TORBERT, Chief Justice.
The United States District Court for the Southern District of Alabama, Southern Division, requests that this court re-examine certain questions previously certified to this court in an action for breach of warranty brought by Albert Johnson, Alfred Love, and Thomas Simmons for personal injuries they sustained due to defects in sandblasting hoods manufactured and distributed by Clemco Industries and/or Pulmosan Safety Equipment Company.
The plaintiffs were employed as sandblasters for Bender Welding and Machine Company and contracted silicosis (a lung condition), which they attribute to defects in the hoods which were designed to protect them from such hazards. Thomas Simmons died as a result of his condition, and his action was revived by his wife, Martha Simmons, as executrix of his estate. The federal district court pursuant to Rule 18 of the ARAP submitted six certified questions dealing with breach of warranties and the survival of actions. We only found it necessary to answer Certified Question No. 5 since, in light of that question as framed, the UCC was not applicable and pre-Code law governed. See Johnson v. American Mutual Liability Insurance Co., Ala., 368 So.2d 506 (1978). However, on October 17,1978, the federal district court resubmitted the remaining questions along with the following additional facts:
Since from the additional facts it appears the UCC is applicable, the question as to the effective date of the Code is no longer determinative of the action and we now answer the remaining questions. For convenience, we consider Certified Questions Nos. 1 and 2 together.
I & II
Does Code of Alabama 1975, § 7-2-725 require that all actions based on breach of warranty under Code of Alabama § 7-2-313, § 7-2-314, § 7-2-315 and § 7-2-318 be brought within four years after tender of delivery is made unless the damages are injuries to the person in the case of consumer goods or unless a warranty explicitly extends to future performance of the goods?
Does Code of Alabama 1975, § 7-2-725 require that all actions for personal injury arising out of an alleged breach of warranty under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315, and § 7-2-318 be brought within four years after the discovery of injury or the discovery of facts which would reasonably lead to such discovery?
Ala. Code § 7-2-725 (1975).
The Code, then, provides that generally an action for breach of warranty must be brought within four years of tender of delivery. However, there are two exceptions to this general rule, one, where the warranty explicitly extends to future performance of the goods, and the other, where the damages are injury to the person in the case of consumer goods. The question is whether all personal injuries are included within this latter exception from the tender of delivery rule.
The addition of the provision for personal injury in the case of consumer goods to section 7-2-725 is a departure from the standard version of the UCC and is unique among the states adopting the Code. The legislature was specific in creating this exception from the tender of delivery rule, and it clearly applies only to personal injuries in the case of consumer goods. Had the legislature intended all actions for personal injury resulting from breach of warranty to come within the exception, then it would have been a simple matter to omit the phrase "in the case of consumer goods" particularly in light of the language employed in section 7-2-715(2)(b),
Other jurisdictions, relying on the plain meaning of the statute, have held in actions involving personal injury sustained as a result of breach of warranty that the UCC statute of limitations starts to run at tender of delivery. In Moody v. Sears, Roebuck & Co., 324 F.Supp. 844 (S.D.Ga.1971), the plaintiff was injured when an aluminum extension ladder failed in use. The court held that suit for breach of warranty must be commenced within four years of tender of delivery regardless of the aggrieved party's lack of knowledge of the breach. The plaintiff in Hoffman v. A. B. Chance Co., 339 F.Supp. 1385 (M.D.Pa.1972), was injured when he fell from an allegedly defective hydraulic aerial platform purchased by his employer to facilitate his work. The court computed the limitation period as beginning from tender of delivery and not from the date of the injury. Accord, Waldron v. Armstrong Rubber Co., 64 Mich.App. 626, 236 N.W.2d 722 (1975).
Accordingly, we answer Certified Question No. 1 in the affirmative and No. 2 in the negative.
Under the provisions of Code of Alabama 1975, § 6-2-39, must an action for personal injury arising out of an alleged breach of warranty under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315, and § 7-2-318 be brought within one year after the discovery of the injury or the discovery of facts which would reasonably lead to discovery of an injury?
Furthermore, in Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), we maintained the distinction between remedy in tort and for breach of warranty. Id. at 139. To apply the one year statute of limitations to breach of warranty actions would help obliterate the distinction between the two theories of recovery. Accordingly, we answer Certified Question No. 3 in the negative and hold that section 7-2-725 contains the appropriate statute of limitations.
Does Code of Alabama 1975, § 7-2-607, require all persons seeking recovery under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315 and § 7-2-318 to give notice of an alleged breach of warranty prior to filing a civil action based on either Code of Alabama 1975, § 7-2-313, § 7-2-315, and/or § 7-2-318?
Section 7-2-715 provides for recovery for personal injury as part of the buyer's consequential damages for breach of warranty. The seller's warranty is extended in section 7-2-318 to any natural person who is reasonably expected to use, consume, or be affected by the goods and who is injured in person by the breach. Accordingly, the legislature has eliminated the requirement of privity when the breach causes personal injury and has extended the right to recover for such injuries to the third party beneficiaries of the warranty, i. e., the warranty beneficiaries.
As a precondition to recovery, however, the seller is entitled to notice of his breach at least by the buyer. Section 7-2-607(3)(a) provides: "Where a tender has been accepted: (a) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy. . . ." The question arises whether the warranty beneficiary must give notice or likewise be barred from recovery. We hold that he does not.
The express language of the Code is "the buyer must within a reasonable time. . . notify the seller . . . or be barred from any remedy . . . ." Ala. Code § 7-2-607(3)(a) (1975) (emphasis added). There is no provision for anyone other than the buyer to give notice. A buyer is defined as "a person who buys or contracts to buy goods." Ala. Code § 7-2-103(1)(a) (1975). Clearly, then, a warranty beneficiary is not within this definition. Although in Bishop v. Sales, 336 So.2d 1340 (Ala.1976), we held that "[s]ellers and buyers are not limited by definition to retailers and consumers," id. at 1343, a careful reading reveals that we did not extend the term "buyer" beyond the Code definition. Since the express language of the Code requires only buyers to give notice and a warranty beneficiary is not within the definition of buyer, notice is not required of such beneficiaries. As was said in Frericks v. General Motors Corp., 278 Md. 304, 363 A.2d 460,465 (1976), quoting Tomczuk v. Town of Cheshire, 26 Conn.Sup. 219, 217 A.2d 71 (1965):
We note that Comment 5 to section 7-2-607 states:
Though the official comments are a valuable aid in construction, they have not been enacted by the legislature and are not necessarily representative of legislative intent. The legislature has manifested by amendments
Furthermore, holding the notice requirement inapplicable to warranty beneficiaries does not frustrate the purposes of section 7-2-607 which are often stated as guarding against stale claims, enabling the seller to marshal evidence for a defense, and allowing the seller to correct the defect or to mitigate damages. See J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code 344 (1972). The statute of limitations adequately protects against stale claims, and in cases of personal injury, notice is inconsequential in preventing or mitigating the harm since the injury has already occurred. Frericks v. General Motors Corp., supra. Finally, the second policy, that is, to afford the seller an opportunity to prepare a defense, is not given much weight by the courts, writers,
Though there are no decisions in Alabama dealing with this question, other jurisdictions have uniformly held that the notice requirement is inapplicable to a warranty beneficiary. See, e. g., Tomczuk v. Town of Cheshire, supra; Chaffin v. Atlanta Coca Cola Bottling Co., 127 Ga.App. 619, 194 S.E.2d 513 (1972); Mattos, Inc. v. Hash, 279 Md. 371, 368 A.2d 993 (1977) (employee was injured by clamp purchased from defendant by employer for use by employees on the job); Frericks v. General Motors Corp., supra.
For the above mentioned reasons, we answer Certified Question No. 4 in the negative.
Does an action for breach of warranty brought by a plaintiff under Title 7, §§ 7-2-313, 7-2-314, and 7-2-315 survive the death of the plaintiff in favor of his personal representative, for the recovery of lost wages, pain and suffering, medical expenses and other damages which occurred between the time of the alleged breach of warranty and death of the plaintiff, in the circumstances where the plaintiff died as a result of the alleged breach of warranty, after the action had been brought by him?
By statute, claims for personal injury survive the death of the plaintiff in favor of his personal representative.
Ala. Code § 6-5-462 (1975).
There is a line of decisions of this court dating from 1930 holding that actions for personal injuries do not survive if death results from the injuries. See, e. g., Carroll v. Florala Memorial Hospital, Inc., 288 Ala. 118, 257 So.2d 837 (1972); Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (1942); Bruce v. Collier, 221 Ala. 22, 127 So. 553 (1930). These decisions, however, do not distinguish between actions based on tort and those based on contract. In fact, it seems these cases contemplate only a tort action where an action for wrongful death lies.
In Bruce v. Collier, supra, plaintiff brought suit for injuries he sustained as a result of the negligent or wanton operation of a truck on the public highways by defendant's employee. While that action was pending, plaintiff died as a result of the injuries sustained. This court stated the issue as follows: "Does an action for personal injuries begun by the decedent while in life, survive to his personal representative if death results from the same tort, giving rise to an action under the homicide act ?" [emphasis added.] Id. at 23, 127 So. at 554. The court, in holding such actions do not survive, stated:
The subsequent cases reaching this same result also involve a tort action with a "consequent right of action for wrongful death." See, e. g., Carroll v. Florala Memorial Hospital, Inc., supra; Parker v. Fies & Sons, supra.
The instant case involves a contract action, not a tort action, for breach of warranty where plaintiff is seeking only compensatory damages. Furthermore, Geohagan v. General Motors Corp., 291 Ala.
CERTIFIED QUESTIONS ANSWERED.
All the Justices concur.
Atkins v. American Motors Corp., 335 So.2d 134, 141-42 (1976).