Barfield v. United States Rubber CompanyBarfield v. United States Rubber Company
John W. Boult and Edward M. Waller, Jr., of Fowler, White, Gillen, Humkey & Kinney, P.A., Tampa, for defendant.
LILES, Acting Chief Judge.
The Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, certified the following question to this court:
“Is the cause of action ordered to be reinstated by the Court‘s decision in Barfield v. Atlantic Coast Line Railroad Company, 197 So. 2d 545 (Fla. DCA 2d, 1967) governed by the three year statute of limitations set forth in
Florida Statutes § 95.11(5) (e) , or by the four year statute of limitations set forth inFlorida Statutes § 95.11(4) .”
The trial court stated that the point of law involved “may be determinative of the cause and is without direct controlling precedent in the state and instructions from the District Court of Appeal will facilitate the proper disposition of this cause * * *.”
The facts in Barfield v. Atlantic Coast Line Railroad Company, supra, were that plaintiffs filed suit against defendant manufacturer to recover damages resulting from an alleged breach of implied warranty by the defendant. Defendant sold certain rubber hose to plaintiffs’ employer. Subsequently, while plaintiffs were using this hose to pump gasoline from a tanker, gasoline escaped from an eight inch slit on the underside of the hose and caused an explosiion. Plaintiffs were severely burned.
More than three but less than four years after this accident, plaintiffs filed suit alleging negligence and breach of warranty. Only the cause of action alleging breach of warranty was before the court below and is now before this court. Defendant had raised the defense that the statute of limitations governing causes of action arising from breach of unwritten contracts bars this suit.
“Actions other than those for the recovery of real property can only be commenced as follows:
* * * * * *
“(5) Within three years. — * * * (e) And an action upon a contract, obligation or liability not founded upon an instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on store accounts.”
Generally, cases dealing with this section have restricted its applicability to actions of a strictly contractual nature. See, e.g., Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 3d Cir.1966, 372 F.2d 18 (“liability not founded upon an instrument of writing” encompasses action for indemnity); McNair v. Burt, 5th Cir.1934, 68 F.2d 814; Warner v. Ware, 1938, 136 Fla. 466, 182 So. 605; Schenkel v. Atlantic National Bank, Fla. App. 1962, 141 So. 2d 327. However, this court, in Creviston v. General Motors Corp., Fla.App. 1968, 210 So. 2d 755, 757, indicated that the three year statute of limitations of
Proceeding from the earthy but accurate observation of Lord Ellenborough in Gardiner v. Gray, H.L. 1815, 4 Camp. 144, 171 Eng.Rep. 46, that “The purchaser cannot be supposed to buy goods to lay them on a dunghill,” our courts have developed and are continually developing a body of law pertaining to products liability in a fashion that has been termed the model of the growth of a common-law institution.1 As much as any area of the common law, the jurisprudence of products liability reflects the “complex, highly industrialized, Madison Avenue, 25-inch screen, `hard sell,’ atomic age of the expert in which we live.”2 In light of the prodigious growth of this body of law, which has witnessed in recent years the elimination of privity as a requirement in consumer suits based on implied warranty against the manufacturer and the inapplicability of disclaimer clauses to such suits, see Manheim v. Ford Motor Co., Fla. 1967, 201 So. 2d 440; Barfield v. Atlantic Coast Line Railroad Co., Fla.App. 1967, 197 So. 2d 545; Bernstein v. Lily-Tulip Cup Corp., Fla.App. 1965, 177 So. 2d 362, aff‘d, Fla. 1966, 181 So. 2d 641; and Ford Motor Co. v. Pittman, Fla.App. 1969, 227 So. 2d 246; Crown v. Cecil Holland Ford, Inc., Fla.App. 1968, 207 So. 2d 67, the precedent of a past decade or even of a past year is at times of less value than in other areas of law. Cognizant of this situation, we turn to an examination of Florida cases bearing on the issue certified to this court.
As stated in the certificate of the question in the instant case to this court, there is no direct controlling precedent. We agree. Yet when examining decisions that may shed some light on the problem, it must be remembered that the question is not whether a cause based on implied warranty by a consumer against a manufacturer
Whiteley v. Webb‘s City, Inc., Fla. 1951, 55 So. 2d 730, cited by defendant for the proposition that breach of implied warranty is ex contractu, is inapposite under the facts sub judice, for it deals with a suit against a retailer rather than a manufacturer. In such a situation different principles of law apply. For example, privity is still required in such suits, Carter v. Hector Supply Co., Fla. 1961, 128 So. 2d 390, and the potential applicability of the Uniform Commercial Code,
Hopkins v. Lockheed Aircraft Corp., Fla. 1967, 201 So. 2d 743, on rehearing, 201 So. 2d 743, does not contravene this analysis, for that case stands for the proposition that choice of law doctrines applicable to tort actions may be inappropriate in proceedings based on implied warranty. Since implied warranty as applied to consumer suits against a manufacturer is generally recognized to be a concept based neither on fault nor failure to exercise reasonable care, see 2 Frumer & Friedman, Products Liability, 1968, § 16.01[1], it is not “tortious” in the traditional sense of that word. However, this does not mean that it is contractual. When a manufacturer cannot absolve himself of liability in implied warranty through contract; when no privity is required for the ultimate consumer or user of a manufacturer‘s product to bring suit against him; and when the provision of the Uniform Commercial Code pertaining to exclusion or modification of warranties is held to be inapplicable to such suits, it would take a large measure of imagination to find such an action to be contractual in nature. See Prosser, Torts, 3d ed. § 97, pp. 678-681.
For the foregoing reasons we are unable to see how consumer actions against a manufacturer based on implied warranty come within the specific3 provisions of
MANN and McNULTY, JJ., concur.