The question here is whether the plaintiffs, husband and wife, are precluded *624 by a statute of limitations from pursuing an action for personal injuries to the wife and resulting loss of consortium to the husband. The plaintiffs say that the injury occurred when a plastic container of VIP Super Drain fell from a shelf and its contents spilled onto the lady’s body. Accоrding to the petition and briefs, it appears that she was a customer in a restaurant and had gone to the restroom. The offending container of VIP was on a shelf in the restroom and was somehow dislodged and fell onto her. The petition alleges that the container and its cap were defectively constructed by the defеndant manufacturer and supplier of the article, and that the defendants had warranted and represented to the plaintiffs that the container and cap were proper for the use for which they were intended. The plaintiffs filed this action against the defendant ap-pellees in the trial court 28 months after the injury ocсurred.
Both defendants here concerned filed demurrers based on the two year statute of limitations which is found in 12 O.S.1971, § 95 (Third), providing in part that an action for injury to the rights of another, not arising on contract, can only be brought within two years after the cause of action has accrued. The trial court sustained the demurrers based on the prоposition that the limitation period is two years for the breach of an implied warranty, the time beginning to run from the occurrence of the injury. The trial court obviously, then, believed that notwithstanding plaintiffs’ allegations that defendants had “warranted and represented” to plaintiffs that the container and cap were proper for the use for which they were intended, plaintiffs’ actions were for injuries to Mrs. Moss which did not arise out of contract.
Appellants’ Proposition I is that the plaintiffs’ action is not controlled by the two year statute of limitations, that the action was for breach of an implied warranty, that the trial court relied on a statute that related to the injury rather than the source of duty, and that the cause was based on contract, express or implied not in writing (to which the three year period under 12 O.S.1971 § 95, Second, would be applicable), or it lay under the Uniform Commercial Code for breach of an implied warranty, and the five year period provided in 12A O.S.1971, § 2-725, was applicable. Propositions II and III argue that the referenced five and three year periods are applicable, all arguments being premised on the idea that a cause of action based on breach of implied warranty was properly brought.
The Court of Appeals was of the view that plaintiffs’ petition alleged a breach of an implied warranty, that a warranty is a promise, that a promise is inherently contractual in nature, that there was therefore alleged a violation of a duty whose source was in contract, and that the cause of action could be brought within three years after it accrued. This has referencе to 12 O.S.1971, § 95, Second, pertaining to the limitation period for “An action upon a contract express or implied not in writing.” That court then further said, “It is to be noted that in enacting § 2-725 of the UCC [Uniform Commercial Code] the legislature again invoked the source of duty concept in establishing a five year limitation period for bringing breach of wаrranty actions — actions which include those seeking recovery for personal injury damages.” Thus, under the opinion of the Court of Appeals, plaintiffs could also bring their breach of warranty action under the UCC within five years.
The defense that a cause is barred by limitations is properly raised by demurrer when the petition or comрlaint shows on its face that the cause of action was barred (see cases cited, Note 328, 12 O.S. A., § 95), as we believe it was here. We are of the view that the trial court’s apparent conclusion that this action is not one arising upon contract but is one based upon an alleged tortious wrong committed by the defendants is correct, and that the two year statute of limitations bars the action.
We are aware, of course, that when the Court of Appeals opinion was written that
*625
court did not have before it our opinion in Kirkland v. General Motors Corp., No. 45,016, promulgated this date, and which appears in Okl.,
The plaintiffs’ causes of action are logically related to the policies and the purposes whiсh caused us to recognize in Kirkland v. General Motors Corp. the existence of strict liability in tort in Oklahoma, which we designate as “Manufacturers’ Products Liability.” We are referring to the policy expressed in Kirkland of spreading the loss which occurs from defectively manufactured goods to the manufacturer, and from him to the public generally who purchase goods from the manufacturer. 1
These matters have no relationship to contractual rights. The manufacturer cannot, for example, in his contract of sale limit his responsibility for such liability and have that limitation inhibit persons who have no contractual relations with the manufacturer or seller from reсovering their damages. Neither are plaintiffs’ actions affected by any contract between the manufacturer and the proprietor of the restaurant where Mrs. Moss was injured, nor between the manufacturer and Mrs. Moss, herself, upon an “implied warranty of fitness” theory. While the UCC does envision allowing recovery for personal injury and for property damages arising out of defectively manufactured articles (12A O.S.1971, § 2-715(2)(b)), such recovery arises out of contractual relationships, express or implied and as extended by the Legislature to categories of certain third party beneficiaries found in 12A O.S.1971, § 2-318, i. e., any natural person in the family or household of the buyer, or guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods, and who is injured in person by breach of the express or implied warranty.
In passing, it may be noted that there were second and third alternative provisions available for adoption by the Legislature (63 Am.Jur.2d, Products Liаbility, § 163) more liberal than the first alternative expressed in 12A O.S.1971, § 2-318, and the Legislature chose the more restrictive version. The fact that the UCC draftsmen take no position as to whether the sellers’ warranties extend to classes of persons other than those named in the alternative version adopted (Am.Jur.2d, § 163, supra) has no bearing on any lеgislative restrictive intent that may be inferred from adoption of the particular alternative that the Legislature selected. Nor is the statement in Am.Jur., § 163, supra, that the court has discretion to extend warranty protection beyond such categories of persons named by the Legislature so as to include bystanders, persuasive hеre.
We believe that the statutory implied warranty sections of the UCC are not applicable in this case. The UCC has to do with commercial transactions (12A O.S. 1971, § 1-102) and presupposes a buyer in privity with a seller, the concept being extended only as provided by the Legislature. The plaintiffs are, by the express terms of the statutory sсheme in § 2-318, beyond the scope of the statutory warranty protection. This is in accord with other case law elaboration. Klimas v. International Telephone and Telegraph Corp. (D.C., R.I., 1969),
Assuming the non-existence of a valid contract between the plaintiff and a defendant which could possibly, under the terms of the UCC, affect the right of the plaintiff to recover for certain losses, we are of the view that a plaintiff who has suffered damages by reasоn of a defectively manufactured article may recover under the doctrine of Manufacturers’ Product Liability all of the damages which were the reasonable consequences of the defective article to the same extent as if the plaintiff’s action was based upon negligence. Should a contract, valid under the UCC limiting plaintiff’s right to recover damages for certain items of damage exist however, we know of no reason why such a contract could not be given consideration in the same action in which plaintiff seeks recovery under the doctrine of Manufacturers’ Product Liability when the two matters are clearly distinguished by proрer instructions. For cases in which both theories were given consideration in the same case see: Hawkeye Security Insurance Co. v. Ford Motor Co. (Iowa, 1972),
We now point out that the plaintiff, Mrs. Moss, was neither a user nor consumer of the allegedly defective product so as to come within the special liability of seller provision in § 402A of the Restatement of Torts, 2d. Instead she was in the general category of a bystander. In Kirkland v. General Motors Corp., supra, we recognized that the doctrine of Manufacturers’ Products Liability should extend to any third party injured as a result of the defect in the product. See Syllabi 10 thereof. However, the plaintiff there was a user, and we now make it clear that the doctrine also applies to bystanders. As was stated by the Texas Supreme Court in Darryl v. Ford Motor Co. (1969),
In addition to the above, we see no reason the doctrine should not be available against both the manufacturer and retailer, and so hold. Each has a duty to the consuming public [and non-consumers] quite apart from contract obligations. Dippel v. Sciano (1967),
We should mention that the doctrine of Manufacturers’ Product Liability, being synonymous with the term “strict liability in tоrt” used in other jurisdictions, might, like it, be misconstrued and, if so, would be a misnomer. It does not make the manufacturer or retailer an insurer, nor does it impose absolute liability. It does eliminate certain common law defenses used in connection with proving implied warranty, and relieves the plaintiff from having to prove specific acts of negligence. Kirkland v. General Motors Corp., supra; Dippel v. Sciano, supra.
Implied warranty — originally brought into the tort concept as a basis for protecting a party injured by a defective product, utilized in many cases for that purpose (example, Marathon Battery Co. v. Kilpatrick (Okl.1965),
Some comment is necessary on two cases relied on by appellants. The first is Nichols v. Eli Lilly & Co. (1973), Tenth Circuit U. S. Court of Appeals, No. 73-1038, a case arising in Oklahoma wherein the purchaser and user of birth control pills brought an action against the manufacturer, which the appellants urge in support of the UCC five year statute of limitations. The cited case involved the purchaser of an article, therefore so far as the case involved the question of applicability of the UCC, it is clearly distinguishable from this case. The second case is Spеed Fastners, Inc. v. Newsom (10 Cir., 1967),
Accordingly, neither the five year period of limitations expressed in the Uniform Commercial Code, 12A O.S.1971, § 2-725, *628 nor the three year period of limitations expressed in 12 O.S.1971, § 95, Second, is applicable to the plaintiffs’ tort action which is governed by 12 O.S.1971, § 95, Third, and which period is two years. The plaintiffs having filed their action subsequent to the running of the two year period of limitations the trial court correctly sustained the defendants' demurrers. The decision of the Court of Appeals is vacated. The orders of the trial court are affirmed.
Notes
. See cases from other jurisdictions relied upon in Kirkland, including Greenman v. Yuba Power Products, Inc. (1963),