Piercefield v. Remington Arms Co.

• Decision Date: 01 March 1965
• Docket Number: No. 16,16
• Citation: 133 N.W.2d 129,375 Mich. 85
• Parties: , 2 UCC Rep.Serv. 611 Gordon PIERCEFIELD, Plaintiff and Appellant, v. REMINGTON ARMS COMPANY, Inc., a foreign corporation, Schaberg-Dietrich Hardware Company, a Michigan corporation, and Wendell Scheidt, d/b/a Scheidt's Hardware, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 129

133 N.W.2d 129

375 Mich. 85, 2 UCC Rep.Serv. 611

Gordon PIERCEFIELD, Plaintiff and Appellant, v.REMINGTON ARMS COMPANY, Inc., a foreign corporationSchaberg-Dietrich Hardware Company, a Michigan corporation, and Wendell Scheidt, d/b/a Scheidt's Hardware, Defendants and Appellees.

No. 16.

Supreme Court of Michigan.

March 1, 1965.

Peter F. Cicinelli and Eugene D. Mossner, Saginaw, Edward B. Spence, Lansing, for plaintiff and appellant.

Cholette, Perkins & Buchanan, Grand Rapids, Fraser, Trebilcock, Davis & Foster, Lansing, for defendants.

Before the Entire Bench, except DETHMERS, J.

O'HARA, Justice (dissenting).

Gordon Piercefield, plaintiff here, was injured when the barrel of a shotgun, fired by his brother, exploded.Fragments of metal became imbedded in his brain.The shell fired was manufactured by the defendant, Remington Arms Co., Inc.DefendantSchaberg-Dietrich Hardware Co. is the wholesaler, alleged to have sold the shell in question to defendant Scheidt's Hardware.Norman Piercefield, plaintiff's brother, claims to have purchased the shell from defendant retailer Scheidt.It is conceded that plaintiff was neither a purchaser nor a user of the shell.No claim is made that plaintiff's cause of action, as alleged, derives from any relationship between him and his brother.For the purpose of decision, plaintiff and the purchaser-user are strangers.In the idiom of products liability law, plaintiff is an 'innocent bystander,' or a 'mere bystander,' dependent upon who employs the term.There is no legal distinction.

In consequence of his injury which occurred on November 26, 1957, plaintiff by 2-count declaration, filed November 10, 1960, ¹ asserted liability against all defendants.In the first count labeled 'Negligence'he claims violation of duty of care in manufacture, failure to inspect, failure to warn and foreseeability of the consequences of the alleged lack of care.In count 2, labeled 'Implied Warranty,'plaintiff charges the shell was not suitable for its intended use and that plaintiff was entitled to rely upon and did rely upon the implied warranty of fitness and suitability which attended the manufacture, distribution and sale of the product.

Responsively, defendants denied some of these allegations.Affirmatively, as to the negligence count, they asserted contributory negligence of a third party for which defendant was not responsible; and as to the warranty count claimed that plaintiff, being neither a purchaser nor a user, was entitled to the benefit of no warranty, express or implied.As to the warranty count, defendants also pleaded affirmatively that if any warranty did extend to plaintiff, he was not entitled thereto by reason of his failure to comply with the notice requirements of the Uniform Sales Act, P.A.1913, No. 100, § 49 (C.L.1948, § 440.49;Stat.Ann. § 19.289).² These affirmative defenses were duly controverted and defendants thereafter moved in the alternative to dismiss or to strike, and for judgment on the pleadings.Briefs were submitted, oral argument heard, and on December 7, 1962, the trial court granted the motion to dismiss'Count Two, the Implied Warranty Count' as to all defendants.Plaintiff appealed.There is a discrepancy between the wording of the Order Dismissing Count Two and the very clear and unequivocal equivocal statement of the trial judge in his ruling on the motion from the bench:

'It seems clear to me that our Supreme Court has from time to time, to-wit, in the case of Manzoni ³ and Spence, ⁴ extended the rule to a consumer, to a remote buyer, to a user, and if they want to extend it further I think that is up to them.I think that it is up to this court to follow the law as it is now, and at the present time I don't know of any Michigan case that we can point to that would permit this court to say that a bystander is entitled to proceed on the theory of an implied warranty.

'For that reason, I will so hold. * * *

'MR. MOSSNER: Thank you, Your Honor.You are not ruling, then, on the notice, Your Honor?

'THE COURT: No. I don't think it is necessary to rule on the question of notice.

'MR. MOSSNER: Well, I just thought that perhaps if we get clarification on this phase of it we may get clarification on the whole thing.'

The order contains the following wording:

'That plaintiff failed to give timely notice of the alleged breaches of warranties to the defendants herein as required by Stat Ann § 19.289, being Uniform Sales Act, § 49, and that there was no implied warranty by the defendants herein running to the benefit of this plaintiff, a mere third party bystander; * * *.'(Emphasis supplied.)

This contradiction does not ease out task in delineating issues on review.We are of course bound by the court's order.It is axiomatic that courts speak through their orders and decrees, not through colloquy between judge and counsel.Intended or not, the issue of adequacy of notice by reason of the wording of the order is before us.We suggest strongly, care by court and counsel both in the preparation and approval of orders to the end that such apparent contradiction does not reoccur.

We have then before us 2 questions.First, was plaintiff entitled to the benefit of the implied warranty of fitness that attended the manufacture, distribution and sale of the involved shell?Second, if he were so entitled (a) is notice of the alleged breach a condition precedent to his maintenance of his action?(b) if such notice be requisite, was a letter from plaintiff's counsel to defendantRemington Arms Co., Inc., sufficient compliance with the notice requirement as to it?

We examine question one.Plaintiff, as earlier noted, did not purchase or in any manner use the claimed defective shell.We are not therefore, as defendants urge strongly, concerned with a question of privity of contract.If plaintiff, as a bystander outside the chain of sale or use, be entitled to recover in warranty, it would be a logical abortion to require of him privity to someone in the 'distributive chain.'To what end?We removed that requirement in the case of a purchaser, however remote, in Spence v. Three Rivers Supply, 353 Mich. 120, 90 N.W.2d 873.We do not have before us the question of a nonbuying consumer of a food product manufactured and sold for human consumption as was presented and decided in Manzoni v. Detroit Coca-Cola Bottling Company, 363 Mich. 235, 109 N.W.2d 918.As defendants put it bluntly in their brief, the proposition is simply this:

'If we start from what appellees considered the incorrect assumption that all injured persons are entitled to recover from a manufacturer who puts the product in the market, merely because of the injury, then this ends the matter and the court can, and should, say so, in one crystal-clear paragraph, unencumbered with sophistries or other unnecessary explanations.'

With equal candor, appellees state further:

'Prior to Spence and Manzoni, an injured plaintiff could hardly expect to recover at all from a manufacturer.See such Michigan cases as Pesavento v. E. I duPont deNemours Co., 240 Mich. 434, 215 N.W. 330(1927), andPickens v. Crowley-Milner & Co., 258 Mich. 102, 241 N.W. 838(1932).This inability to recover goes as far back as Mr. Winterbottom's problem in 1842, commented upon in annotation, 74 ALR2d, at page 1131:

"It is frequently stated that it is a 'general rule' that a manufacturer or seller of a product alleged to have caused injury cannot be held liable therefor, on the ground of negligence, to one with whom he is not in privity of contract.At the foundation of this 'general rule' as to the nonliability of a manufacturer to a remote vendee or ultimate consumer of the manufactured product is the English decision in a case which does not involve the liability of a manufacturer or seller, but of a contractor.The case is, of course, Winterbottom v. Wright (1842) 10 Mees & W 109, 152 Eng Reprint 402."

At page 1134 it is said:

"Lying at the core of complaints respecting the privity rule of Winterbottom v. Wright is, unquestionably, its unworkability in modern times, that is, its inherent inability to assure fundamental justice in contemporary litigation involving product-caused injury."

It seems to us that in the never ending process of adjusting settled rules of law to changing conditions in society the courts have taken seven league boot strides toward equalizing the positions of injured plaintiffs, manufacturers, distributors and retailers.Within the 'distributive chain' the relative positions have not only been equalized, as was long overdue, but the advantage, if any now exists, has shifted to the injured plaintiff.In Michigan he may proceed in warranty or tort (despite some rather paradoxical language in Spence.)In warranty, courts responded to the "ever-growing pressure for protection of the consumer, coupled with a realization that liability would not unduly inhibit the enterprise of manufacturers and that they were well placed both to profit from its lessons and to distribute its burdens."Manzoni, supra, 363 Mich. p. 241, 109 N.W.2d p. 921, and footnote sources 13.

Appellees argue to us that as yet no State has extended the warranty theory of recovery to bystanders, and at the same time repudiated the notice requirements generally required precedently to recover thereunder.Appellants urge not only that we should extend the warranty theory of recovery without privity to bystanders, but that 'enlightened jurisdictions' should not require notice because plaintiff-bystander is not a 'buyer' and hence the provisions of the Uniform Sales Act should not apply.They contend that in any event as to defendant Remington, notice was in fact timely given.That our State, nor any other State, has not yet held as appellant urges should be held is not per se valid basis for our not so doing now.We do not aspire to regain the dubious distinction we enjoyed as the last State to discard...