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Thе United States District Court for the Southern District of Alabama, Southern Division, requests that this court re-examine certain questions previously certified to this court in an action for breach of warranty brought by Albert Johnson, Alfred Love, and Thomas Simmons for personal injuries they sustained due to defects in sandblasting hoods manufactured аnd distributed by Clemco Industries and/or Pulmosan Safety Equipment Company.
The plaintiffs were employed as sandblasters for Bender Welding and Machine Company and contracted silicosis (a lung condition), which they attribute to defects in the hoods which were designed to protect them from such hazards. Thomas Simmons died as a result of his condition, and his action was revived by his wife, Martha Simmons, as executrix of his estate. The federal district court pursuant to Rule 18 of the ARAP submitted six certified questions dealing with breach of warranties and the survival of actions. We only found it necessary to answer Certified Question No. 5 since, in light of that question as framed, the UCC was not applicable and pre-Code law governed. See Johnson v. American Mutual LiabilityInsurance Co., Ala.,
Each plaintiff contends that he was supplied by his employer with canvas sandblasting hoods manufactured by Pulmosan and/or Clemco and thаt these goods were purchased and used after the effective date of the Uniform Commercial Code as well as before. Furthermore, the plaintiffs contend that these goods also caused or contributed to their injuries and/or the death of Thomas Simmons.
Since from the additional facts it appears the UCC is applicable, the question as to the effective date of the Code is no longer determinative of the action and we now answer the remaining questions. For convenience, we consider Certified Questions Nos. 1 and 2 together.
The statute of limitations for breach of warranty is found in section
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . .
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action aсcrues when the breach is or should have been discovered; however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.
Ala. Code §
The Code, then, provides that generally an action for breach of warranty must be brought within four yeаrs of tender of delivery. However, there are two exceptions to this general rule, one, where the warranty explicitly extends to future performance of the goods, and the other, where the damages are injury to the person in the case of consumer goods. The question is whether all personal injuries are included within this latter exception from the tender of delivery rule.
The addition of the provision for personal injury in the case of consumer goods to section
Other jurisdictions, relying on the plain meaning of the statute, have held in actions involving personal injury sustained as a result of breach of warranty that the UCC statute of limitations starts to run at tender of delivery. InMoody v. Sears, Roebuck Co.,
Accordingly, we answer Certified Question No. 1 in the affirmative and No. 2 in the negative.
In answering Certifiеd Question No. 3, we note that the parties agree that section
Furthermore, in Atkins v. American Motors Corp.,
Section
As a precondition to recovery, however, the seller is entitled to notice of his breach at least by the buyer. Section
The express language of the Code is "the buyer must within a reasonable time . . . notify the seller . . . or be barred from any remedy. . . ." Ala. Code §
"Simply because the legislature created certain rights in a third party beneficiary *514 as to express or implied warranties, in adopting § 42a-2-318, does not mean that by implication such a beneficiary must give notice of an alleged breach to the manufacturer. If it were the legislative intent to require such notice, the code would have said so. Nowhere is there any indication that the manufacturer and the third party beneficiary are to be construed as seller and buyеr, respectively. Just the contrary appears evident. It may have had its own reason for not setting forth a requirement of giving notice by a third party beneficiary to the manufacturer. Even though it might seem more just or equitable that such a beneficiary be required to give notice in the same manner as a buyer, this court cannot legislate what Union Cycle seeks here."
We note that Comment 5 to section
Under this Article various beneficiaries are given rights for injuries sustained by them because of the seller's breach of warranty. Such a beneficiary does not fall within the reason of the present section in regard to discovery of defects and the giving of notice within a reasonable time after acceptance, since he has nothing to do with acceptance. However, the reason of this section does extend to requiring the beneficiary to notify the seller that an injury has occurred. . . .
Though the official comments are a valuable aid in construction, they have not been enacted by the legislature and are not necessarily representative of legislative intent. The legislature has manifested by amendments2 to the standard version of the Uniform Commercial Code an intent to expand the right of recovery for personal injury arising from breach of warranty. Atkins v. American Motors Corp.,
Furthermore, holding the notice requirement inapplicable to warranty beneficiaries does not frustrate the purрoses of section
Though there are no decisions in Alabama dealing with this question, other jurisdictions have uniformly held that the notice requirement is inapplicable to a warranty beneficiary.See, e.g., Tomczuk v. Town of Cheshire, supra; Chaffin v.Atlanta Coca Cola Bottling Co.,
For the above mentioned reasons, we answer Certified Question No. 4 in the negative.
By statute, claims for personal injury survive the death of the plaintiff in favor of his personal representative.
[A]ll claims upon which an action has been filed аnd all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives . . . .
Ala. Code §
There is a line of decisions of this cоurt dating from 1930 holding that actions for personal injuries do not survive if death results from the injuries. See, e.g., Carroll v. FloralaMemorial Hospital, Inc.,
In Bruce v. Collier, supra, рlaintiff brought suit for injuries he sustained as a result of the negligent or wanton operation of a truck on the public highways by defendant's employee. While that action was pending, plaintiff died as a result of the injuries sustained. This court stated the issue as follows: "Does an action for personal injuries begun by the decedent while in life, survive to his personal representative if death results from the same tort, giving rise to an actionunder the homicide act?" [emphasis added.] Id. at 23,
Id.[T]he Code . . . was amended . . so that now actions for "injuries to the person" do survive. Does this mean injuries causing death, those covered by the Homicide Act? We think not. There is a clear field for the operation of this amendment in cases where pending a suit for personal injury the plaintiff dies from other cause than the injury sued for.
Two actions by the same administrator against the same defendant for the same tort, prosecuted to separate judgments, would present a situation so unusual and extraordinary that clear legislative intent should appear.
The subsequent cases reaching this same result also involve a tort action with a "consequent right of action for wrongful death." See, e.g., Carroll v. Florala Memorial Hospital, Inc.,supra; Parker v. Fies Sons, supra.
The instant case involves a contract action, not a tort action, for breach of warranty where plaintiff is seeking only сompensatory damages. Furthermore, Geohagan v. General MotorsCorp.,
CERTIFIED QUESTIONS ANSWERED.
All the Justices concur.
Atkins v. American Motors Corp.,(1) § [Section] 2-316 was amended to add subsection 5 prohibiting the seller from limiting or excluding his liability for damages for injuries to the person in the case of consumer goods.
(2) § [Section] 2-318 was amended to extend the ambit of the seller's warranty to any natural person who might reasonably be expected to use, consume or be affected by the goods.
(3) § [Section] 2-714 (2) was amended so as to make it clear that the damages allowable in actions for injury to the person are the same as those damages ordinarily allowable in such actions at law.
(4) § [Section] 2-715 (2)(b) was added to allow the recovery of consequential damages in cases involving injuries to personal property resulting from a breach of wаrranty.
(5) § [Section] 2-719 (4) was added to prevent the seller from contractually modifying or limiting the buyer's remedy in cases for damages for injury to the person in the case of consumer goods.
(6) § [Section] 2-725 (2) was amended to provide that a cause of action for injury to the person in the case of consumer goods arises when the injury occurs as opposed to when the sale takes place, thus extending the statute of limitation.