Chaffin v. Atlanta Coca Cola Bottling Co., 47120

Decision Date09 November 1972
Docket NumberNo. 47120,No. 1,47120,1
Citation127 Ga.App. 619,194 S.E.2d 513
Parties, 11 UCC Rep.Serv. 737 Gloria A. CHAFFIN v. ATLANTA COCA COLA BOTTLING COMPANY et al
CourtGeorgia Court of Appeals

Peek, Whaley & Haldi, Glenville Haldi, Atlanta, for appellant.

Hurt, Hill & Richardson, T. Cullen Gilliland, W. Seaborn Jones, Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, George Williams, Atlanta, for appellees.

Syllabus Opinion by the Court

BELL, Chief Judge.

This is a products liability action arising out of the purchase and consumption of an allegedly unwholesome bottle of Coca Cola against Atlanta Coca Cola Bottling Company and Big Apple Supermarket. The plaintiff alleged both negligence and breach of implied warranty in her complaint. The trial court's charge to the jury limited the basis of recovery by plaintiff to the issue of negligence only, completely eliminating any recovery on the claimed breach of implied warranty. The jury returned a verdict for defendants and judgment was entered accordingly. The failure to charge the jury on the issue of breach of warranty and other instructions are enumerated as error.

The pertinent facts are simple. Plaintiff's minor daughter, while shopping with plaintiff in the supermarket, purchased bottles of Coca Cola from a Big Apple vending machine. Big Apple had purchased the drink from the bottling company. The child opened the bottles and gave one to plaintiff. According to the plaintiff's testimony a soapy-like substance was in the bottle of Coca Cola that she consumed, which caused the injury. Held:

1. Defendant Coca Cola urges that no implied warranty extended from it to plaintiff as there was no privity of contract between it and plaintiff or plaintiff's daughter. We agree. Under the Uniform Commercial Code a warranty 'that the goods shall be merchantable is implied in a contract for their sale . . .' As this warranty clearly arises out of a contract of sale of goods, it can only run to a buyer who is in privity of contract with the seller. Code Ann. § 109A-2-316. There is an absence of any privity of contract between the buyer and the defendant Coca Cola, a manufacturer and remote seller. Under the Act of March 13, 1957, an implied warranty by the manufacturer was extended to an ultimate consumer. No privity of contract was required between the manufacturer and the ultimate consumer. However, this Act was specifically repealed by the Uniform Commercial Code. Code Ann. § 109A-10-103. The repeal of the 1957 statute means that an ultimate buyer in Georgia cannot sue the manufacturer directly on a breach of implied warranty where the buyer does not purchase directly from the manufacturer. There is once again a gap in the law between the manufacturer and a buyer who purchases from a wholesaler or retailer in the distributive chain. See Young v. Certainteed Products Corp., 35 Ga.App. 419, 133 S.E. 279; Studebaker Corp. v. Nail, 82 Ga.App. 779, 784, 62 S.E.2d 198. The same conclusion is not true as regards defendant Big Apple for there was a contract of sale and privity between it and the buyer, plaintiff's daughter. UCC § 2-318 extends Big Apple's implied warranty of merchantability made to the buyer to 'any natural person who is in the family or household of his buyer.' Code Ann. § 109A-2-318. Plaintiff manifestly comes within the statute and it is plain under this statute that the lack of privity between Big Apple and plaintiff is not material. However, Coca Cola's warranty cannot extend to plaintiff under this provision due to the lack of privity between the buyer and seller. Big Apple also argues that notwithstanding the above, plaintiff cannot claim the remedy of breach of implied warranty because of its failure to give notice of the breach as required by UCC § 2-607(3)(a). Code Ann. § 109A-2-607(3)(a). The latter provides that '(3) Where a tender has been accepted (a) the buyer must within a...

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34 cases
  • In re Porsche Cars N. Am., Inc.
    • United States
    • U.S. District Court — Southern District of Ohio
    • July 19, 2012
    ...to assert his or her claim. Keaton v. A.B.C. Drug Co., 266 Ga. 385, 467 S.E.2d 558, 560–61 (1996); Chaffin v. Atlanta Coca Cola Bottling Co., 127 Ga.App. 619, 194 S.E.2d 513, 514 (1972). Georgia courts have consistently held that, “if a defendant is not the seller to the plaintiff-purchaser......
  • Amin v. Mercedes-Benz USA, LLC
    • United States
    • U.S. District Court — Northern District of Georgia
    • December 18, 2018
    ...of sale of goods, it can only run to a buyer who is in privity of contract with the seller." Chaffin v. Atlanta Coca Cola Bottling Co. , 127 Ga. App. 619, 619, 194 S.E.2d 513, 515 (1972) ; McQueen v. Minolta Bus. Sols., Inc. , 275 Ga. App. 297, 300, 620 S.E.2d 391, 393 (2005) ; Whitehead v.......
  • Reynolds v. FCA US LLC
    • United States
    • U.S. District Court — Eastern District of Michigan
    • June 30, 2021
    ...Ordinarily, there is no privity between a manufacturer and an ultimate consumer. See, e.g. , Chaffin v. Atlanta Coca Cola Bottling Co. , 127 Ga. App. 619, 619-20, 194 S.E.2d 513 (1972). Georgia courts have recognized, however, that "where an automobile manufacturer, through its authorized d......
  • Sparks v. Total Body
    • United States
    • Alabama Supreme Court
    • July 17, 2009
    ...a claim under the U.C.C.'s implied warranty of merchantability. The case was remanded for a jury trial. "Chaffin v. Atlanta Coca Cola etc. Co., 127 Ga.App. 619(1), 194 S.E.2d 513 (1972), also deals with a bottled soft drink which was not merchantable. In this case the plaintiff's daughter p......
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