dissenting:
I dissent. Deferentially and respectfully but, I must admit, with a certain degree of impatience, do I find myself in disagreement with my three judicial brethren in that part of their decision in which they reversed the Judge of the Circuit Court of Kanawha County sitting as an intermediate appellate court wherein, upon a solid fine of decisions of this Court, he reversed the trial court in its holding that the plaintiffs could recover on the theory of a breach of an implied warranty upon the facts in this case. I am in agreement with the action of this Court in affirming the intermediate trial court wherein he held that the plaintiffs could recover in tort if they could produce evidence to make such a recovery possible.
The evidence herein is undisputed that the plaintiffs on more than one occasion examined the mobile home trailer before they purchased it and that, from the nature of the article purchased and the defect therein which later caused the injury to plaintiff Frances Nettles, the condition was discoverable as easily by the plaintiffs as by the defendant. In Hood v. Bloch Brothers, 29 W. Va. 244, 11 S. E. 910, this Court in quoting from Jones v. Just, L. R. 3 Q. B. 197, held that: “First, where goods are in esse and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim, caveat emptor, applies even though the defect which exists in them is latent and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer. ... In such case, it is not an implied term of the contract of sale that the *25goods are of any particular quality or are merchantable. . . .” The rule excluding implied warranties from sales of goods in esse, where the purchaser is given the opportunity to inspect, in the absence of fraud, is firmly established in this state. Showalter v. Chambers, 77 W. Va. 720, 88 S. E. 1072; Erie City Iron Works v. Miller Supply Co., 68 W. Va. 519, 70 S. E. 125; and Watkins v. Angotti, 65 W. Va. 193, 63 S. E. 969.
The following decisions by this Court holding that there was an implied warranty are clearly distinguishable from the cases heretofore cited and stand for the proposition that such implied warranty arises only “where one buys an article of personal property by a particular description or of a designated kind.”: Millenson v. Lamp, 99 W. Va. 539, 130 S. E. 137, 48 A.L.R. 967; Appalachian Power Co. v. Tate, 90 W. Va. 428, 111 S. E. 150; and Schaffner v. National Supply Co., 80 W. Va. 111, 92 S. E. 580.
It is observed that the majority has placed its stamp of approval upon this portion of plaintiffs’ instruction No. 1, as amended, which was given by the trial court: “The Court instructs the jury that in the sale of personal property there is an implied warranty that the article furnished is a merchantable article of the kind purchased, and if you find from the evidence in this case that there was a missing adapter or an open gas pipe in the oven of the stove of the trailer sold by the defendant, Imperial Distributors, Inc., to the plaintiffs, then such defect was a breach of the implied warranty. . . .” How this Court can approve such an instruction and not overrule several pertinent decisions of this Count has never been made clear to me either in the conference room of this Court or in the opinion of the majority.
The ingenuity of a judge of a high court whether he sits beside the Kanawha, the Potomac or the Wabash, when he sets out to “distinguish upon the facts” a case under consideration from previous decisions of his court which are totally indistinguishable is something to behold. To my mind, it is pure sophistry to say that the fact that the part of the stove called an “adapter” was negligently not *26inserted by the manufacturer rather than being defective distinguishes this case from the previous decisions.
The manufacturer of the mobile home is not a defendant in this case, apparently because of the recent decision of this Court in the case of Payne v. Valley Motor Sales, Inc., 146 W. Va. 1063, 124 S. E. 2d 622. Upon the authority of that case the only relief which the plaintiffs would have against the manufacturer, assuming the existence of an express warranty similar to that in the Payne case, that is, an express warranty negating any implied warranties and limiting the liability of the manufacturer to the replacement of the defective part regardless of any personal injury, damage or destruction of the entire article occasioned by reason of the defectiveness of such part, would be to demand replacement or supply of the missing adapter. Does this decision of this Court therefore mean that hereafter, while the real culprit, the manufacturer, escapes liability by virtue of an extremely limited express warranty, that all retailers who sell automobiles, mobile homes, and all manner of gas and electric appliances shall, under the penalty of being liable in contract by way of an implied warranty, be forced to employ numbers of expert mechanics to disassemble every such appliance or machine to ascertain if there are latent defects before offering the same for sale? It may well be that these legal principles which this Court has applied to cases involving warranties, both express and implied, are anachronistic in the light of the complicated technical advances of the present day and the consequent unproductive examination of an intricate article of machinery or appliance by an untrained prospective purchaser who knows no more after examination than he did before. If the majority would agree, I would review and reconsider our past decisions in this light and, to the extent necessary, formulate new principles commensurate with present day commercial practicalities. However, I have never considered the terms stare decisis and retrospective judicial infallibility as being synchronous and it is my view that if the Court is to overrule a long line of cases, which I believe to be directly in point, it should do so by direction and not by indirection.
*27I would affirm the decision of the Judge of the Circuit Court of Kanawha, County sitting' as an intermediate appellate court in toto. I am authorized to say that Judge Haymond joins in the views expressed in this dissent.