(specially concurring).
I wish it clear that in my judgment there is a cause of action in Alabama for breach of warranty resulting in death. In defining damages for breach of warranty, the Alabama Commercial Code, § 2-714, states:
“Damages in an action for injury to the person include those damages ordinarily allowable in such actions at law.”
Narrow construction of this provision so as to allow recovery for non-fatal, but not for fatal injury, would defeat the legislative intent. See Title 7A, § 1-106, Code of Alabama 1940 (Recompiled 1958). It would bring back from the legal history *107museum the moribund doctrine distinguishing fatal from non-fatal injury, and rewarding a tortfeasor who does not merely injure, but kills his victim. The purveyors of defective vehicles, exploding products, botulinous food, contaminated blood transfusions, and leaking gas heaters would be given every incentive, if they did not dispatch their victims right away, to hope for a delayed result as the latter lie injured in the hospital with large potential claims. The death of these citizens injured by defective products would free those responsible from any liability whatever. Such a situation existed in Alabama many years ago before our legislature passed wrongful death acts. Its revival within the boundaries of our modern Commercial Code would be intolerable.
I construe “wrongful act, omission or negligence” in our wrongful death statutes as inclusive of breach of warranty. Greco v. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 115 A.L.R. 1020 (1938); Uppgren v. Executive Aviation Services, 326 F.Supp. 709 (D.Md.1971)
In Greco the plaintiff sued as administrator under the New York Wrongful Death Act which allowed an action to recover for a death caused by a “wrongful act, neglect or default” to recover damages for the death of his wife. Her death was alleged to have resulted from the eating of infected pork sausages purchased from defendant. Plaintiff’s suit was based on the theory of implied warranty imposed by statute that the food was fit for human consumption.
The court pointed out that prior to the creation of the action of assumpsit, the remedy for breach of warranty was an action on the case for deceit, and that an action for breach of warranty was still in some respects a tort action. The court declared :
“Violation of a duty owing to another is a wrongful act; breach of contract involving violation of duty may be likewise a wrongful act. Here, the duty rested on defendant to see, at its peril, that the food was fit for human consumption and it is based on considerations of public health and public policy [Citation omitted.] Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default and, in its essential nature, a tort.” 277 N.Y. at 34, 12 N.E.2d at 561.
The court concluded as follows:
“[T]he breach of the warranty in a case such as this was a ‘default’ or ‘wrongful act’ within the meaning of those terms as used in the statute not only as a matter of definition but within the clear legislative intent.” Id. at 35, 12 N.E.2d at 561.
Returning to the case before us, the complainant cannot recover. She is trapped between the proverbial rock and hard place; the Scylla and Charybdis created by the respective Alabama and Georgia restrictions. Although, as indicated, I believe the complaint states a cause of action in Alabama, plaintiff has no standing to bring the action because she is not one of the parties enumerated in Title 7, §§ 119 and 123 as a proper plaintiff in wrongful death. She is neither the mother nor personal representative of a minor, nor the personal representative of a testator or intestate. Under Georgia law, on the other hand, she has standing (Georgia Code, Title 105, § 1307), but no cause of action under the substantive law of the state, which apparently does not allow recovery for death caused by breach of warranty. Lovett v. Emory University, Inc., 116 Ga.App. 277, 156 S.E.2d 923 (1967); Horne v. Armstrong Products Corp., 416 F.2d 1329 (5th Cir. 1969). Therefore the demurrer to the warranty count was properly sustained.
The counts in negligence were barred by the trial judge’s application of the Alabama one-year statute of limitations (Title 7, § 26). This ruling appears to be supported by the case authority. Larue v. Kershaw Co., 177 Ala. 441, 59 So. 155 *108(1912); Mullins v. Alabama Great Southern R. Co., 239 Ala. 608, 195 So. 866 (1940).
For these reasons only I concur in the affirmance of the judgment below.