Hill v. Harbor Steel & Supply Corp.

O’Hara, J.

(concurring in result). In my view, we ought to face up to the fact that Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120 , contained language that was not only unnecessary and unfortunate as found by Mr. Justice Souris, and that the case compounded any legal confusion that may have existed before it, as found by Mr. Justice Dethmers, but that some of its language is simply bad law and ought to be expressly overruled. It is little wonder that our trial bench dismisses and *219 refuses to dismiss warranty counts in products liability cases without apparent standard when we permit the following language to stand as precedent:

“But if we have thus solemnly told litigants and their counsel that suing for breach of an implied warranty is in effect tantamount to suing for negligence * * * we lack the heart to banish this plaintiff in this case because she trustingly took us at our word.” Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120, at 131 .

Mayhaps Spence attained a just result but its quoted language is cool comfort to other plaintiffs or defendants similarly situated, or to trial judges— who knows what “heart” this Court will have or lack another day. Law—like ambition—“should be made of sterner stuff.” I would reaffirm here what Spence really decided: lack of privity of contract is not a defense to an action by a purchaser for breach of an implied warranty of fitness for the purpose for which a product is manufactured and sold. Other than that, the case has no precedential force.

I agree with Justice Souris that Manzoni v. Detroit Coca-Cola Bottling Co., 363 Mich 235 , has equal applicability to all product liability cases. Therefore it is the law of this State that the class of persons who may maintain actions for breach of an implied warranty of fitness includes consumers and users as well as purchasers, however remote.

For the foregoing reasons, I agree with Justice Souris that the case at bar must be reversed because the trial court dismissed the warranty count for lack of privity of contract as to defendant Harbor Steel. I agree also that dismissal as to defendant General Dynamics was not reversible error for the reasons he sets out.

*220 I agree with Justice Dethmebs that the instructions were not reversibly erroneous except as to the requested instruction concerning the presumption that plaintiff was in the exercise of due care. To this instruction, plaintiff was entitled under the majority opinion in Mack v. Precast Industries, Inc., 369 Mich 439 , irrespective of my view of the question.

I turn now to the question of the admissibility of evidence concerning the receipt of and the amount of workmen’s compensation payments in cases where the compensation insurer is a party plaintiff (and in my view he can’t be kept “out” if he wants “in” despite our equivocal writings on the point). Since I did not participate in McCullough v. Ward Trucking Co., 368 Mich 108 ; nor Leitelt Iron Works, for use and benefit of Michigan Mutual Liability Company, v. DeVries, 369 Mich 47 , I welcome this opportunity to express myself.

There is no adequate answer from the standpoint of an injured plaintiff. He is damned if the jury gets the information and damned if it doesn’t. If the information is withheld, the jury is left to speculate blindly on what actual pecuniary interest the compensation insurer has in the case. Surely, this for a plaintiff’s counsel, is buying a pig in a poke. The jury may add or it may subtract in consequence. If the information is given to the jury, as Justice Black noted in Leitelt, supra, at p 58 , it beclouds the real basis for the determination of the amount of damages, and because under our statute 1 the actual amount of an insurer’s interest cannot be determined. Really the problem is legislative. So long as we must continue to try this type of case under the monstrosity that is supposed to give an injured workman an additional cause of action for damages not included under the workmen’s *221 compensation act, but by its terms actually constitutes the injured workman a collection agent for the insurer, this Court cannot formulate any fair rule. Despite Justice Black’s postulate that the information is a “pot of irrelevance” ( Leitelt, supra, p 58 ) with Justice Souris “I remain troubled by the possible consequences of nondisclosure” (McCullough, supra, p 119 ). I agree with him in his McCullough dissent, that full disclosure is at least the lesser of the two evils.

I sincerely hope that the legislature will address itself in the coming session to the problem posed by the wording of the third-party liability section of our act, as it relates to distribution of compensation benefits between injured worker and insurer, in view of the practical impossibility of determining under the insurer’s liability section of the act exactly what its total financial involvement is at the time of trial in the event of a judgment for damages.

I vote to affirm in the dismissal as to defendant General Dynamics and to reverse and remand with a new trial as to defendant Harbor Steel.

CLS 1961, § 113.15 (Stat Ann 1960 Rev § 17.189).