Hargrove v. Newsome

• Decision Date: 07 June 1971
• Citation: 470 S.W.2d 348,225 Tenn. 462,3 Pack 462
• Parties: , 225 Tenn. 462, 9 UCC Rep.Serv. 398 J. W. HARGROVE, Appellant, v. W. L. NEWSOME, d/b/a Materials Handling Services and Kelley Company, Inc., Appellees.
• Court: Tennessee Supreme Court

Page 348

470 S.W.2d 348

3 Pack 462, 225 Tenn. 462, 9 UCC

Rep.Serv. 398

J. W. HARGROVE, Appellant, v. W. L. NEWSOME, d/b/a Materials Handling Services and Kelley

Company, Inc., Appellees.

Supreme Court of Tennessee.

June 7, 1971.

Rehearing Denied Sept. 7,1971.

William W. Hall, Dickson, Oliver B. Dickins, Gullett, Steele, Sanford, Robinson & Merritt, Nashville, for appellant.

J. C. Summers, Howser, Thomas, Summers & Binkley, Nashville, for W. L. Newsome, dba, Materials Handling Services.

John K. Maddin, Jr., Gracey, Buck, Maddin & Cowan, Nashville, for Kelley Company, Inc.

OPINION

DYER, Chief Justice.

This case comes to this Court from the action of the trial judge in sustaining demurrers filed in answer to the declaration, dismissing the suit. In this opinion the parties will be referred to as they appeared in the trial court; that is, J. W. Hargrove as plaintiff, and W. L. Newsome, dba, Materials Handling Services, and Kelley Company, Inc., as defendants, or by name.

Plaintiff is an employee of the Schrader Division of Scoville Manufacturing Company. On July 8, 1966, Schrader purchased a mechanical dock from the defendant Newsome, which dock was manufactured by the defendant Kelley. On September 22, 1967, plaintiff, while acting in the course of his employment with Schrader, was seriously injured due to an alleged malfunction of the mechanical dock. This suit was filed on September 16, 1968 against both defendants on the theory of (1) common law negligence, (2) express and implied warranty, and (3) strict liability sounding in tort.

The negligence and strict liability counts were dismissed as being barred by the one-year statute of limitations under T.C.A. § 28--304 in effect prior to its amendment by Chapter 293, Public Acts of 1969. The warranty counts were dismissed for lack of privity of contract.

At this point we would like to express our appreciation for the help afforded this Court by the excellent briefs filed by counsel for all parties.

Counsel for plaintiff frankly and candidly admits under previous decisions of this Court the trial judge was correct in sustaining the demurrers. The thrust of the argument here is that the requirement of privity of contract in warranty actions is neither justified by past authority or by any public policy argument.

We agree as plaintiff argues the courts of several states feeling a need for a more satisfactory remedy in products liability cases for consumers injured by defective products to obtain redress generally against remote manufacturers accomplished this end by abolishing the requirement of privity of contract in warranty actions. In view of the Uniform Sales Act adopted in most jurisdictions various expedients have been used to circumvent the requirement of privity of contract; among them (1) the theory of third-party beneficiary contract, (2) agency theory, and (3) warranty running with the goods similar to a covenant running with the land. These methods and others have been praised by some writers and condemned by others. Be that as it may, it is not necessary for the decision in the case at bar for us to discuss the merits of these methods.

On this issue plaintiff cites as the landmark case Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960). In view of the more recent New Jersey cases of Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), and Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965), it is likely true as stated in an article in Rutgers Law Review, Vol. 19, p. 698, that in New Jersey 'privity has no vitality.' In reading these three New Jersey cases it is difficult to determine whether they were decided upon the principle of strict liability in tort or upon the theory of implied warranty. Although the Uniform Sales Act and the more recent Uniform Commercial Code were both adopted in New Jersey, the Uniform Commercial Code being effective January 1, 1963, these cases on the issue of privity give scant consideration to these statutes. These three cases and the Uniform Commercial Code are discussed in the above mentioned Rutgers Law Review.

On the theory plaintiff argues, particularly on the public policy argument, the case of Chapman v. Brown, 198 F.Supp. 78 (D.C.1961), affirmed 304 F.2d 149 (9 Cir., 1962), is well reasoned. This case deals directly with the issue of privity and its relation to the Uniform Sales Act in a products liability case.

We have considered all the authority cited by plaintiff giving the reasons for the need of now abolishing privity of contract in warranty actions. Under the view we take of the matter it is not necessary to again list or discuss these reasons.

In products liability cases this Court has consistently required privity of contract in warranty actions. Kyker v. General Motors Corp., 214 Tenn. 521, 381 S.W.2d 884 (1964); Olney v. Beaman Bottling Co., 220 Tenn. 459, 418 S.W.2d 430 (1967). The reasons and authority therefor are stated in these opinions. Plaintiff does cite the recent case of Layman v. Keller Ladders, Inc., Tenn., 455 S.W.2d 594 (1970), to support a statement that 'In this case (Layman) this Court hinted that it recognized the need for abolishing vertical privity requirements at least among members of the distributive chain.' The only issue in Layman was the statute of limitations applicable to the facts of the case. 'Layman does not modify the holdings in Kyker and Olney.

We might well be persuaded by the arguments based on public policy in regard to the need for dispensing with the requirement of privity in warranty actions, except for one reason we consider controlling. Plaintiff had a remedy under either his count on negligence or under the count on strict liability in tort. The fact plaintiff under both these counts is unfortunately barred by a statute of limitations is not material to our decision since all civil actions are sooner or later barred by a statute of limitations.

It is next argued under the Uniform Commercial Code adopted in this state and made effective July 1, 1964, by enactment of Chapter 81, Public Acts of 1963, this Court should reconsider the requirement of privity in warranty actions. The events giving rise to Kyker v. General Motors Corp., Supra, and Olney v. Beaman Bottling Co., Supra, occurred prior to adoption in this state of the Uniform Commercial Code and the point raised here in reference to this Code is of first impression in this State. The section of the Uniform Commercial Code pertinent to this issue is T.C.A. § 47--2--318, which reads as follows:

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 its 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.

The effect of this statute is to abolish the requirement of privity of contract for personal injuries received under certain circumstances as to a member of the buyer's family, his household or a guest in his home in warranty actions brought against the buyer's immediate vendor. To this extent this statute changes the law in this state. The argument here is that this legislative change in our law should be extended to include all persons foreseeably affected by the products' defects, it being admitted plaintiff does not...