Williams v. Chrysler Corp.

• Decision Date: 30 June 1964
• Docket Number: No. 12281,12281
• Citation: 137 S.E.2d 225,148 W.Va. 655
• Court: West Virginia Supreme Court
• Parties: Erma WILLIAMS v. CHRYSLER CORPORATION.

Page 225

137 S.E.2d 225

148 W.Va. 655

Erma WILLIAMS v. CHRYSLER CORPORATION.

No. 12281.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1964.

Decided June 30, 1964.

Syllabus by the Court.

The purchaser, from a dealer, of an automobile subject to an express warranty limiting the liability of the manufactuer to the making good of any defective parts and providing that such warranty is expressly in lieu of all other warranties, express or implied, and all other obligations or liabilities on the part of the manufacturer, may not maintain an action against such manufacturer for personal injuries allegedly received as a result of a defect in said automobile, whether the action be based on contract or tort.

Preiser, Weaver & Daugherty, George A. Daugherty, Charleston, for appellant.

Jackson, Kelly, Holt & O'Farrell, W. T. O'Farrell, Robert L. Elkins, John L. McClaugherty, Charleston, for appellee.

BROWNING, Judge.

Appellant, Erma Williams, purchased a new Dodge automobile, manufactured by Chrysler Corporation, from Tag Galyean, Inc., in June, 1959. Shortly thereafter, on August 2, 1959, while operating it with Mabel Lester as a passenger, the automobile was wrecked, allegedly as a result of a defective tie-rod. Lester instituted an action in the Court of Common Pleas of Kanawha County to recover for personal injuries against appellant, Tag Galyean, Inc., and Chrysler Corporation. Appellant answered and cross-claimed against Chrysler Corporation, though such answer and cross-claim is not contained in the record before this Court. Numerous other pleadings were filed by the various parties and sundry proceedings had, which will not be set forth here inasmuch as they do not bear directly upon the issue here presented. Chrysler Corporation then moved for summary judgment dismissing the cross-claim of appellant against it on the ground that no genuine issue of fact existed and that it was entitled to judgment as a matter of law, filing in support of the motion the affidavit of Roy V. Bolyard and a copy of the automobile purchase contract executed by appellant.

Bolyard, in his affidavit, stated that he was the salesman employed by Tag Galyean, Inc., who sold the automobile to appellant, and that appellant executed an automobile purchase contract, filed therewith, containing the following provision:

'7. It is expressly agreed that there are no warranties, express or implied, made by either the dealer or the manufacturer on the motor vehicle, chassis or parts furnished hereunder except as follows:

'The manufacturer warrants each new motor vehicle * * *, chassis or part manufactured by it to be free from defects in material or workmanship under normal use and service. Its obligation under this warranty being limited to making good at its factory any part or parts thereof which shall * * * be returned to it with transportation charges prepaid and which its examination shall disclose to its satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties expressed or implied, and all other obligations or liabilities on its part * * *.'

The trial court sustained the motion for summary judgment, the order reciting that '* * * the Court having had the benefit of the trial of the action in which the jury was unable to agree upon a verdict * * *', which action, on appeal, was affirmed by the Circuit Court of Kanawha County, the circuit judge stating in his opinion, made a part of the record herein, '* * * Apparently the Court of Common Pleas based its decision on Payne v. Valley Motor Sales, Incorporated (W.Va.1962), 124 S.E.2d 662. It is to be noted that in the Payne case the action was brought upon the warranty of the automobile dealer and did not sound in tort. In the instant case the cross-claim sounds wholly in tort, based upon negligence, and makes no reference to any warranty. Under these circumstances it seems to be well settled in West Virginia that the manufacturer is liable only where the product is inherently dangerous * * *.'

As heretofore noted, the cross-complaint of appellant is not before us but it is asserted by counsel for both parties in brief and argument, and noted by the circuit court in its opinion, that the cross-complaint 'sounds wholly in tort'. Thus the issues presented on this appeal are whether the language in the purchase contract heretofore quoted is sufficient to bar a negligence claim by a purchaser against a manufacturer and, if not, whether appellant may recover on such a claim in the absence of privity.

It is contended by counsel for the appellant in brief and argument that the sole question before this Court in this case is whether the rule of MacPherson v. Buick Motor Company (1916), 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (hereinafter referred to as the MacPherson case), is applicable in this state, and he cites decisions of this Court and of two federal courts interpreting the law of this state in support of his contention that this Court has adopted the rule of the MacPherson case. However, counsel for the appellee contends that this Court does not reach the rule of the MacPherson case in deciding the issues presented upon this appeal and cites the very recent decision of this Court in Payne v. Valley Motor Sales, Inc., 146 W.Va. 1063, 124 S.E.2d 622 (hereinafter referred to as the Payne case), as controlling the principal issue presented upon this appeal. Counsel for the appellee further contends that if that issue be reached the rule of the MacPherson case is not applicable inasmuch as there is privity of contract between the plaintiff Williams and the Chrysler Corporation, relying principally upon the language of the contract heretofore quoted.

Perhaps in order that the issues before this Court be presented in their true perspective, reference should be made to the English case of Winterbottom v. Wright 10 M. & W. 109, 152 Eng.Reprint 402, decided in 1842 (hereinafter referred to as the Wright case). This state came into existence twenty-one years after the decision of the Wright case, but Article VIII, Section 21, of our Constitution provides that the common law in existence at the time of the adoption of our Constitution shall, unless changed by the Legislature, be and remain the law of this jurisdiction. Succinctly, the Wright case held that if A. and B. entered into a contract, C. could not maintain an action or suit against A. whether it be ex contractu or ex delicto inasmuch as there was no privity between A. and C. Lord Abinger stated in the opinion of the Wright case that if it should ever be held that C. could successfully maintain an action or suit against A. under those circumstances there would result 'the most absurd and outrageous consequences, to which I can see no limit,'. It was held in the MacPherson case that the purchaser of an automobile from a dealer who had in turn purchased the automobile from the General Motors Corporation could maintain an action for injury received while operating the automobile if the purchaser of the vehicle could by a preponderance of the evidence prove that the injury resulted from the wrecking of the automobile, which in turn had been caused by the negligent manufacture of the vehicle. An article by William L. Prosser, Dean, School of Law, University of California, entitled 'The Assault Upon the Citadel', 69 Yale Law Journal 1099 (1960), is quoted from at length by counsel for the appellant in his brief. If the author of that article is correct in his appraisal of the decisions of the different courts of this country upon this question, there remains only 'two highly unlikely exceptions' to the MacPherson rule--that being the states of Mississippi and Virginia. Inasmuch as West Virginia is one of the other forty-eight states it is apparent into which classification Dean Prosser has placed us.

There can be no doubt that this Court and all of the other courts of last resort of this country have established exceptions to the rule laid down in the Wright case. The most general of these exceptions, and one apparently adopted by this Court, is to the effect that the seller of a chattel owes to any person who might be expected to use it a duty of reasonable care in its manufacture if the chattel is 'inherently' or 'imminently' dangerous. Perhaps all that the New York Court did in the MacPherson case was to extend the exception to the rule by finding that an automobile would fall into the category of being a dangerous instrumentality when it can be said that it will be used by persons other than the initial purchaser and used without tests being made by the owner to reveal latent defects. Many courts, apparently including this one, have held that explosives and other inherently dangerous chattels, as well as poisonous substances and perhaps other goods manufactured for consumption by individuals, are exceptions to the rule of privity if harm comes to the user of such article and it can be proved that the injury resulted proximately from the negligent manufacture or preparation of such article.

Peters v. Johnson, Jackson & Co., 50 W.Va. 644, 41 S.E. 190, was an action of trespass on the case wherein the jury and the trial court found for the defendant but this Court reversed the judgment entered upon the verdict and remanded the case for a new trial. It was alleged in the declaration that the defendants sold to Peters 'through his agent by mistake saltpetre for epsom salts, and that the plaintiff having taken the saltpetre, believing it to be epsom salts, became sick and suffered great impairment of health.' This is the fourth syllabus point of that case: 'Only the parties to a contract can sue for damage from its breach; but where, in executing it, things of imminently dangerous character are used, from which injury may probably happen to others, the law places him who executes the contract under duty to so perform it as not injure strangers to it, and such...