Miller v. Preitz

• Decision Date: 24 June 1966
• Citation: 221 A.2d 320,422 Pa. 383
• Parties: , 3 UCC Rep.Serv. 557 Charles R. MILLER, Admr. of Estate of Earl Brian, Coakley, Dec'd, Appellant, v. Wallace Theodore Edwin PREITZ, t/a Hartsville Pharmacy, Rexall Drug Companyand Northern Electric Company.
• Court: Pennsylvania Supreme Court

Page 320

221 A.2d 320

422 Pa. 383, 3 UCC Rep.Serv. 557

Charles R. MILLER, Admr. of Estate of Earl Brian, Coakley, Dec'd, Appellant, v. Wallace Theodore Edwin PREITZ, t/a Hartsville Pharmacy,

Rexall Drug Companyand Northern Electric Company.

Supreme Court of Pennsylvania.

June 24, 1966.

L. Francis Murphy, Morristown, for appellant

Arthur B. Walsh, Jr., Walsh & Durben, Langhorne, for Wallace Theodore Preitz, t/a Hartsville Pharmacy.

Arthur M. Eastburn, Jr., Eastburn & Gray, Doylestown, for Rexall Drug Co., and Northern Electric Co.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

COHEN, Justice.

This is an appeal from judgments for defendants entered on their preliminary objections, in the nature of demurrers, to plaintiff-administrator's complaint.

The following, well pleaded, factual allegations must be taken as true for purposes of ruling on the demurrers. On or about October 1, 1961, Gloria Sewell, an aunt and next door neighbor of the infant decedent, Earl Brian Coakley, purchased a vaporizer-humidifier from defendant Wallace Preitz, trading as the Hartsville Pharmacy. The device had been manufactured by defendant Northern Electric Company and distributed by defendant Rexall Drug Company. On January 27, 1962, the device was being used at decedent's residence, in accordance with its ordinary purpose, to relieve congestion in decedent's nose. Suddenly it shot boiling water on decedent's body causing his death on January 30, 1962.

Decedent's administrator began an action in assumpsit, containing two counts, against all of the above named defendants for damages resulting from breaches of implied warranties of merchantability. The first count was brought under the 'Wrongful Death' statute ¹ and the second under the 'Survival' ² statute. All of the defendants filed preliminary objections, in the nature of demurrers, asserting that the implied warranties did not extend to decedent or, as often stated, that decedent was not in 'privity of contract' with defendants as required to support an action in assumpsit based upon a breach of implied warranty. The lower court sustained the demurrers and entered judgments for the defendants.

Our determinations in this appeal are in the first instance restricted by the election of the administrator to frame this action in assumpsit.

On the basis of our decision in DiBelardino v. Lemmon Pharmacal Co., 416 Pa. 580, 208 A.2d 283 (1965), the lower court properly sustained preliminary objections to plaintiff's 'Wrongful Death' count. In Lemmon Pharmacal we held that the right of action provided by the 'Wrongful Death' statute could be brought only in trespass and that, therefore, an action in assumpsit for breach of warranty was inappropriate. The holding was based upon the language of the 'Wrongful Death' statute which provides that the actionable wrong is 'death * * * occasioned by Unlawful violence or negligence * * *.' (Emphasis supplied).

The obstacle to bringing a breach of warranty action under the 'Wrongful Death' statute is not present under the 'Survival' statute. As we said in Pezzulli v. D'Ambrosia, 344 Pa. 643, 647, 26 A.2d 659, 661 (1942), the actions provided in these two statutes 'are entirely dissimilar in nature. The (former) represents a cause of action unknown to the common law * * *. The (latter) is not a new cause of action at all, but merely continues in his personal representative the right of action which accrued to the deceased * * *.' ³ If decedent would have been entitled to maintain an assumpsit action for what the Commercial Code calls 'consequential damages'--'injury to person or property proximately resulting from any breach of warranty' ⁴--then we see no reason why his personal representative could not do so on behalf of his estate under the 'Survival' statute. Thus, while a breach of warranty action cannot be brought under the 'Wrongful Death' statute it may be brought under the 'Survival' statute. The issue remains, however, whether decedent's lack of 'privity' to the warranties precludes the action.

With respect to this issue there are two main inquiries. The first is whether section 2--318 of the Commercial Code obviates the requirement of 'privity' with respect to the plaintiff.

Section 2--318 provides:

'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. * * *' (Emphasis supplied). Act of April 6, 1953, P.L. 3, § 2--318; 12A P.S. § 2--318.

The comments to this section elaborate on its purpose and scope:

'2. The purpose of this section is to give the buyer's family, household and guests the benefit of the same warranty which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any technical rules as to 'privity.' It seeks to accomplish this purpose without any derogation of any right or remedy resting on negligence. It rests primarily upon the merchant-seller's warranty under this Article that the goods sold are merchantable and fit for the ordinary purposes for which such goods are used rather than the warranty of fitness for a particular purpose. Implicit in this section is that any beneficiary of a warranty may bring a direct action for breach of warranty against the seller whose warranty extends to him.

'3. This section expressly includes as beneficiaries within its provisions the family, household, and guests of the purchaser. Beyond this, the section is neutral and is not intended to enlarge or restrict the developing case law on whether the seller's warranties, given to his buyer who resells, extend to other persons in the distributive chain.'

Thus, if the decedent, 'a natural person,' was connected with the 'buyer', his aunt, in one or more of the ways set forth in section 2--318 then his lack of 'privity' is not a bar to a suit under the 'Survival' statute by his representative against his aunt's immediate seller, Wallace Preitz, trading as Hartsville Pharmacy.

With respect to this inquiry appellant contends that the decedent, being a nephew of the 'buyer,' was in her 'family,' as that term is used in Section 2--318, and, therefore, within the benefit of defendant Hartsville Pharmacy's implied warranty. The lower court held and appellees urge that the word 'family' was meant by the Legislature to be used interchangeably with the word 'household' and that since the decedent, who lived next door to his aunt, was not a member of her 'household' he could not be in her 'family.' In our opinion such a construction is erroneous. The word 'family' appears in the phrase 'any natural person who is in the family or household of his buyer or who is a guest in his home.' Obviously, the clause 'guest in his home' has significance different from and independent of the clause 'person * * * in the * * * household.' It would seem also that the clause 'person * * * in the family' has significance different from and independent of the clause 'person * * * in the * * * household' rather than being mere surplusage. The use of the conjunction 'or' strengthens the natural conclusion that 'family' and 'household' have different meanings in this statute.

Our interpretations of the word 'family' in Shank Estate, 399 Pa. 656, 161 A.2d 47, 88 A.L.R.2d 888 (1960); Way Estate, 379 Pa. 421, 109 A.2d 164 (1954), and Beilstein v. Beilstein, 194 Pa. 152, 45 A. 73 (1899), do not support the lower court's construction. Not only were the contexts in which the word was used in those cases very different from the present context but also the meanings ascribed to the word 'family' in those cases were not limited to the meaning of the word 'household.'

The statute provides no clear indication of the meaning to be given to the word 'family,' and we have found no case on the matter. In our opinion, considering the remedial nature of the provision and the natural connotations of the word, its meaning was not intended to be unduly restrictive. Accordingly, we hold that the word 'family' as used in this statute includes the nephew of the purchaser. This interpretation of the word 'family' is not too burdensome on the seller who makes the warranty because not only must the beneficiary be in the buyer's family but also it must be 'reasonable to expect that such person may use, consume or be affected by the goods * * *.' Whether this member of the family was also within the latter clause is a factual and objective question and depends upon all the relevant circumstances, which may include such factors as the remoteness of the family relation, the geographical connection between the buyer and the member of his family, and the nature of the product.

Because decedent was in the buyer's 'family', section 2--318 supports his representative's action against defendant Preitz, notwithstanding decedent's lack of privity. Therefore, it was error to sustain said defendant's demurrer to plaintiff's second count. Of course, the pertinent factual matters must be proven before recovery may be had.

Section 2--318 designates those persons who may sue. The second inquiry, therefore, is whether there is any rule of case law permitting the persons designated in section 2--318 to maintain an action in assumpsit against remote sellers. With respect to this inquiry a consideration of the case law is pertinent and it is necessary to determine whether defendants' lack of 'privity' is a bar thereunder. Much has been written regarding the demise of the requirement of 'privity' of contract' in implied warranty actions, ⁵ and, indeed, its demise is plainly evident in some jurisdictions. See e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960). Cf. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965)....