Mitchell v. Miller

• Decision Date: 13 October 1965
• Docket Number: No. 108146,108146
• Citation: 214 A.2d 694,26 Conn.Supp. 142
• Court: Connecticut Superior Court
• Parties: , 2 UCC Rep.Serv. 1152 Ruth H. MITCHELL, Executrix (ESTATE of Burnell R. MITCHELL) v. Horace G. MILLER et al.

Page 694

214 A.2d 694

26 Conn.Supp. 142, 2 UCC Rep.Serv. 1152

Ruth H. MITCHELL, Executrix (ESTATE of Burnell R. MITCHELL) v. Horace G. MILLER et al.

No. 108146.

Superior Court of Connecticut, New Haven County, at New Haven.

Oct. 13, 1965.

Fay & Lunt, Wallingford, for plaintiff.

David E. FitzGerald, Jr., New Haven, for defendant General Motors corporation.

John C. Flanagan, New Haven, for defendants Horace G. Miller and Nancy Backman.

Joseph M. Delaney, Wallingford, for defendant Wallingford Country Club, Inc.

KLAU, Judge.

The defendant General Motors Corporation demurs to the third count of the complaint on the ground that no cause of action for breach of the warranty may lie against this defendant, as no privity exists between the plaintiff's decedent and said defendant.

This is an action for damages arising from injuries which resulted in the death of Burnell R. Mitchell, the decedent of the plaintiff executrix, allegedly caused by the defendants Nancy Backman, her father, Horace G. Miller, Wallingford Country Club, Inc., and General Motors Corporation. The allegations of the first count are based on the negligence of the defendants Wallingford Country Club, Horace G. Miller and Nancy Backman. In substance, the first count sets forth that the defendant Nancy Backman had parked a car upon the parking area of the defendant Wallingford Country Club, which parking area overlooks the seventeenth fairway of the golf course of said defendant country club. The car, a 1962 Buick automobile, had been manufactured by defendant General Motors and was parked on a slope overlooking said fairway and so left there by defendant Backman, who was driving the car as a family car of the defendant Horace G. Miller. In parking the car, the defendant Backman placed the hydromatic transmission gearshift lever in the area designated 'park' on the indicator and locked all of the doors to the car. Despite the fact that the automobile hydromatic gearshift mechanism was placed in the area marked 'park' on the indicator, the shifts were not locked therein and the transmission was only partially engaged. Being parked on an incline, the transmission became disengaged, and the shift lever slipped into the 'neutral' position, thereby allowing the automobile to roll. The car so parked rolled down the incline, striking the plaintiff's decedent, Burnell R. Mitchell, while he was playing golf upon the seventeenth fairway, with such force as to cause injuries from which he died.

The second count against the defendant General Motors Corporation solely alleges acts of negligence in manufacturing and in selling, through its authorized dealer, a defective automobile to the defendant Horace G. Miller, which defect, by reason of the aforementioned failure of the transmission to lock when parked, rendered the car inherently and imminently dangerous to the public and to the plaintiff's decedent and resulted in injuries which caused his death.

The third count alleges that the defendant General Motors Corporation, as a manufacturer, through extensive advertisements by means of radio, television, newspapers, etc., impliedly and expressly warranted to the defendant Miller, to the public generally, and to the decedent Mitchell as a member of the public that the said 1962 Buick automobile purchased by Miller was safe and fit for its intended use and safe operation, and contained no defects, dangerous tendencies or characteristics which would endanger the public, including the plaintiff's decedent, and in reliance thereon, said automobile was purchased by the defendant Miller; and the count further alleges that the unsafe and dangerous tendency and characteristics of the hydromatic gearshift mechanism in slipping from a 'park' locking to a neutral position constituted breach of warranty to the plaintiff's decedent, and that he suffered severe injuries from which he died as a result of said breach.

The demurrer of the defendant General Motors attacks the cause of action alleged in this third count. From the allegations of the third count, it is obvious that no privity existed between the plaintiff's decedent, Mitchell, and the defendant General Motors Corporation. It is further clear from the allegations of this count that the deceased Mitchell was not within the distributive chain of any sale originating from the manufacturer of the automobile, nor could he reasonably have been anticipated by this defendant to have been one who would use, occupy or service the operation of the automobile. It is clear from the allegations of the count that the deceased Mitchell was not a user but, on the contrary, a victim of an automobile which was defectively manufactured by the defendant, since the demurrer admits the allegations of the count which are well pleaded, and such facts are clearly to be drawn from the allegations. There being no sale, therefore, to trace back the decedent's connection with the chattel to the defendant General Motors Corporation, the question is whether liability can be imposed upon the basis of an implied warranty of a reasonable fitness for use from the defendant General Motors Corporation to the plaintiff's decedent, Burnell Mitchell, in the absence not only of privity between the parties but of a sale of the chattel upon which to base such a warranty.

Although the concept of warranty founded on contract is to be found in the Uniform Sales Act and the Uniform Commercial Code, the recent development of the law of product liability has re-established the common-law action of breach of warranty sounding in tort rather than in contract. 'The recognition of such a right of action rested on the public policy of protecting an innocent buyer from harm rather than on the ensuring of any contractual rights.' Hamon v. Digliani, 148 Conn. 710, 716, 174 A.2d 294, 296. Although in the Hamon case the plaintiff happened to be a purchaser, the doctrine of tort liability based on warranty was extended to the wife of the purchaser; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1; and to many plaintiffs who were not the purchasers of the products and with whom there was no contractural relationship, as between parties. Delaney v. Towmotor Corporation, 339 F.2d 4 (2d Cir.) (employee of prospective purchaser of defective forklift truck); Putnam v. Erie City Mfg. Co., 338 F.2d 911 (5th Cir.) (plaintiff injured by defective wheelchair rented from druggist); Greeno v. Clark Equipment Co., 237 F.Supp. 427 (N.D.Ind.) (employee of lessee of defective forklift truck purchased by still another party); Montgomery v. Goodyear Tire & Rubber Co., 231 F.Supp. 447 (S.D.N.Y.) (navy personnel killed in crash of defective dirigible); Chapman v. Brown, 198 F.Supp. 78 (D.Hawaii), aff'd, 304 F.2d 149 (9th Cir.) (plaintiff injured when a borrowed hula skirt ignited); Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (husband of purchaser injured by defective power tool); Connolly v. Hagi, 24 Conn.Sup. 198, 188 A.2d 884; Suvada v. White Motor Co., 210 N.E.2d 182 (Ill.); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (child of lessee of defective house owned by still another party); Goldberg v. Kollsman Instrument Corporation, 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81, and King v. Douglas Aircraft Co., 159 So.2d 108 (Fla.App.) (passengers killed in airplane crash resulting from faulty equipment); see CCH 1965 Products Liability p1234; note, 75 A.L.R.2d 39.

In Connolly v. Hagi, supra, the court, in extending the liability in tort of the manufacturer to a serviceman, stated (24 Conn.Sup. p. 206, 188 A.2d p. 887): 'It would appear that the warranty should be extended to all those who could reasonably be anticipated to use, occupy or service the operation of the...