# Hill v. Harbor Steel & Supply Corp.

> Michigan Supreme Court · January 4, 1965 · 374 Mich. 194

URL: https://www.frixlaw.com/law-library/cases/9672275

## Case

- **Full name:** Hill v. Harbor Steel & Supply Corporation
- **Court:** Michigan Supreme Court
- **Decided:** January 4, 1965
- **Citations:** 374 Mich. 194; 132 N.W.2d 54; 1965 Mich. LEXIS 316
- **Precedential status:** Published
- **Opinion:** Concurring in part by Dethmers
- **Judges:** O'Hara, Kavanagh, Smith, Adams, Souris, Black, Kelly, Dethmers
- **Cited by:** 63 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9672275

## How later opinions describe it (automated extraction)

- stating that Spence “held that lack of privity of contract should not bar plaintiffs suit on an implied warranty”
- recognizing that breach of warranty claims traditionally sound in contract

## Opinion text

Dethmers, J.
(dissenting in part). I do not agree with Mr. Justice Souris that this case should be reversed as to defendant Harbor Steel & Supply Corporation on his asserted g'round that the trial court erred in dismissing the count for breach of warranty against that defendant. I do agree with his affirmance as to the other defendant.
I am in full accord with Justice Souris’ observation that the majority opinion in Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120 , “unnecessarily and unfortunately * * * injected a discussion of whether plaintiff could be allowed to recover damages on a negligence theory notwithstanding the fact that her declaration asserted only a claim for breach of implied warranty.” Indeed, that is only part of what seems to me to be unfortunate about that opinion. It professed to bring clarity to what it termed a state of “legal confusion”. If such existed before, it seems only to have been confounded by that Spence opinion. Hence, Justice Souris’ pained efforts at clarification. For the reasons stated in Mr. Justice Kelly’s opinion in that case and the many cases therein *218 cited, I would affirm, in the instant case, the trial court's dismissal of the count sounding in breach of warranty for lack of privity between the parties. See, also, Mr. Justice Carr's opinion in Manzoni v. Detroit Coca-Cola Bottling Company, 363 Mich 235, 243 , limiting application of the decision to cases of products, as there involved, manufactured and sold for human consumption.
With respect to the question of instructions discussed in Justice Souris' opinion, I do not find them so deficient or erroneous as to warrant reversal and grant of new trial on the negligence theory. The requests of plaintiffs which Justice Souris considers appropriate were, with one exception, adequately covered by instructions actually given. The exception consists of the requested instruction that there was a presumption that Hill was exercising due care. I am still of the view, expressed in my opinion in Mack v. Precast Industries, Inc., 369 Mich 439 , that with the burden resting on defendant, under the recent rule, to prove contributory negligence on plaintiff's part, there is no necessity for an instruction of presumption of plaintiff’s freedom therefrom.
The judgment should be affirmed. Costs to defendants.
Kelly, J., concurred with Dethmers, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9672275. Public record. Not legal advice.