Nalbandian v. Byron Jackson Pumps, Inc. ( 1965 )

LOCKWOOD, -Chief Justice

(concurring) :

I' Concur in the conclusion reached by the majority of this Court that this case should be reversed and remanded for further proceedings. However, the conclusion of the majority is based Upon the theory of statutory implied warranty. In the recent case of Colvin v. Superior Equipment Company, 96 Ariz. 113, 392 P.2d 778 (1964), this Court adopted the modern legal concept of a manufacturer’s strict liability in tort with regard to its manufactured products. This action was brought by the plaintiff against the defendant for breach of warranty. A study of the complaint demonstrates that it was brought either ex contractu or in tort. The gravamen of that complaint was a breach of warranty.

I am concerned lest the readers of the majority opinion interpret that opinion to be a modification of that doctrine adopted in the Colvin case. Thus I would point out that the majority cites the Colvin case as good law albeit in support of a legal point which does not reach the heart of the problem with which we are here concerned.

In the Colvin case, supra, we adopted Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). We quoted from that case as follows :

* *' Implicit in the machine’s presence on the market, -however, was a representation that it would safely do the jobs for which it was built. Under these circumstances, it should not be controlling whether plaintiff selected the machine because of the statements in the brochure, or because of the machine’s own appearance of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would safely do the jobs it was built to do. * * * To establish the manufacturer’s liability 'it was sufficient that plaintiff proved that he was injured while using the Shop-smith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware and that made the Shopsmith unsafe for its intended use.’ ” 96 Ariz. at 118-119, 392 P.2d at 781-782.

In the Greenman case, supra, the Supreme Court of California also said:

“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” 59 Cal.2d at 62, 27 Cal.Rptr. at 700, 377 P.2d at 900.

That court also said:

“ * * * strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law [citations], and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products [citations] make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort. * * * The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. Sales warranties serve this purpose fitfully at best. * * * Implicit in the machine’s presence on the market * * * was a representation that it would safely do the jobs for which it was built.” 59 Cal.2d at 63-64, 27 Cal.Rptr. at 701, 377 P.2d at 901. (Emphasis supplied.)

The Greenman case concluded:

“To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shop-smith unsafe for its intended use.” 59 Cal.2d at 64, 27 Cal.Rptr. at 701, 377 P.2d at 901.

We held in Colvin, supra, that the same rationale is to be applied whether we are concerned with an injured man “as the foundation of accident liability, or by the purchaser to avoid a contract.” 96 Ariz. at 119, 392 P.2d at 782. Indeed the same rationale is applicable in a situation such as this where the plaintiff has brought an action to recover monies paid to the manufacturer to repair its defective product.

It is to be noted here that there is no controversy over the fact that the defendant supplied and installed the motor and that the defendant had supplied the plaintiff with pumps and motors previous to the one here in question and was aware of the uses to which the motor was to be put. The defendants herein had a duty to provide a pump and motor fit for the purpose for which it was intended and the plaintiff had the right to rely thereon. Mack v. Hugh W. Comstock Associates, Inc., 37 Cal.Rptr. 466 (Dist.Ct.App.1964).

Had the court below applied the doctrine of strict liability in tort which this Court has adopted, it would have been required to find for the plaintiff.