Brendle v. General Tire & Rubber Co.
| Decision Date | 18 October 1974 |
| Docket Number | No. 14328,14328 |
| Citation | 505 F.2d 243 |
| Parties | 15 UCC Rep.Serv. 615 Mary Kate BRENDLE, Administratrix of the Estate of William Charles Brendle, Deceased, Appellant, v. The GENERAL TIRE AND RUBBER COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John Haworth, High Point, N.C. (Charles E. Nichols and William G. Pfefferkorn, Winston-Salem, N.C., on brief), for appellant.
Beverly C. Moore, Greensboro, N.C. (Smith, Moore, Smith, Schell & Hunter, Greensboro, N.C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, SOBELOFF, 1 Senior Circuit Judge, and WIDENER, District Judge. 2
This diversity case was brought by an Administratrix, a North Carolina resident, against The General Tire and Rubber Company (defendant), an Ohio corporation, alleging that a single truck wreck, in which the driver (her decedent) was killed, had been caused by the blowout of a defective tire manufactured by the defendant. The suit was based on two theories of recovery: negligent design and manufacture of the tire, and breach of implied warranty of the tire's fitness for use. Plaintiff appeals from an order granting defendant's motion for summary judgment on the breach of warranty issue.
The defendant had previously moved for summary judgment on both theories of recovery, which the district court granted only as to the negligence theory. That decision was affirmed in Brendle v. General Tire and Rubber Co., 408 F.2d 116 (4th Cir. 1969).
This case is somewhat unusual. To begin, the accident occurred in Missouri and thus Missouri law was applied to the negligence theory in accordance with the lex loci delicti choice of law rule followed in the forum state of North Carolina. The negligence action was barred under the applicable Missouri statute of limitations, hence summary judgment was properly granted as to that issue. But the breach of warranty issue, again looking to the conflicts law of the forum state but under the category of sales, would be resolved under North Carolina law, where sale of the tire was consummated. The district court applied North Carolina law, concluded that a recent North Carolina decision still in litigation might make a material change in the warranty law, and accordingly denied the defendant's previous motion for summary judgment on the warranty issue, but without prejudice to renew it. The motion was renewed six months later and was granted on the basis that North Carolina law requires privity of contract in an action based on warranty.
This appeal followed. After oral argument and deliberation, the panel determined that a similar North Carolina case, Dupree v. Batts, 276 N.C. 68, 170 S.E.2d 918 (1969), which had recently been remanded in order to decide the issue of privity, might be conclusive as to the privity issue here. Accordingly, we issued an order suspending further proceedings pending the North Carolina state court decision in Dupree.
The Dupree case, however, was not tried again but was settled. Since there has been no change in North Carolina law, we are of opinion that the district court was correct in its conclusion that privity between the parties is a necessary aspect of this action based on warranty, and we affirm the granting of summary judgment on that issue.
The facts are not complicated. On September 13, 1965, William Brendle was injured in an accident in Lafayette County, missouri while he was driving a truck for his employer, a North Carolina corporation. He died a week later from his injuries. The accident allegedly was caused by a blowout of the truck's right front tire, which had been made in Ohio by the defendant, and had been sold to Brendle's employer in North Carolina by a North Carolina subsidiary of General Tire. The plaintiff, administratrix of Brendle's estate, sued General Tire to recover for the medical expenses and pain and suffering resulting from Brendle's injuries before death, and for his subsequent wrongful death.
A federal court, sitting in North Carolina in a diverdity case, must apply the law as announced by the highest court of that state or, if the law is unclear, as it appears the highest court of that state would rule. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); Lowe's North Wilkesboro Hardware v. Fidelity Mutual Life Insurance Co., 319 F.2d 469, 472 (4th Cir. 1963).
The general rule, as stated by the Supreme Court of North Carolina in Wyatt v. North Carolina...
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