*1 T. 319. W. v. Grant v. W. BILICKI T. GRANT COMPANY. BIRD v. BENITEAU COMPANY. T. GRANT COMPANY Opinion of the Court. Words and'Phrases —Psittacosis..
1. Psittacosis, fever”, may commonly “parrot be defined called man, birds, especially a disease of of transmissible parrots, typhoid in whom it course of a violent fever runs the without pulmonary resembling symptoms with disorders abdominal but psittacosis. pneumonia, and is due to baeillus severe infectious Appeal Credibility Experts. and 2. Error — of Medical upon credibility Supreme pass Court of medical does not experts weight testimony. or the to be accorded to their Parakeets—Evidence—Question Sales — Pact-^-Cause Psittacosis. presented by wife, purchasers para- husband Evidence and store, including con- keet defendant (cid:127) cerning original subsequent diagnoses plaintiffs, and type validity and tests administered and their of clinical results, similarity dissimilarity symptoms between prog- pneumonia psittacosis, arid the medical treatment lay testimony concerning plaintiffs, noses of both time, prevalence psittacine at birds the area surrounding purchase parakeet and circumstances of the held, question' his ultimate destruction to raise a of fact might minds as to the causal relation- which reasonable differ (cid:127) ship the illness of between the of the they psittacosis. claimed to [3-5] [1] [2] Extent 4 Am Jur disease. 31 Am 41 Am Jur Jur liability 87 ALR2d 1317. 2d, References 2d, 2d, Pleading Animals Expert of seller of livestock § for Points § et segf. et Evidence seq. in Headnotes infected with communicable § 181 et seq. 382 Mich Judgment Summary Judgment — —Evidence. i. Summary judgment will not lie where material facts are at [3]). (GCR 117.2 issue
Dissenting Opinion. Kelly, J. Judgment Summary Judgment — — 5. for Question Psittacosis! — Jury. n Summary judgment third-party store owner and for defendant by supplier bird in consolidated actions husband and defendant injuries they allegedly to recover sustained when wife for psittacosis parakeet proper, held, contracted a after question plaintiffs 'where determinative whether had required expert jury . . to be considered support finding plaintiff record does not a on such issue \ for (GCS 1963, 117.8[3]).
Appeal' Appeals, from Court of Lesiii- 1, Division Fitzgerald McGregor, ski, J., and C. JJ., affirm- ing Wayne, (Horace W.), Gilmore J. Submitted (Calendar June 3, 1,No. Docket Nos. 52,019; September 52,020.) Decided 3, App Mich 612, reversed. by Joseph Declaration F. Bilicki Rose Bilicki against Company, foreign corpora- T. Grant a W. injuries damages for tion, to recover when sustained théy.becáme purchasing parakeet ill after from de- Third-party Gomplaint by fendant. defendant Company, iagainst Michigan Beniteau Bird cor- poration. Summary consolidated for trial. Cases judgment third-party for defendant and defendant. appealed Appeals. to the Plaintiffs Court Af- appeal. Plaintiffs firmed. Reversed and remanded proceedings. for further T. Grant W. Bilicki counsel), Lopatin (Norman Zemke, L. Albert n . n plaintiffs. i for (John Kruse, A. & Alexander, Buchanan Conklin counsel), for defendant. third-party- Sweeney Sullivan, for S Dice, Feikens, defendant. Joseph F. Plaintiffs J. T. M. Kavanagh, summary judgm appealed from wife, Rose,
and his decision granted by circuit court ent1 judg summary affirming Appeals of the Court App 612. ment. 10 Mich agree parties fact to the All the purchased T. Grant from defendant previously February Company, had 1961, which third-party purchased Beniteau defendant it from *3 remaining Company. from facts are The Bird the .taken depositions pleadings filed in the circuit particularly depositions of the three medi- the court, experts.. facts, ad- facts, lack of It is from the or cal depositions doctors that of’the three duced from the summary judgment granted. was deposed February
Plaintiff Rose Bilicki purchased defendant store. 1961she from brought that he she the bird home she noticed When just sickly “sat there he was he like acted following 3 For to weeks in sort of daze.” attempted health, to nurse the bird back to but she approxi- very and, after he ate acted listless little, good. mately “he couldn’t He weeks, three breathe gasping for breath.” was deposed approximately . Plaintiff further that at time, 3 to 4 after the the same weeks 1963, 117.2(3). See GCR 32$ 382 Mich op the Court.
the'"bird, ill, headaches, she became from suffered temperature appetite, loss nausea, and had a attempt degrees. by an After unsuccessful family physician plaintiff home, to treat at her she hospital. was to Ford admitted She was examined examining her admittance and informed psittacosis2 put doctor that she had and was in isola days discharged tion. Fourteen from later she was hospital, Ford but was still “too debilitated and weak to do much.” deposition plaintiff Joseph F. cor- testimony. additionally
roborated his wife’s He deposed hospital that when he his took wife to the examining inquiry doctor, after as to whether they plaintiff taking X-rays, owned bird and informed “parrot
that his had fever, wife which is very rare,” and that she would have to isolated. related that he contacted the Dearborn Plaintiff department delay couple health after a and, of a days, dispose was on how instructed bird. destroyed according it He health ing. to instructions. The
department picked up bird morn- the next subsequently reported It that the bird was too decomposed to determine if it was diseased. deposed approximately
Plaintiff further that, days hospital, three after his wife’s from return temperature he severe suffered headaches and his degrees. hospital to 103 rose He went Ford examined, isolated, and treated “for the same thing my wife had.” He was released days after five but was confined to his home an for additional week. *4 2 Psittacosis, commonly “parrot fever,” called has been defined birds, as: “A' especially disease of parrots, of man, transmissible to
in whom the eourse of typhoid a violent fever without ab it.runs symptoms dominal pulmonary but with resembling disorders severe pneumonia. infectious is It due to psittacosis.” bacillus Gould’s Dictionary (Scott, Medical ed), p 2d T. Grant Bilicki op the Court. depositions given following the We examine was upon It witnesses^ medical expert the three concluded court the circuit that depositions these certainty that no reasonable that there was and psittacosis of had the disease the judgment. granted summary the plaintiff treated that he Dr. deposed Frank Cox diagnosis provisional Bilicki and made a Rose Dr. Cox stated cross-examination, psittacosis. Upon psitta- diagnosing for in that looked symptoms bleed, liver nose headache, cosis were “fever, cough, of contact.” history and and spleen palpable, a. admittedly were symptoms most these While “In that agreed Cox case, in Dr. plaintiff’s present psitta- failure of the rise in titer view of the etiologic test, specific a complement-fixation cosis it is probable thus diagnosis cannot be made a infection nonspecific respiratory that she had acute that the admitted rather than Dr. Cox psittacosis.” diagnosis “psit- a final hospital records indicated tacosis suspected.” Rose that he examined Quinn deposed
Dr. Edward diagnosed at several times anatomically pneumonia.” illness as “bronchial her disease is Quinn Dr. stated that viral are there birds acquired psittacine presence psittacosis— two tests to determine the called a blood test one test and the other sputum in He complement-fixation agreed test. the complement- a serial process doing study titer test, rising there would be fixation was administered This test psittacosis. event of Quinn there Bilicki, of Dr. but in the to Rose titer,3 rise no diagnostically significant complement-fixation tests in the teeord that 3 It was shown ,and 6, 18, 1961, April 31, April performed March on March were second, “1 psittacosis. The first test showed to discover 2;” third, fourth, “1 4;” “1 to and the to 2.” 4;” “1 *5 '. '(cid:127)324 Mich; Opinion op the Court. not psitta-
lie concluded that Bose Bilicki did have cosis. Quinn however, Dr. did that he found admit, Rose Bilicki’s was spleen enlarged, doesn’t in normally -happen pneumonia cases but is symp- in tom in psittacosis, : and that used antibiotics treatment have affected the blood as far as might complement-fixation test'was concerned. When asked if really he wasn’t sure in his mind own whether Rose Bilicki had or pneumonia, (cid:127) Quinn Dr. responded: a,re “Again, you using ‘pneumonia’ the words ‘psittacosis’ as though two, one can distinguish these one other, they though are different two conditions. I sir, have tried tell repeatedly you, that psittacosis is form of pneumonia.” , Quinn Dr. further deposed Joseph that F. Bilicki was admitted to the' on April 10, 1961. Both the sputum culture and complement-fixation tests were and, upon administered negative re- sults of both the final tests, diagnosis of his ailment was “acute respiratory disease.”
Prior to on hearing the motion for summary judg- ment, an’ filed affidavit of Dr. Edward MacKenzie. The affiant stated that he had read the hospital records and that —based these records, history of contact with a sick and the bird, results of the complement-fixation tests showing rise and fall in titer4 —he concluded “it would seem that Mrs. Bilicki did fact At psittacosis.” have the hearing- on.the motion for judgment Dr. MacKenzie summary this reaffirmed conclusion, but further : explained Deponent opinion further stated that in his these tests indicated positive April 6, 1961, being reaction with greater the test of titer than the test of March . Deponent also stated that the records indicated that Hose Bilicki -an, outpatient for a test as April 18, 1961, returned on and that this test indicated a compared decrease titer as with April 6, 1961. T. Grant Opinion of the Court. patient strictly abstractly. examined Not “I my opinion, bnt the one form would looking talking Not at this record. from patient, to the having patient, exploring I seen the not diagnosis having psit- possibilities of the been *6 would, I said And, therefore, it tacosis. seem. This . opinion, my is not as such.” questioning by Upon the Dr. ad- court, MacKenzie opinion he was to form that unable his mitted certainty. degree medical of reasonable granted summary judgment court The circuit for only plaintiffs’ expert reason medical not the “has says an and he none.” rendered has Appeals concluded is no that, Court of “there testi- upon finding by mony a trier in of fact favor justified.” App could be Mich disagree. 616. We
Reviewing depositions experts, the the medical feel their was inconclusive. The we treating physicians candidly that they that
admitted specific etiologic agent” “were unable establish a They also that caused the illness. admitted psittacosis pneumonia that the two is a form of except symptomatically fact that for the are similar enlarged, spleen psittacosis in becomes cases the pneumonia these in cases it not. What whereas does neg- experts the did assert is that tests were finding primarily because to a ative as significant rising titer on the no serial there affidavit However, Dr. MacKenzie in his studies. he rise in considered the and decrease, indicated titer significant. in Further, he stated to be open validity “the of this test court, read letter pathologist the at have to established would laboratory.” charge virology Ford credibility pass upon of the medical do not We weight is to b’e their testimony or the etc- experts 382 Mich op the Court. corded. This is the function of a trier fact. upon presented Based all of the in this record facts testimony concerning original —the medical subsequent diagnoses, type validity of clin- ical administered and their similar- results, tests ity dissimilarity symptoms pneu- between psittacosis (e.g., enlarged spleen), monia and prognoses patients, medical treatment and the of both lay prevalence testimony concerning psittacine birds in the area that time, at the circum- purchase surrounding parakeet stances of the and his ultimate all the destruction —and reasonable question therefrom, we feel a material inferences might of fact exists which reasonable minds might might differ. Reasonable minds or not find relationship that there awas causal between the plain- of the and the illness of tiffs. summary judg-
Where material facts
at issue,
are
ment will not lie. International Chemical Workers
*7
Union,
(1962),
179, AFL-CIO,
Local
v. Swenor
368
Tripp
(1965),
658;
Mich
v. Dziwanoski
375 Mich
(Appeal
619; Durant v. Stahlin
Dusen,
re Van
El-
Romney) (1965),
liott,
628;
375 Mich
Brooks v.
(1965),
McCoy
Fields
375 Mich 667;
DeLiefde
(1965),
Plaintiffs shall have costs both courts. T. E. Brennan, C. J., Dethmers, Black, Adams, and T. GL Kavanagh, JJ., concurred with M, J, T. Kavanagh, 327 v. V\T.T. Brant Co. Dissenting Opinion by Kelly, J. KELLY, (dissenting). deciding J. In the sum mary judgment affirmed, quote 1 should be I with approval opinion Appeals from the of the Court as follows:
“The question determinative this case is whether or not the plaintiffs had This psittacosis. was a question requiring expert testimony to be considered * * trial, by the for a jury of fact at the finding f “Upon a search we can find no ex- record pert supports the contention the plaintiffs psittacosis. had There is no which a testimony upon finding a trier of fact in favor judgment could justified. be Summary proper.” The judgment should be affirmed. Costs to ap- pellees. 1963, 117.2(3).—Reporter. See GCR 2 Bilicki (1968), v. W. T. Grant App 612, Mich
GERARD v. SMALL. Judgment—Summary Judgment—Issue Eact—Corporations —Scope Employment. Summary judgment will issue, not lie where material facts are at thus, corporate where indicates defendant’s em- ployee, post while en route pick up to the office to the cor- poration’s mail, making had an accident when a left into turn driveway up pick a friend not connected with the cor- poration, a material issue of faet was raised as to whether employee scope employment inwas when the accident occurred; hence, summary judgment granted not should (GCR 1963, 117). *8 References for Points in Headnotes Jur, seg. Pleading 41 Am et [1] [2] § 2d, Appeal 5 Am Jur and Error §