Opinion
Docket No. 4,288.
Decided January 30, 1969. Leave to appeal denied March 26, 1969. See 381 Mich. 812.
Appeal from Oakland, Moore (Arthur E.), J. Submitted Division 2 November 14, 1968, at Lansing. (Docket No. 4,288.) Decided January 30, 1969. Leave to appeal denied March 26, 1969. See 381 Mich. 812.
Complaint by Chrysler Corporation, a Delaware corporation, against the Budd Company, a Pennsylvania corporation, for indemnification under warranty and indemnification provisions of purchase order for truck wheels. Summary judgment for plaintiff. Defendant's motion for rehearing denied. Defendant appeals. Affirmed.
Charles R. Taylor, for plaintiff.
Alexander, Buchanan Conklin (Floyd S. Wescott, of counsel), for defendant.
Plaintiff instituted this action for indemnification under the warranty and indemnity provisions of its purchase order for truck wheels manufactured by defendant. The basis for the action was a judgment against the parties hereto in a wrongful death action arising out of an accident which involved a defective truck wheel. In Witt v. Chrysler Corporation (1968), 15 Mich. App. 576, this judgment was affirmed.
Both parties moved for summary judgment, and the trial court granted plaintiff's motion and denied defendant's. The latter's motion for rehearing was denied and it appeals.
The language of the provision relied on by plaintiff is:
"Seller warrants that the goods and materials covered by this order will comply with the specifications, drawings, descriptions or samples furnished or specified by purchaser and that the same will be merchantable, of good material and workmanship and free from defects. Seller also warrants that any items furnished under this order that are designed by seller will be fit and sufficient for the purposes intended. Seller specifically agrees to defend, indemnify and hold harmless purchaser from and against any and all claims, losses or damages resulting from or arising out of a breach of seller's warranty."
We find this language plain and unambiguous, and it should control unless the negligence of plaintiff prevents it. At the instance of both parties, the record in Witt, supra, was used on this appeal. In Witt, the negligence asserted against Chrysler related to testing and inspection for defects and failure to warn of known danger. A claim for breach of warranty was also asserted against Chrysler in Witt. From the general verdict in Witt, it is not possible to determine whether the liability of Chrysler was founded on breach of warranty or negligence. If it was on the basis of negligence, the latter could only be in the areas of detecting and correcting a defect created by Budd Company, in failing to warn of a known danger, or both. It was not the type of negligence on the part of the indemnitee which existed in Meadows v. Depco Equipment Company (1966), 4 Mich. App. 370, and Geurink v. Herlihy Mid-Continent Company (1966), 5 Mich. App. 154, and which, in those cases, barred recovery by the indemnitee. Nor was there a warranty involved in either Meadows or Geurink. Those decisions and the language thereof are not applicable here.
The negligence of plaintiff in failing to detect and correct a defect created by defendant which caused injury to a third party and plaintiff's negligence in failing to warn of known danger is not the type of negligence which precludes plaintiff from asserting its plain rights under the indemnity agreement. Booth-Kelly Lumber Company v. Southern Pacific Company (CA9, 1950), 183 F.2d 902.
Affirmed with costs to plaintiff.
McGREGOR, P.J., and LETTS, J., concurred.