O’Hara, J.
(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. Defendant Schaberg-Dietrich Hardware Company 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, I960,
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, PA 1913, No 100, § 49 (CL 1948, §440.49 [Stat Ann § 19.289]).
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 unequiv
ocal statement of the trial judge in Ms 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
Mansoni
and
Spence
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 CL 1948, § 440.49 [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 our 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 defendant Remington 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 Builders & Masonry Supply, Inc.,
353 Mich 120. 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. 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
Mansoni,
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.
(1927), 240 Mich 434; and
Pickens
v.
Free access — add to your briefcase to read the full text and ask questions with AI
O’Hara, J.
(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. Defendant Schaberg-Dietrich Hardware Company 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, I960,
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, PA 1913, No 100, § 49 (CL 1948, §440.49 [Stat Ann § 19.289]).
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 unequiv
ocal statement of the trial judge in Ms 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
Mansoni
and
Spence
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 CL 1948, § 440.49 [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 our 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 defendant Remington 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 Builders & Masonry Supply, Inc.,
353 Mich 120. 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. 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
Mansoni,
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.
(1927), 240 Mich 434; and
Pickens
v.
Crowley-Milner & Co.
(1932), 258 Mich 102. This inability to recover goes as far back as Mr. Winterbottom’s problem in 1842, commented upon in annotation, 74 ALR2d 1111, 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 Rep 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,
p 241, 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 pur 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 imputed negligence in the case of blameless automobile guest passengers in actions against third-party wrongdoers.
Nor do we care to become, without a clearly demonstrated need, judicial pioneers ordaining new theories for recovery merely because regrettable injury has occurred.
With the availability to him of tort recovery upon proper proof, we do not turn plaintiff away without remedy. His negligence action impends. As evi
deuce of negligence becomes recognized as an inference to be drawn by the trier of the facts from the total evidentiary and testimonial complex, his problem of proof is lessened. Whether to call this principle by its sonorous Latin birth-name
res ipsa loquitur,
or to do as we did years past in
Hertzler
v.
Manshum,
228 Mich 416, at p 421, say “The poisoned flour speaks for itself; unexplained it evidences negligence,” seems inconsequential.
We are not unmindful that under our adversary system this proof of negligence, or lack thereof, rests as often upon the skill of the advocate as upon any absolutes of fact. But thus it is, and thus it will remain until society decrees otherwise. Meanwhile, the judiciary can only continue to adjust within the system, the rights of the parties by affirming, reversing, overruling, modifying, reconciling, and distinguishing precedents and principles, vulnerable always to the critics’ cry of “finding legal loopholes”, “judicially legislating”, and chained by blind devotion to
stare decisis.
In the case at bar, we are not convinced we should extend our doctrine of warranty recovery to bystanders outside the “distributive chain.” This for reason that whatever the refinements of historic origins, similarities and distinctions between tort and warranty may be (see 64 Columbia L Rev p 916 [1964])—forms of action and varying requirements of proof and differing times for limitations of actions are matters, not just of form but of the substance of a jurisprudence. They are not immutable to be sure, but neither are they to be relegated to the classification into which Yirgil cast the fair sex
“semper varium et mutabile.”
An action for breach of warranty, whether or not “sounding” in tort, is still essentially a contract action. To recover there
under a plaintiff lias to have some relationship to the contract of sale, and the nse which implicitly follows thereafter.
For the reasons hereinbefore set out, the order of the trial judge dismissing “Count Two (implied warranty)” as to plaintiff bystander should he affirmed. In so holding, we do not reach the questions of the necessity for, nor the sufficiency of, the alleged notice to appellee Remington Arms Co., Inc.
Appellees should tax costs.
Kelly, J., concurred in result.
Black, J.
This suit for personal injuries was commenced in 1960. The factual conclusions declared upon by plaintiff are summarized in Justice O’Hara’s opinion. Upon like motions filed by the defendant manufacturer, wholesaler, and the retailer, the trial court ordered stricken the second count of plaintiff’s declaration. The stricken count is headed “Implied Warranty.” Plaintiff has appealed and presents two questions:
“Did the trial court err in holding that plaintiff could not sue the defendants (the manufacturer, wholesaler, and retailer of certain allegedly defective shotgun shells) on the theory of breach of implied warranty, because there was no privity of contract?
“Was the plaintiff required to give notice to the defendants of the breach of warranty?”
First:
This question arises under and is due for determination according to the standards of the common or bench law. In event the Court’s answer to such question is affirmative, the result will be that of affirming a common-law remedy for tortious wrong bottomed upon breach of a legally implied, rather than a contractually created, warranty of
fitness. This must be so since it is agreed that the-' plaintiff, a so-called bystander, did not at any time stand in a position of legal privity with any defendant.
To open ensuing discussion, I am obliged to record disagreement with Justice O’Hara’s statement that “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.”
A more accurate statement of “the proposition” is that something more than injury must be shown in instances such as this plaintiff has pleaded, that is to say, he must allege and prove (a) the defect of manufacture upon which he relies, and (b) injury or damage caused by or resulting from such defect. As said so well in
Picker X-Ray Corp.
v.
General Motors Corp.
(Mun App DC, 1962), 185 A2d 919, 922:
“There seems to be some confusion in understanding the nature of implied warranty liability. In the first place, concepts of negligence and fault, as defined by negligence standards, have no place in warranty recovery cases. Proof of negligence is unnecessary to liability for breach of implied warranty and the lack of it is immaterial to defense thereof. Since the warranty is implied, either in fact or in law, no express representations or agreements by the manufacturer are needed. Implied warranty recovery is based upon two factors: (a) The product or article in question has been transferred from the manufacturer’s possession while in a ‘defective’ state, more specifically, the product
fails either to he ‘reasonably fit for the particular purpose intended’ or of ‘merchantable quality,’ as these two terms, separate but often overlapping, are defined by the law; and (b) as a result of being ‘defective,’ the product causes personal injury or property damage.”
This case, like several others submitted early last year, has remained under discordant consideration since April 10, 1964. We are favored with excellent briefs by both groups of counsel. In and from them the Court has found and dutifully examined no end of arrayed and opposing authorities and textwritten views. The orally argued and briefed presentations, and the ensuing exercise in research, have been both helpful and informative. Yet they do but lead to verdict that the stated question has already been foreclosed — for the affirmative — by our own decisions.
At first, finding myself unable to agree with Justice O’Hara, a lengthy opinion standing for reversal was thought to be in due order. Such a draft was prepared, in rough form. It included a lengthy review of what has transpired judicially since Justice Cardozo wrote, 34 years ago, his oft-quoted epigram concerning the “citadel of privity.”
Upon second thought, though, it has come to mind that the profession is familiar enough with the myriad of words textualists and judges have written for and against liability without privity, and that what is needed of this Court, here and now, is a definite rule and a definite result, written simply with references which appeal to us as both trendful and best reasoned.
Agreeing as all of our recent decisions do with the developing weight of authority, the essence of
which ia that the manufacturer is best able to control dangers arising from defects of manufacture, I would say definitely that
Spence
v.
Three Rivers Builders & Masonry Supply, Inc.,
353 Mich 120;
Manzoni
v.
Detroit Coca-Cola Bottling Co.,
363 Mich 235;
Barefield
v.
LaSalle Coca-Cola Bottling Co.,
370 Mich 1, and
Hill
v.
Harbor Steel & Supply Corp.,
374 Mich 194, have put an end in Michigan to the defense of no privity, certainly so far as concerns an innocent bystander injured as this plaintiff pleads, and that a person thus injured should have a right of action against the manufacturer on the theory of breach of warranty as well as upon the theory of negligence.
Some quibbler may allege that this is liability without fault. It is not. As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the
injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.
Take the recent case of
Henningsen
v.
Bloomfield Motors, Inc.,
32 NJ 358 (161 A2d 69, 75 ALR2d 1) as an example of reason for the rule. Would anyone, having read the court’s exhaustive opinion, expect a result reasoned differently had, say, the plaintiff been a pedestrian who, when the Henningsen car “veered sharply to the right and crashed into a highway sign and a brick wall,” suffered crushed legs as the car struck the wall? Take’
Spence'
as another example, and assume that the plaintiff there had been a bystander or visitor injured by a crumbling and buckling of some wall of the cottage which had been built of the defective blocks. Would our result have been different? See Justice Voelicer’s discussion of the probable deterioration of the blocks and the likelihood of their endangering the structure itself in the future (p 126). Take
Hill
v.
Harbor Steel.
Would we have denied recovery — on the same theory — to the personal representative of, say, a municipal inspector or buyer of scrap, then lawfully in the yard and killed by the same explosion?
The fact is that Michigan, for abundantly worthy reasons, has eliminated lack of privity as a defense to actions as' at bar, and that when the factual position of the suing plaintiff is so far causally removed as to render the defect a remote cause of his injury or damage, a case not now before us will come to consideration. It is enough to say, as the court did
in Henningsen
(32 NJ 415, 161 A2d 101, 75 ALR2d 37), that it is now not necessary to establish “the outside limits- of the warranty protection.”
Second:
My answer to the quoted second question is foreshadowed by what appears above. The ques
tion refers, of course, to the notice requirement of section 49 of the uniform sales act (CL 1948, § 440.49 [Stat Ann 1959 Bev § 19.289] ). For the same reasons as were made to appear in
Greenman
v.
Yuba Power Products, Inc.,
59 Cal 2d 57, 60-62 (27 Cal Rptr 697, 699-701, 377 P2d 897, 899-901), I would hold that the giving of notice under said section 49 is not a prerequisite to institution and maintenance of this plaintiff's suit. Said section 49 deals with the rights of the parties to a contract of sale. It does not require that notice must be given of breach of a warranty that arises by legal implication distinct from a contract of sale. “Such warranties are not imposed by the sales act, but are the product of common-law decisions that have recognized them in a variety of situations.”
(Greenman,
at 61 [27 Cal Rptr 699, 377 P2d 899]).
A thoughtful thesis, written in 1962 by George E. Bushnell, Jr., of the Detroit Bar (“Practical Aspects of Defending Products Liability Cases,” 11 Defense Law Journal 99), is built from a text of “Recognition of the Inevitable.” Having considered
Henning sen, Spence,
and
Mansoni,
along with other like authorities, Mr. Bushnell concludes as I would conclude (p 101):
“The duty of impliedly warranting the quality and fitness of the product has become a duty imposed by law. In effect, the warranty runs with the chattel. Since the duty is not imposed by the terms of the contractual relationship, the requirement of notice under the uniform sales act has, in the better view if not in the majority view, been dissipated.”
The article ends with a sound bit of advice (p 112):
“What has been proposed here is, obviously, no panacea or sop to potential defendants. What has been proposed contemplates brute hard, expensive preparation and trial. I submit and I urge, there is no other way to defend a product liability action. The alternative is liability without fault!”
I would reverse and remand for entry of order denying the aforesaid motions to strike. Plaintiff should have costs.
T. M. Kavanagh, C. J., and Souris, Smith, and Adams, JJ., concurred with Black, J.
Dethmers, J., did not sit.