Simpson v. Powered Products of Mich., Inc.

CourtCourt of Common Pleas of Connecticut
Citation192 A.2d 555,24 Conn.Supp. 409
Decision Date21 February 1963
Docket NumberNo. 84951,84951

Kennedy & Zaccagnino, Hartford, for plaintiff.

Joseloff, Murrett & Throwe, Hartford, for named defendant.

Cooney & Scully, Hartford, for defendant The Magovern Company, Inc.

LUGG, Judge.

The following facts are material to the instant issue. Powered Products of Mich., Inc., manufactures power golf carts under the brand name of 'Caddy Car,' one of which it sold to The Magovern Company, Inc., hereinafter referred to as 'Magovern.' The latter transferred the cart to Gerardi, a golf professional, under an agreement providing for the return thereof at his option if it was not suited to his purposes. Simpson rented the car from Gerardi and was caused to fall, while occupying it, by reason of the falling apart or loosening of arm and back rests. He now claims damages against all three defendants for the resulting injuries, in a substituted complaint the second count of which asserts inter alia that '[t]he defendant Magovern Co., Inc., by means of extensive advertisement and other means impliedly and/or expressly warranted to the defendant Ernest J. Gerardi and to the plaintiff Chester Simpson, in his capacity as a member of the general public, that said Caddy Car and all other Caddy Cars old [sic] by it were safe and fit for their intended use.' Magovern demurs to this count for the reason that it 'does not set forth a cause of action in warranty, because it appears from the Complaint that the plaintiff did not purchase said power golf car and, therefore, there was no sale from which a warranty would arise.' The narrow ground thus stated, if taken strictly in terms, is within the holding of Hamon v. Digliani, 148 Conn. 710, 711, 174 A.2d 294, 295 (1961), and should be overruled. 'The defendants demurred to this count on the sole ground that no privity of contract nor any sale between them and the named plaintiff, hereinafter called the plaintiff, was alleged.' Ibid. Such a restricted literal construction of this demurrer would obviously evade the several other issues raised.

The second count of the complaint, here in question, is to be tested on demurrer by the facts provable under its allegations. 'If any facts which are provable under the allegations of the * * * [count] would support the cause of action relied on, the demurrer must fail.' Oppenheimer v. Connecticut Light & Power Co., 149 Conn. 99, 102, 176 A.2d 63, 64 (1961). The allegation of a direct warranty from Magovern might, if supported by the evidence, give rise to a cause of action against it by the plaintiff. However, it is also set forth that Simpson leased the cart from the ultimate purchaser, Gerardi. The fundamental point raised by the defendant Magovern in its brief is that it is the character of this transaction as a lease, as distinguished from a sale, which cuts off any passage of a warranty from Magovern to the plaintiff. Simpson contends he has a right of action based on breach of warranty despite the nature of his status as a lessee. 'Under these circumstances the court, in the interest of economy of judicial procedure, * * * has decided to take the case as presented by the parties.' Swainbank v. Coombs, 19 Conn.Sup. 391, 394, 115 A.2d 468, 471 (1955); see also International Union, etc. v. General Electric Co., 148 Conn. 693, 697, 174 A.2d 298 (1961); Anselmo v. Cox, 135 Conn. 78, 79, 60 A.2d 767 (1948).

The plaintiff's first argument in support of his claimed right of action against Magovern is that the warranties he relies on are common-law warranties and not warranties subject to the Sales Act, and that therefore a sale is not a prerequisite. To buttress this, he quotes from Hamon v. Digliani, supra, 148 Conn. 716, 174 A.2d 294, 296 'These cases, and others of similar import, rely on the original concept of an action for breach of warranty, that is, that it sounds in tort and is based on the plaintiff's reliance on deceitful appearances or representations rather than on a promise. * * * 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.' This argument of the plaintiff fails to grasp the significance of the word 'buyer' in the quoted language. Although the right of action sounded in tort, it was still an action on a breach of warranty arising from a contractual relationship, springing from a purchase and running in favor of a buyer. Hence the result claimed by the plaintiff does not follow from the authority quoted.

The plaintiff further argues, however, that the dealer's warranty to Gerardi should be extended to the plaintiff since it was in the contemplation of Magovern that he might be a user of the car, and because he is a third party beneficiary to the sales contract between Gerardi and Magovern. It should be kept in mind in this discussion that the usual question of privity has to do with ultimate purchaser against manufacturer. That, of course, was the point discussed in the Hamon case, supra. Here, the issue is whether or not the warranty of the retailer-seller to the purchaser extends to the latter's lessee. Stated another way, it is whether or not the plaintiff lessee is, on any ground, within the group of persons to whom the warranty of fitness may be construed to extend.

Very large numbers of such golf cars as the one here are in use on courses throughout this state and this country. At least a major percentage of them are owned and maintained by organizations or individuals operating such courses for rental to players rather than by the players themselves. This is a matter of common knowledge and as such is subject to judicial notice. Silverman v. Swift & Co., 141 Conn. 450, 458, 107 A.2d 277 (1954). 'Facts patent to all persons concerning popular pastimes of the people are judicially known.' 31 C.J.S. Evidence § 83, p. 678.

The defendant Magovern's memorandum on its demurrer makes clear as one of its main points that Simpson leased and did not purchase the Caddy Car from Gerardi and hence does not have a cause of action against him on breach of warranty. This being so, it claims, a fortiori, he does not have a cause of action against this defendant. The point is well made vis-a-vis the facts in the Hamon case, supra. The latter concerned a plaintiff who was a purchaser from the retailer. The latter was in turn a direct purchaser from the manufacturers, who sought to escape liability for the plaintiff's injuries on the ground of no privity of contract and no sale to the plaintiff. Hamon therefore concerned a series of sales, while the instant case involves a series of sales terminating in a lease or rental agreement. Obviously, however, the latter is still a contractual relationship, as is a sale.

The same mamorandum also mentions as a distinguishing feature between this and the Hamon case that what that case was concerned with was a product in a sealed package or container. This is true, but it gives rise to a further connotation to which the defendant does not proceed. A product in a sealed container does not lend itself to inspection by successive wholesalers, jobbers and retailers. The product here in issue is not such a packaged article and would hence, in passing through this defendant's hands, be open to inspection and examination by this defendant without suffering obvious impairment to its marketability consequent thereon.

Defendant's memorandum also correctly states that the Hamon decision was concerned with the national scope and character of advertising by the manufacturer, thus 'himself inducing the public to use his product and thus circumventing the reliance by the consumer upon the retailer' (italics added). The needs only a reading of the second count to demonstrate the invalidity of this point here. As noted above, it is explicitly alleged that this defendant 'by means of extensive advertisement and other means impliedly and/or expressly warranted to the defendant Ernest J. Gerardi and to the plaintiff Chester Simpson, in his capacity as a member of the general public, that said Caddy Car and all other Caddy Cars old [sic] by it were safe and fit for their intended use.' Hamon, 148 Conn. p. 717, 174 A.2d p. 297, was concerned in major degree with just this 'alluring enticement,' and the quoted allegation appears to be an effort to bring that phase of this case within its scope. 'We point out that we are concerned here only with the sufficiency of the second count to withstand demurrer and not with the proof which will be required on the trial.' Id., 148 Conn. 718, 174 A.2d 298.

Defendant's memorandum refers to the concern of the Hamon opinion with circuity of action. This is true, but it does not lead into defendant's non sequitur that therefore it abolished the requirement of privity only under the narrow circumstances there presented. If this plaintiff were to gain a recovery against Gerardi, his immediate contractor, on the theory either of breach of warranty or negligence, Gerardi could initiate precisely that series of 'several separate and distinct pieces of costly litigation by those in the chain of title' which the Hamon opinion deplored. Dean Prosser, in his article, 'The Assault upon the Citadel (Strict Liability to the Consumer),' 69 Yale L.J. 1099, 1124 (1960) (cited in the Hamon opinion, 148 Conn. p. 713, 174 A.2d p. 297), sums up: 'This is an expensive, time-consuming, and wasteful process, and it may be interrupted by insolvency, lack of jurisdiction, disclaimers, or the statute of limitations, anywhere along the line. What is needed is a blanket rule which makes any supplier in the chain liable directly to the ultimate user, and so short-circuits the whole unwieldy process. This is in the interest, not only of the consumer, but of the courts, and even on occasion of the...

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