This section contains the nature of the case and procedural background.

Barker (P) alleged that when he was shopping in Allied’s (D) store he picked up a carton of Dr. Pepper and when attempting to place it in his cart, one of the bottles exploded, and a fractured piece of glass struck him in the right eye, which resulted in ninety percent permanent loss of vision. P filed an action for negligence and breach of implied warranty of merchantability on November 3, 1972. This was two years and a day after the alleged injury. The trial court sustained D’s demurrers with averred that P’s petition sounded in tort and that his alleged cause of action was barred by the applicable two-year statute of limitations. P appealed; his second cause of action arose from a breach of implied warranty of merchantability and the applicable period of limitations is 5 years.

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