432 Pa. 217 | Pa. | 1968
Lead Opinion
Opinion by
Appellants, man and wife, are engaged in the business of breeding Charoláis cattle. On December 14, 1961 they placed an order for cattle feed with defendant-appellee, Pritts. This feed was to be blended by
Fearing that the feed supplement used in appellants’ formula had somehow caused the malfunctioning of the Kassab’s cattle, a chemical analysis was made which revealed the presence of a drug known as “stilbestrol” in the feed, and more particularly in the feed supplement, Cattle Blend. Although appellees contest this fact the trial judge, sitting without a jury, found on the basis of competent evidence that stilbestrol was in the feed, a finding which this Court will not disturb on appeal. It is conceded by all concerned that stilbestrol is customarily added to feed for beef cattle since it has a tendency to make the cattle gain weight. However, it is also conceded that stilbestrol is a synthetic hormone which tends to accentuate the female characteristics in animals, inducing heat and abortions in cows and sterility in bulls. Accordingly, feed containing this drug is not recommended for breed cattle. In fact, a federal regulation requires that feed containing stilbestrol be so labeled and that this label state, inter alia, that the feed is not to be fed to breeding or dairy animals. 21 Code of Federal Regulations §121.241 (1964). It is finally conceded that no such label appeared on the bag of Cattle Blend used by Pritts in compounding appellants’ feed formula. Ob
Alleging (1) that the stilbestrol in the feed caused their cows to abort and their bull to become sterile; and (2) that community knowledge of what the herd had eaten resulted in appellants’ inability to sell their stock except at beef prices thus greatly diminishing the value of appellants’ property, Mr. and Mrs. Kassab commenced this action in assumpsit against Pritts and Central Soya. The case was heard before a judge sitting without a jury. At the conclusion of the testimony on the issue of liability for breach of contract, the court and counsel agreed that no written opinion need be filed, but rather that the judge could announce his decision on liability from the bench, thereby dispensing with the need for hearing testimony on damages should the court find for defendants. Accordingly, the court announced a verdict for defendants, and orally (later in a written opinion) stated that, although it found that stilbestrol was present in the feed contrary to the formula ordered, nevertheless there should be a verdict for defendants because the court believed defendants’ expert who testified that the amount of drug in the feed could not have caused the abortions and sterility complained of. This appeal followed.
I.
Appellants first argue that the court below erred in announcing its decision from the bench and in filing an opinion without conclusions of fact or law. It
The record clearly reveals that the trial judge was well aware of the rules governing trials without a jury. At the conclusion of the evidence on liability, he summoned both counsel to side bar and discussed with them the possibility of dispensing with the requirements of the Act of April 22, 1874, P. L. 109, §2, as amended, 12 P.S. §689, that the decision of the court be in writing. The court first properly pointed out that, from a formal viewpoint, it could not resort to Pa. E. C. P. 1048 which does allow an oral decision to be rendered from the bench because Rule 1048 applies only to trespass actions. However, while not being able to invoke Rule 1048 on its own motion, the court assumed that, with the consent of both counsel, there would be nothing to prevent it from waiving the requirements of the Act of 1874 and, in fact, using a Eule 1048 type procedure. To this both lawyers readily agreed. Now, the losing party below, while candidly admitting to this Court that he consented to everything done in this respect by the trial court, urges us to reverse for failure to comply with the Act of 1874. It is appellants’ contention that regardless of what they might have consented to, the act is mandatory and, by requiring a formal written opinion, obviously demands that all evidence, on liability and damages, be heard.
Such a contention evokes little sympathy from this Court. We are not here dealing with a constitutional right, a waiver of which is always approached with the utmost caution. Instead, this is a civil action wherein both parties are represented by counsel. That
Appellants next attack the procedure of this litigation on the ground that the Act of April 22, 1874, P. L. 109, §1, 12 P.S. §888 was not properly applied. This section requires that a suit may be tried without a jury only if the parties so stipulate by agreement filed “in the proper office where such suit is pending.” It appears that, in the present case, shortly before the court announced its verdict the judge discovered that no such agreement had been filed. Again, both parties agreed to read the required stipulation into the record at that point in the trial. This was done and appears of record at page 712a. Appellants now maintain that the entire suit must be retried because the agreement was not submitted to the court before trial. For the same reasons set forth in the preceding paragraph this contention is without merit. This Court said of á consensual failure to comply with practically identical language in Article 5, section 27 of our state Constitution: “There was no formal agreement for such submission [to a judge sitting alone] and waiver [of a jury] filed in this case; but to allow
II.
Turning to the merits of this controversy, appellants maintain that the court below, having found as a fact that stilbestrol was in the feed contrary to the formula ordered, had no choice but to find for them on the issue of liability, since the tainted feed constituted a clear breach of the implied warranty of merchantability and of the warranty of fitness for a particular purpose. With this contention we agree. The court declared that it was basing its decision of no breach of warranty on its finding that plaintiffs failed to establish that the tainted feed caused any injury to their cattle. But the question of injury, we believe, goes only to the amount of damages and will not affect a finding that the contract itself was breached. Accordingly, on the facts as found appellants were at least entitled to a verdict in their favor for nominal damages.
We reach this conclusion as to liability for breach of warranty only after rejecting the arguments of the two defendant-appellees that they are individually not
At the outset, it is clear that the privity issue is properly before this court. Appellees raised the privity issue initially in a nonsuit motion, at the close of appellants’ evidence. Although the privity issue was not raised again before the trial court, the parties, at the conclusion of appellees’ evidence, chose to proceed under Pa. R. C. P. 1048.
Before this Court, appellees again have properly raised the privity issue as a ground for affirmance. This issue, having been properly raised throughout this proceeding, must now be decided.
Indeed, were we to continue to adhere to the requirement that privity of contract must exist between plaintiff and defendant in order to maintain an action in assumpsit for injuries caused by a breach of implied warranty, there would be no doubt that Soya could escape liability under the authority of Miller v. Preitz, 422 Pa. 383, 221 A. 2d 320 (1966). However, we take this opportunity today to reconsider one of our holdings in that case, and accordingly this Court is now of the opinion that Pennsylvania should join the fast growing list of jurisdictions that have eliminated the privity requirement in assumpsit suits by purchasers against remote manufacturers for breach of implied warranty.
We realize that prior to the adoption of section 402a of the Restatement of Torts by this Court, see Webb v. Zern, 422 Pa. 424, 220 A. 2d 853 (1966), a rather compelling argument against discarding privity in assumpsit actions for breach of warranty existed. Under the Uniform Commercial Code, once a breach of
However, with Pennsylvania’s adoption of Restatement 402a, the same demands of legal symmetry which once supported privity now destroy it. Under the Restatement, if an action be commenced in tort by a purchaser of a defective product against a remote manufacturer, recovery may be had without a showing of negligence, and without a showing of privity, for any damage inflicted upon the person or property of the plaintiff as a result of this defective product. The language of the Restatement is both clear and emphatic: “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with
The majority opinion in Miller candidly admits that the policy considerations underlying the imposition of strict liability in tort are precisely the same as those which dictate the abolition of privity in contract actions for breach of warranty.
The explanation offered by the Court in Miller for not abolishing “vertical” privity of contract in breach
The answer to this question is provided in the clearest of language by the drafters of the code in comment 3 to section 2-318. Merely to say that our Legislature never enacted the comments into law does not, of course, preclude this Court from examining
Curiously, the imagined limits on the Court’s power under the code to discard vertical privity have not prevented us from eliminating the privity requirement in cases involving tainted food. See, e.g., Caskie v. Coca-Cola Bottling Co., 373 Pa. 614, 96 A. 2d 901 (1953); Hochgertel v. Canada Dry Corp., 409 Pa. 610, 614, 187 A. 2d 575, 578 (1963) (dictum). We now believe that the time has come to recognize that the same policy reasons underlying the food cases also underlie cases involving defective nonedibles which cause injury. When it is considered that continued adherence to the requirements of vertical privity results merely in perpetuating a needless chain of actions whereby each buyer must seek redress for breach of warranty from his own immediate seller until the actual manufacturer is eventually reached, and in memorializing the unwarranted notion that a change in the caption of a complaint can completely alter the result of a lawsuit, our course becomes well marked. Vertical privity can no longer commend itself to this Court.
To retain this tort-contract dichotomy with its haphazard, crazy quilt of exceptions Rnd appendages can only cause Justice Voelker’s language (speaking for the Supreme Court of Michigan when that tribunal abolished the privity requirement) to ring painfully
III.
We now turn to the contention of appellee John Pritts, the merchant who actually blended appellants’ feed mixture and sold the tainted feed supplement. Pritts maintains that he cannot be liable under section 2-315 of the Uniform Commercial Code for breach of an implied warranty of fitness for a particular purpose since appellants in no way relied on his skill and judgment in selecting a suitable feed for their cattle. We need not face the question of liability under section 2-315, however, since, under the facts here pleaded, there certainly existed the implied warranty of merchantability under section 2-314; and this warranty was clearly breached by Pritts. As a seller who deals regularly in cattle feed, appellee impliedly warranted that the feed supplement sold to appellants was fit for the ordinary purposes for which such supplement is used. Obviously this supplement was not so fit, since it contained a specific drug that is never to be used for breeding cattle.
Finally, we must address ourselves to the issue of recoverable damages for this breach of warranty. As we noted earlier in this opinion, the court below erred when it concluded that no breach of warranty existed because appellants did not prove that the stilbestrol present in the feed actually caused the cows to abort and the bull to become sterile. The breach of warranty was made out, and appellees shown liable at least for nominal damages, simply by proof that stilbestrol was in fact present in the feed contrary to the formula ordered. However, since there was sufficient evidence to sustain the lower court’s finding that the abortions and sterility were not proximately caused by this stilbestrol, we have no choice but to hold that appellants have not demonstrated that particular element of damages.
Nevertheless, because the court below erroneously held that no breach of warranty occurred, it refused to hear any testimony on the second element of damages set forth in appellants’ amended complaint wherein it is alleged that the value of the herd has been seriously affected by the cattle buying community’s knowledge that these animals ate tainted feed. We believe that under section 2-715(2) (b) of the Uniform Commercial Code
The judgment of the Court of Common Pleas of Washington County is vacated, and the record remanded for further proceedings consistent with this opinion.
Although Pa. R. O. P. 1048 by its terms applies to trespass actions, the trial judge, with the agreement of the parties, chose to utilize it here.
We take no position as to whether under these facts, we could also choose to hear the privity issue, even if not properly
See, e.g., Gherna v. Ford Motor Co., 246 C.A. 2d 639, 55 Cal. Rptr. 94 (1966); Smith v. Platt Motors, Inc., 137 So. 2d 239 (Fla. App. 1962); State Farm Mut. Auto. Ins. Co. v.
See, e.g., Jaeger, Privity of Warranty: Has the Tocsin Sounded? 1 Duquesne L. Rev. 1 (1963); Jaeger, How Strict is the Manufacturer’s Liability?; Recent Developments, 48 Marq. L. Rev. 293 (1964-65); Keeton, Products Liability-Liability Without Fault and the Requirement of a Defect, 41 Texas L. Rev. 855 (1963) ; Prosser, The Fall of the Citadel, 50 Minn. L. Rev. 791 (1966); Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960); Speidel, The Virginia “Anti-Privity” Statute: Strict Products Liability under the Uniform Commercial Code, 51 Va. L. Rev. 804 (1965); Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn. L. Rev. 363 (1965); Note, Strict Products Liability and the Bystander, 64 Colum. L. Rev. 916 (1964).
“Consumer” as here used is not restricted only to the “Purchaser” of the defective product, but also extends under section 2-318 of the U.C.C. to others who in fact use the defective goods and whose person or property is injured thereby. The exact limits' of the class of such other persons (not the purchaser) who may sue a remote manufacturer in assumpsit, or for that matter anyone in the distributive chain, without a showing of privity involves the question of so-called “horizontal” privity, an issue not before us in the present case. See Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A. 2d 575 (1963). The requirements of section 2-318 of the Uniform Commercial Code dealing with “horizontal privity” are discussed more fully at note 8, infra, and accompanying text.
As tlie Court said in Miller: “Furthermore, we recognize the social policy considerations behind imposing strict liability in tort upon all those who make or market any kind of defective product, notwithstanding an absence of negligence on their part. A similar result would follow from abandoning the requirement of ‘privity of contract’ in warranty actions.” 422 Pa. at 393, 221 A. 2d at 325. These policy considerations are plain: the consumer’s inability to protect himself adequately from defectively manufactured goods, see Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W. 2d 828 (1942); the implied assurance on the part of the seller that his goods are safe, see State Farm Mut. Auto Ins. Co. v. Anderson-Weber, Inc., supra note 3; the superior risk bearing ability of the manufacturer, see Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 461, 150 P. 2d 436, 440-41 (1944) (Traynor, J., concurring). All of these reasons for the elimination of privity and the imposition of strict liability apply equally to both tort and contract actions.
Merely to compare Miller v. Preitz with Webb v. Zern (which appears in the official state reports directly after Miller and which was decided the same day) serves to underscore the anomaly of
The language of the Restatement, speaking as it does of injury to either the individual or his property, appears broad enough to cover practically all of the harm that could befall one due to a defective product. Thus, for example, were one to buy a defective gas range which exploded, ruining the buyer’s kitchen, injuring him, and of course necessitating a replacement of the stove itself, all of these three elements of the injury should be compensable. The last, replacing the stove, has been sometimes referred to as “economic loss,” i.e., “the diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold.” Comment, 114 U. Pa. L. Rev. 539, 541 (1966). There would seem to be no reason for excluding this measure of damages in an action brought under the Restatement, since the defective product itself is as much “property” as any other possession of the plaintiff that is damaged as a result of the manufacturing flaw. Thus, since the tort action would enable plaintiff to recover for economic loss (the physical harm necessitated by 402a would, ipso facto, be present given the defect in the product which caused the damage), so also should this form of damages be compensable in contract. Contract eases from other jurisdictions dispensing with privity have allowed recovery for all three types of injury: personal injury, Henningsen v. Bloomfield Motors, Inc., supra note 3; injury to plaintiff’s property other than the defective article itself, Morrow v. Caloric Appliance Co., supra note 3; and “economic loss,” State Farm Mut. Auto Ins. Co. v. Anderson-Weber, Inc., supra note 3.
Our decision today lias no impact on “horizontal privity”, our holding being confined solely to the issue of whether a purchaser, a member of his family or household, or a guest in his house, may sue the remote manufacturer of a defective product for breach of warranty. Our decision therefore leaves undisturbed Sochgerlel or any other Pennsylvania decision involving the extent of the class of product users entitled to the protection of a seller’s or manufactured warranty.
As originally enacted by Pennsylvania in 1953, section 1-102(3) (f) of the Uniform Commercial Code specifically recognized the official code comments as a permissible aid to construction of the statute. Act of April 6, 1953, P. L. 3, §1-102, 12A P.S. §1-102. Although the 1959 version of the code does not contain this specific reference to the official comments, see Act of October 2, 1959, P. U. 1023, §1, 12A P.S. §1-102 (Supp. 1967), there is still nothing to prevent this Court from using them as an aid in ascertaining the meaning of the code’s various sections. See, e.g., Hochgertel v. Canada Dry Corp., 409 Pa. 610, 613, 187 A. 2d 575, 577 (1963), where the same comment cited in the present case was cited by the Court. Moreover, it has long been recognized in Pennsylvania that the reports of commissions appointed to draft legislation may be referred to by courts seeking to divine statutory intent. See Tarlo's Estate, 315 Pa. 321, 325, 172 Atl. 139, 140-41 (1934) : “The report of a commission appointed to codify the law upon a given subject is entitled to even greater weight than the report of a committee; especially is this so where the legislature enacts the exact language of the commission’s draft.”
Of course, the Legislature may, if it so chooses, abolish privity. In Virginia, such a statute has already been passed. See Hempstead v. General Fire Extinguisher Corp., 269 F. Supp. 109, 112 (D. Del. 1967) (applying Va. law) ; Speidel, The Virginia “Anti-Privity” Statute; Strict Products Liability Under the Uniform Commercial Code, 51 Va. L. Rev. 804 (1965).
“§2-715 Buyer’s Incidental and Consequential Damages . . . (2) Consequential damages resulting from the seller’s breach include . . . (b) injury to person or property proximately resulting from any breach of warranty.” Act of October 2, 1959, P. L. 1023, §2, 12A P.S. §2-715 (Supp. 1967).
Recovery for the diminution in value of specific property caused by a refusal of the buying community to assign a market value to that property equal to what it was worth prior to its being affected by seller’s defective product must not be confused with recovery for loss of good wiU to a business caused by community knowledge that seller’s defective products were once used or sold by that business. Since the loss of good will cannot be measured by the diminution in value of any specific property belonging to the aggrieved buyer, unlike the present case, such good will loss is too speculative and hence not a compensable element of damages under section 2-715 of the code. Harry Rabin & Sons, Inc. v. Consolidated Pipe Company of America, Inc., 396 Pa. 506, 153 A. 2d 472 (1959).
Concurrence Opinion
Concurring Opinion by
While I concur in the result reached by the majority, I must nevertheless disassociate myself with the views expressed in the majority opinion with respect to the abolition of the privity of contract doctrine in actions instituted for breach of warranty.
I find myself in this position because of the majority’s complete lack of judicial restraint in discuss
Following the close of plaintiffs’ case on liability, counsel for Central Soya and MeMillen Feed Division moved for a nonsuit on the basis that the plaintiffs failed to establish privity of contract. The lower court refused the motion and the defendants proceeded to introduce evidence on their behalf. At the close of all of the testimony, defendants failed to move for a directed verdict or for binding instructions. The case was submitted to the trial judge for a determination and a verdict was rendered in favor of the defendants. Plaintiffs moved for a new trial which motion was denied and this appeal followed.
On plaintiffs’ appeal defendants seek to raise the propriety of the trial judge’s failure to grant defendants’ motion for a nonsuit.
The cases are quite clear that once a defendant has elected to offer evidence, it is highly improper for a court to enter a compulsory nonsuit. At the moment defendant introduces testimony, any right to an entry of a compulsory nonsuit ceases to exist. See Act of March 11, 1875, P. L. 6, 12 P.S. §645; Jordan v. Sun Life Assurance Company of Canada, supra; Smith v. Ehler, supra; and Liebendofer v. Wilson, supra.
Since no appeal lies from the refusal to grant a motion for a nonsuit, defendants cannot he heard to raise any issue concerning the propriety of that refusal. If defendants were the recipients of an adverse verdict by the trial judge, it goes without saying that they would be precluded from raising on appeal the failure of the court below to grant the nonsuit. Therefore, it is somewhat inconceivable that as defendants-appellants such issue could not be raised but as defendants-appellees it could be raised.
Aside from improperly reaching out and deciding an issue not subject to our review under the procedural posture of this case, the majority overturns a matter of great importance to the body of law in this Commonwealth without the benefit of having the merits fully briefed or argued. Plaintiffs, apparently believing that the issue was not properly before the court,
The brief for defendants, Central Soya and MeMillen Feed Division, raises the privity issue as follows: “Did the trial judge err in overruling the Motion for a nonsuit by the defendants, Central Soya and MeMillen Feed Division?.” (Emphasis supplied)
It will suffice to quote from defendants’ brief the entire text with respect to defendants’ substantive analysis of the privity of contract issue:
“The plaintiffs had purchased the feed in question from the defendant, John Pritts, trading as Canonsburg Milling Company. The evidence showed only that the feed had been manufactured or produced by Central Soya from whom it was ultimately acquired by John Pritts. Under these circumstances, the plaintiffs are not entitled to sue Central Soya on the basis of breach of an implied warranty, in that a privity of contract does not exist between them. Hochgertel v. Canada Dry Corporation, 409 Pa. 610, 187 A. 2d 575 (1963); Miller v. Preitz, 422 Pa. 383, 221 A. 2d 320 (1966). The, court erred in not granting the nonsuit and the appeal should thus be stricken as to Central Soya.”
This somewhat terse and cursory treatment of the problem is the only reference in all the briefs and records filed with our Court, and as such provided the only basis upon which the majority acted in unnecessarily and injudiciously deciding a matter not procedurally before us for review.