Parsonson v. Construction Equipment Co., Docket No. 4908

• Decision Date: 25 June 1969
• Docket Number: Docket No. 4908,No. 2,2
• Citation: 18 Mich.App. 87,170 N.W.2d 479
• Parties: Robert PARSONSON and Grace Parsonson, Plaintiffs-Appellants, v. CONSTRUCTION EQUIPMENT COMPANY, a Partnership et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 479

170 N.W.2d 479

18 Mich.App. 87

Robert PARSONSON and Grace Parsonson, Plaintiffs-Appellants, v. CONSTRUCTION EQUIPMENT COMPANY, a Partnership et al Defendants-Appellees.

Docket No. 4908.

Court of Appeals of Michigan, Division No. 2.

June 25, 1969.

Rehearing Denied Aug. 5, 1969.

Released for Publication Sept. 26, 1969.

Lawrence S. Charfoos, Charfoos & Charfoos, Detroit, for appellants.

Donald Miller, Detroit, for White.

Alexander, Buchanan & Conklin, Detroit, Michael J. Kelly, Kelly, Tatham & Solner, Detroit, for Construction, Equipment Co.

Before HOLBROOK, P.J., and BRONSON and McGREGOR, JJ.

McGREGOR, Judge.

Plaintiff suffered burns in 1963 while tending an asphalt machine assembled by defendant White Manufacturing Company and sold by defendant Construction Equipment Company. As plaintiff unscrewed a gas cap on a motor to check the fluid level, gasoline spewed out and ignited. The motor was one of five used to provide power for the portable asphalt plant. A clogged vent probably caused the accident, but the specific cause was not determined. Plaintiff, joined by his wife, filed suit to recover for his injuries, alleging breach of an implied warranty by both defendants and negligence by defendant White. The jury found in favor of defendants on both conditions--breach of implied warranty and negligence--and plaintiffs appeal.

Plaintiffs raise five issues, but only two are necessary for our decision: namely, whether defendants breached an implied warranty, and whether defendant White was causally negligent.

The allegation of a breach of an implied warranty is inapposite as to both defendants. The asphalt plant was purchased 'as is.' By the use of that term, the buyer and plaintiff effectively waived defects in the machine and precluded their later reliance on an implied warranty. When the cause of action arose in 1963, the uniform sales act was effective, including:

'Where any right, duty, or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or the sale.' C.L.1948, § 440.71. ¹

Plaintiff husband concedes that he testified the asphalt equipment was purchased 'as is, where is.' That language effectively excluded an implied warranty of fitness on behalf of both defendants. See Richardson v. Messina (1960), 361 Mich. 364, 105 N.W.2d 153; 24 A.L.R.3rd 465.

Plaintiffs' arguments and proofs do not convince us that the jury was incorrect in finding no negligence on the part of defendant White. As a fact determination, the jury's decision stands inviolate if supported by the evidence. Hendershot v. Kelly (1968), 11 Mich.App. 173, 160 N.W.2d 740. An appellate court substitutes its judgment for that of the trier of facts only when necessary to prevent an unsupported verdict from wreaking manifest injustice. That is not the case here. The evidence amply supported the verdict.

Plaintiff vigorously and perhaps wisely urges this...