Business 8th Edition by Marianne Jennings

تمرين 19

The Dentures Sold Were a "Bill of Goods," But Were They UCC Goods?
Facts
Dr. Cook (appellant) is a licensed dentist who devotes less than 50 percent of his practice to the work of fitting and making dentures, Mrs. Downing (appellee) is a patient of Dr. Cook who was fitted for dentures. Mrs. Downing filed suit against Dr. Cook after she took delivery of her dentures because she said they were ill-fitting and produced sore spots in her mouth. Dr. Cook's expert witness testified that Mrs. Downing's problems were probably due to Candidas, an autoimmune reaction, or an allergy to the dental material. No expert testified that her problems were due to ill-fitting dentures.
The trial court awarded damages to Mrs. Downing on the basis of a breach of UCC Article 2, implied warranty of fitness for a particular purpose. Dr. Cook appealed, maintaining that the dentures were not a sale of goods.
Judicial Opinion
HUNTER, Judge
Section 2-105(1) defines goods as meaning "all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action. 'Goods' also includes the unborn young of animals and growing crops and other identified things attached to realty...."
We agree with Appellant's position that any claim Appellee might have sounds in tort. In Oklahoma, dentists, professionals who are regulated by the state, furnish dentures. In general, dentists must use ordinary skill in treating their patients. A patient does not establish the elements of legal detriment by only showing nonsuccess or unsatisfactory results. A dentist is not a merchant and the Uniform Commercial Code is not the law to apply to these facts. Finding no Oklahoma law on point, we align ourselves with the reasoning stated by the Court of Appeals of North Carolina in Preston v Thompson, 53 N.CApp. 290, 280 S.E.2d 780 (1981). In the Preston case, the patient determined through her research in the yellow pages that the dentist was a specialist in dentures. The patient claimed the doctor made oral assurances that the dentures would fit satisfactorily. The dentures did not fit well and subsequent attempts at correcting the problem were not successful. The patient sued the dentist on an implied warranty theory pursuant to the Uniform Commercial Code. The court held that the transaction was not of "goods" and that a dentist was not a "merchant" under the UCC. We adopt the rule as enunciated by the North Carolina court that "those who, for a fee, furnish their professional medical services for the guidance and assistance of others are not liable in the absence of negligence or intentional misconduct." The court further held that "the fact that defendant holds himself out as specializing in the preparing and fitting of dentures does not remove him from the practice of dentistry and transform him into a merchant." We hold that under the laws of Oklahoma, a dentist is not a merchant and dentures, furnished by a dentist, are not goods under the UCC.
A dentist could be sued for breach of contract, if such contract were alleged to exist, but that is not the fact as revealed in the record in our case. Appellee presented evidence of an advertisement guaranteeing dentures to fit, but testified that she did not see this ad until after she had begun her treatment with Appellant. The evidence does not support any breach of contract action.
As a matter of law, Appellee erroneously based her cause of action on the Uniform Commercial Code rather than negligence. The court erred in entering judgment in favor of Appellee based on this law. For this reason, we reverse the judgment of the trial court and remand the matter with directions to enter judgment in favor of Appellant.
Reversed and remanded with directions.
Dissenting Opinion
JONES, Judge, dissenting
The implied warranty of merchantability is codified at 12A O.S.1991 § 2-314 and deserves a closer look.
"(1)... a warranty that Vie goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of thai kind.*****
(2) Goods to be nterchantable must be at least such as...
(c) are fit for tlte ordinary purposes for which such goods are used;****".
A "merchant" is defined as:
". ,. a person who deals in goods of the kind or otherwise by his occupation holds lumself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill."
"Goods" means "all tilings (including specially manufactured goods) winch are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities... and things in action... "
"Dentists" and "dentures" appear to be included in the definitions of merchants and goods.
The transaction of a patient being fitted for and purchasing dentures from a dentist is actually a hybrid. It is not purely a sale of goods by a merchant, nor is it purely the providing of a service by a health care professional. Whether implied warranties under Article 2 of the U.C.C. apply to such a transaction should depend on whether the predominant element of the transaction is the sale of goods or the rendering of services. If the sale of goods predominates, it would be within the scope of Article 2 and the implied warranties contained therein. However, if the service aspect predominates, there would be no implied warranties. Although the record contains no specific findings of fact, the record does contain evidence from which it could be concluded that this transaction was principally a sale of goods and that the implied warranty of merchantability applies thereto. The evidence was also sufficient that the trier of fact could have concluded that the dentures were not fit for their ordinary purpose as required to establish a prima facie case for breach of the implied warranty of merchantability. We must affirm a law action tried to the court if there is any competent evidence to support the judgment.
In contemporary society the old distinctions separating health care professionals from other businessmen are blurring in many respects. This Court's holding that a dentist is not a merchant, and dentures, furnished by a dentist, are not goods ignores the fact that nothing excludes them from the statutory definitions of merchant and goods. It also ignores the fact that health care professionals in some instances are selling goods to their "patients", with the providing of professional services being secondary to the sale. To such transactions there is no reason Article 2 of the UCC should not apply. I respectfully dissent.
Does classifying the dentures as something other than the sale of goods deprive Mrs. Downing of a remedy?