Moss v. Polyco, Inc., 46134

• Decision Date: 23 April 1974
• Docket Number: No. 46134,46134
• Citation: 522 P.2d 622,1974 OK 53
• Parties: 14 UCC Rep.Serv. 906 Norma MOSS and Kenneth Moss, Appellants, v. POLYCO, INC., a corporation et al., Appellees.
• Court: Oklahoma Supreme Court

Page 622

522 P.2d 622

14 UCC Rep.Serv. 906

Norma MOSS and Kenneth Moss, Appellants, v. POLYCO, INC., a corporation et al., Appellees.

No. 46134.

Supreme Court of Oklahoma.

April 23, 1974.

As Amended May 10, 1974.

Rehearing Denied June 4, 1974.

Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, by Ed Abel, Oklahoma City, for appellants.

Ross, Holtzendorff & Bond, Oklahoma City, for appellees, Koppers Co., Inc.; Atlantic-Richfield Co., individually and d/b/a Sinclair-Koppers Co., a partinership and d/b/a National Plastics Co.

LAVENDER, Justice:

The question here is whether the plaintiffs, husband and wife, are precluded by a statute of limitations from pursuing an action for personal injuries to the wife and resulting loss of consortium to the husband. The plaintiffs any that the injury occurred when a plastic container of VIP Super Drain fell from a shelf and its contents spilled onto the lady's body. According to the petition and briefs, it appears that she was a customer in a restaurant and had gone to the resroom. The offending container of VIP was on a shelf in the restroom and was somehow dislodged and fell onto her. The petition alleges that the container and its cap were defectively constructed by the defendant manufacturer and supplier of the article, and that the defendants had warranted and represented to the plaintiffs that the container and cap were proper for the use for which they were intended. The plaintiffs filed this action against the defendant appellees in the trial court 28 months after the injury occurred.

Both defendants here concerned filed demurrers based on the two year statute of limitations which is found in 12 O.S.1971, § 95 (Third), providing in part that an action for injury to the rights of another, not arising on contract, can only be brought within two years after the cause of action has accrued. The trial court sustained the demurrers based on the proposition that the limitation period is two years for the breach of an implied warranty, the time beginning to run from the occurrence of the injury. The trial court obviously, then, believed that notwithstanding plaintiffs' allegations that defendants had 'warranted and represented' to plaintiffs that the container and cap were proper for the use for which they were intended, plaintiffs' actions were for injuries to Mrs. Moss which did not arise out of contract.

Appellants' Proposition I is that the plaintiffs' action is not controlled by the two year statute of limitations, that the action was for breach of an implied warranty, that the trial court relied on a statute that related to the injury rather than the source of duty, and that the cause was based on contract, express or implied not in writing (to which the three year period under 12 O.S.1971 § 95, Second, would be applicable), or it lay under the Uniform Commercial Code for breach of an implied warranty, and the five year period provided in 12A O.S.1971, § 2--725, was applicable. Propositions II and III argue that the referenced five and three year periods are applicable, all arguments being premised on the idea that a cause of action based on breach of implied warranty was properly brought.

The Court of Appeals was of the view that plaintiffs' petition alleged a breach of an implied warranty, that a warranty is a promise, that a promise is inherently contractual in nature, that there was therefore alleged a violation of a duty whose source was in contract, and that the cause of action could be brought within three years after it accrued. This has reference to 12 O.S.1971, § 95, Second, pertaining to the limitation period for 'An action upon a contract express or implied not in writing.' That court then further said, 'It is to be noted that in enacting § 2--725 of the UCC (Uniform Commercial Code) the legislature again invoked the source of duty concept in establishing a five year limitation period for bringing breach of warranty actions--actions which include those seeking recovery for personal injury damages.' Thus, under the opinion of the Court of Appeals, plaintiffs could also bring their breach of warranty action under the UCC within five years.

The defense that a cause is barred by limitations is properly raised by demurrer when the petition or complaint shows on its face that the cause of action was barred (see cases cited, Note 328, 12 O.S.A., § 95), as we believe it was here. We are of the view that the trial court's apparent conclusion that this action is not one arising upon contract but is one based upon an alleged tortious wrong committed by the defendants is correct, and that the two year statute of limitations bars the action.

We are aware, of course, that when the Court of Appeals opinion was written that court did not have before it our opinion in Kirkland v. General Motors Corp., No. 45,016, promulgated this date, and which appears in Okl., 521 P.2d 1353. We there stated that allegations similar to those made by the plaintiff appellants of 'breach of implied warranty of fitness' alleged a cause of action in Manufacturers' Products Liability and that 'Because of the tortious origin and nature of the theory . . ., and its independence of any contractual liability based on implied warranty, the applicable limitation period is two (2) years, as designated in 12 O.S.1971 § 95 'third' for actions for injury to the rights of another or to personal property, and limitation begins to run from date of injury.' Specifically, see paragraphs 1 and 2 of the Syllabus by the court.

The plaintiffs' causes of action are logically related to the policies and the purposes which caused us to recognize in Kirkland v. General Motors Corp. the existence of strict liability in tort in Oklahoma, which we designate as 'Manufacturers' Products Liability.' We are referring to the policy expressed in Kirkland of spreading the loss which occurs from defectively manufactured goods to the manufacturer, and from him to the public generally who purchase goods from the manufacturer. ¹

These matters have no relationship to contractual rights. The manufacturer cannot, for example, in his contract of sale limit his responsibility for such liability and have that limitation inhibit persons who have no contractual relations with the manufacturer or seller from recovering their damages. Neither are plaintiffs' actions affected by any contract between the manufacturer and the proprietor of the restaurant where Mrs. Moss was injured, nor between the manufacturer and Mrs. Moss, herself, upon an 'implied warranty of fitness' theory. While the UCC does envision allowing recovery for personal injury and for property damages arising out of defectively manufactured articles (12A O.S.1971, § 2--715(2)(b)), such recovery arises out of contractual relationships, express or implied and as extended by the Legislature to categories of certain third party beneficiaries found in 12A O.S.1971, § 2--318, i.e., any natural person in the family or household of the buyer, or 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 express or implied warranty.

In passing, it may be noted that there were second and third alternative provisions available for adoption by the Legislature (63 Am.Jur.2d, Products Liability, § 163) more liberal than the first alternative expressed in 12A O.S.1971, § 2--318, and the Legislature chose the more restrictive version. The fact that the UCC draftsmen take no position as to whether the sellers' warranties extend to classes of persons other than those named in the alternative version adopted (Am.Jur.2d, § 163, supra) has no bearing on any legislative restrictive intent that may be inferred from adoption of the particular alternative that the Legislature selected. Nor is the statement in Am.Jur., § 163, supra, that the court has discretion to extend warranty protection beyond such categories of persons named by the Legislature so as to include bystanders, persuasive here.

We believe that the statutory implied warranty sections of the UCC are not applicable in this case. The UCC has to do with commercial transactions (12A O.S.1971, § 1--102) and presupposes a buyer in privity with a seller, the concept being extended only as provided by the Legislature. The plaintiffs are, by the express terms of the statutory scheme in § 2--318, beyond the scope of the statutory warranty protection. This is in accord with other case law elaboration. Klimas v. International Telephone and Telegraph Corp. (D.C., R.I., 1969), 297 F.Supp. 937. Warranty recovery applies to loss flowing from the commercial transaction. The UCC parallels the doctrine of strict liability in tort, but the two should not be confused with each other. Caruth v. Mariani (1970), 11 Ariz.App. 188, 463 P.2d 83; Beauchamp v. Wilson (1973), 21 Ariz.App. 14, 515 P.2d 41. The plaintiffs' action falls within the tort category, and since the aforesaid policy reasons for...