Brown v. Hall, 68--261

• Decision Date: 18 April 1969
• Docket Number: No. 68--261,68--261
• Parties: 6 UCC Rep.Serv. 651 Jessie D. BROWN, Appellant, v. W. H. HALL d/b/a Hall's Truck Sales, Appellee.
• Court: Florida District Court of Appeals

Page 454

221 So.2d 454

6 UCC Rep.Serv. 651

Jessie D. BROWN, Appellant, v. W. H. HALL d/b/a Hall's Truck Sales, Appellee.

No. 68--261.

District Court of Appeal of Florida, Second District.

April 18, 1969.

L. C. Schowe, of Riley, Davis, Schowe & Saltsman, St. Petersburg, for appellant.

Lucius M. Dyal, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.

PIERCE, Acting Chief Judge.

Appellant Jessie D. Brown, plaintiff in the lower Court, appeals to this Court from a final order of the Pinellas County Circuit Court dismissing with prejudice the remaining Amended Count I of his complaint against appellee W. H. Hall, d/b/a Hall's Truck Sales, defendant below, after the Court had previously dismissed Amended Count II of his complaint. The appeal brings here the propriety of the orders dismissing both Amended Count II and Amended Count I of plaintiff's complaint.

The sole substantial question presented to this Court for decision is whether or not, prior to the effective date of the Uniform Commercial Code, an implied warranty as to condition, fitness or quality with respect to second-hand articles or personal property existed in this State, and particularly as to third persons not in privity to the original purchase.

Plaintiff Brown's original complaint alleged substantially the following:

On March 20, 1965, one Raymond L. Scott purchased a used 1960 model truck from defendant Hall. On March 29, 1965, nine days later, plaintiff Brown, an employee of Bob Lee's, Inc. Service Station, in answer to a telephone call from Scott, went out to where the truck was parked for purpose of changing the left rear inside tandem wheel and tire on the truck. In removing the lock nuts, the plaintiff-employee was injured when the wheel and tire suddenly and without warning flew against him, allegedly as a result of a bent or defective rim and snap or lock ring.

It was alleged that because of such defects 'the wheel and tire could not be attached to the rim of the truck with the lock nuts tightened unless the tire was initially deflated'; that 'said defects created an outward compression of great force by the wheel and tire assembly being pressed against the lock nuts'; that said mechanically defective condition of the truck was the proximate cause of plaintiff's injury; and that defendant Hall, as the seller of the truck to Scott, was charged with knowledge of such 'imminently dangerous agency or condition' and was therefore liable.

Count I of Brown's complaint was grounded upon Hall's Negligence in selling the truck with such alleged defects. Count II was grounded upon breach of Implied warranty as to condition and fitness of the truck, based upon the facts aforesaid.

Defendant Hall moved to dismiss both counts of the complaint for failing to state a cause of action. Upon hearing, the Court denied the motion to dismiss Count I (negligence), and granted the motion as to Count II (breach of implied warranty).

Some ten months later, plaintiff Brown filed motion to be allowed to 'reinstate' Count II of the complaint, based upon an interim decision of this 2nd District Court, Enix v. Diamond T. Sales & Service Co., Fla.App.1966, 188 So.2d 48, which motion was denied. Plaintiff then moved to amend Count II, which was granted, so as to allege in substance that when Scott bought the truck from Hall, Scott informed Hall of the following facts: (a) the specific purpose for which Scott intended to use the truck, (b) the price range which Scott could afford to pay for the truck, and (c) the 'safe and operable condition which he desired' in the mechanical and component parts of the truck; that Hall thereupon selected and sold to Scott the truck purporting to fill such qualifications; that Scott bought the truck relying upon Hall's 'selection' of the truck; that Hall thereby impliedly warranted Scott that the condition of the truck was not 'inherently dangerous and defective'; that Hall breached the implied warranty under the facts of the injury previously alleged; and that 'said warranty was extended to and is available to the plaintiff'.

Thereafter, defendant Hall moved to dismiss Count II as so amended upon the ground that it still did not state a cause of action. In due course this motion to dismiss was denied upon authority of the Enix case, supra.

Defendant Hall then moved for rehearing which, by order entered March 28, 1967, was granted, and thereupon motion to dismiss amended Count II was granted and the cause dismissed with prejudice, upon the later authority of Keating v. De Arment, Fla.App.1967, 193 So.2d 694. Plaintiff Brown thereafter, conceding that he would be unable to establish actionable negligence, voluntarily moved to dismiss amended Count I, which was accordingly dismissed by order entered on April 9, 1968. It is from this latter order that the instant appeal was taken, but the crux of the case is the sufficiency of amended Count II based upon implied warranty.

From the foregoing chronology of the pleadings filed and orders entered, it is readily apparent that confusion existed in the lower Court as to the exact legal status of an implied warranty as to condition, fitness and quality in the sale of used personal property. And it is also apparent that, and perhaps understandably so, that such uncertainty derived from two decisions by this 2nd District Court, namely, the Enix case and the Keating case, supra.

We say 'understandably' because a cursory reading of the two opinions would lead to a reasonable conclusion that they laid down conflicting doctrines, namely, that in Enix we held there was an implied warranty for fitness, etc., in second-hand goods, while in Keating there was no such implied warranty. Also it might well be presumed that, inasmuch as the Keating opinion was handed down on January 18, 1967, while the Enix opinion was handed down on June 15, 1966, Keating was meant to overrule Enix. This would seemingly account for the disparity of Circuit Court orders in the instant case--the order of February 27, 1967 denying defendant Hall's motion to dismiss plaintiff's amended Count II based upon Enix and the order of March 28, 1967 granting rehearing and dismissing amended Count II based upon Keating.

A bit of explanatory background in the evolution of the two opinions might be enlightening. In Keating the final judgment of March 12, 1964 was appealed to this Court on May 11, 1964, briefs of the parties were filed, and oral argument was held here on June 23, 1965. In Enix final judgment of the Circuit Court of October 6, 1964 was appealed to this Court on December 2, 1964, and after briefs of the parties were filed, oral argument was had here on February 25, 1966. In other words, the Keating case had been submitted to this Court for decision over eight months before the Enix case was so submitted.

But the opinion in Enix was released on June 15, 1966, while the opinion in Keating was not released until January 18, 1967. In other words, there was an interval of almost nineteen months between submission of the case in Keating and the filing of opinion therein; and during that time oral argument had been held, the case submitted, and opinion filed, in Enix. The writer of the instant opinion authored the opinion in Enix, but no member of that panel had sat on Keating, and of course when Enix was released it was not known what the disposition of Keating would be. In fact, no member of the Enix panel had any knowledge of the Keating case.

Actually, however, a close analysis of the two opinions reveals no irreconcilable conflict on the fundamental issue involved, which is whether there is any implied warranty as to fitness, condition and quality in the sale of second-hand goods, and if so under what circumstances. The answer to this question is contained in the following quotation from Enix (text 188 So.2d 52):

'When the seller knows the purpose for which the buyer buys an article and that he is relying upon the seller's skill and judgment, an implied warranty of fitness for which the article is purchased arises as a matter of law. Wagner v. Mars, Inc., Fla.App.1964, 166 So.2d 673. Atlantic Distributors, Inc. v. Alson Mfg. Co., Fla.App.1962, 141 So.2d 305. And the basis of liability on a breach of implied warranty of fitness is the agreement, imposed by law, to be responsible in the event the thing sold is not in fact fit for the use and purposes intended. Arcade Steam Laundry v. Bass, Fla.App.1964, 159 So.2d 915.'

The opinion in Keating, when read and considered as a whole, presents no fundamental departure from the foregoing quoted doctrine. In fact, a specially...