(dissenting).
The majority, employing a variety of the deep pocket theory, fixes liability upon a manufacturer of a mobile home when there is no privity of contract between the parties and no injury to person or property. The French jurists speak of this deep pocket theory as “le risgue créé.”1
I find it extremely difficult to generate sympathy for the manufacturer of a defective mobile home relying wholly upon the doctrine of privity as its defense. Yet, I decline to join in this departure from solidly established Texas precedent simply because our plaintiff has made a bad deal on the purchase of a mobile home. This is another example of “hard cases ‘are apt to introduce bad law.’ ”2
In my approach to this dissent, I invoke the language used by Justice Oran M. Roberts in Duncan v. Magette, 25 Tex. 245, 253 (1860):
“The act of moulding justice into a system of rules detracts from its capacity of abstract adaptation in each particular case; and the rules of law, when applied to each case, are most usually but an approximation to justice. Still, mankind have generally thought it better to have their rights determine by such a system of rules, than by the sense of abstract justice, as determined by any one man, or set of men, whose duty it may have been to adjudge them.
* * * * * *
*196“To follow the dictates of justice, when in harmony with the law, must be a pleasure; but to follow the rules of law, in their true spirit, to whatever consequences they may lead, is a duty. This applies as well to rules establishing reme-dios, as to those establishing rights.”
The weakness of the majority opinion is exemplified by the confession that it cannot follow the San tor decision from New Jersey; it cannot follow § 402A of the Restatement of Torts (Second) because the latter is “specifically predicated upon ‘physical harm to user or consumer.’ ” Then reference is made to implied warranty of reasonable fitness of a product as a matter of public policy, citing Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942).
In the article entitled “An Overview of Strict Tort Liability in Texas,” J. Sales, 11 Hous.L.Rev. 1043 (1974), the author says: “The court’s conclusion [in Decker] was premised squarely on the ‘broad principle of the public policy to protect human health and life.’ ” The inside quotation is to be found in the reported opinion, 164 S.W.2d 829. Decker lends no support to the deep pocket theory now embraced by the majority; thus, the majority cannot follow Decker either.
The landmark decision wherein Texas adopted the provisions of the Restatement of Torts (Second), § 402A, is McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967).3 In so doing, the Court made it clear that the rule applied only to personal injuries, saying: “We are further of the opinion that as a logical proposition, the rule stated in Decker should be held applicable to defective products which cause physical harm to persons.” (emphasis supplied)
The Texas courts, despite the obvious trend toward expansion of strict liability as a ground of recovery, almost without exception have declined to expand the doctrine to permit recovery for consequential losses such as loss of the use of the product, loss of bargain, or loss of profits. These courts have held that where there is no injury to person or property — as in the case at bar— an action for recovery of economic loss is contractual in nature and thus requires privity of contract. 11 Hous.L.Rev., supra, at 1061.
The decisions of the Texas Courts are contrary to the holding of the majority. Judge Steger in Cloer v. General Motors Corporation, 395 F.Supp. 1070, 1071-1072 (E.D.Tex.1975), synthesized the holdings of the Texas courts in this manner:
“The Plaintiff’s suit is for economic loss only, and does not involve harm to the person or property of another. Therefore, this suit is to be governed by pure contract law. Pioneer Hi-Bred International, Inc. v. Talley, 493 S.W.2d 602 (Tex.Civ.App.—Amarillo, 1973); Thermal Supply of Texas, Inc. v. Asel, 468 S.W.2d 927 (Tex.Civ.App.—Austin 1971).
“Under the contract law of Texas, to recover for a breach of express and implied warranties, it is essential that there be privity of contract between the Plaintiff and the Defendant. Foremost Mobile Homes Mfg. Corp. v. Steele, 506 S.W.2d 646, 649 (Tex.Civ.App.—Ft. Worth, 1974); Veretto v. Eli Lilly and Company, 369 F.Supp. 1254 (N.D.Tex.1974); Pioneer Hi-Bred International, Inc. v. Talley, supra at 608; Eli Lilly and Company v. Casey, 472 S.W.2d 598 (Tex.Civ.App.—Eastland, 1971, App. Dism’d); Melody Home Manufacturing Company v. Morrison, 455 S.W.2d 825 (Tex.Civ.App.—Houston (1st Dist.), 1970); Contra, Ford Motor Company v. Lemieux Lumber Company, 418 S.W.2d 909 (Tex.Civ.App.—Beaumont, 1967). The Court observes that the Lem-ieux Lumber case was a tort case and did not involve purely contract law. Therefore, the broad statements made by the Court therein concerning privity of contract are inapplicable to Mr. Cloer’s cause of action, which is based solely on con*197tract law. See Foremost Mobile Homes Mfg. Corp. v. Steele, supra at 648-649.”4
Chief Justice McCloud in Eli Lilly and Company v. Casey, 472 S.W.2d 598, 599 (Tex.Civ.App.—Eastland 1971, writ dism’d), quoted extensively from Thermal Supply of Texas, Inc. v. Asel, 468 S.W.2d 927 (Tex.Civ.App.—Austin 1971, no writ). I adopt this rationale as a part of this dissenting opinion. Justice Bateman in Emmons v. Durable Mobile Homes, Inc., 521 S.W.2d 153, 154 (Tex.Civ.App.—Dallas 1974, no writ),5 denied the purchaser a recovery from the manufacturer of the mobile home because of a lack of privity.
For further discussion, see: R. Weintraub, “Warranties Under the UCC,” 53 Tex.L.Rev. 60 (1974), and Salmon Rivers Sportsman Camps, Inc. v. Cessna Air. Co., 97 Idaho 348, 544 P.2d 306, 312 (1975).
If my position needs further strengthening, I need but quote the basic rationale of Chief Justice Traynor speaking for the California Supreme Court in the case of Seely v. White Motor Co., 63 Cal.2d 209, 45 Cal.Rptr. 17, 21, 403 P.2d 145, 149 (1965):
“The law of sales has been carefully articulated to govern the economic relations between suppliers and consumers of goods. The history of the doctrine of strict liability in tort indicates that it was designed, not to undermine the warranty provisions of the sales act or of the Uniform Commercial Code but, rather, to govern the distinct problem of physical injuries.” 6
The position which I have taken in this dissent is in strict harmony with all of the Texas decisions (with the possible exception of Lemieux, supra); and, it is also in accord with some of the leading scholars in the field. See, e. g., W. Prosser, “Fall of the Citadel (Strict Liability to the Consumer),” 50 Minn.L.Rev. 791, 821-822 (1966). It also “comports with the prevailing view in other jurisdictions.” 11 Hous.L.Rev., supra, at 1062.
Under the law as it existed in Texas before today’s decision, the appellant was entitled to a reversal of the trial court’s judgment and a rendition of judgment that the plaintiff take nothing. Here, as in Foremost Mobile Homes Mfg. Corp. v. Steele, 506 S.W.2d 646, 647 (Tex.Civ.App.—Fort Worth 1974, no writ): “The mobile home was never considered to be useless for the purpose for which it was purchased, but rather was considered to be less useful by reason of the defects.” Indeed, the plaintiffs in our case are still living in the mobile home (or at least they were at the time of the trial of the case). Thus, this case, like Steele, supra, is a “case of pure contract law involving mere economic loss” and plaintiffs may not prevail. Since I would reverse and render judgment for the appellant, I dissent from an affirmation.
. Cf. S. Donnelly, “After the Fall of the Citadel,” 19 Syracuse Law Rev. 1, 31 (1967).
. See United States v. Mitchell, 403 U.S. 190, 205, 91 S.Ct. 1763, 29 L.Ed.2d 406, 417, fn. 6 (1971), attributing the observation to Baron Rolfe in Winterbottom v. Wright, 10 M & W 109, 116, 152 Eng.Rep. 402, 406 (1842).
Winterbottom v. Wright, supra, was the case which established the privity rule; and, at least one court has suggested that the rule was based on dictum. Anderson v. Linton, 178 F.2d 304, 307 (7th Cir. 1949).
. For a detailed chronicle of the development of § 402A, see R. Ray, “Products Liability — A Symposium,” 19 Sw.L.J. 1 (1965).
. I, too, disagree with the “broad statements” found in Ford Motor Company v. Lemieux Lumber Company, 418 S.W.2d 909. See my concurring opinion in John Deere Company of Kansas City v. Tenberg, 445 S.W.2d 40, 47 (Tex.Civ.App.—Beaumont 1969, no writ). I was not a member of this court when Lemieux was decided.
. The writ history of Emmons is uncertain. Sheppard’s Texas Citations, Vol. 69, No. 2, p. 204 (May 1976), gives the notation “RNRE”, indicating that the writ was refused, no reversible error. The writ of error table appearing in the pink pages of the current Southwestern Reporter advance sheets indicates that a writ of error was not sought in the case.
.This is the same Justice Traynor who was the author of the decision in Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). In speaking of this opinion in Greenman, Dean Prosser has said: “Justice Traynor’s opinion is obviously destined to be, along with the Henningsen case, one of the twin landmarks among these decisions.” W. Prosser, “The Fall of the Citadel (Strict Liability to the Consumer),” 50 Minn.L. Rev. 791, 803 (1966).