A warranty of merchantability is implied only if the seller is a merchant with respect to goods of that kind to which the warranty may be applied.
Plaintiff bought a used trolley car from the defendant. While the plaintiff was dismantling it, the plaintiff's brother was exposed to fumes and died from respiratory failure. The plaintiff sued the defendant for negligence and a breach of the warranty of merchantability in selling the trolley car. At trial, the trial court sent the issue to the jury, who granted the plaintiff's claim for negligence, but granted the defendant's motion for judgment notwithstanding the verdict (JNOV) on breach of warranty. Both parties appeal from the lower court's ruling.
Could the defendant be considered a "merchant" for purposes of the warranty of merchantability.
On appeal, the Court affirmed the jury verdict, but reversed the JNOV, holding that the defendant was a merchant for purposes the warranty of merchantability. Because the defendant was highly experienced and knowledgeable about the trolley cars it sold periodically, it was subject to an implied warranty of merchantability. The court also held that defendant's disclaimer that the cars were sold "as is" did not preclude an action against it by the buyer's employee. Deceased's comparative negligence did not negate the warranty, as deceased had no knowledge of the fumes.