[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 685 I am not in accord with the foregoing opinion. Plaintiff, as a traveling shoe salesman, was in the habit of driving his car 30,000 or more miles during a single year. Previous to the accident which gives rise to this litigation, he had an automobile accident in 1935 and two more accidents in 1936. Plaintiff testified that through newspaper advertising he became particularly aware of new safety features which had been developed in the automotive industry, and was interested in purchasing a car which had a "safety top," and that he and *Page 689 a salesman of the Oakdale Garage, an authorized distributor of defendant's cars, discussed the construction of the top of the car at some length and that on the strength of the assurances made to him, plaintiff finally agreed to purchase a 1936 model Hudson eight sedan. In the course of the demonstration, plaintiff was shown various pieces of literature descriptive of defendant's products, which it had printed and caused to be distributed to its dealers for exhibition to the public. In this printed matter the Hudson car was described as "A Rugged Fortress of Safety," with the following attributes:
"Beneath the bigness and beauty, the safest car on today's highway, with the world's first safety engineering. Safeness combined with the first bodies all of steel; bodies introduced last year by Hudson's and now brought to new heights of strength and beauty with an improved seamless steel roof."
In another pamphlet it was stated:
"How, What, Why about the 1936 Hudsons and Terraplanes. A steel top which is a smooth, solid unit with the body shell. There are no seams or joints in the roof and body structure, just a complete steel body made from a single sheet of steel."
As a matter of fact, the roof was not solid and seamless, but consisted of two pieces of steel which had been welded together at a line approximately above the driver's seat. From the weld, jagged metal drippings hung down all along the seam. The masonite lining, with which the under portion of the roof was finished and covered, fell off as a result of the accident, thus allowing plaintiff's head to strike the jagged edges of the seam. It was defendant's theory that plaintiff's injuries were produced by indentation or "stoving in" of the roof when the car overturned, and that the presence of the seam *Page 690 did not cause the laceration of plaintiff's scalp. By its verdict the jury found otherwise. There is ample testimony to support that finding.
There can be no doubt that if plaintiff was entitled to rely on them, defendant's representations amounted to express warranties of quality and construction. Curby v. Mastenbrook,288 Mich. 676. Likewise, there is no doubt that the representations were false. Inquiry into the foundations of defendant's alleged liability is dismissed by the foregoing opinion on the theory that plaintiff's injuries were not the "natural and probable consequences of defendant's wrong and reasonably within the contemplation of the parties." I agree that the scope of the warranty and the proximate cause of plaintiff's injuries must be determined, but on both questions I feel forced to differ in result from Mr. Justice CHANDLER.
Defendant represented that the roof of its motor cars was particularly safe because made from one piece of steel. So far as appears in the record or common experience, the construction of the top of an automobile, whether it is of one or many steel sections, does not ordinarily affect the safety of the purchaser or others riding in a car under the normal conditions of travel. It is not suggested that welds in the roof would make the occupants of an automobile either more or less susceptible to injury from bumps or defects in the highway, lightning, hail, or other natural forces. There was testimony that the condition of the roof does not in the slightest degree affect the driving of the car or its efficiency in accelerating or stopping. Barring the most unpredictable eventualities, the only time that the strength and construction of the roof assume importance is when the car is overturned. Then an all-steel roof of solid construction may prevent injuries which *Page 691 formerly occurred when the tops of automobiles were fashioned from individual sections of wood or wood and metal and thus were easily demolished. The safety of an automobile roof is thus tested after an untoward accident of some sort has taken place. If defendant's representations are to be given any meaning at all, they must be taken to warrant the increased protection of the particular type roof when the car is suddenly overturned, or when some foreign body, as another colliding car, is forced against it.
If this is true, I cannot believe that defendant attempted to distinguish in its representations between accidents involving negligence of the purchaser or some other person and accidents occurring without any negligence. In common experience automobiles do not ordinarily overturn unless somebody has failed to use due care. There is absolutely no evidence that defendant sought to limit its responsibility to sheer "acts of God" where the car was upset without any human fault or through the negligence of a third party. Certainly, a prospective purchaser of the car would never have acceded to such a limitation.
As I read it, the opinion of Mr. Justice CHANDLER, in effect, introduces the defense of contributory negligence into an action for breach of warranty, a procedure for which there is neither reason nor authority. See Challis v. Hartloff,136 Kan. 823 (18 Pac. [2d] 199). Under such rule, although a manufacturer had falsely advertised that a windshield was made of shatterproof glass, as in the now famous case of Baxter v.Ford Motor Co., 168 Wash. 456 (12 Pac. [2d] 409,15 Pac. [2d] 1118, 88 A.L.R. 521), he would be allowed to escape the consequences of that deliberate misrepresentation because the plaintiff was exceeding the speed limit when a pebble *Page 692 flew up and shattered the glass. I find nothing inGreco v. S. S. Kresge Co., 277 N.Y. 26 (12 N.E. [2d] 557, 115 A.L.R. 1020), cited in the foregoing opinion, even remotely compelling such a conclusion.
It is, of course, true that the breach of warranty must have been proximately responsible for the damages for which he sues. Obviously anticipating that his car might turn over, plaintiff purchased a Hudson car on the assurance that it had a unisteel top. Plaintiff drove his car in that belief, and, while so driving, the car overturned. The impact broke the protective masonite layer of the roof, exposing the jagged edges of the seam which had been warranted not to exist. Plaintiff's head was thrown against this seam and injured. In my opinion the chain of proximate cause was strikingly established. SeeBaxter v. Ford Motor Co., supra. If the representations had been true, there would have been no welded seam, no jagged edges, no consequent cutting of plaintiff's scalp. "But for" defendant's breach, the injury would not have occurred. SeeCamp v. Wilson, 258 Mich. 38. It is undoubtedly true that the negligence of the driver caused the car to overturn, but defendant's representations were not for the purpose of avoiding an accident but in order to avoid or lessen the serious damages that might result therefrom. The intervening force of negligence by a customer was readily and reasonably foreseeable. See Morrison v. City of Ironwood, 189 Mich. 117;Anderson v. Newport Mining Co., 202 Mich. 204; also, Feezer, "Manufacturer's Liability for Injuries Caused by his Products: Defective Automobiles," 37 Michigan Law Review, pp. 1, 19-23. The particular construction of the roof of defendant's cars was represented as protection against the consequences of just such careless driving as actually took place. Once the anticipated overturning of the car *Page 693 did occur, it would be illogical to excuse defendant from responsibility for these very consequences. See Green, "Are There Dependable Rules of Causation?" 77 University of Pennsylvania Law Review, pp. 601, 623-625.
The liability which underlies the above discussion is for breach of warranty. Plaintiff's recovery in the court below seems to have been based on the doctrine of Baxter v. FordMotor Co., supra, and defendant itself has cited the case with apparent approval in its brief. For this reason it is unnecessary to discuss at great length the principles there announced. The case has been widely approved by current writers. 46 Harvard Law Review, p. 161; 18 Cornell Law Quarterly, p. 445; Feezer, "Manufacturer's Liability for Injuries Caused by his Products: Defective Automobiles," 37 Michigan Law Review, p. 1; Jeanblanc, "Manufacturers' Liability to Persons Other than their Immediate Vendees," 24 Virginia Law Review, p. 134. It is true that it was not followed by the court of appeals for the second circuit in Rachlin v.Libby-Owens-Ford Glass Co. (C.C.A.), 96 Fed. (2d) 597, upon which Mr. Justice CHANDLER relies, although Judge Swan there took occasion to remark that it had received favorable comment in the law magazines. The action of the Federal court is readily explained by the fact that the case demanded application of the law of New Jersey which has not yet adopted the rule; furthermore, the rule, as stated by the court, was inapplicable to the facts presented because no breach of warranty had been made out. On the other hand, the principles of the Baxter Case have been enforced in many recent decisions, including Eisenbeiss v. Payne, 42 Ariz. 262 (25 Pac. [2d] 162);Anderson v. Tyler, 223 Iowa, 1033 (274 N.W. 48); Madouros v.Kansas City Coca-Cola Bottling Co., *Page 694 230 Mo. App. 275 (90 S.W. [2d] 445); Nemela v. Coca-ColaBottling Co. of St. Louis (Mo.App.), 104 S.W. (2d) 773;McSpedon v. Kunz, 271 N.Y. 131 (2 N.E. [2d] 513, 105 A.L.R. 1497); Coca-Cola Bottling Co. v. Smith (Tex.Civ.App.),97 S.W.2d 761. See, also, the earlier cases on DothanChero-Cola Bottling Co. v. Weeks, 16 Ala. App. 639 (80 So. 734) ; Davis v. Van Camp Packing Co., 189 Iowa, 775 (176 N.W. 382, 17 A.L.R. 649); Challis v. Hartloff, supra;Cudahy Packing Co. v. Baskin, 170 Miss. 834 (155 So. 217);Coca-Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390 (130 So. 479, 72 A.L.R. 143); Mazetti v. Armour Co.,75 Wash. 622 (135 P. 633, 48 L.R.A. [N. S.] 213, Ann. Cas. 1915C, 140); and the concurring opinion of Justice Kenna inWebb v. Brown Williamson Tobacco Co., 121 W. Va. — (2 S.E. [2d] 898).
This court itself has recognized that certain warranty actions may be sustained although the parties are not in a position of strict contractual privity. Hertzler v. Manshum,228 Mich. 416. Defendant, while not challenging the rule of this and the Baxter Case, has sought to give it an unjustified interpretation. It is not true, as defendant seems to believe, that the Baxter Case is a simple equivalent to MacPherson v.Buick Motor Car Co., 217 N.Y. 382 (111 N.E. 1050, L.R.A. 1916 F, 696, Ann. Cas. 1916 C, 440). Recovery was allowed by the Washington court, not on any principle of negligence, but on the theory that a consumer may sue a manufacturer for deliberate false statements made to induce purchase of the product by the consumer. It was said:
"Since the rule of caveat emptor was first formulated, vast changes have taken place in the economic structures of the English-speaking peoples. Methods of doing business have undergone a great transition. Radio, billboards, and the products of *Page 695 the printing press have become the means of creating a large part of the demand that causes goods to depart from factories to the ultimate consumer. It would be unjust to recognize a rule that would permit manufacturers of goods to create a demand for their products by representing that they possess qualities which they, in fact, do not possess, and then, because there is no privity of contract existing between the consumer and the manufacturer, deny the consumer the right to recover if damages result from the absence of those qualities, when such absence is not readily noticeable."
The language of Mr. Justice WIEST in Hertzler v. Manshum,supra, referring to negligence as the real basis of liability where suit is on an implied warranty of quality, does not mean, of course, that a manufacturer cannot be liable for express misrepresentations he has made. A seller of a used automobile is not generally under a duty to inspect or recondition the car he sells, but he is liable for the consequences of his intentional misrepresentation of the condition of the car.Curby v. Mastenbrook, supra. In the same way, a manufacturer is required to exercise only ordinary care in the fabrication of his products; if he is not negligent, he is not liable to a consumer for defects. But by making affirmative warranties, he has enlarged his duty beyond that imposed by law, and assumes "the risk of injuries proximately caused by such misrepresentation." Curby v. Mastenbrook, supra, at 683. Such injuries may properly be redressed by action for breach of the warranty, and Hertzler v. Manshum, supra, and succeeding cases which have reiterated the rule there expressed, cannot be taken to have destroyed this right to relief.
The rules of liability above set forth are properly applicable to the situation disclosed in the case at *Page 696 bar. Whether the result reached is best justified by holding the privity concept inapplicable because of its historical origins (see Williston, Sales [2d Ed.], § 237); or that the requirements of privity are satisfied by the commercial advertising and merchandising methods of defendant (seeMadouros v. Kansas City Coca-Cola Bottling Co., supra; 9 Cornell Law Quarterly, p. 445); or by finding the dealer under the circumstances defendant's agent to warrant its products,cf. Grinnell v. Carbide Carbon Chemicals Corp., 282 Mich. 509; or by holding that the express warranty is similar to a covenant running with the land and follows the product to the ultimate consumer (see Davis v. Van Camp Packing Co., supra;Anderson v. Tyler, supra); or by application of the third party beneficiary statute* to the transaction between defendant and its retail dealer (see Ward Baking Co. v. Trizzino, 27 Ohio App. 475 (161 N.E. 557), we have no occasion to decide. It is sufficient to state that the liability most recently restated in Curby v. Mastenbrook, supra, is imposed on the maker of false statements and may be enforced by the ultimate consumer of the product to whom the statements are directed.
Plaintiff, who is 50 years of age, recovered judgment for $4,000. The sole injury he sustained as a result of the accident was a cut on the head, five or six inches long. Although 13 sutures were necessary to close the wound, it was only the blood dripping from his scalp that first gave plaintiff any indication after the accident that he had been cut. He was "pretty groggy," was helped out of his car as he reached to open the door, but he was treated by a physician with only a local anaesthetic and shortly *Page 697 thereafter was able to walk to the garage to inspect his car. Cleaning and dressing the wound required about 30 minutes. Plaintiff spent the night in a hotel at Hillsdale and the next morning drove his car to Battle Creek, a distance of approximately 50 miles. Although plaintiff did not call upon the shoe trade frequently during the next fortnight, during which time he claims to have been convalescing, this appears to have been caused more by the fact that it was just before Christmas, which plaintiff testified was a very unpropitious time for interviewing retail merchants.
Plaintiff carries a scar on his head which is visible at only a short distance. It was definitely minimized by the trial judge in his observations denying defendant's motion for a new trial. The scar will become less noticeable with the passage of time unless plaintiff's baldness should increase. It is difficult to determine how much of the nervousness which plaintiff claims has developed following the accident can be traced to it. In cases of this kind the damages for breach of warranty are not assessed under the usual rule of the difference between the value of the article as sold and its value had the warranty been true. Plaintiff is entitled to recover for personal injuries proximately resulting from the breach. Curby v. Mastenbrook, supra; Nemela v. Coca-ColaBottling Co. of St. Louis, supra; Williston, Sales (2d Ed.), §§ 614-614a. I think, however, that the verdict was excessive under all the facts disclosed by the testimony. If plaintiff will consent to a remittitur within 20 days so as to reduce the judgment to $2,000, the judgment should stand; otherwise, a new trial is ordered. Defendant will recover costs.
BUSHNELL, SHARPE, POTTER, NORTH, and McALLISTER, JJ., concurred with BUTZEL, C.J.
* See Act No. 296, Pub. Acts 1937 (Comp. Laws Supp. 1937, § 14063-1 et seq., Stat. Ann 1939 Cum. Supp. § 26.1231 et seq.). — REPORTER. *Page 698