Burbage v. Atlantic Mobilehome Suppliers Corp.

205 S.E.2d 622 (1974)

21 N.C. App. 615

Thomas W. BURBAGE, Plaintiff, v. ATLANTIC MOBILEHOME SUPPLIERS CORPORATION, Defendant and Third-Party Plaintiff, v. REESE PRODUCTS, INC., Third-Party Defendant.

No. 7429DC153.

Court of Appeals of North Carolina.

June 5, 1974.

*623 Ramsey, Hill, Smart & Ramsey by Allen Van Turner, Brevard, for plaintiff-appellee.

Morris, Golding, Blue & Phillips by James F. Blue, III, Asheville, for defendant-appellant.

Roberts & Cogburn by Landon Roberts, Asheville, for third party defendant-appellee.

CARSON, Judge.

The plaintiff bases his claim upon the breach of an implied warranty by defendant Atlantic. In 1965, when North Carolina enacted the Uniform Commercial Code, the long accepted concept of implied warranty in sales transactions was codified. G.S. § 25-2-314 provides an implied *624 warranty of merchantability with respect to goods sold by merchants. In order to effectively assert a claim under the statute, the plaintiff must prove the giving of the warranty, the breach of that warranty, and damages resulting to him as a proximate result of the breach. Douglas v. Mallison, 265 N.C. 362, 144 S.E.2d 138 (1965); Uniform Commercial Code, White and Summers, Sec. 9-1, p. 272 (1972). We do not feel that the plaintiff has satisfied this burden.

In the case of Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392 (1955), the plaintiff brought an action for breach of warranty against the retailer of a hair rinse which she alleged caused damage to her scalp. No analysis of the hair rinse was made. The only showing was the use of the rinse and a severe scalp infection which followed. In affirming the nonsuit granted to the defendant at the close of the plaintiff's evidence, the court held that the mere use of the product and the damage were insufficient to submit the matter to the jury. Without an analysis of what was in the hair rinse and what effect it had on the plaintiff, the cause of the damages was purely speculative, and the suit was properly dismissed.

In the instant case the plaintiff admitted that he did not read the instructions furnished with the trailer hitch. He further admitted that he knew the tongue weight should be between 350 and 525 pounds, but he stated that he picked up the tongue and placed it on the ball. Whether the breaking of the trunnion was caused by a defect in the part, or by the improper load distribution or connection, is pure speculation and should not have been submitted to the jury. The only evidence presented was the testimony of the plaintiff and the trunnion itself. No evidence was presented as to why the trailer hitch broke. No expert or opinion testimony was given concerning the suitability of the trailer hitch. The plaintiff contends that a layman would know from experience that steel is of uniform consistency and color, that it sometimes contains processed impurities, that impurities render steel less resilient and more brittle, that manufacturers of steel products use steel which provides a minimum margin of strength to meet product stresses, and that steel products which contain impurities may not be sufficiently strong to meet such stresses. However, these matters are not common knowledge and cannot be inferred without competent evidence. It is only conjecture as to whether the improperly loaded or balanced trailer caused the trunnion to break, whether the trunnion was defective, or whether the accident was caused by another force. This matter should not have been submitted to the jury, and the defendant's motion for a directed verdict should have been allowed.

Because the motion for a directed verdict should have been granted to the defendant, it is not necessary to decide the third party defendant's questions concerning lack of jurisdiction and running of the statute of limitations. The judgment is reversed.

BRITT and HEDRICK, JJ., concur.