Geohagan v. General Motors Corp. , 291 Ala. 167 ( 1973 )

HARWOOD, Justice.

This is a products liability case involving a claim for wrongful death instituted by the administrator of the estate of plaintiff’s decedent against General Motors Corp. (General Motors), the manufacturer of the vehicle involved, and McDaniel Motor Co. (McDaniel), the retail vendor. The complaint, as finally amended, presented two counts; viz, Count One-D and Count Two-C, to which the defendants ultimately plead the general issue in short by consent. In substance Count One-D charges that the combined negligence of the defendants proximately resulted in the death of the plaintiff’s intestate, Barbara Geohagan Evans. Count Two-C alleges that in connection with the sale of the vehicle the defendants impliedly warranted its suitability and fitness, the breach of which resulted in the fatal injury to plaintiff’s intestate.

The trial court, at the conclusion of the testimony, granted each defendant’s request for the affirmative charge as to Count Two-C and submitted the case to the jury on Count One-D only. This appeal is taken from the judgment rendered by the Circuit Court in accordance with the jury’s verdict in favor of the defendants-appellees, and from the Circuit Court’s action in granting defendants’ request for the affirmative charge as to Count Two-C.

During her lifetime, Barbara Geohagan Evans was married to Rodney Evans. Mr. Evans was killed in military service subsequent to the time of his wife’s fatal crash and prior to the date this suit was commenced by George Geohagan, Barbara’s father, as administrator of her estate. On September 30, 1967, Rodney Evans purchased a new 1968 Chevrolet Camero from McDaniel. The car was undisputedly a General Motors product. In June of 1968, Rodney Evans and Barbara Geohagan were married and during their mutual lifetime the automobile involved was used by each of them as the family car. Barbara was driving the car alone on September 5, 1968, along Highway 52 between Opp and Samson, Alabama, at which time the car left the road at a high rate of speed, ran into a culvert and crashed into a utility pole. Barbara was killed in the crash.

The factual theory of the plaintiff’s case was that the crash resulted from defective motor mounts, the failure of which caused the engine to shift within the engine compartment locking the accelerator at full throttle. Since this court’s opinion rests solely on the question of law presented by the pleadings, no further recitation of the facts is deemed necessary. Suffice it here to observe that the evidence in support of the opposing contentions of plaintiff and of defendants relating to the cause of the crash was in conflict.

The matter urged by the appellant as error pertains to those assignments of error to the effect that the lower court erred in giving the affirmative charge for the defendants (appellees) as to the breach of implied warranty count, i. e., Count Two-C.

The basic issue here considered is whether an action for breach of implied warranty will legally sustain a claim for wrongful death. Realizing that this is a cause of first impression in Alabama, we take special note of the fact that we have been favored with excellent briefs by counsel for each of the parties.

In Alabama, as generally elsewhere, punitive damages are not recoverable for breach of contract. Wood v. Citronelle-Mobile Gathering System, 5th Cir., 409 F.2d 367.

As stated by de Graffenried, J., in Millsap v. Woolf, 1 Ala.App. 599, 56 So. 22:

“A warranty, in the sale of a chattel, is a collateral undertaking on the part of the seller as to the quality of or title to the subject of the sale. It may be express or implied. * * *

“As a warranty, express or implied, is a contract, the good faith of the seller in making it is not material. In actions for breach of warranty, the only questions are: Was there a contract of warranty? If so, has there been a breach? And if so, the amount of damages suffered by the purchaser thereby. Scott v. Holland, 132 Ala. 389, 31 So. 514.

“There is a clear distinction between an action for a breach of warranty and one for deceit in the sale of a chattel; in the first case the action is ex contractu and in the second, ex delicto. 30 Am. & Eng.Ency.Law, p. 129; Scott v. Holland, supra. * * * ”

Regardless of the view in the earlier development of the action of breach of warranty that it was based on tort, certainly as the action developed it was regarded as contractual, and such was the view of our cases at the time of the passage of the Uniform Commercial Code by the Alabama Legislature in 1965, which code was to be effective at midnight on 31 December 1966.

Damages for breach of a contract (or breach of warranty) are awarded to put a party in the same position he would have occupied if the contract had not been violated. Coastal States Life Ins. Co. v. Gass, 278 Ala. 656, 180 So.2d 255. On the other hand, damages under our wrongful death statutes are punitive in nature, and are not compensatory. Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 252 So.2d 33. Such view is compatible only with the concept that any action permissible under our wrongful death acts must in nature be in tort and not in contract.

The Alabama Uniform Commercial Code is contained in Act No. 549, 1965 Acts of Alabama. This Act appears as Secs. 1-101 through 9-505, of Title 7A, Michies Recompiled Code of Alabama 1958 (1966 Added Volume). For convenience we will refer to the provisions of the Act as they appear in the Recompiled Code.

Secs. 1-102(1) and 1-102(2) (a) and (b) are as follows:

“(1) This title [Uniform Commercial Code] shall be liberally construed and applied to promote its underlying purposes and policies.

“(2) Underlying policies and purposes of this title are

“(a) to simplify, clarify and modernize the law governing commercial transactions;

“(b) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties.” (Emphasis ours.)

Thus it is crystal clear that the purpose of the legislature in passing our version of the Uniform Commercial Code was to regulate commercial transactions. By no stretch of the imagination can it be deemed that actions for wrongful death are commercial transactions.

Our decisions since the enactment of our wrongful death acts have made it clear that such acts are intended to protect human life, to prevent homicide, and to impose civil punishment on takers of human life. The damages awarded are punitive in nature. The personal representative in prosecuting a wrongful death action acts as an agent of legislative appointment for declaring the public policy evidenced by the wrongful death acts. An action under our wrongful death acts comes into being only on death from some wrongful act. See innumerable citations and annotations under Sec. 123, Title 7, Code of Alabama 1940.

Thus a wrongful death action differs entirely from an action for a breach of warranty, express or implied, in a contract, for as respects liability for breach of a warranty the good faith, or lack of faith, in promisor in making the contract of warranty is immaterial. Attalla Oil & Fertilizer Co. v. Goddard, 207 Ala. 287, 92 So. 794.

The above principles were well settled by the decisions of this court (and the courts of many of our sister states) at the time of the passage of our Uniform Commercial Code. Our wrongful death acts, and the decisions of this court thereunder have been the law of this state for decades.

Where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all things not expressly mentioned. Champion v. McLean, 266 Ala. 103, 95 So.2d 82.

We do not see how the legislature could have more clearly expressed the operative scope of the Alabama Uniform Commercial Code than it did in the Section 1-102(2), Subsections (a) and (b) of Title 7A, above mentioned, i. e., that the underlying purpose and policy of the act was “to simplify, clarify, and modernize the law governing commercial transactions,” and “to permit the continued expansion of commercial practices through custom, usage and agreement of the parties.” (Emphasis ours.)

So far as can be determined from a reading of our Uniform Commercial Code, there is not one word, sentence, paragraph, clause, or section which in anywise even suggests that for the breach of an express or implied warranty in a contract any person is given a right to maintain an action for a wrongful death. On the other hand, the precision with which the legislature has defined the purpose and policy of the act, limiting the same to commercial transactions, clearly demonstrates that it was not the intent of the legislature in enacting the Uniform Commercial Code to create a wrongful death action in case of a breach of warranty of the contract involved.

This precise point was before the U.S. District Court for the Northern District of Alabama in Knight, Admr. v. Collins, et al., 327 F.Supp. 97 (1971). In an opinion by Pointer, J., it was set forth:

“To the extent that plaintiff seeks to bring a cause for breach of contract within the Homicide Act — Title 7, § 119, or its adult companion, Title 7, § 123— the Alabama Supreme Court has clearly foreclosed the way. Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1928). Moreover, this same decision assumes the rule that an action ex contractu for damage to the person causing death would not otherwise survive (insofar as the right of action held by the deceased). There may be good reason to question the correctness of the reasoning underlying such a rule — see, e.g., Smedley, ‘Wrongful Death — Basis of Common Law Rules,’ 13 Vanderbilt Law Review 605 (1960) — but our role is limited here to discerning the rule adopted by the Alabama Supreme Court. In a similar situation, Judge Lynne of this district court ruled that a count for breach of implied warranty causing death could not be maintained under Alabama law. (Unpublished ruling, Wheeler v. General Motors Corp., U.S.Dist.Court, N.D.Ala., # 70-315). The Fifth Circuit has reached the same conclusion as to a comparable Florida statute. Latimer v. Sears, Roebuck & Co.,

285 F.2d 152 (5th Cir. 1960).”

It is to be noted that in the special concurrence of Faulkner, J., and the dissenting opinion of Jones, J., in Battles v. Pier-son Chevrolet, 290 Ala. 98, 274 So.2d 281, it is stated that Georgia does not allow recovery for death in a breach of warranty action. Apparently, such is also the rule in Florida. To like effect see Post v. Manitowoc Engineering Co., 88 N.J.Super 199, 211 A.2d 386; Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638; Bloss v. Dr. C. R. Woodan Sanitarium Co., 319 Mo. 1061, 5 S.W.2d 367; Wadleigh v. Howson, 88 N.H. 365, 189 A. 865. See also annotation in 86 A.L.R.2d 316.

We hold that no contractual cause of action for wrongful death is created by our Uniform Commercial Code arising from a breach of warranty, and that actions for wrongful death can arise in this state and be processed only under our wrongful death acts.

The lower court therefore did not err in withdrawn from the jury’s consideration Count 2C, and the judgment here appealed from is due to be affirmed.

Affirmed.

MERRILL, COLEMAN, BLOOD-WORTH and McCALL, JJ., concur. MADDOX, J., concurs specially. HEFLIN, C. J., and FAULKNER and JONES, JJ., dissent.