Wyatt v. North Carolina Equipment Co., 169

Decision Date23 November 1960
Docket NumberNo. 169,169
Citation253 N.C. 355,117 S.E.2d 21
PartiesCliff R. WYATT v. NORTH CAROLINA EQUIPMENT COMPANY.
CourtNorth Carolina Supreme Court

William N. Puett and Ernest R. Warren, Gastonia, for plaintiff, appellant.

Allen & Hipp, Thomas W. Steed, Jr., Raleigh, and L. B. Hollowell, Gastonia, for defendant, appellee.

BOBBITT, Justice.

A warranty, express or implied, is contractual in nature. Whether considered collateral thereto or an integral part thereof, a warranty is an element of a contract of sale. 77 C.J.S. Sales § 302; 46 Am.Jur., Sales § 299.

'The obligation arising under a warranty is that of an undertaking or promise that the goods shall be as represented or, more specifically, a contract of indemnity against loss by reason of defects therein.' 77 C.J.S. Sales § 302(d). 'The effect of an express warranty undoubtedly is to bind the seller absolutely for the existence of the warranted qualities. If an implied warranty is properly called a warranty, the consequences should be similar. It should make no difference, therefore, whether the seller was guilty of any fault in the matter. ' Williston on Sales, Revised Edition, § 237.

'Subject to some exceptions and qualifications, it is a general rule that only a person in privity with the warrantor may recover on the warranty.' 77 C.J.S. Sales § 305(b); 46 Am.Jur., Sales § 306.

Our decisions are in accord. Thomason v. Ballard & Ballard Co., 208 N.C. 1, 179 S.E. 30, and cases cited. Absent privity of contract, there can be no recovery for breach of warranty except in those cases where the warranty is addressed to an ultimate consumer or user. Ordinarily, the rule that a seller is not liable for breach of warranty to a stranger to the contract of warranty is applicable to an employee of the buyer. Berger v. Standard Oil Co., 126 Ky. 155, 103 S.W. 245, 11 L.R. A.,N.S., 238. Negligence is the basis of liability of a seller to a stranger to the contract of warranty. Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582, and cases cited; Caudle v. F. M. Bohannon Tobacco Co., 220 N.C. 105, 16 S.E.2d 680.

In Simpson v. American Oil Company, 217 N.C. 542, 8 S.E.2d 813, 815, cited by appellant, Seawell, J., referring to Thomason, supra, said: 'The Court simply held that the purchaser from the retail dealer was neither party nor privy to the contract between the vendor and vendee and, therefore, could not avail himself of any warranty that may have existed between them. ' In Simpson, the basis of plaintiff's cause of action against the manufacturer and distributor of 'Amox' was the warranty to the ultimate consumer appearing on the can sold to the druggist and purchased from him by plaintiff. In this connection, see Williston, op. cit., § 244(a).

In Davis v. Radford, 233 N.C. 283, 63 S.E.2d 822, 24 A.L.R.2d 906, cited by appellant, a retailer of 'Westsal,' having been sued for damages for the alleged wrongful death of his customer on account of breach of implied warranty that the product was fit for human consumption, was held entitled to join the wholesaler from whom he purchased the product and to recover over against the wholesaler for any loss he might suffer on account of plaintiff's action. While the question was not presented for decision, the opinion of Devin, J. (later C. J.), intimates that, under the ruling in the Simpson case, the plaintiff, had he elected to do so, could have maintained an action against the wholesaler. The pleadings disclosed that 'Westsal,' a salt substitute, was a patented bottled product. The wording of the notice or label appearing on the sealed bottle of 'Westsal' is not disclosed.

The alleged warranties were made by defendant to the Construction Company incident to the sale of February 15, 1955; and plaintiff, a stranger to that transaction, does not allege facts sufficient to entitle him to recover damages for breach thereof.

In respect of negligence, this general statement is pertinent:

'One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so. ' Restatement, Torts, § 388.

'Liability may be imposed on a manufacturer who sells an article likely to cause injury in its ordinary use because of some latent defect or because inherently dangerous in the use to which he knows it will be put. ' Lemon v. Buchan Lumber Co., 251 N.C. 675, 677, 111 S.E.2d 868, 869; Tyson v. Long Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170; Gwyn v. Lucky City Motors, Inc., 252 N.C. 123, 126, 113 S.E.2d 302.

As to the seller of a chattel known to have been manufactured by another, the rule has been stated as follows: 'A vendor of a chattel made by a third person which is bought as safe for use in reliance upon the vendor's profession of competence and care is subject to liability for bodily harm caused by the vendor's failure to exercise reasonable competence and care to supply the chattel in a condition safe for use. ' Restatement, Torts, § 401. Under this rule, liability depends upon whether such seller, by the exercise of reasonable care, could have discovered the dangero is character or condition of the chattel. Restatement, Torts, § 402.

Plaintiff alleges the Loader was 'inherently dangerous' and 'likely to cause great injury to its operator. ' As stated by Rodman, J., in Lemon v. Buchan Lumber Co., supra: 'It is not sufficient to merely allege that an article is inherently dangerous. Unless the mere descriptive name indicates the dangerous character, the pleader must set out the facts which are relied upon to fix the dangerous character of the article.'

Defendant was not the manufacturer of the International Harvester Loader. It sold and serviced such equipment. While plaintiff alleges defendant knew or by the exercise of due care should have known of the alleged defects, he also alleges the defects were latent and not capable of detection by ordinary care.

Plaintiff alleges the 'bucket' and 'loading device' were...

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