Curlee v. Mock Enterprises, Inc.

• Decision Date: 29 January 1985
• Docket Number: No. 69355,69355
• Citation: 173 Ga.App. 594,327 S.E.2d 736
• Parties: , 1986 A.M.C. 292, 41 UCC Rep.Serv. 63, Prod.Liab.Rep. (CCH) P 10,772 CURLEE v. MOCK ENTERPRISES, INC. et al.
• Court: Georgia Court of Appeals

Page 736

327 S.E.2d 736

173 Ga.App. 594, 1986 A.M.C. 292, 41

UCC Rep.Serv. 63,

Prod.Liab.Rep. (CCH) P 10,772

CURLEE v. MOCK ENTERPRISES, INC. et al.

No. 69355.

Court of Appeals of Georgia.

Jan. 29, 1985.

Rehearing Denied Feb. 28, 1985.

Certiorari Denied April 3, 1985.

James G. Williams, St. Simon Island, Richard A. Brown, Jr., Brunswick, John E. Bumgartner, Atlanta, for appellant.

Wallace E. Harrell, Philip R. Taylor, Timothy Harden III, Brunswick, Mark J. Bujold, St. Simons, Randall A. Jordan, Brunswick, for appellees.

BEASLEY, Judge.

Appellant Curlee was injured on June 12, 1978, when a .44 caliber "Virginian Dragoon" pistol discharged and a bullet struck him, necessitating the amputation of his leg. Curlee was on a pleasure shark-fishing trip off St. Simon's Island, Georgia, with his friend Kapp, who owned the boat and the gun. Kapp had purchased this replica of a "cowboy"-type pistol on March 24, 1978.

Kapp hooked a shark and, as it neared the boat, he told Curlee to get ready to shoot. Curlee retrieved the gun from the bait well and cocked it, but the shark sounded. Kapp directed Curlee to put the gun in its safety position, set it down, and drive the boat. Before placing the gun in the boat driver's seat and beginning to drive, Curlee put the gun hammer in what he believed to be the safety position. Curlee was hit when the boat pitched in the choppy seas and the gun fell off the seat and fired.

The suit in issue here was filed on June 11, 1982. The end result of several amendments was a complaint against the manufacturers and sellers of the pistol alleging negligence, strict liability, and breach of express and implied warranties. Eventually, after a great deal of discovery, defendants moved for summary judgment. The court carefully reviewed the entire record and granted the motions, having first made detailed findings of fact and conclusions of law to explain its ruling.

The trial court rejected plaintiff's contention that under the facts it had admiralty jurisdiction which would make maritime law, and consequently, the doctrine of laches, applicable. Instead, it applied Georgia civil law, which by the two-year statute of limitations (O.C.G.A. § 9-3-33 (Ga.Code Ann. § 3-1004)) would bar negligence and strict liability claims after June 11, 1980, and which by the four-year statute of limitations (O.C.G.A. § 11-2-725 (Ga.Code Ann. § 109A-2-725)) would bar the breach of warranty claims after March 23, 1982, four years after the "tender of delivery." The court examined all the evidence in light of plaintiff's contentions that the statutes of limitation were tolled by legal incompetency because of mental illness (O.C.G.A. §§ 9-3-90, 9-3-91 (Ga.Code Ann. §§ 3-801, 3-802)) and by fraud of the defendants which debarred or deterred plaintiff's earlier bringing of the suit (O.C.G.A. § 9-3-96 (Ga.Code Ann. § 3-807)). The court ruled that the evidence demanded a finding of mental incompetency for nine months, which made plaintiff's breach of warranty claims timely but did not save his negligence and strict liability claims. The court further ruled that the evidence demanded a finding of no fraud which would toll the effect of time's march. The warranty claims fell because plaintiff lacked privity and did not come with the third-party beneficiary class provided for in O.C.G.A. § 11-2-318 (Ga.Code Ann. § 109A-2-318) because he was not a guest at Kapp's home when the gun discharged.

Summary judgment was therefore granted and Curlee appealed. Held:

1. As a general rule, the federal admiralty courts and the state courts have concurrent jurisdiction of actions in personam for damages or injury resulting from maritime torts in cases over which exclusive jurisdiction has not been conferred on the federal courts. If a tort be maritime and cognizable in admiralty, maritime law governs with respect to the rights and liabilities of the parties, without regard to the court in which relief is sought, whether the action be brought in a federal district court or in a state court. See Alaska S.S. Co. v. McHugh, 268 U.S. 23, 45 S.Ct. 396, 69 L.Ed. 825 (1925); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). The trial courts of this state have exercised admiralty jurisdiction and adjudicated claims properly brought thereunder, pursuant to maritime law. See inter alia, Daniels v. Stevens et al., 171 Ga.App. 192, 318 S.E.2d 812 (1984).

Curlee urges that the circumstances of the case at bar brought it properly within the scope of the trial court's concurrent admiralty jurisdiction. If admiralty jurisdiction is sustainable, then the trial court improperly held itself bound to apply state statutory limitation periods to reach its ultimate determination that Curlee's claims were time-barred. Curlee argues that the proper analysis of the timeliness of his claims is made under the maritime doctrine of laches.

The prerequisite that the tort or wrong involved have a sufficient nexus or connection with traditional maritime activity in order to invoke admiralty jurisdiction was applied in Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982). Here there is no such nexus. What Curlee complains about is the manufacture of the gun, in that there was negligence and breach of warranties and strict liability with regard to its manufacture and therefore its subsequent sale. He would have the court apply a different body of law to these alleged wrongs with respect to a non-maritime product just because the injury occurred on a boat. The tort he claims is not some maritime activity, or some wrongful use of the gun on the boat, i.e., a tort occurring or related to the navigable waters, but rather its negligent and improper manufacture. The alleged wrongs are not connected in any way with maritime commerce. They are no different in substance because the injury happened to occur on water. There is no maritime dispute and there is no federal maritime interest to be served by applying admiralty law to the issues made here. See Harville v. Johns-Manville Prods. Corp., 731 F.2d 775, 785-786 (11th Cir.1984). Any liability of the defendants for the manufacture and sale of the gun in this products liability case has not even the most attenuated impact on maritime activity.

Our state tort law is most directly concerned with such accidents and is quite capable of resolving the present controversy without any significant effect on the federal interest in maritime activities. See Onley v. South Car. Elec. Gas Co., 488 F.2d 758 (4th Cir.1973).

Moreover, plaintiff has not shown that there is any separate maritime law to be applied with respect to which the gun, which was not even a maritime-type product, was negligently manufactured. Apparently, all he is interested in is avoiding the Georgia civil law statutes of limitations and being able to grasp and have safe harbor in the admiralty doctrine of laches.

The trial court properly interpreted existing case law in finding that Curlee's claims did not fall within the purview of admiralty jurisdiction.

2. Ordinarily, whether or not a cause of action is barred by the statute of limitations is a mixed question of law and fact and may be either, according to the manner in which it is presented. Where the facts are in doubt or dispute, this question is one of fact to be determined by the trier of fact, but where the facts are not disputed, the question of whether the case is within the bar of the statute is one of law for the court. See 54 C.J.S., Limitations of Actions § 399; Morris v. Johnstone, 172 Ga. 598, 158 S.E. 308 (1931).

Once the trial court determined that principles of maritime law were inapplicable to the case at bar, it next properly found that considering the evidence most favorably to Curlee, a jury could not, as a matter of law, find incapacity of Curlee or fraud on the part of the manufacturers which would toll the statute of limitations.

As an exception to the statute of limitations, O.C.G.A., § 9-3-96 (Ga.Code Ann. § 3-807), should be strictly construed. Bates v. Metro. Transit System, 128 Ga.App. 720, 197 S.E.2d 781 (1973); Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 245 S.E.2d 297 (1978). The fraud required to toll the statute of limitations under this code section must be of that character which involves moral turpitude, that is, actual fraud rather than constructive fraud, in the absence of a confidential relationship, and in addition, such actual fraud must have the effect of debarring and deterring the plaintiff from his action. Riddle v. Driebe, 153 Ga.App. 276, 265 S.E.2d 92 (1980); Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980); Kessler v. Liberty Mut. Ins. Co., 157 Ga.App. 287, 277 S.E.2d 257 (1981); Sutlive v. Hackney, 164 Ga.App. 740, 297 S.E.2d 515 (1982).

In essence, Curlee bases his allegations of fraud on IAC's use of its trade-name "Interarms" on the pistol and in the accompanying literature, without expressly identifying itself as International Armament Corporation. In 1975 defendants Alliance and IAC entered into a contract for the manufacture of 100,000 "Virginian" revolvers. Alliance was to form a new corporation to be named "Interarms Industries, Inc.," which would then assume the manufacturing and related functions of the contract with IAC. IAC granted to Alliance and this new subsidiary the right to use the name "Interarms" as long as the contract remained in force. "Interarms" standing alone was a trade name of IAC. The address of IAC was 10 Prince Street, Alexandria, Virginia. Interarms Industries, Inc., and its registered agent were located in other cities in Virginia. The writing or engraving on the guns manufactured pursuant to the 1975 agreement with specific regard to the manufacturer's identity was the engraving stating: "Interarms, Alexandria, Virginia, USA." The literature to accompany the guns at the time of sale also indicated the manufacturer of...