Brendle v. General Tire and Rubber Company

• Decision Date: 17 October 1969
• Docket Number: No. C-180-WS-66.,C-180-WS-66.
• Citation: 304 F. Supp. 1262
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Mary Kate BRENDLE, Administratrix of the Estate of William Charles Brendle, Deceased, Plaintiff, v. The GENERAL TIRE AND RUBBER COMPANY, Defendant.

304 F. Supp. 1262

Mary Kate BRENDLE, Administratrix of the Estate of William Charles Brendle, Deceased, Plaintiff, v. The GENERAL TIRE AND RUBBER COMPANY, Defendant.

No. C-180-WS-66.

United States District Court M. D. North Carolina, Winston-Salem Division.

October 17, 1969.

John Haworth, of Haworth, Riggs, Kuhn & Haworth, High Point, N. C., for plaintiff.

Beverly C. Moore, of Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., for defendant.

MEMORANDUM OPINION

GORDON, District Judge.

Several actions were instituted against The General Tire and Rubber Company, an Ohio corporation, on the basis of a common fact situation, a single truck accident, resulting from a tire blow out, occurring in the State of Missouri involving William Charles Brendle, deceased, the truck driver; and Eli B. Russell, the relief driver, both residents of the State of North Carolina, and both employed by General Steel Company, a North Carolina Corporation, the owner of the truck. Four actions were commenced against the defendant. Each party plaintiff alleged that the defendant had supplied General Steel Company with a defective tire which proximately caused the accident resulting in the death of William Charles Brendle, personal injuries to Eli B. Russell, and property damage to the truck. These actions were consolidated for discovery, pre-trial and trial. The parties plaintiff in the actions are (1) Mary Kate Brendle, administratrix; (2) Rita Faye Brendle, William Craig Brendle, and Lora Ann Brendle, the surviving children of William Charles Brendle; (3) Eli B. Russell, the relief truck driver; and (4) General Steel Company. All parties plaintiff originally brought their respective actions based upon two theories of recovery — negligent design and manufacture of the tire which blew out, and breach of implied warranty of the tire's fitness for use.

The defendant, The General Tire and Rubber Company, previously made a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure as against the plaintiff Mary Kate Brendle, administratrix. As to the allegations of breach of warranty of the tire's fitness for use, this Court denied the defendant's previous motion for summary judgment without prejudice to the defendant to renew and allowed the summary judgment motion as to this plaintiff's action which was based upon the negligent design and manufacture of the tire. The basis of this latter determination was that the law of the forum, North Carolina, would apply in this diversity action. Under the applicable Missouri statute, Mo.Rev.Stat. 537.080 (1959), V.A.M.S., the plaintiff administratrix was barred by the statute of limitations in the bringing of her action. The decision of this Court, applying the North Carolina lex loci delicti rule expressed in Petrea v. Ryder Tank Lines, Inc., 264 N.C. 230, 141 S.E.2d 278 (1965), was affirmed by the Fourth Circuit Court of Appeals in Brendle v. General Tire and Rubber Company, 4 Cir., 408 F.2d 116 (Decided March 10, 1969).

This action is presently before the Court upon renewal of the motion for summary judgment as against plaintiff administratrix's action, which action is now based solely on the theory of breach of implied warranty of fitness for use. The parties are in agreement that since the sale of the tire was consummated in North Carolina, North Carolina law will be determinative of the substantive rights of the parties. This being so, it is the opinion of the Court that the defendant's motion for summary for summary judgment should be allowed.

DISCUSSION

Until very recently, the law of North Carolina in regard to warranty in the field of products liability has been based upon the concept of an action in contract, and therefore the requirement of privity between the parties has been a necessary aspect to any action based upon warranty, express or implied.

Cases decided by the North Carolina courts have not always made a strict distinction between an action brought in tort, i. e., negligence, and one brought in contract, i. e., warranty; but when they have, the North Carolina courts, in earlier cases, have rigidly adhered to the privity requirement in warranty cases, and have not seen fit to allow, expressly, the concept of strict or absolute liability. A step in a more liberal direction is seen in the relatively recent case of Corprew v. Geigy Chemical Corporation, 271 N.C. 485, 157 S.E.2d 98 (1967) where a farmer was seeking recovery from the manufacturer of a weed killer for damages resulting to his crops after he had relied on certain statements which the manufacturer had placed on the sealed package which contained the product. Chief Justice Parker stated:

"The time has come for us to recognize that the exceptions to the general rule of non-liability of a manufacturer for negligence because of lack of privity of contract have so swallowed up the general rule of non-liability that such general rule for all practical purposes has ceased to exist. Its principle was unsound. It tended to produce unjust results. It has been abandoned by the great weight of authority elsewhere. We have abandoned it in this jurisdiction." 157 S.E.2d at 106.

Although it has been noted above that the North Carolina courts do not always distinguish between negligence and warranty actions, in Corprew the court did, primarily because the case was before the court on the issue of improper joinder of causes of action. The above quote seems to limit the abandonment of the privity requirement to negligence actions.

Privity in contract was at one time essential for actions against a manufacturer, whether the action sounded in negligence or in warranty. As time passed, it became apparent that the consumer needed more protection and, thus, exceptions to the privity rule in negligence began to find their way into North Carolina case law. One was the dangerous instrumentalities exception. Jones v. Otis Elevator Company, 231 N.C. 285, 56 S.E.2d 684 (1949). Another exception was made in food and drink cases. Broadway v. Grimes, 204 N.C. 623, 169 S.E. 194 (1933); Broom v. Monroe Coca-Cola Bottling Company, 200 N.C. 55, 156 S.E. 152 (1930); Perry v. Kelford Coca-Cola Bottling Company, 196 N.C. 175, 145 S.E. 14 (1928). It seems now that Corprew has abolished any requirement for privity in negligence cases that might still exist. The North Carolina Supreme Court did hold in Corprew that the complaint did state a cause of action for liability based upon a breach of warranty. 157 S.E.2d at 107. But the North Carolina Supreme Court did not expressly carry their abandonment of the privity requirement over into the discussion of the warranty aspect of the case and it is not concluded that Corprew did in fact overrule the existing case law on this point. The basic legal philosophy supporting the requirement of privity of contract seems to be the same when applied either to negligence or warranty. Therefore, the rationale behind the abandonment of privity as an essential element in negligence actions should be equally applicable to warranty actions as well. But this is a matter for the North Carolina courts to determine.

North Carolina has ventured forth with some exceptions to the privity requirement in warranty actions but such chinks as have been made in privity's armour have been limited to cases dealing with food and drink in sealed containers, and insecticides which had warnings and claims written upon the container which reached the consumer.

Simpson v. American Oil Company, 217 N.C. 542, 8 S.E.2d 813 (1940) held that the manufacturer of an insecticide had effectively extended a warranty beyond the retailer to the ultimate consumer by the use of certain statements made upon the label of the can containing the product. Corprew v. Geigy Chemical Company, supra, could be interpreted to be a mere re-iteration of the Simpson case on the warranty issue.

Terry v. Double Cola Bottling Company, Inc., 263 N.C. 1, 138 S.E.2d 753 (1964) is notable for Justice Sharp's concurring opinion in which she makes an exhaustive survey of the privity requirement and its increasing loss of vitality. The case itself held that the plaintiff could not recover in an action based upon warranty for an illness allegedly resulting from deleterious matter in a soft drink because there was no privity between the ultimate consumer and the bottler, due to the intervening retailer, who had sold the bottled beverage to the plaintiff. This case was tempered somewhat by Tedder v. Pepsi-Cola Bottling Company, 270 N.C. 301, 154 S.E.2d 337 (1967) which held that the issue of whether the defendant bottler, which advertised its product in such a way as to promote its use by consumers, was liable to the plaintiff in an action based on breach of implied warranty for injuries resulting from drinking from an allegedly contaminated bottle, was a question for the jury. The fact situation and the decision in the Tedder case should be noted carefully, because there seems to be a tendency to give this case more authoritative weight than it commands. The defendant bottling company delivered its product to the retailer and placed its own product on the retailer's shelves. The consumer would then select the defendant's product from the displays that the defendant had set up. The retailer, in effect, never handled the defendant's product. Furthermore, the defendant had launched an extensive advertising program for the promotion of its own product. Justice Higgins, speaking for the court, stated:

"* * * The evidence in this case was sufficient to go to the jury on the theory of implied warranty resulting from the manner in which the Pepsi-Cola was advertised and traveled from the bottler to the plaintiff.

"The questions whether by marketing food and drink in sealed containers the processor thereby impliedly warrants fitness for human use and whether the warranty extends directly to the ultimate consumer who breaks the seal, are questions not

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