implied warranty, so-called, * * * is in the nature of a representation that the highest degree of care has been exercised and a breach of such duty inflicting personal injury is a wrong in the nature of a tort, and not a mere breach of contract * * *. Except in name and to establish privity between the manufacturer and the ultimate consumer, it is the same thing as negligence.' Hertzler v. Manshum, 228 Mich. 416, 423, 200 N.W. 155, 157 (1924). (Food stuffs.)

While we note that suits, such as this, alleging product liability on warranty theory are really an amalgam of tort and contract concepts, Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 615, 182 N.W.2d 800 (1970), our Supreme Court has typically applied a 3-year statute of limitation ⁴ to claims seeking recovery for personal injury, as if they were grounded in negligence and not contract. State Mutual Cyclone Insurance Co. v. O. & A. Electric Cooperative, 381 Mich. 318, 161 N.W.2d 573 (1968); see also Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958).

In this regard M.C.L.A. § 600.5833; M.S.A. § 27A.5833, provides:

'In actions for damages based on breach of a warranty of quality or fitness the claim Accrues at the time the breach of the warranty is discovered or reasonably should be discovered.' (Emphasis supplied.)

Rote application of Connelly v. Paul Ruddy's Equipment Repair & Service Co., Supra, would dictate that plaintiffs' causes accrued when the injury was inflicted in Ohio.

However, the adoption of the Uniform Commercial Code ⁵ in Michigan presents a different aspect and is urged to be controlling by plaintiffs. The allegations of warranty liability in this case are grounded in the language of the commercial code. See M.C.L.A. § 440.2314; M.S.A. § 19.2314 (implied warranty of merchantability); M.C.L.A. § 440.2315; M.S.A. § 19.2315 (implied warranty of fitness for particular purpose). Plaintiffs contend their causes of action accrued in Michigan pursuant to M.C.L.A. § 440.2725; M.S.A. § 19.2725, which, in part, provides:

'(1) An action for berach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.

'(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.' (Emphasis supplied.)

We are cited to no Michigan case holding M.C.L.A. § 440.2725, Supra, applicable to a personal-injury products liability case. We note that the intent of the drafters of the Uniform Commercial Code to make uniform the laws of the several states has been frustrated in this particular instance. ⁶ We also note that the enactment of the commercial code, effective in Michigan on January 1, 1964, did not operate to repeal M.C.L.A. § 600.5833, Supra. See M.C.L.A. § 440.9991; M.S.A. § 19.9991, and M.C.L.A. § 440.9992; M.S.A. § 19.9992. Therefore, reconciliation of the two statutes is in order.

M.C.L.A. § 440.2725, Supra, also provides:

'(4) This section does not alter the law on Tolling of the statute of limitations * * *.' (Emphasis supplied.)

We think the language of the commercial code to the effect that a breach of warranty occurs at delivery should be used to determine Where the cause of action accrued, not when. There has been a longstanding policy in Michigan that the statute of limitations should not expire before damage has been suffered. Felt v. Reynolds Rotary Fruit Evaporating Co., 52 Mich. 602, 18 N.W. 378 (1884). That policy led to the enactment of M.C.L.A. § 600.5833, Supra, which now should be read as a Tolling statute, unaffected by the subsequent language of the commercial code. The effect of such an interpretation leads to the conclusion that the causes of action in this case accrued in Michigan where the potential liability for breach of warranty occurred, but that the limitation period did not begin to run until the damage was suffered.

Under this interpretation we need not decide whether the limitation period in causes of action seeking recovery for personal injury on breach of warranty theory is three years according to State Mutual Cyclone Insurance Co., Supra, or four years, according to M.C.L.A. § 440.2725, Supra, since plaintiffs filed their complaints within three years of...