Picker X-Ray Corporation v. General Motors Corporation

Citation185 A.2d 919
Decision Date28 November 1962
Docket NumberNo. 3033.,3033.
CourtCourt of Appeals of Columbia District

Francis L. Young, Jr., Washington, D. C., with whom Darryl L. Wyland, Washington, D. C., was on the brief, for appellant.

James C. Gregg, Washington, D. C., with whom Hugh Lynch, Jr., Washington, D. C., was on the brief, for appellee.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge.

Corporate appellant sought recovery from appellee manufacturer for breach of implied warranty in the sale of a new automobile through a retail dealer. Three months after its purchase, while being operated by appellant's employee, the vehicle was damaged when it left the roadway, allegedly due to a defective steering mechanism. Appellant sued both the manufacturer and the dealer, alleging as to each negligence and breach of implied warranty of fitness. Appellee manufacturer moved to dismiss the warranty count on the ground there was no privity between it and the purchaser. From the granting of this motion, this appeal followed.

Since we must assume the allegations in the complaint to be true, the only question before us is whether a purchaser can sue a manufacturer for breach of an implied warranty of the fitness of its product bought through a retail outlet.

Historically, an action based upon warranty originated as a tort similar to an action for deceit, but by accident warranty came to be associated with contractual actions and thus assumed some aspects of tort, such as the measure of damages, and some aspects of contract, such as the requirement of privity.1 The latter requirement was imported into the law from a dictum in Winterbottom v. Wright, 10 M. & W. 109, 11 L.J. Ex. 415, 152 Eng.Rep. 402, and was followed by courts in most jurisdictions which prohibited any suit by a consumer against a manufacturer of a defective product, either on the basis of negligence or for breach of warranty, in the absence of a contractual relationship between them. As to negligence, the requirement of privity was ruled out by Justice Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916 F., 696, but it has persisted principally in warranty actions.

In the recent trend where privity has no longer been required, the courts have given numerous reasons for their rulings to ameliorate the harshness of the doctrine. Judicial opinions have relied upon concepts of agency, assignment and third party beneficiary. Then a more functional approach to the problem was taken by some courts which simply dispensed with the rule itself, holding that the warranty "runs with the product," while others have relied frequently upon public policy.

Methods of commerce have drastically changed in the twentieth century. Now the retailer has little control over the products he sells because they are packaged or built before they reach him. He can neither protect his purchaser from harm nor himself from liability, yet he is liable to the immediate purchaser for breach of warranty. The only justification for holding the innocent retailer, and not the manufacturer, liable to the purchaser is that the former can recoup his loss by suing the manufacturer. Hence, a disclaimer of warranties or some other break in the chain can fasten liability on an innocent party, while the manufacturer, who is in better position to protect the consumer, goes free from liability. Moreover, even if successful, subsequent recoupment actions by retailers are an unnecessary burden upon the courts and litigants alike, add to congested trial calendars and delay the conclusion of litigation. More important, by reason of the tremendous increase in national advertising methods and programs, prospective purchasers no longer rely upon representations or warranties by retailers. Modern advertising by manufacturers on a large scale stresses trademarks and trade names and the superior qualities and benefits of their products and induces purchasers to ask for products by name because they have been represented as reliable and fit for the specific purpose and better than other similar products on the market. Lavishly-presented-Publicity programs by TV, radio and the press cultivate public favor and are major inducements in the consumer's final decision to buy. Thus, the advertising runs from the manufacturer to the ultimate consumer, and the manufacturer should not be permitted to shield himself from liability on the technical ground of lack of privity with the consumer or user, or for lack of foreseeable injary to the latter.

The courts have begun to disassociate contract from warranty and to recognize that a warranty is a duty imposed by law for protection of the buying public, regardless of the consent of the parties.2 The nineteenth-century policy of protecting young manufacturers is now giving way to one of protecting innocent consumers from unexpected injuries or losses due to defective products over which they have no contgol. Manufacturers should properly assume those burdens incident to the cost of doing business. Liability should no longer be dependent upon any contractual relationship between the manufacturer and the ultimate consumer or user.

We are aware that in this jurisdiction the United States Court of Appeals for the District of Columbia Circuit decided in 1932 that "according to the great weight of authority, a manufacturer of food is not liable to third persons under an implied warranty, because there is no privity of contract between them." Connecticut Pie Co. v. Lynch, 61 App.D.C. 81, 57 F.2d 447. This ruling was followed in another food case, Hanback v. Dutch Baker Boy, Inc., 70 App.D.C. 398, 107 F.2d 203.

Ordinarily we would feel bound to apply this principle of law to the present case. However, from a study of recent decisions on the question of privity in implied warranty cases involving food products as well as manufactured articles, we note that there is a distinct trend to repudiate this doctrine entirely.3 The more recent authorities, in cases involving both food and defectivelymanufactured products which would be dangerous to life or limb, have eliminated the requirement of privity between the maker and the reasonably-expected ultimate consumer or user and have ruled that, in keeping with modern methods of commerce and sales, an implied warranty runs between the manufacturer or wholesaler and the consumer who buys his product through a retail outlet. Three of the cases relied upon in Connecticut Pie Co. v. Lynch, supra, have been overruled or modified.4

Federal judges, in following state law, have been prone to advance implied warranty liability at the expense of the privity requirement. B. F. Goodrich Company v. Hammond, 10th Cir., 269 F.2d 501 (defective tire); Chapman v. Brown, D.Hawaii, 198 F.Supp. 78 (a flammable hula skirt); Bowles v. Zimmer Manufacturing Company, 7th Cir., 277 F.2d 868, 76 A.L.R.2d 120 (defective surgical pin); McQuaide v. Bridgeport Brass Company, D.Conn., 190 F.Supp. 252 (insect spray); Spada v. Stauffer Chemical Company, D.Or., 195 F. Supp. 819 (herbicide); Thompson v. Reedman, E.D. Pa., 199 F.Supp. 120 (passenger in another automobile); Taylerson v. American Airlines, Inc., S.D. N.Y., 183 F. Supp. 882 (airplane instruments); Hinton v. Republic Aviation Corporation, S.D. N.Y., 180 F.Supp. 31 (passengers in allegedly defective aircraft).

In state courts, requirement of privity has been generally abandoned in food product actions based upon implied warranty violations where the food products are shown to be in the same condition as when they left the control of the manufacturer.5 Numerous other state decisions have eliminated the requirement in nonfood cases6 In the Henningsen case, supra, involving a defective steering mechanism, the Supreme Court of New Jersey, in an extensive opinion holding that lack of privity was no bar to an action against the manufacturer by a purchaser, stated (page 80 of 161 A.2d):

"With the advent of mass marketing, the manufacturer became remote from the purchaser, sales were accomplished through intermediaries, and the demand for the product was created by advertising media. In such an economy it became obvious that the consumer was the...

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