Dawson v. Canteen Corp.

• Decision Date: 25 February 1975
• Docket Number: No. 13476,13476
• Citation: 212 S.E.2d 82,158 W.Va. 516
• Court: West Virginia Supreme Court
• Parties: , 16 UCC Rep.Serv. 679 Roosevelt DAWSON v. CANTEEN CORP., a corp., and Continental Baking Co., a corp.

Page 82

212 S.E.2d 82

158 W.Va. 516, 16 UCC Rep.Serv. 679

Roosevelt DAWSON v. CANTEEN CORP., a corp., and Continental Baking Co., a corp.

No. 13476.

Supreme Court of Appeals of West Virginia.

Feb. 25, 1975.

Syllabus by the Court

The requirement of privity of contract in an action for breach of an express or implied warranty in West Virginia is hereby abolished.

Patrick S. Cassidy, Wheeling, Bogarad & Robertson, Martin S. Bogarad, Weirton, Myron E. Ranelin, Jr., Steubenville, Ohio, for appellant.

Bachmann, Hess, Bachmann & Garden, Gilbert S. Bachmann and Lester C. Hess, Jr., Wheeling, for Continental Baking Co.

NEELY, Justice:

For many years West Virginians suffering injuries as the result of defective products have been unable to recover against defendant manufacturers, wholesalers, or retailers for breach of warranty unless they stood in privity of contract with the defendant. At the same time West Virginia manufacturers, wholesalers and retailers selling products nationally have been exposed to extensive liability for defective products manufactured in this State and sold elsewhere because the majority of American jurisdictions have abolished privity as a requirement in warranty actions.

The case before us provides an opportunity for the Court to correct this anomalous situation and to bring West Virginia law into harmony with the clear weight of modern American authority. ¹ Accordingly the requirement of privity of contract in actions grounded in breach of express or implied warranty is abolished in West Virginia and the holding in the case of Williams v. Chrysler Corp., 148 W.Va. 655, 137 S.E.2d 225 (1964) and the cases upon which it relied are expressly overruled where inconsistent with the holding in this case. ²

The plaintiff, Roosevelt Dawson, was working for the Wheeling-Pittsburgh Steel Corporation on July 12, 1970, when he purchased from a vending machine a cheeseburger prepared on a bun containing mice feces. The bun had been baked by defendant, Continental Baking Company. Plaintiff brought his action in the Circuit Court of Brooke County, West Virginia, against defendants Canteen Corporation and Continental alleging that 'The plaintiff has suffered as a proximate result of the defendants' conduct acute food poisoning with Gastroenteritis. The defendants impliedly warrant the cheeseburger including the bun that plaintiff purchased, said implied warranty was that the cheeseburger and bun was fit for human consumption.' Plaintiff alleged that he suffered nausea, vomiting, and diarrhea; that he remained ill for over a month as a proximate result of eating the contaminated cheeseburger; that he expended money for medical care; and, that he lost a month's wages from his regular employment.

Canteen Corporation moved to dismiss the action as to itself because Canteen did not operate the vending machine but rather leased it to Canteen of Ohio Valley, and the court granted that motion to dismiss. The lower court's dismissal of Canteen is not challenged on appeal.

Continental Baking Company also filed a motion to dismiss on the grounds that there was no contract privity between Continental Baking and the plaintiff. This motion to dismiss for lack of privity was granted based upon pretrial stipulations. It is the dismissal for lack of privity which is squarely challenged by plaintiff on this appeal.

I

The requirement of privity of contract in warranty actions in West Virginia began to erode with the passage of the Uniform Commercial Code. W.Va.Code, 46--2--318 (1963) eliminated the privity of contract requirement for warranty actions in what is known as the 'horizontal' chain of users. That section says:

'A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.'

This process of statutory erosion of the common law doctrine continued with the passage of the 'West Virginia Consumer Credit and Protection Act,' Chapter 12, Acts of the Legislature, Regular Session 1974, which eliminated the requirement of privity in the 'vertical' chain of distribution for Consumer transactions. The pertinent part of that chapter, now W.Va.Code, 46A--6--108 (1974), provides:

'Notwithstanding any other provision of law to the contrary, no action by a consumer for breach of warranty or for negligence with respect to goods subject to a consumer transaction shall fail because of a lack of privity between the consumer and the party against whom the claim is made. An action against any person for breach of warranty or for negligence with respect to goods subject to a consumer transaction shall not of itself constitute a bar to the bringing of an action against another person.'

It appears to this Court that it is not only the clear trend of the common law as articulated in other jurisdictions, but also the trend of modern legislation in West Virginia to recognize the problems inherent in complex, modern commerce concerning mass production, mass...