William B. Schultz, and Cross-Appellant v. Tecumseh Products, a Corporation, and Cross-Appellee

CECIL, Before WEICK and O’SUL- LIVAN, Judges. Circuit Judge. sence of O’SULLIVAN, Circuit him contract between defendant. No of contract Ken- Plaintiff-appellee, of damages citizen parties. existed between the brought tucky, suit to recover personal injuries him proofs Plaintiff’s sustained ex- showed plosion refrigerator compressor unit when a presence was caused the of a casting market in a food defective which he had installed compressor in the unit. happened in exploded. purchased Defendant casting The accident the from Kentucky. Defendant-appellant, Lakey Mich- a Foundry, Muskegon, Michi- igan gan, unit corporation, casting and manufactured plant sent the in to its Marion, injuries. The suit Ohio, caused the where a was used component jury a United States refrigerator tried to in the in the compres- District sor District Court for the Eastern unit compres- here involved. The Michigan, Division, re- of sor Southern unit was sold a defendant to dis- $74,349.64 tributor, sulted a verdict of Williams Company, & Louis- amount, $21,994.00 ville, plaintiff. Kentucky. Of July 24, 1957, plain- On purchased tiff District was Judge. remitted ordered the unit from Williams diversity Company case. & This is a and installed it that same day at Super-Market the K I& in Louis- question in one Defendant raises ville. day, began plaintiff next when Judge appeal: err its District Did gauges to remove his unit, test from the right submitting jury of explosion with the occurred conse- finding plaintiff of recover on quent injuries. No direct contractual implied warranty, ab- breach of in the relation plaintiff thus exists between sence of of between contract defendant. plaintiff cross- and defendant? Plaintiff remittitur, appeals from of the order diversity In cases, a federal contending that such violates order applies substantive law of Seventh Amendment the United States state where that tribunal sits. R. Erie disposition Constitution. Because of our Tompkins, Co. 64, v. 304 U.S. 58 S.Ct. appeal, not dis- need defendant’s 817, requirement 82 L.Ed. 1188. This cross-appeal. cuss the directs that the federal court likewise follow the conflict of laws rules of the to the was submitted ease forum Mfg. state. Klaxon Co. v. Stentor negligence jury man on two theories: Co., 487, 1020, 313 U.S. 61 S.Ct. 85 L.Ed. warranty. ufacture and breach of 1477; McCoach, 498, Griffin v. 313 U.S. error in the No is claimed submission 1481; 1023, 61 S.Ct. 85 L.Ed. Maki v. clear, how count. It is George Co., (C.A. R. Cooke 124 F.2d 663 warranty ever, if count was 6, 1942); Victorson v. Albert M. Green erroneously jury, submitted Hosiery Mills, (C.A.3, 202 F.2d 717 plaintiff’s returned in favor must verdict 1953). Under the conflict of laws rule be set and a new trial ordered.1 aside obtaining Michigan, state, the forum contends, plaintiff Defendant involving sale, in an action the law agrees, controls place of the sale determines ex disposition it raises. tent and effect the warranties which state, argued, Under the law of that Mott, attend the sale. Schantz v. damages plaintiff 642, 646, 634; not recover 645, a Mich. 219 N.W. Amos Rilley Co., the ab- v. Walter N. 240 Mich. jury Co., (C.A.6, 1961); If a case is submitted to a on more theory recovery Wilmington Mining Fulton, than and reversi Star v. Co. 60, 77-79, committed ble error in the submission 205 U.S. 27 S.Ct. L. general 708; theories, Adams, one of these ver Ed. Dunbar v. 283 Mich. 895; dict returned in favor of 276 N.W. Charters Industrial v. Works, must set aside and a new trial or 179 Mich. N.W. Cygan Chesapeake My. dered. v. & Ohio Ky. 375, facturing Purcell, 199 v. v. Co. also: Sullivan 397. See 215 N.W. (1923); J. I. Case Sullivan, S.W. 38 N.W. Threshing Dulworth, 216 King’s Estate, Machine Co. Corp. Alropa (1926); 637, 641, 287 an ac- S.W. 728. Where 272 N.W. Berger Ky. 155, Oil upon Standard predicated statute of tion forum, L.R.A.,N.S., state, S.W. than the state other (1907). case, the Ber- the last cited in accordance construed will be statute ger case, employee purchaser unless state of that the decisions lubricating oil have been placed claimed to a definite have not courts those charging injured use, that such lat- In the statute. construction on the state, fit its intend- oil was not and suitable for event, of the forum the courts ter impliedly its Michigan case, use as warranted the ed in will construe this against brought they of manufacturer. He suit a like statute as would statute counts, Keene, in the manufacturer in two negligence 262 Edison v. their own state. warranty. 757; 611, in Perkins and one 247 Mich. N.W. plaintiff’s Corp., court claim of Transport 262 trial submitted Central v. Great jury, but, the to the because there If 247 N.W. 759. privity plain- nowas of contract between of a sale courts of the of the situs state manufacturer, point adopted any tiff and the refused to have not rule on the warranty submit issue. In sustain- ease the involved in the case—in this of law ing court, question privity the the action of trial the of whether of con- Kentucky Appeals im- Court of said: an action on an tract is essential to plied forum state lacking mutuality, privity, —the “There is views decisions follow resolving own every consideration, and other ele- question. Bostrom Jen- v. ment essential to constitute the con- nings, 146, 154, 326 Mich. 40 N.W.2d 97. tractual relation between the claim- person ant and the sued.” inquiry, then, Our first is wheth Kentucky er there question now clear law on the is argues Appellee that because the not, before us. If rule Kentucky’s adop cases antedated above presently in force in sus would Act, they of Uniform tion Sales have tain the district court’s submission of validity controlling prece their as lost implied warranty. In Michi connection, In this it dents. should be privity longer gan, of contract es no 73 of the Aet noted that Section Sales sential to the maintenance of action 361.730) (K.R.S. provides: any “In case implied warranty. Spence for breach of provided chapter, for in rules not * ** Masonry Sup Three Rivers Builders & equity shall of law con- ply, Inc., 353 Mich. 90 N.W.2d apply to sell contracts to and to tinue Bottling Manzoni v. Detroit Coca-Cola goods.” of Nowhere in sales the Sales Co., 109 N.W.2d 918. We purport ques- to deal Act does it with the opinion, however, are of the that the law privity Consequent- contract. tion Kentucky contrary. is to the legislate ly, Act not since that privity contract, Kentucky adopted Prior to when prior (K.R.S. overrule the Uniform cannot be said to Sales Act 361.010 § point. Cf., seq., repealed, 1958, et on that Graves Ice decisions c. art. § ), Rudolph Kentucky 10-1022 Cream Co. v. W. Wurlitzer was the law of Ky. 1, 6, (1937). predicated 100 no action 819 could 267 S.W.2d on a consideration, however, warranty, express Apart implied, from this without Kentucky parties decisions rendered after of contract between the adoption Campbell, Ky. of the Sales Act the suit. Prater v. point (1901); of the involved with sufficient S.W. 918 treat Hall Manu- Upon repeal adopted the Uniform Com- in its stead of the Uniform Sales K.B..S.) (Chap. Kentucky Legislature Aet Code. mercial clarity finality provide tween consumer con- and the manu- * * trolling precedent keep facturer *. decision To our our opinion harmony Act became with case at bar. the Sales the funda- Since Kentucky principles part law, Court mental and basic law, ques- adopt have concluded to has dealt with the Bottling theory being Co. v. tort in four cases. Nehi sounder tion principles upon Ky. Thomas, 684, 33 two which S.W.2d ; Hieronymous permitted, cause of action (1930) Co. v. Motor where purchase Smith, Ky. 209, direct from S.W.2d ; (236 (1931) Co. manufacturer.” American North Fertilizer 703.) Combs, Ky. 869, S.W.2d S.W.2d Werner, (1948); Caplinger 311 S.W. Hieronymous Kentucky Motors, (Ky.1958). facts 2d 201 While the warranty. dealing express court was fours with these cases are not on all litigant purchased A had an automobile us, decisions those the case before purchased from a dealer who had fromit analogous pur sufficiently for our are Being Company. Kinkead Wilson Motor cases, poses here. we con From those purchase sued balance of the clude that adheres price, he filed a counterclaim in he plaintiff that of contract between impleaded Kinkead the Wilson Motor a and defendant' is cause of essential to charged Company and it and with others warranty. implied for action breach of warranty. holding In that against Bottling, no such claim could be Nehi asserted In an which involved Kinkead, warranty, plaintiff poi- the Court implied said: the was by drinking pur- pop he had which soned “No contractual relation or turn, had, from chased a seller who parties by between the is disclosed purchased it manu- from the defendant the record which would authorize a facturer, appeal, or bottler. it was On recovery alleged warranty on the as go plaintiff was to held that entitled against Kinkead Motor Wilson jury negligence, on on breach the not Company manifestly and the court reviewing implied warranty. After of have should sustained the motion involving liability manufac- cases the peremptory for a instruction drink, of food Court said: (241 Ky. and the turers their favor.” 43 S.W. “ * -* * 669.) 2d lines of are two [T]here right upon Co., of action which the North American Fertilizer dealt cases by against implied upheld warranty upon consumer is the based (5) (Sec- manufacturer, are which subsection K.R.S. and 361.150 § upon theories, 15(5) Act). of the Uniform two distinct tion Sales bottomed subsection, other war- ex contractu and the Under such adopting ranty quality opinions upon tort. The of a fitness theory permit product particular “may to be for a use an- first action be usage upon theory, The which nexed of trade.” maintained grade desig- pleased product are involved was fertilizer those courts nate, warranty ordinarily for of a used the field constructive cultivation always obliga- plaintiff The of tobacco. used it contractual permit plant cultivation The and that courts that bed claimed tion. product upon had to be maintained such use of become so action implied warranty customary ground that an the manufacturer fail- degree being requisite use fitness such came into to exercise the its ed “usage care, negligent, of trade.” Plaintiff and was therefore reason of purchased adopt theory, the fertilizer from an inde- there the tort since acquired warranty pendent who had be no absence seller can relationship, purchase from the manufacturer. The a contractual joined was as a relationship manufacturer defendant such be- there no reasoning questions, to indi- seems claim- for breach plaintiff’s suit changed justification not warranty. manufac- cate view is ed departure for a from rule earlier was verdict directed for a motion turer’s Trunk R. laid Western appealed down.” Grand denied jury verdict. Co. v. H. Nelson 118 F.2d against W. it on a entered 1941). too, here, decision, (C.A.6, hold- 254 Appeals So Court of expressed motion dictum in the North American ing manufacturer’s case, granted, Fertilizer say not warrant us to have been should language upon plaintiff did that such overruled all relied prior Kentucky precedents point beyond seller immediate extend not against charged involved. A uttered in a chance dictum and could single ground opinion limited is not sufficient manufacturer. Thus remote supports upon repeal holding, which to bottom a precise the case its here, clearly position. announced law of state. See: defendant’s however, sup- England upon New dictum Mutual Life Ins. relies Co. Mitchell, Kentucky (C.A.4, on this port a claim that 1941). are point unsettled and its courts is now ready line with to move into now After the use of the dictum in the paragraph contain- rule. The case, (1948), North American the Ken- ing upon relied reads: the dictum tucky Court of reiterated its general Act seems Uniform Sales “The adherence to the necessity rule of the incorporate privity. a declaration Caplinger existing rights be- Werner, supra, (1958), and remedies buyers considering rather than tween sellers an action of a and con- young lady injured by manufacturers between who was the company (the explosion While this sumers. of motor boat in which a she manufacturer) guest. plaintiff joined was a seller as to a The was de- as dealer), Taylor (the independent boat, fendants the owner the the yet Taylor was seller as to alone who sold the boat to such dealer owner— (plaintiff). There no was Combs her father —and the manufacturer host’s existing privity com- between this of the boat. The latter was not served up pany, against in Louis- the manufacturer trial the case went to the buyer Combs, ville, the down in A dealer and the owner. was verdict County, except priv- that plain- Jessamine for both defendants on directed warranty ity springing opening statement, that primarily tiff’s be- specified product opinion had the com- this the trial court was of the cause warranty parts ponent and a further make that such statement did not a case product negligence. fit for the this The Court of of affirming usage ordinary fer- common said: (307 873, 212 S.W.2d tilizer.” considering the “In correctness of 528.) ruling, may the trial be holding appellant attempted If the decisive noted that has of that against any relevancy question cause of to assert a action case has (the dealer) us, supports for breach of before defendant’s Werner of law against warranty and one position that of contract commencing an Thompson * is re negligence. on quired. dictum based Its with * * “except” in the There was no sentence of contractual the word last alleged may provide quotation plaintiff relation or shown between seller, support. appellant, that, We Werner some have said party, question who had no been decided a third contrac- “where has ex Thompson, pressly in an earlier relation with case which has not tual buyer modified, There was a boat. fail- the fact later been allege involving any different, similar, or show cause of ure to cases any implied recovery to ranty. appellant war- on action representation This is the note on under evidenced subject complaint in 75 did A.L.R.2d 39. K.R.S. 361.150. legal note, writer ac- as well as other attempt cause of such state a Michigan negli- scholars, refer to the and New against on tion Werner based Jersey rules, 203.) minority position, gence.” (311 as S.W.2d enlightened the more view. Notwith- holding point clear on standing observations, such a cheek of express ly dictum with the is at variance supplement to the above annotation case. Even North American ed persistence by indicates a various state above lan characterize the should we guage allegedly courts to lightened adhere less en- dictum, plaintiff as it affords not, by dictum, view. We will assistance, there are no because where take an excursion into academic discus- gravity opposed equal statements sion of relative merits of the current- court, more recent made a state ly opposing subject. views on the Nei- expression one will as the of what control necessary speculate ther is it that we Acc. law is. Standard the state See: adopt to whether should now Roberts, F.2d Ins. Co. allegedly enlightened more view. We 1942). (C.A.8, accept pronouncements must clear however, Appellant urges, trying before us without case fact that the in the above prophesy change whether it will direction buyer de- of the boat was not herself in its next decision. appositeness here. Such from its tracts Appellee argues, however, further not, opin- in our factual difference that, whatever be the law of Ken- ion, provide distinction. substantial tucky, proper it was for the District been rule has abolish- Where Judge to follow sub- ed, abolition has been the benefit mitting implied warranty. the case on remote non- available to held so, says, he This because buyer.3 buyer well as to a remote Kentucky authority cited to the District Bottling Detroit Coca-Cola Manzoni v. Judge dictum of the North N.W.2d American Fertilizer It case. was cited Henningsen Motors, Inc., v. Bloomfield by plaintiff’s support counsel to his re- 1; 69, 358, 161 75 A.L.R.2d 32 N.J. A.2d quest Judge that District submit Co., 343 P.2d Peterson Lamb Rubber v. implied warranty notwithstanding ab- (Cal.App., 1959). 261 Neither privity. being sence of Not advised of Caplinger case in the fact that applicable Kentucky the other deci- make out a case failed to sions, hereinabove, discussed the District ruling priv- that from the court’s detract Judge determined to follow the ity is to recover for essential of contract privity question. rule on the Plaintiff- warranty. argues appellee that such was correct legal point procedure here The involved is sub- because of the failure of de- ject pertinent discussion in the current of much cite the to more Ken- fendant tucky relating legal products to lia- literature decisions. If the ease had been bility. state Michigan, commentators in a Some tried state court of away might appropriate rule is been trend have for such Up clearly now, applied Michigan discernible. how- rule, now court to have majority large showing ever, of the ad- states absent a that the law of Ken- tucky contrary. rule is People here to the essential was to v. Code, guest Under the Uniform Commercial or who is in his if home is expect part Kentucky, person now a reasonable seller’s to his implied warranty buyer may use, consume or be affected injured any goods person [thereby].” natural who “extends who is family buyer in the or of his household K.R.S. 355.2-318.

433 Judge 569; decisions. trict of the 267, 269, N.W. Sokol, 197 226 Judge distinguished who 56, The Under District Hardy, Crane v. gave may, considera- tried this case careful Michigan statute, courts its requests in- judicial no- tion to the submitted. He to, required take but are not briefing vited, adequate get, failed states. of other tice of the decisions Notwithstanding point 1948, Comp.Laws involved. 27.876, § M.S.A. § observations, however, rule these counsel’s however, Such, not the 617.27. failure to cite law of a United in Federal Courts. notice, judicial States Court must take not Union are states disposition and which case, controls foreign or to United States to the inapplica- does not render such law required take are courts. Such courts judicial prevent upon appeal. ble or reliance it on and case statute notice of the Parkway Baking Company v. Freihofer Owings v. states. of each of the law Hull, Baking Company, 641, 255 F.2d 646 625, 607, 607, L.Ed. Pet. 9 U.S. 9 34 (C.A.3, 1958); In re Paramount Publix Drawbridge 246; Covington Co. v. Corporation, (C.A.2, 83, 85 F.2d 86 227, 232, Shepherd, 20 How. 61 U.S. 1936); United States Certain Parcels v. Micou, 114 94; 227, Lamar v. 15 L.Ed. Land, etc., (C.A.3, 144 F.2d 29 L.Ed. S.Ct. U.S. 1944). See, also, Collard, v. Jenkins Hanley 1, 6, Donoghue, S. v. U.S. U.S. 36 L.Ed. S.Ct. any “The law of Ct. 29 L.Ed. 535. 812; Lilly Grand Trunk Western R. depending Union, whether State of 481, 488, 489, 317 U.S. 63 S.Ct. judicial upon opinions, upon statutes or 87 L.Ed. 411. the courts of the a matter of which judicial are to take United States bound We hold that it error to sub plea proof.” (Em notice, without plaintiff’s mit warranty claim of breach of phasis supplied.) Micou, Lamar su jury. Inasmuch our p. 223, p. 859, pra, L.Ed. 94. S.Ct. require trial, decision will a new we need consider the involved enunciated thus Su- plaintiff’s cross-appeal, viz.: whether the preme has been in this Court followed Judge erred, District or abused dis his variety and other circuits under a ordering cretion, in a remittitur of a circumstances, subsequent prior to and damages portion awarded Tompkins. to Erie v. Baltimore & Ohio jury’s verdict. Reed, (C.A.6, F. R. Co. v. 1915); Abner, Loree v. 57 F. is reversed and new Baking (C.A.6, 1893); Parkway Co. v. ordered. trial Baking Co., Freihofer 1958); (C.A.3, Gallup Caldwell, Judge WEICK, (dissenting). Circuit (C.A.3, 1941); F.2d 93 Alcaro v. sitting Judge, The District in Mich- Jordeau, (C.A. Jean 138 F.2d 772 diversity case, igan, in a was confronted 3, 1943); Brewing Lemp J.Wm. Co. v. problems difficult of conflict of laws Brewing Co., 164 Ems F.2d 293 charge for him time arrived to when (C.A.7, 1947). Tompkins That Erie v. jury. law No issue as to the of Ken- changed has not affected or the rule is tucky previously had been raised in the emphasized and discussed Professor pleadings in the issues of or law and Practice, 5 Moore at Moore’s Federal pre-trial forth in the order. set fact 1343, 1344. plaintiff, request of the court theAt jury implied warranty necessary charged on It not is for our de Kentucky provisions of the plaintiff, consider cision to now whether under requesting also in force in which was Mich- who was implied the instruction on statute language. substantially warranty, defendant, igan same in who was plaintiff resisting instruction, cited to the court should have Counsel Kentucky decision, namely, only better researched advised Dis- 434 pellant Combs, Co. American Fertilizer were not North v. cited District to Ey. 869, Court 526 in- until 307 N.W.2d after the verdict had been way dicta, privity being dicated, by returned of was and when was the case Kentucky. required heard Counsel for on motion for not trial. Since new Kentucky Kentucky defendant cited no decisions decisions now relied on objected timely brought were court, but to the court’s not the court’s to

charge implied appellant precluded on the on attention should be ground claiming applicable “that the law to as error that the court apply principle failed case not and did not warrant to them. is analogous theory objections submission of the war- to a court’s charge ranty.” specific. which must be Rule Procedure; Federal Rules of Civil Pal- only applicable law submitted mer Hoffman, v. U.S. the court was the decision of Court 645; S.Ct. McPherson v. L.Ed. Kentucky in North Amer- Hoffman, (C.A.6); Co., supra, ican Fertilizer the deci- Ostapenko Bridge v. American Division Michigan Supreme sion of the Court (C.A. Corp., U. S. Steel 267 F.2d 204 Spence v. Three Rivers & Builders 2). Supply, Masonry Inc., 353 Mich. Spence, Supreme In N.W.2d 873. If this had case been tried in the state Michigan Court of was held that Michigan, court in required. not trial court would be affirmed instead of Michigan applied The court rule on judge reversed. The trial not have would required since it had not been shown to been apply Kentucky not law Kentucky any proven him that different. was or called to his attention. He Michigan doing, presume, In he so followed deci could Court, as did the District presump sions which held that there is a the law the same Michigan tion that law of a contrary sister state is the since the was not contrary same until shown. Slayton Boesch, shown. Mich. argued presumption It be that this 134; 23 N.W.2d Walton School of Com procedural merely binding and not on Stroud, 85, 89, merce apply the federal court which can its own Hardy, Crane v. N.W. my procedure. judgment, rules of Kentucky. prevails rule also 63. This procedural pres- rule is than more Lovejoy Ky. 153, 156, Reed, 302 applying ent case because our not S.W.2d 1013. only verdict, not has lost his require would Fairness seem also his ranty. of action cause war- bring parties to to the attention of the applicable decisions courts presumption But even if they rely foreign if sister states procedural, think I still the District Court judge may law. While well know applying was correct in it. finger tips and have at his the decisions Tompkins, Erie R. Co. v. U.S. Supreme state, Court his own L.Ed. 1188 S.Ct. certainly expect too it is much to that he narrowly Court, Supreme construed. The know the would common law of other sought believe, a I avoid situation entirely states which different. diversity cases, where, in the federal foreign injected law When is not into a sitting ap community in the same court judge ready charge until ease differently plies than the state court. law jury, he have much time to investigation independent Guaranty York, make an In Trust Co.v. 326 of his U.S. Foreign generally regarded 99, 109, law own. 65 89 L.Ed. S.Ct. 48, p. Tompkins 20 as a fact. Erie R. Am.Jur. 73. held that Co. v. The Court § Kentucky by ought by decisions ap- now relied on be thwarted not to technical

435 Michigan. Klax- conflict of laws in procedure. niceties between substance Mfg. Co., on Co. v. 313 Stentor Electric said: Mr. Justice Frankfurter U.S. 61 1477. S.Ct. 85 L.Ed. under policy that “The nub rule, applies Under that Tompkins lies Erie R. v.Co. highest own commonlaw unless the accident for the same transaction of the sister state has declared the law litigant in by of a suit non-resident a particular subject on the with involved in a State a federal court instead certainty.” “absolute v. Jen- Bostrom lead to away should not court a block nings, 146, 154, 40 N.W.2d substantially And result. a different 97, 101. so, putting abstractions one side my position It is that the common ‘proce regarding ‘substance’ subject on has diversity dure,’ we have held certainty. not been declared with absolute follow must courts cases the federal The dictum in Fer- burden North American the law the State as.to Dunlap, indicate, tilizer Co. would seem to as the proof, Co. v. Cities Service Judge away thought, District 84 L. trend U.S. S.Ct. 308 [60 privity. laws, from 196], Klax Ed. conflict of Co., U.S. on Co. v. Stentor Gaidry Motors, Brannon, In Inc. 1477], as to L.Ed. S.Ct. [61 by (Ky.), plaintiff S.W.2d 627 was struck contributory negligence, Palmer v. pur- a used automobile which had been 109, 117, Hoffman, S.Ct. [63 318U.S. Gaidry Hensley Mo- chased Samp And see 87 L.Ed. 645]. tors. The court affirmed a Channell, 754, Erie F.2d son v. negligence. favor based applied Tompkins has been R. Co. v. citing judges Three dissented Motor Olds eye alert to essentials in with an Shaffer, Ky. 616, Works v. 140 S.W. avoiding disregard law in of State L.R.A.,N.S., Davis Glass courts. diversity the federal cases in Ky. 706, Corp., Coffee Brewer important federal policy to our A so Bottling S.W.2d Nehi Co. v. entangle kept free from ism must be Thomas, S.W.2d terminologi analytical or ments with Nehi, In the court had held: cal niceties.” general “The rule is that contrac- Ridge Byrd Rural Blue See also: tor, an manufacturer furnisher of Inc., Cooperative, 356 U.S. Electric parties is not liable to third article 893, 2 L.Ed.2d S.Ct. no who have contractual relation with Tracy Equipment v. Finn In negligence in the him for construc- applied (C.A.6), at 500 F.2d 498 manufacture, tion, or sale statutory which two-issue rule Tennessee * * article Judge Simons, procedure. who relates was to same effect. Davis Court, opinion for said: wrote Herme, Tway Co., R. C. D. Inc. v. In C. respect in this Act is “While the (Ky.), purchased Herme 294 S.W.2d United Su- procedural, the States independent dealer which from an trailer postulated policy preme Court has Tway. An manufactured accident diversity cases the federal connecting king-pin caused proce- follow even the must courts defectively which was and trailer state in tractor rules dural allowing recovery application dif- constructed. against of a where sits manufacturer in cause a substantial rule would ferent re- who no of one had contractual had favor a different result likelihood the court said: been tried the state lations matter court.” ‘general so-called ancient “The non-lia- recognizes the manufacturer’s majority rule’ bility that the Dis- The persons- required to follow the was Court trict contractual has no he with whom relation, TRACY,Plaintiff-Appellee, John Court followed case, aban- been has Olds Motor EQUIPMENT by substantially COMPANY, modern all FINN doned * * * Defendant-Appellant. Upon recon- authorities. sideration, also No. now determine hereby it, ex- abandon and we United States Court of pressly Motor overrule the Olds Sixth Circuit. case.” Nov. impact considered Herme p. an- in 74 A.L.R.2d 1195 where at notator states: decision, supra,

“The C. Herme D.

must be taken to have overruled

only case, but Motor Olds Works following supporting

also the cases general requiring privity:

Heindirk v. Elevator Louisville Ky. 675,

(1906) 92 S.W.

L.R.A.,N.S., 1103; Berger v. Stand- Ky. (1907),

ard Co. Oil L.R.A..N.S., S.W. * * * Payton’s v. Childers’ Admr. (1929), 44, 14 Co. Electric 208; Davis v. Coffee S.W.2d Glass Ky. 706, Corp. (1944), Brewer

178 S.W.2d 407.” Finally, al., Waite, Snead et

Ky. 587, pur- 208 S.W.2d Mr. Waite

chased from barbecued mutton Snead consumption. He wife

immediate and his food two children became ill poisoning, wife the husband and damages

filed suit to for their recover injuries. Recovery was allowed to each implied warranty. privity in the wife’s suit not raised Kentucky’s highest

even mentioned

court. present case, relationship be-

tween the manufacturer was plaintiff purchased

not far removed since compressor

the defective from the manu-

facturer’s distributor. The article was Ohio, Marion,

assembled defendant sold, shipped it was crated and

where Louisville, distributor sold in turn and delivered it in

who original package plaintiff.

I would affirm the of the Dis-

trict Court.

Case Details

Case Name: William B. Schultz, and Cross-Appellant v. Tecumseh Products, a Corporation, and Cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 27, 1962

Citation: 310 F.2d 426

Docket Number: 14650_1

Court Abbreviation: 6th Cir.