206 A.2d 275 | Conn. Super. Ct. | 1964
These allegations of fact are contained in the complaint: On January 3, 1964, the defendant Harry L. Norris, Jr., purchased a used automobile from the defendant Cochrane Chevrolet Company, a dealer in new and used automobiles. On the same day, the daughter of Norris, while driving the above-mentioned automobile, collided with an automobile driven by John J. Kuschy. As a result of injuries sustained in the accident, Kuschy expired. The plaintiff, administratrix of Kuschy's estate, claims that the Norris automobile at the time of the accident contained a defective braking system. In the third count of the complaint, the plaintiff *384 alleges that the defect was a breach of an expressed or implied warranty of merchantability and warranty of fitness made by Cochrane when the automobile was sold to Norris.
The pending demurrer attacks the legal sufficiency of the cause of action alleged against Cochrane in the third count on the sole ground that the plaintiff has no cause of action based on the theory of a breach of warranty. The issue is this: May an automobile motorist, injured on a public highway by another operator of a motor vehicle, maintain a cause of action for breach of warranty for injuries sustained against the person who sold the vehicle to the other party involved in the accident?
The complaint fails to disclose that the plaintiff's decedent was in privity of contract with Cochrane. Prior to the decision of Hamon v. Digliani,
In the instant case, Cochrane sold a used automobile and, according to the allegations of the complaint, Cochrane made warranties to the purchaser at the time of the sale. It is these warranties that the plaintiff is attempting to enforce on behalf of a person who was not in privity with Cochrane at the time of the accident. To allow the warranty to run to members of the public such as persons who are in the path of harm from a defective automobile, the court would have to conclude that privity should be entirely disregarded.
Extending the benefits of an implied warranty to persons who, in the reasonable contemplation of the parties to the warranty, might be expected to be a user of the property has developed under both our case law and our statutory law. Although such cases as Henningsen v. Bloomfield Motors, Inc.,
Sound reasons justified modification of the strict rule of privity in such cases as Hamon v. Digliani, supra, Henningsen v. Bloomfield Motors, Inc., supra, and Connolly v. Hagi. However, the rule should not be extended to allow a member of the public to recover from a used-car dealer on a breach of warranty claim under the allegations as alleged in the third count of the pending complaint.
For the aforesaid reasons, the demurrer is sustained.