The captioned matter is now before the Court on defendant’s motion to dismiss counts I and II of plaintiff’s complaint. The instant action is brought by the personal representative of Alex F. Smith, deceased, who died as a result of injuries received when a truck which he was driving as an employee of Mayflower Mills left the road and overturned. The fatal accident was allegedly caused by a defective tire on the truck driven by the decedent, which tire had been purchased by his corporate employer, Mayflower Mills, from the defendant, Goodyear Tire and Rubber Company, at the latter’s store located in Fort Wayne, Indiana. Count I of plaintiff’s complaint proceeds upon the theory of breach of implied warranties of merchantable quality and fitness for a particular use, while Count II proceeds upon the theory of negligent manufacture. Defendant’s motion to dismiss addressed to both counts proceeds upon the theory that privity must have existed between the decedent and the defendant to enable his personal representative to maintain the instant action based upon the theories set forth in Counts I and II. That is to say that there can be no recovery upon the theory of breach of implied warranty or upon that of negligent manufacture unless the injured person was in privity with the seller or manufacturer of the allegedly defective article. Having heard oral argument and conducted independent re *818 .search, the Court concludes that it must reject defendant’s contention in both instances.
At the outset, it is uncontroverted that Indiana law controls as to the ■question raised by the instant motion, and it is the law of that state which this Court must apply. See Erie R. Co. v. Tompkins,
“Ordinarily a warranty is addressed to some particular person, generally the buyer, who alone can avail himself thereof, and the general rule is that, in order to recover for breach of warranty, privity of contract is required between the warrantor and the person seeking recovery.”
In support of this general proposition, the text author, in N. 6 at 188 of the above-cited work, cites two Indiana cases —Wallace v. Shoemaker,
Wallace v. Shoemaker, supra, involved an action for breach of an express warranty of a sow which was purchased by plaintiffs from defendants. The plaintiffs each executed notes for one-half of the purchase price. The opinion is silent as to any question of the necessity of privity to entitle a recovery. The Court concerned itself only with the question of whether under the circumstances plaintiffs were entitled to recover jointly, and very narrowly held at
“ * * *, the mere fact that each of the purchasers gave his individual note for half of the purchase money would not necessarily establish that the plaintiffs were without any joint interest in whatever cause of action might accrue to them from a breach of the warranty, so as to overthrow the finding by the court that they were entitled to recover jointly.”
Therefore, it is obvious that the court did not purport to hold that privity was essential to support a recovery. That question was not presented.
Nor was the question of essentiality of privity to sustain a recovery presented or passed upon in York Mfg. Co. v. Bon-nell, supra. The very limited question passed upon by the Court in that case was the assignability of an express warranty. This is apparent when it is perceived that the Court quoted and relied upon the earlier case of Sinker v. Kidder,
“We are not called upon to decide this question, and therefore do not do so.” Id.
In both of these eases, the Court held that partners who acquire their interests subsequent to a warranty made to the partnership as an entity are nevertheless entitled to recover on the warranty previously made. Therefore, these cases are at best ambiguous as to the question of the essentiality of privity.
The most recent annotation dealing with the essentiality of privity to recovery on the theory of breach of warranty is contained in
In connection with the above-mentioned annotation, there remains to be considered the A.L.R.2d Supplement Service 1962 Midyear Pamphlet wherein at 432 the author cites Gillam v. J. C. Penney Co.,
The conclusion, therefore, is inescapable that Indiana has never directly or by fair implication committed itself to the absolute principle for which defendant contends that privity is essential to sustain a recovery for breach of warranty. Moreover, it is unnecessary for this Court to hold that Indiana law does not require privity to enable plaintiff to recover for breach of warranty on the facts of the instant case. As indicated above, plaintiff’s decedent was an
employee
of the purchaser. This fact is of extreme significance in the light of Peterson v. Lamb Rubber Co.,
Ind.Stat.Ann. § 58-115 (Burns 1961 Repl.) deals generally with implied warranties and speaks in terms of “buyer” and “seller.” Ind.Stat.Ann. § 58-606-(Burns 1961 Repl.) defines the term, “buyer” as follows:
“ ‘Buyer’ means a person who buys, or agrees to buy goods of [or] any-legal successor in interest of such, person.” (Emphasis supplied.)
Noting a similar provision of the California Sales Act, the Court in Peterson v. Lamb Rubber Co., supra, in response-to the argument that the plaintiff-employee could not recover on the theory of" implied warranty absent privity, stated at
“In the first place, it is a matter of common knowledge, and of course known to vendor-manufacturers, that most businesses are carried on. by means of the assistance of employes and that equipment or supplies purchased by employers will in. actual use be handled by the employes, who in this respect may be said to stand in the shoes of the employer. * * * One of the customary definitions [of ‘privity’] is that, ‘privity’ denotes mutual or successive relationship to the same thing- or right of property; it implies succession. [Citations] Thus, in the-present context, the employee had the successive right to the possession and use of the grinding wheel-handed over to him by his purchaser-employer, and, we believe, should fairly be considered to be in privity to the vendor-manufacturer with respect to the implied warranties of fitness for use and of merchantable quality upon which recovery is here sought.”
Therefore, based upon the language of §; 58-606, supra, and the holding in Peterson v. Lamb Rubber Co., supra, plaintiff’s- *820 decedent’s relationship to his employer-purchaser, and consequently to defendant, is in the instant case sufficient to enable him to maintain the instant action for breach of implied warranties, even assuming, without deciding, that Indiana adheres to the privity rule. 1
Defendant’s Motion to Dismiss as to Count I must, therefore, be denied.
Defendant’s Motion to Dismiss as to Count II must similarly be denied on the authority of Elliott v. General Motors Corp., supra.
Accordingly, defendant’s Motion to Dismiss Counts I and II of plaintiff’s complaint is now denied.
Notes
. For an excellent discussion of the privity rule, see 1 Frumer & Friedman, Products Liability § 16.03 at 376 et seq. (1960).