Connolly v. Hagi
| Decision Date | 28 February 1963 |
| Docket Number | No. 120413,120413 |
| Citation | 188 A.2d 884,24 Conn.Supp. 198 |
| Court | Connecticut Superior Court |
| Parties | Frederick J. CONNOLLY v. John HAGI et al. |
Lessner, Rottner & Karp, Manchester, for plaintiff.
Warren Maxwell, Edward J. Foley, and Tarlow, Poulos & Lawrence, Hartford, for named defendant.
Halloran, Sage & Phelon, Hartford, for defendant Chrysler Corporation.
This is an action for damages for personal injuries which the plaintiff, an employee of a gasoline station, alleges he suffered on May 29, 1959, while preparing to repair the rear backup lights of a 1958 Plymouth, manufactured by the defendant Chrysler Corporation, when the defendant Hagi, the owner and operator of the car, pushed the automatic push-button transmission for reverse drive, causing the car to jump backwards and to strike and pin the plaintiff under the vehicle.
The complaint is in two counts. The first count alleges negligence against both of the defendants, Hagi and the Chrysler Corporation. The second count is against the Chrysler Corporation alone and is based on an alleged breach of express and implied warranties that the motor vehicle which injured the plaintiff was safe and fit for its intended use. The defendant Chrysler Corporation demurs to the second count on the ground that insofar as it purports to state a cause of action for a breach of warranty, it fails to allege facts that would establish the existence of privity of contract between the plaintiff and the defendant. In his argument, the plaintiff concedes that there is no privity of contract between himself and the defendant manufacturer and concedes that if privity is essential to the maintenance of the action set forth in the second count, the count is fatally defective. The plaintiff contends, however, that the requirement of privity is not essential to his cause of action.
The demurrer admits all facts which are well pleaded. Allegations in the pleadings for the purpose of testing their sufficiency under the demurrer are to be liberally construed. Stephenson, Conn. Civ.Proc., § 94(d). All references to allegations in the complaint refer only to allegations contained in the second count.
The plaintiff alleges in his complaint that 1958 Plymouth motor vehicles were offered for sale by the defendant manufacturer to dealers for purpose of resale to the general public with the representation that they were designed, manufactured and assembled in a safe, good and workmanlike manner, free from defects, and that such representations were widely and extensively advertised and publicized. The complaint further alleges that prior to October 24, 1958, the defendant designed and manufactured a 1958 Plymouth, Belvedere model, equipped with automatic push-button driver or transmission, which motor vehicle was, on or about October 24, 1958, sold to the defendant John Hagi by an authorized dealer of the defendant corporation. It is further alleged that from October 24, 1958, to May 29, 1959, the defendant Hagi owned and operated the said Plymouth car and that on May 29, 1959, he drove it into a gasoline station in East Hartford where the plaintiff was employed and requested the plaintiff to inspect and repair the backup lights on the rear of the car. While the plaintiff was in close proximity to the rear of the car, the defendant Hagi, who was still in the car, drove it so as to strike the plaintiff and to crush and pin him under the vehicle, causing extensive and crushing injuries to his spine and neck, and fractures of the dorsal vertebra and many other parts of his body, which have resulted in permanent physical disability and impairment of his earning capacity.
The complaint alleges that these injuries were caused by the lurching or 'jumping' of the motor vehicle backwards, upon the mere pushing of the reverse button of the automatic transmission by the defendant Hagi when the motor was running. The complaint alleges that the 1958 Plymouth which the defendant Hagi had purchased from an authorized dealer of the defendant manufacturer had the dangerous tendency and characteristic of lurching, jumping, or moving backwards with great force and momentum upon the mere pushing in of the reverse button of the automatic transmission when the motor was running. The complaint alleges that the defendant manufacturer, by means of extensive advertisements through the medium of radio, television, newspapers, etc., impliedly and/or expressly warranted to the defendant Hagi and to the plaintiff, as a gasoline station employee, that the said motor vehicle, as well as all others manufactured by it, was safe and fit for its intended use and that in reliance and as a consequence of said massive advertising of the defendant Chrysler Corporation, the defendant John Hagi purchased said car. Similarly in reliance on and as a consequence of such massive advertising, the plaintiff proceeded to service the motor vehicle as he had been requested to do by the defendant Hagi. The complaint then alleges that the defective, unsafe and dangerous lurching and jumping of the car under the conditions stated constituted a breach of warranty to the plaintiff, and as a result of such breach, the plaintiff sustained the injuries indicated. Notice of such injuries was given on June 26, 1959 and duly acknowledged.
The issue simply stated is this: May an automobile repairman injured by a defectively manufactured automobile maintain a cause of action for breach of warranty, for injuries sustained, against the manufacturer of the automobile with whom he is not in privity and who had by means of massive advertising, upon which both the purchaser and the plaintiff repairman had relied before proceeding to repair the vehicle, represented that automobiles manufactured by it were safe and fit for their intended use? Plaintiff's counsel admits that he is unable to find any reported case permitting the maintenance of a cause of action similar to the one alleged in the second count, but urges that a logical extension of the principle laid down in Hamon v. Digliani, 148 Conn. 710, 174 A.2d 294, gives a legal foundation to his allegations. Certainly, prior to the Hamon case, the law in this state was clear that no action could be maintained for injuries arising out of an alleged breach of warranty, either of merchantability or of use, without the essential element of privity of contract existing between the plaintiff and the defendant. Welshausen v. Charles Parker Co., 83 Conn. 231, 76 A. 271; Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224; Duart v. Axton-Cross Co., 19 Conn.Sup. 188, 110 A.2d 647. Indeed, it was necessary to secure legislation in 1939 and 1951 extending the implied warranties of quality to members of the purchaser's household; Cum.Sup.1939, § 1276e; Cum.Sup.1955, § 2858d (General Statutes § 42-14, repealed, Public Acts 1959, No. 133, § 10-102); and in 1955 imposing an implied warranty of fitness of food and drink for consumption on and off the premises for the buyer and all persons for whom the purchase was intended. Cum.Sup.1955, § 2859d (General Statutes § 42-16, repealed, Public Acts 1959, No. 133, § 10-102).
Prior to the Hamon case, supra, actions for personal injuries arising from a breach of warranty were confined, owing to the necessity for privity between the parties, to actions between the immediate purchaser and the seller, broadened slightly to the members of the buyer's household. The warranty was regarded as in the nature of a contract of personal indemnity with the original purchaser. It did not run with the goods. 2 Harper & James, Torts, p. 1571. Such a limited view did not meet the exigencies of modern life. The difficulty of proving negligence and failure of inspection by the manufacturer placed an almost impossible burden of proof on the injured plaintiff. The rule requiring privity of contract between the parties likewise proved inequitable. Following a growing trend in many jurisdictions, our Supreme Court of Errors held in Hamon v. Digliani, supra, that the...
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...33 Cal.Rptr. 175; Simpson v. Powered Products of Michigan, Inc., 1963, Court Com.Pl., 24 Conn.Sup. 409, 192 A.2d 555; Connolly v. Hagi, 1963, 24 Conn.Sup. 198, 188 A.2d 884; Simpson v. Logan Motor Co., D.C.App.1963, 192 A.2d 122; Picker X-ray Corp. v. General Motors Corporation, D.C.Mun.App......
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