Arrow Transportation Company v. Fruehauf Corporation
| Decision Date | 12 March 1968 |
| Docket Number | Civ. No. 67-296. |
| Citation | 289 F. Supp. 170 |
| Parties | ARROW TRANSPORTATION COMPANY, a Delaware corporation, Plaintiff, v. FRUEHAUF CORPORATION, a Michigan corporation, Defendant. |
| Court | U.S. District Court — District of Oregon |
Duane Vergeer, Vergeer, Samuels, Cavanaugh & Roehr, Portland, Or., for plaintiff.
Darrel L. Johnson, Pendergrass, Spackman, Bullivant & Wright, Portland, Or., for defendant.
The parties have requested rulings, in advance of trial, on the issues hereinafter stated.
In August, 1958, plaintiff purchased a tanker-trailer from the defendant. This unit was equipped with a fifth wheel unit, consisting, in part, of an upper plate and kingpin assembly. The trailer was placed in operation in December, 1958.
On September 10, 1966, the trailer, loaded with approximately 7,700 gallons of gasoline, became separated from the tractor which was pulling it. The tanker ruptured and the gasoline ignited, burning the tractor, trailer and most of the cargo. Damages are alleged at $14,761.22.
At the time of the accident, the trailer had been driven over 441,000 miles. Plaintiff alleges that the accident was the result of a defective kingpin assembly on the trailer's fifth wheel. Plaintiff bases liability on negligence, implied warranty and strict liability.
(1) (a) In connection with plaintiff's claim of liability on a theory of breach of an implied warranty of fitness, the defendant urges that the cause is barred by ORS 12.080.
Generally, such a warranty is breached at the time of the delivery of the goods. Here, the claim of liability is based on an accident occurring some eight years after the purchase of the article. ORS 12.080, requiring this type of an action to be commenced within six years, is applicable. Vaughn v. Langmack, 236 Or. 542, 390 P.2d 142 (1964); Wells v. Oldsmobile Co. of Ore., 147 Or. 687, 35 P.2d 232 (1934). ORS 72.7250 (1) (2), a section of the Oregon Uniform Commercial Code, although not in effect at the time the contract was made, fully supports this view. The Oregon court has held that the UCC may be used as a guideline where there is no prior precedent, in that the Code embodies a sound commercial practice which the Court should follow. Gresham State Bank v. O & K Constr. Co., 231 Or. 106, 118-119, 370 P.2d 726, 372 P.2d 187, 100 A.L.R.2d 654 (1962).
(1) (b) On plaintiff's theory of negligence, the statute of limitations does not apply. An action based on negligence does not accrue until damage is suffered. Hall v. Cornett, 193 Or. 634, 643, 240 P.2d 231 (1952). Consequently, on this theory of recovery, the statute did not commence to run until the time of the accident in September, 1966.
(1) (c) In my opinion, the precept of strict liability sounds in tort. Accordingly, the same rule of limitations should be here applied, as in negligence cases. In other words, injury is the catalyst around which liability is spun in this variety of products liability case. Wights v. Staff Jennings, Inc., 241 Or. 301, 405 P.2d 624 (1965), Restatement Torts 2d, 402(A), 1965.
The recent New Jersey Supreme Court case of Rosenau v. City of New Brunswick, 51 N.J. 130, 238 A.2d 169 (Feb. 5, 1968) in reversing 93 N.J.Super. 49. 224 A.2d 689 (1966), concludes that an action employing strict liability, as a basis for recovery, is a tort action and that the action accrues, and the statute commences to run, when the injury occurs, rather than when the product is delivered.
Although not precisely in point on the issue before me, the recent Oregon case of Heaton v. Ford Motor Co., 85 Or.Adv. Shts. 823, 435 P.2d 806 (1967), holding that the doctrine of strict liability may be asserted if the product is dangerously defective, even though it may not be ultra-hazardous, shows the trend of the Oregon court. There is sufficient in the pleading, in my opinion, to permit evidence of the former. For that matter, the allegations would seem sufficient to permit the introduction of evidence on a theory of extra-hazardous conduct.
(2) Aside from the effect of the statute of limitations, I am persuaded that the disclaimer provisions of sales contract precludes the plaintiff from relying on a theory of implied warranty.1
Since the theory of recovery on implied warranty is grounded on contract, there is no sound reason why a valid disclaimer, such as shown in the margin, should not preclude recovery. This statement is supported by ORS 72.3160, a section of the Oregon Uniform Commercial Code, which, in essence, provides that the parties are free to contract away any warranties which may be implied by law, the only requirement being that the disclaimer be clearly stated and be conspicuous. Here, we have no problem with reference to the latter.
Attention is also called to the fact that here there is no evidence of fraud, duress or undue influence. Also, to be kept in mind is the fact that the plaintiff was in privity with the defendant. Nothing here presented would indicate that the language of the disclaimer is in any way unconscionable. Hence, these provisions of the contract prevent the plaintiff from recovery under a theory of implied warranty.
(3) Next defendant urges that the doctrine of strict liability is available only for injuries to the person and not for damage to property. In Wights v. Staff Jennings, Inc., supra, the Oregon court imposed a doctrine of strict liability for personal injuries resulting from a defective product. On the same day, in Price v. Gatlin & Columbia Tractor & Implement Co., 241 Or. 315, 405 P.2d 502 (1965), the Court held that the doctrine may not be used against a nonprivity seller for economic losses caused by a third party's defective workmanship. No sound reason has been advanced for not applying the doctrine, under proper circumstances, where there is privity between the manufacturer and the plaintiff, and the damage involved is to property, rather than to the person. Brewer v. Reliable...
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