Steinberg v. Coda Roberson Const. Co.
Decision Date | 01 April 1968 |
Docket Number | No. 8489,8489 |
Citation | 79 N.M. 123,440 P.2d 798,1968 NMSC 55 |
Parties | Mr. & Mrs. Nat STEINBERG, Plaintiffs-Appellees, v. CODA ROBERSON CONSTRUCTION CO., Defendant-Appellant. |
Court | New Mexico Supreme Court |
The plaintiffs were awarded judgment in the Small Claims Court of Bernalillo County in the amount of $465.42 for repairs necessitated by leakage of the roof of a house built by the defendant and presently owned by the plaintiffs. Upon appeal, the District Court of Bernalillo County entered judgment affirming the judgment of the Small Claims Court, and the defendant again appeals.
The record reveals that in January of 1959 the appellant sold the house in question to a couple named Bell. As part of sale the appellant delivered to the Bells a booklet entitled 'The Inside Story of Your New Quality ROBERSON Home.' At the top of the last page of the booklet the word 'GUARANTEES' is printed, and directly under that is printed 'Roof--10 Years' followed by other so-called guarantees.
In November of 1963 the Bells sold the house to the appellees. The roof began to leak between November 1963 and December 1964. Appellees notified the appellant of the leakage, but appellant took no affirmative action in the matter. As a result of the leakage, it was necessary to repair the house. The amount awarded for repairs is not in controversy.
The appellant contends that it is not liable in either negligence or warranty for the deterioration of the roof. Although appellant is willing to treat this case as though it were a manufacturer of personalty, it argues that a manufacturer is liable for negligence to a purchaser not in privity with the manufacturer only when a casualty results from a product which, when defective, is reasonably certain to endanger life and limb, citing MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696; Trans World Airlines v. Curtiss-Wright Corp., 1 Misc.2d 477, 148 N.Y.S.2d 284, aff'd 153 N.Y.S.2d 546; Fentress v. Van Etta Motors, 157 Cal.App.2d Supp. 863, 323 P.2d 227 (1958).
The law of manufacturers' liability has been confusing since the days of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (1842), when tort and contract law became intermingled by the dicta of that court and 'privity of contract' became a factor in manufacturers' tort liability. Carter v. Yardley & Co., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559. Since that time, and as the dominance of the industrial complex in our society has created a need for an increase in the purview of manufacturers' responsibilities to the public, courts have noted various exceptions to the privity of contract requirement. Consequently, cases in this field became what has been termed 'hopelessly at a variance.' Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873. Under the present posture of the law, the great weight of authority no longer recognizes privity of contract as having a place in tort law. Carter v. Yardley & Co., supra; Spence v. Three Rivers Builders & Masonry Supply, Inc., supra; Fisher v. Simon, 15 Wis.2d 207, 112 N.W.2d 705; American Reciprocal Insurers v. Bessonette, 235 Or. 507, 384 P.2d 223, 385 P.2d 759. See 46 Am.Jur., Sales, § 812 (Cum.Supp.1967); 1 Frumer & Friedman, Products Liability, § 5.03, 5.03(1) note 20, 5.03(2), 5.03(5)(b); Annots., 16 A.L.R.3d 683; 74 A.L.R.2d 1111; 164 A.L.R. 569.
By our cases this court has generally accepted what has been described as the general rule, Wood v. Sloan, 20 N.M. 127, 148 P. 507, L.R.A.1915E, 766, 12 N.C.C.A. 562 and Reif v. Morrison, 44 N.M. 201, 100 P.2d 229, and having done so we now fall in line with the current trend and adopt the reasoning and the statement expressed in Smith v. Atco Company, 6 Wis.2d 371, 94 N.W.2d 697, 74 A.L.R.2d 1095, which reads:
Privity of contract no longer being recognized as a factor when considering liability on a negligence...
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