Byrd v. Star Rubber Company

Judge Brock

dissenting:

The majority opinion relies upon Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E. 2d 21, to dispose of the question involved here. It seems to me that the Wyatt rule can stand reexamination in the light of developments in product liability case law in the past ten years.

But, in any event, Wyatt was concerned with ruling upon a demurrer to a complaint which was treated as alleging an express warranty made by the defendant to plaintiff’s employer. Because of this I view Wyatt as holding that a recovery cannot be had by a person not in privity with the warrantor of an express warranty. My view of this is strengthened by the fact that Wyatt cited Berger v. Standard Oil Co. (Ky.), 103 S.W. 245 (1907) as authority to exclude an employee of the buyer from the benefits of an express warranty by the seller to the buyer. Both Wyatt and Berger were concerned with allegations of an express warranty to the employer of plaintiff; there appears to have been no allegation or effort to recover on implied warranty.

In a later Kentucky case, Dealers Transport Co. v. Battery Distributing Co. (Ky.), 402 S.W. 2d 441 (1966) the following is said: “The Berger case actually involved an express warranty, and is not authority for the rule applicable to an implied warranty.” In the same case it was also stated: “We are unable to perceive a valid basis for requiring privity of contract in a products liability claim based on breach of implied warranty and disregarding privity in such claims based on negligence.”

In the case sub judice the allegations of the complaint seem to allege an implied warranty and for that reason is distinguishable from the case relied upon by the majority. I vote to reverse the order of dismissal.