Long Mfg., North Carolina, Inc. v. Grady Tractor Co., 52788
| Decision Date | 25 October 1976 |
| Docket Number | No. 3,No. 52788,52788,3 |
| Citation | 140 Ga.App. 320,231 S.E.2d 105 |
| Parties | LONG MANUFACTURING, N.C., INC. v. GRADY TRACTOR COMPANY |
| Court | Georgia Court of Appeals |
Kelley, Allen & Kelley, Roy Benton Allen, Jr., Tifton, for appellant.
Neely, Freeman & Hawkins, Richard P. Schultz, J. Bruce Welch, Atlanta, Howell Hollis, III, Columbus, for appellee.
1. A cause of action in negligence for property damage to the defective personal property itself is cognizable under Code Ann. § 105-106. Eades v. Spencer-Adams Paint Co., 82 Ga.App. 123, 60 S.E.2d 543. See also Prosser, Law of Torts (4th Ed. 1971), p. 665; compare with 'economic' damages only, Long v. Jim Letts Oldsmobile, Inc., 135 Ga.App. 293, 217 S.E.2d 602.
The testimony for the plaintiff was that the design of the barn was 'poor,' that it could have been designed to be stronger, that it was 'underdesigned' and of 'marginal design'; the witness further testified that he did not have the information to determine whether the manufacture was proper and concluded that if he were designing the barn, he 'would have done it a whole lot differently.' It is thus clear that the appellee's verdict must stand or fall on the sufficiency of this witness' testimony as to negligent design, there being none as to negligent manufacture.
The defendant-appellant's expert disagreed with the testimony of the appellee', it being his opinion that the barn was not defectively designed. It has been held that no breach of duty as to product design is shown by evidence that experts disagree as to whether a particular design is proper. Dillingham v. Chevrolet Motor Co., 17 F.Supp. 615. Likewise, proof of nothing more than that a particular injury would not have occurred had the product been designed differently is insufficient to establish a breach of the manufacturer's duty as to design. Hatch v. Ford Motor Co., 163 Cal.App.2d 393, 329 P.2d 605. While we view the evidence for the appellee as so lacking as to almost approach insufficiency (see Eldridge, Products Liability in Ga., § 2-21), we prefer the rule that 'ordinarily, the question of whether a particular design is defective and could thus cause injury is for the jury.' 63 Am.Jur.2d 80, Products Liability, § 73. The jury here, having the opinions of two experts, and having chosen to believe the appellee's, we hold that the evidence is sufficient.
2. Error is urged upon the trial judge's refusal to allow the appellant to elicit from its witness an answer to the question of whether any other tobacco barns manufactured by it had ever failed.
Assuming without deciding that such a refusal was error (see Evershine Products v. Schmitt, 130 Ga.App. 34(6), 38, 202 S.E.2d 228; 63 AmJur.2d 80, Products Liability, § 73) it would not be harmful in this instance. The appellant made no showing to the trial judge of what the witness was expected to answer. Christiansen v. Robertson, 139 Ga.App. 423, 228 S.E.2d 350.
3. Error is predicated upon the following charge: 'The plaintiff also contends that the defendant failed to provide uniform support from the wheel assembly due to the omission of more than half of the attaching fasteners.' The complaint contains no such allegation to support this charge. The evidence as to the 'attaching fasteners' is somewhat confusing, but having studied the transcript carefully it appears that there is no evidence that the appellant failed to provide the fasteners but there is evidence that the appellee may have attempted to move the barn without benefit of using the total number of fasteners provided by...
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