Lang v. General Motors Corp., 8146

Decision Date31 August 1965
Docket NumberNo. 8146,8146
PartiesErnest R. LANG, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, Defendant and Respondent.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Under Rule 56(c), North Dakota Rules of Civil Procedure, a moving party is entitled to summary judgment if it appears that there is no genuine issue of any material fact to be tried by the court.

2. A person who has no direct personal relation with the manufacturer of a product who, by his advertising, promotes the sale of the product to the public generally, may, nevertheless, recover from the manufacturer damages caused by the negligence of the manufacturer in the production thereof.

3. Where the manufacturer of a new motor vehicle puts such new vehicle into the channels of trade, and promotes its sale to the public by a wide program of advertising, there is an implied warranty that such vehicle is reasonably fit for the purposes for which it was intended, and such implied warranty accompanies such vehicle into the hands of the ultimate buyer.

4. In an action by the buyer of a new vehicle against the manufacturer for negligence and for breach of warranty, allegations of plaintiff's complaint that the manufacturer negligently produced such a vehicle and promoted its sale to the public, and that such vehicle was not reasonably fit for the purposes for which it was produced, raise substantial fact issues precluding summary judgment for the manufacturer, notwithstanding a lack of privity between the manufacturer and the ultimate buyer.

Rausch & Chapman, Bismarck, for plaintiff and appellant.

Cox, Pearce, Engebretson, Murray & Anderson, Bismarck, for defendant and respondent.

STRUTZ, Judge.

This is an appeal from a summary judgment entered in favor of the defendant, General Motors Corporation, for a dismissal of the plaintiff's complaint.

The action was brought to recover damages which the plaintiff alleges he sustained when he purchased a new 1960 Chevrolet 2 1/2-ton truck-tractor, manufactured and distributed by the defendant corporation. The truck was purchased from one of the defendant's dealers, the Jay Kline Chevrolet Company, of Minneapolis, Minnesota. The plaintiff claims that the equipment which he purchased was defective because of negligent manufacture, construction, and assembly, all of which had been done at the defendant's plant, and that the vehicle was not reasonably fit for the purposes for which it was purchased. Thus the plaintiff's complaint alleges negligence of the defendant in the manufacture, construction, and assembly of the vehicle purchased, and further alleges breach of warranty in that the truck was not reasonably fit for the purposes for which it was purchased.

The trial court granted the defendant's motion for summary judgment, ordering that judgment be entered dismissing the plaintiff's complaint. From this judgment the plaintiff has appealed to this court, demanding a trial de novo.

The trial court having granted a motion for summary judgment, we must determine whether the pleadings and the showing made by the parties raise any genuine issue of fact to be tried by the court. If no material issue of fact is raised by the pleadings and the showing of the parties, the court may properly grant a motion for summary judgment. Rule 56(c), N.D.R.Civ.P.,; Temme v. Traxel (N.D.), 102 N.W.2d 1; Heasley v. State (N.D.), 115 N.W.2d 334; Mondy v. Gjesdal (N.D.), 123 N.W.2d 33.

The plaintiff in his complaint alleges, in substance, that on June 2, 1961, he purchased a new 1960 2 1/2-ton truck-tractor which had been manufactured and assembled at the defendant's plant. This equipment was purchased from one of the defendant's retail dealers, the Jay Kline Chevrolet Company of Minneapolis. The plaintiff's complaint alleges that the vehicle could not be operated safely on the highway; that it would wobble and shimmy as it was being driven on the road, and that this condition was due to the negligent manufacture, construction, and assembly by the defendant; and that the plaintiff made repeated complaints to the defendant and its agents and spent large sums of money trying to correct the defects in the vehicle caused by such negligent and defective manufacture and assembly. The plaintiff further alleges that he purchased the truck-tractor believing it to be reasonably suitable for purposes of trucking and hauling, and that it was not reasonably fit for such purposes.

The defendant, in its answer, generally denies all of the allegations of plaintiff's complaint, and alleges that the vehicle described in the complaint was sold to the plaintiff by the Kline Chevrolet Company, of Minneapolis; that the seller is a separate corporation, engaged in the business of selling the defendant's products; that there were no dealings between the plaintiff and the defendant and no privity of contract between them, and that no implied warranties to the plaintiff could arise from the plaintiff's purchase of such vehicle from a third party. The defendant cites the decision of this court in Knecht v. Universal Motor Co., 113 N.W.2d 688, as holding that a general warranty given in lieu of all other warranties, express or implied, negatives implied warranties which ordinarily would arise under the Uniform Sales Act.

The decision in Knecht is not applicable to the facts of this case. Any possible disclaimer of liability, even under the ruling in Knecht, under no circumstances would be binding on the plaintiff unless he agreed thereto. There is nothing in this record to show what, if anything, the plaintiff agreed to when he purchased the truck-tractor described in the complaint. Whether there was a waiver by the plaintiff would be a matter of defense, which cannot be decided on a motion for summary judgment.

The only issue to be determined on this appeal, therefore, is the issue of privity of contract. The defendant, in its answer alleges that plaintiff purchased the truck-tractor from an independent dealer, and that there was no privity of contract between plaintiff and defendant. If lack of privity is a defense to plaintiff's action, plaintiff's complaint clearly fails to state a cause of action and the court properly granted defendant's motion for summary judgment dismissing plaintiff's complaint.

Prior to the decision in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, the courts generally held that a remote buyer of personal property could not recover from the manufacturer where such property was purchased from an independent dealer and where the buyer had no direct dealings with the manufacturer. Following MacPherson, however, there has been a trend in the decisions toward allowing a remote buyer to recover directly from the manufacturer for breach of warranty, in spite of the fact that there is a lack of privity of contract, in cases where the manufacturer has produced and put on the market a defective product, to the damage of the ultimate purchaser. At first, the rule that a warranty runs from the manufacturer to the ultimate consumer, even in the absence of privity of contract, was applied only in cases involving food and drink. Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P.2d 633; Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479; Swift & Co. v. Wells, 201 Va. 213, 110 S.E.2d 203. Somewhat later, the privity rule was further relaxed in cosmetic cases. Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103. And, still later, the privity rule was relaxed in cases involving dangerous products. Pritchard v. Liggett & Myers...

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