Horne v. Armstrong Products Corporation
| Decision Date | 30 September 1969 |
| Docket Number | No. 27949 Summary Calendar.,27949 Summary Calendar. |
| Citation | 416 F.2d 1329 |
| Parties | Mrs. Hardy HORNE, Plaintiff-Appellant, v. ARMSTRONG PRODUCTS CORPORATION, Defendant-Appellee, and Sears, Roebuck and Company, Co-Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Burt & Burt, Donald D. Rentz, H. P. Burt, Albany, Ga. (Lead Counsel), for appellant.
Jesse W. Walters, Perry, Walters, Langstaff, Lippitt & Campbell, Divine & Busbee, Albany, Ga., for appellee.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
Pursuant to Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804.
John Roger Horne, nineteen, died of asphyxiation while sleeping in a closed room, heated by a gas fired space heater manufactured by Armstrong Products Corporation and sold by Sears, Roebuck and Company. The undisputed cause of death was carbon monoxide emitted by the heater.
The ensuing wrongful death action was brought on two theories. Count I of the complaint was grounded in negligence while Count II was for breach of implied warranty of fitness and safety for the uses for which the heater was designed. A 12(b) 6 motion for dismissal was granted as to Count II. There was a jury verdict for the defendants on Count I. The dismissal of Count II presents the sole issue on this appeal. We affirm.
Section 109A-2-318 of the Georgia Uniform Commercial Code, effective January 1, 1964, contains broad products liability protection:
Important obstacles foreclose appellant's claim of protection under this statute. First, there is no contention that the article was purchased and the warranty given after the effective date of the Code. Second, the appellant does not appear to be the purchaser of the heater, a person in the family or household of the purchaser, or a guest in the home of the purchaser. The deceased is referred to in the appellant's brief as "a tenant or lessee of the purchaser".
Prior to the enactment of the Uniform Commercial Code in Georgia manufacturers of...
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Battles v. Pierson Chevrolet, Inc.
...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 The counts in negligence were barred by the trial judge's......
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Lashley v. Ford Motor Company, Civ. A. No. 883.
...in a case brought under Georgia's wrongful death statute. The Fifth Circuit Court of Appeals in the case of Horne v. Armstrong Products Corp., 416 F.2d 1329 (5th Cir. 1969) "Moreover, if privity had existed, or if the case were covered by § 109A-2-314, the Georgia courts hold that one can r......
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Ford Motor Co. v. Carter
...goods, except specified articles intended for human consumption or use. Lovett v. Emory University, Inc., supra; Horne v. Armstrong Products Corp., 416 F.2d 1329 (5th Cir. 1969). Our Legislature, however, has, to a limited extent, passed laws permitting certain causes of action or imposing ......
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Griffin v. Air South, Inc., Civ. A. No. 13559-13562
...conceded that Counts III through VI should be dismissed in the present state of Georgia law, as interpreted in Horne v Armstrong Products Corp., 416 F.2d 1329 (5th Cir. 1969), and Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969). In her subsequent memorandum, filed December ......