Parsonson v. Construction Equipment Co.

• Decision Date: 09 November 1971
• Docket Number: No. 25,25
• Citation: 191 N.W.2d 465,386 Mich. 61
• Parties: Robert PARSONSON and Grace Parsonson, Plaintiffs-Appellants, v. CONSTRUCTION EQUIPMENT COMPANY, a Partnership, et al., Defendants-Appellees.
• Court: Michigan Supreme Court

Page 465

191 N.W.2d 465

386 Mich. 61

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

No. 25.

Supreme Court of Michigan.

Nov. 9, 1971.

Charfoos & Charfoos, by L. S. Charfoos, Detroit, for plaintiffs-appellants.

Kelly & Tatham, by Michael J. Kelly, Detroit, for defendant-appellee Construction Equipment Co.

Association of Defense Trial Counsel, Detroit, Hector Webber, Detroit, of counsel, amicus curiae.

Negligence Law Section, State Bar of Michigan, David V. Martin, Chairman, by Friedrich K. Juenger, Detroit, amici curiae.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells and Kenneth L. Block, Grand Rapids, of counsel), for Negligence Law Section, State Bar of Michigan, David V. Martin, Chairman, amici curiae.

Michigan Trial Lawyers Association, by Maurice Kelman, Detroit, amicus curiae.

Before the Entire Bench.

PER CURIAM.

Prominent in the juristic area of product liability are those rules by which the courts are called upon to ascertain the presence or absence of accountability for having manufactured a chattel which the complaining buyer or user alleges, and the defendant manufacturer or retailer denies, was Defectively designed. Out of the great welter of professorial and judicial writing for this division of inquiry there has emerged an equally conspicuous classification of causative claims. Such claims are, in order (a) that the manufacturer's design has created a Concealed or hidden danger; (b) that the manufacturer has failed to provide a needed or reasonably required Safety device, or (c) that the manufacturer has used or employed material of Inadequate strength or Quality suitable for the intended use.

We are concerned in this case with (a) above. Under it liability or non-liability is properly determined by careful application to the ascertained facts of what is compendiously termed the 'latent-patent' test. For recent analysis and application of that test, supported by copious references to impressive judicial authority, examine Blankenship v. Morrison Machine Co. (1969), 255 Md. 241, 257 A.2d 430, and Neusus v. Sponholtz (1966), CCA 7, 369 F.2d 259.

Blankenship quotes and follows Myers v. Montgomery Ward & Co., Inc. (1969), 253 Md. 282, 252 A.2d 855. The quotation of Myers reads:

'The manufacturer of a mower is not an insurer, and is under no duty to make an accident proof product * * *. No cause of action is made out in the absence of an allegation that the injury was caused by a latent defect not known to the plaintiff or a danger not obvious to him, which was attendant on proper use * * *. 'There is certainly no usual duty to warn the buyer that a knife or axe will cut, a match will take fire, dynamite will explode, or a hammer will mash a finger.' * * *.'

Neusus concludes:

'It is a truism to observe that no mechanical device can be made accident-proof. If it is misused it may cause injury, regardless of the method of manufacture. As stated by the New York Court of Appeals in Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 804 (1950) (quoted with approval in Murphy v. Cory Pump & Supply Co., 47 Ill.App.2d 382, 197 N.E.2d 849, 857 (1964)):

"We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof. Just as the manufacturer is under no obligation, in order to guard against injury resulting from deterioration, to furnish a machine that will not wear out * * *, so he is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. * * *

"In other words, the manufacturer is under no duty to render a machine or other article 'more' safe--as long as the danger to be avoided is obvious and patent to all."

First: WAS THE DEFECT CLAIMED LATENT OR PATENT?

Typical of some appeals previously submitted to this Court, and recently more and more so, this record and the briefs received disclose that counsel both at trial and on appeal have concentrated too much upon abstractive theories and selected legal writings and too little upon 'the facts which generate the law.' ¹ This has necessitated a doubly cautious transfer of attention from a not too helpful joint appendix to six volumes of transcript consisting of 742 typed sheets, the better to ascertain precisely the legal principle or principles that are applicable to the controlling evidentiary facts. Now for those facts.

In early 1960 one Health of Port Huron, doing business as Heath Excavating Co., was doing small jobs of asphalt paving in conjunction with his excavating business. For that purpose he had acquired and was using 'a smaller White asphalt plant.' At that time he communicated to defendant White Manufacturing Co., of Elkhart, Indiana (hereafter termed 'White') his interest in acquiring 'a larger capacity plant.'

Defendant Construction Equipment Co. of Detroit (hereafter termed 'Construction'), was in business as buyer, seller and lessor of heavy construction and industrial machinery and equipment, 'new and used.' Alerted by White to Health as a prospect, Construction's sales representative Higgins called on Heath and informed him that White then had, 'on the drawing board,' a bigger and yet fully transportable asphalt manufacturing machine known as an 'L--501 asphalt plant.' The two, Health and Higgins, finally went to Elkhart to view the L--501 plans. Design changes of the proposed new model were then being made from time to time by White. White agreed to build an L--501 specially for Heath, to be sold to Construction and by Construction to Heath (for financial reasons).

Heath insisted that the plant not only must be capable of greater output but also must be thoroughly mobile so that he would be 'able to move the plant day to day, week to week' for the handling of extended paving jobs as well as small ones. ² Heath also insisted that gasoline engines be installed for necessary power, rather than electric motors or diesel oil-fired engines. He was given a choice of all 3 methods of providing power, but chose gasoline power over electric power, partly on account of non-availability of electric power connections for most jobs, and partly on account of the extra cost of a transportable electric generating plant. He rejected diesel power, it having been found that diesel engines would cost much more than gasoline engines. Made as it was to Heath's specifications and fitted to his financial ability, the parties agree that the plant thus built for him was the only one of its specific kind that was manufactured by White.

The agreed sale to Construction was completed and reduced to writing by Construction's purchase order dated March 23, 1960. Addressed to White, it described the purchase as a 'Model 501B Asphalt Plant with Dust Collector system.' It specified a sale price of $33,400 ('Less 15% Discount'), 'Customer Pickup' as to shipment, and a delivery date of May 15, 1960. These provisions were included:

'Price subject to additions per customer's specifications.'

'This purchase order subject to final approval of specifications by customer.'

It is agreed that 'customer' meant Mr. Heath. The plant was hauled by Heath from Elkhart to Port Huron and put to use after White's men, having come to Port Huron two or three times for the purpose, checked and adjusted the machinery of the plant for operation and drove it through what Mr. Higgins described as a 'dry run.'

A year and a half later the plant was 'repossessed' by Construction. 'Partly dismantled,' the plant and its parts were transported by Construction from Port Huron to its yard on West Eight Mile road. There the plant remained unused until it was sold by Construction to a corporation formed in February of 1963. The shareholders of the buying corporation consisted of plaintiff Robert Parsonson, his brother Alfred Parsonson, Andy Hornak, George Hornak and Robert Huhn. The corporation was named H. & L. Paving, Inc.

The parties agree that H. & L. Paving bought the plant 'as is, where is' from Construction. The sale was made April 16, 1963. Construction towed the chassis to H. & L. Paving's yard on Schultes street. H. & L. Paving trucked the separate parts to the Schultes street yard. There H. & L. Paving put the plant together, the process taking some two weeks. After that was done H. & L. Paving evidently sent for Mr. White, president of defendant White, ³ for he came to the Schultes street yard for operational advices. The extent of those advices was given by Alfred Parsonson:

'Q. After it was erected, were you present when Mr. White came upon the premises?

'A. Yes.

'Q. Would you tell us what you did, if anything, with Mr. White on that day?

'A. I don't recall how many of us there were but we followed Mr. White around as he explained the operation of the plant to us. I clearly recall him showing us how to set the burner, how to adjust the air on it. I can remember him showing us how to operate the pug mill, and I can remember him correcting a fault we made in the hookup of the asphalt and I can remember him suggesting that we get a smaller motor to heat the asphalt pump. Oh, yes, and he told me to make sure--

'Q. Don't tell us what he told you, just what he did.

'A. That I grease the thing every day. * * *

'Q. Did you have to follow any particular procedure to close the plant down?

'A. Yes. We had set up a procedure for ourselves. First of all, we would shut the gates on the storage bin, allow all the aggregate to work its way out, then turn off the burner. This then would stop the flow of the aggregate. The aggregate would have gone up to here. We then could turn this off, turn this dryer off, the blower off. We could go over, drain the asphalt circuit, which if we left the asphalt in there it would harden, then we would come back and turn this one off.

'Q. Why did you wait for the last one for the Continental motor?

'A. The reason we would leave this to last, Mr....