(concurring specially).
I agree with the majority that a wrongful death action cannot be maintained for breach of an implied warranty, but since the dissenting opinions discuss the effect of the Uniform Commercial Code, Title 7A, Section 2-318 and its controlling effect on this litigation, I desire to express my separate views on this question, which is one of first impression insofar as I can determine. I can appreciate some of the views the dissenters have about what effect the adoption of the Uniform Commercial Code, with amendments, had on products liability law in Alabama. I think its adoption had a tremendous impact. For one thing, its adoption loosened the privity requirement, vertically and horizontally, in product liability cases. One legal writer thinks that the adoption of the “non-uniform” Commercial Code transformed “the Alabama personal injury warranty action, from the contractual beast it has historically seemed to he, into a new animal enjoying a predominantly tort pedigree.”1 I am *173unable to agree such a transformation occurred and that the Legislature changed the nature of the warranty action from one sounding in contract to one sounding in tort. Admittedly, the Legislature stripped the “warranty” action of much of its former contract regalia. In other words, while the “warranty” action was stripped of much of its contract cloak, it was not stripped of its name.
I am also aware that it is generally accepted that the action for breach of warranty originally was considered to be tortious in nature. Some of the legal scholars think the name of the product liability action has always been tort and that it has merely paraded around in “warranty” or contract clothing for some 40 or 50 years. Prosser classified “warranty” as “a freak hybrid born of the illicit intercourse of tort and contract, (which) had always been recognized as bearing to some extent the aspects of a tort.” Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791, 800 (1966).
Dean Prosser states that the trouble always lay with the use of the word “warranty” and he may be right. He maintains the “warranty” theory has been from the outset only a rather transparent device to accomplish the desired result of strict liability. He pointed out in an article entitled “The Fall of the Citadel,” 50 Minn.L. Rev. 791, 802, as follows:
“Although the writer was perhaps the first to voice it, the suggestion was sufficiently obvious that all of the trouble lay with the one word ‘warranty,’ which had been from the outset only a rather transparent device to accomplish the desired result of strict liability. No one disputed that the ‘warranty’ was a matter of strict liability. No one denied that where there was no privity, liability to the consumer could not sound in contract and must be a matter of tort. Why not, then, talk of the strict liability in tort, a thing familiar enough in the law of animals, abnormally dangerous activities, nuisance, workmen’s compensation, libel, misrepresentation and respondeat superi- or, and discard the word ‘warranty’ with all its contract implications? . . . ”
Unquestionably, by adoption of the Uniform Commercial Code, the Legislature intended to provide, and did provide, consumer protection which was unavailable before in instances where products were not reasonably safe. However, in granting this consumer protection the Legislature used the word “warranty,” which had acquired a special meaning in the field of products liability. While the Legislature knocked out the requirement of privity in product liability cases, horizontally and vertically, in my opinion, I do not think it changed the nature of the action for breach of warranty from ex contractu to ex delicto. In arriving at this belief, I recognize that there are decisions which hold that in products liability cases, regardless of the form of the action, that the tort aspects of warranty call for the application of a tort rather than a contract rule in allowing recovery for wrongful death. But many cases have held to the contrary, on the ground that the gist of warranty has become contract, and it is not included within the wrongful death statutes. W. Prosser, Law of Torts 635, § 95 (4th ed. 1971). See also, Annotation: Action ex contractu for damages caused by death, 86 A.L.R.2d 316, 317 (1962), where it is stated:
“While there is some authority to the contrary, it appears to be generally recognized that in absence of statute an action ex contractu is not the appropriate remedy to recover damages resulting from the death of another.”
I believe Alabama has consistently recognized an action for breach of warranty to be contractual in nature. Consequently, I cannot interpret Section 2-318 of the Commercial Code to state that the breach of an express or implied warranty is an action ex delicto and therefore a “wrongful act” under Alabama’s Wrongful Death Statute.
This court has held that the breach of a contract is not a wrongful or negligent act *174under our Wrongful Death Statute. Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1928). See also Knight v. Collins, 327 F. Supp. 97 (N.D.Ala.1971); cf. Latimer v. Sears Roebuck and Co., 285 F.2d 152 (5th Cir. 1960). Contra, Chrobak v. Textron, Inc., Civil No. 1012-S (M.D.Ala., filed Sept. 2, 1969) (unpublished ruling) (Interpreting Tit. 7A, § 2-318).
As I understand the position taken by the dissenters, they feel that Alabama has, by the passage of the Uniform Commercial Code, with amendments, established a “public duty,” the breach of which is a “wrongful act” under our Wrongful Death Act. I can agree basically with the position taken by the dissenters in this respect, but I must point out that the plaintiff below did not allege this “public duty.” Plaintiff did not allege its breach by the defendants. On the contrary, the plaintiff alleged that the defendants “warranted expressly or by implication that said automobile was fit for normal and ordinary use and operation as intended and was of merchantable quality” and “that as a proximate result and consequence of said breach of warranty by the defendants, as aforesaid, plaintiff’s intestate suffered such severe injuries that she died . . -.”1 believe that most lawyers and judges would classify this pleading as an ex contractu action. I do.
Had the plaintiff alleged a cause of action under the tort doctrine of strict liability as spelled out in the Restatement (Second) of Torts, § 402A (1965), I believe the giving of the affirmative charge would have been improper. § 402A of the Restatement (Second) of Torts provides:
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
In other words, I believe that this Court, in view of the policy expressed in the Uniform Commercial Code to protect users and consumers and persons affected by products, and in view of the recent trends in the development of the law in product liability cases, would adopt the doctrine of strict liability set out in the Restatement. I believe that this Court might hold that those protected against harm included not only users or consumers but any person who may be affected by the goods and who is personally injured. The justification for allowing such an ex delicto action for strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it. Properly presented, I believe this Court might approve the strict liability doctrine. But the warranty count here under consideration makes no attempt to claim under the theory of strict liability.
I believe that the comment in the Restatement (Second) of Torts on § 402A, above quoted, sustains my view that the rule of strict liability which I suggest should be available in personal injury actions, whether the injury is fatal or nonfatal. But I also believe that such actions are not governed by the provisions of the Uniform Sales Act, or those of the Uni*175form Commercial Code, as to warranties. Comment “m” states, in part:
“A number of courts, seeking a theoretical basis for the liability, have resorted to a “warranty,” either running with the goods sold, by analogy to covenants running with the land, or made directly to the consumer without contract. In some instances this theory has proved to be an unfortunate one. Although warranty was in its origin a matter of tort liability, and it is generally agreed that a tort action will still lie for its breach, it has become so identified in practice with a contract of sale between the plaintiff and the defendant that the warranty theory has become something of an obstacle to the recognition of the strict liability where there is no such contract. There is nothing in this Section which would prevent any court from treating the rule stated as a matter of ‘warranty’ to the user or consumer. But if this is done, it should be recognized and understood that the ‘warranty’ is a very different kind of warranty from those usually found in the sale of goods, and that it is not subject to the various contract rules which have grown up to surround such sales.
“The rule stated in this Section does not require any reliance on the part of the consumer upon the reputation, skill, or judgment of the seller who is to be held liable, nor any representation or undertaking on the part of that seller. The seller is strictly liable although, as is frequently the case, the consumer does not even know who he is at the time of the consumption. The rule stated in this Section is not governed by the provisions of the Uniform Sales Act, or those of the Uniform Commercial Code, as to warranties; and it is not affected by limitations on the scope and content of warranties, or by limitation to ‘buyer’ and ‘seller’ in those statutes. Nor is the consumer required to give notice to the seller of his injury within a reasonable time after it occurs, as is provided by the Uniform Act. The consumer’s cause of action does not depend upon the validity of his contract with the person from whom he acquires the product, and it is not affected by any disclaimer or other agreement, whether it be between the seller and his immediate buyer, or attached to and accompanying the product into the consumer’s hands. In short, ‘warranty’ must be given a new and different meaning if it is used in connection with this Section. It is much simpler to regard the liability here stated as merely one of strict liability in tort.”
Consequently, under present law, I think a party to suffers a non-fatal injury has two routes he could take. He can allege that there was an express or implied warranty, that it was breached and as a proximate result of the breach he suffered damages. In such cases, the Uniform Commercial Code does not require him to show privity. I personally think that in non-fatal injury cases, he could sue under the theory of strict liability which I have herein set forth. In death cases, I think an action for breach of warranty would be inappropriate for the reasons I have set forth, that is, because this Court and a majority of other courts have so held such remedy is inappropriate. In death cases, the appropriate remedy might be a suit under the so-called manufacturer’s liability doctrine or under the doctrine of strict liability set forth in the Restatement (Second) of Torts.
The plaintiff below had a negligence count against both defendants which went to the jury. The plaintiff presented much evidence that the defendants manufactured, sold, or serviced a product which was not reasonably safe and that plaintiff’s intestate was killed as a proximate result of the defective product, but the jury returned a verdict in favor of the defendant on this negligence count. Plaintiff assumed the higher burden of proving that “his intestate suffered said injuries and died as aforesaid as a proximate consequence of the combined negligence of said defendants *176in that the said defendant, General Motors Corporation, a corporation, negligently designed, engineered, manufactured, assembled or sold said automobile for use as a transportation vehicle in a dangerous condition . . . and the defendant, McDaniel Motor Company, a partnership, negligently sold and serviced said defective automobile and its components . . As is stated in Comment “a” under Restatement (Second) of Torts, § 402A:
“ . . . The rule stated here is not exclusive, and does not preclude liability based upon the alternative ground of negligence of the seller, where such negligence can be proved.” (Emphasis added.)
Having selected the theories upon which he would proceed to fasten liability on the defendants, we cannot pass on what might have been. As to the warranty count, I think he selected an inappropriate remedy. As to his negligence count, on which the jury found against him, I think he selected the alternative which required more proof than had he elected to proceed under the theory of strict liability, but that was a pleading choice.
Since the majority does not discuss in detail some of the points I have discussed, I took the liberty to express gratuitously my personal views on this matter of first impression in this special concurring opinion. My views are my own and should not be taken to express the thinking of either the majority or minority of this Court.
. McDonnell, The New Privity Puzzle: Products Liability Under Alabama’s Uniform. Commercial Code, 22 Ala.L.Rev. 455, 484 (1970).