Elrod v. King

• Decision Date: 05 December 1961
• Docket Number: No. 1,No. 39134,39134,1
• Citation: 123 S.E.2d 441,105 Ga.App. 46
• Parties: Betty Hix ELROD v. W. C. KING et al
• Court: Georgia Court of Appeals

Page 441

123 S.E.2d 441

105 Ga.App. 46

Betty Hix ELROD v. W. C. KING et al.

No. 39134.

Court of Appeals of Georgia, Division No. 1.

Dec. 5, 1961.

Syllabus by the Court

1. Where a latent defect in a manufactured item is discovered by a third party, who has a duty to repair it or give warning of the danger, this discovery will insulate the manufacturer from any liability for damage resulting from the defect.

2. As against special demurrer, the charges of the petition alleging a malfunction and latent defect in the blower control system, setting out in detail the results produced by the alleged defect, pleaded with reasonable definiteness and certainty the deficiencies in the mechanical contrivance.

3. Allegations in the petition that defendant was negligent in installing inflammable insulation materials around a furnace and in failing to use non-inflammable materials charged actionable negligence as against a special demurrer.

4. (a) The charges in the petition that defendant failed to test the furnace installed to determine whether it would operate safely and that he had actual knowledge that the control systerm was not functioning properly are not duplicitous, since both charges rely upon one ground of recovery-negligence.

(b) These charges are not multifarious as they related only to the particular defendant and not to the other two defendants.

5. The petition set forth a cause of action against the defendant charged with negligently installing a gas furnace.

Plaintiff brought this action for damages to her house and its contents sallegedly caused by a malfunction and defect in the blower control system, a latent defect in the safety switch limit of the regulatory system, and inflammable materials installed as insulation on the furnace, which combined to cause the furnace to overheat, these materials to be set on fire, and the house to burn.

The petition as amended charged that a new gas blower type furnace manufactured by the defendant York Corporation, installed by the defendant King d/b/a Mechanical Service Co., having a regulatory control system manufactured and sold by the defendant Minneapolis-Honeywell Regulator Co., by a malfunctioning in the blower control system, caused the blower controls to cease to function, and resulted in the furnace heating excessively; that the safety limit switch, a part of the regulatory system, failed to function because of a latent defect in the switch, allowing the furnace to heat up until it became so hot that it caused the insulation material on the furnace to burst into flame, which in turn burned the house. The new furnace was installed on October 10, 1958, and the fire occurred at approximately 3 a. m. on October 13, 1958. The petition alleged that the fire originated in the newly installed furnace and had its beginning in a malfunction and defect in the blower control system, which is an integral part of the furnace; that as a direct result of the malfunction the blower control ceased to function and the automatic thermostat continued to ignite the gas in the furnace, causing the furnace to overheat; that the safety limit switch then ceased to function because of a latent defect in the switch; that the defect was latent because of the assembled nature of the regulatory system, but it could have been discovered by the manufacturer (Minneapolis-Honeywell Regulator Co.) during the course of assembly, had the manufacturer properly tested the component parts or tested the assembled unit; that each of the manufacturers, Minneapolis-Honeywell Regulator Co. and The York Corporation, failed to ascertain that the assembled regulatory system would not perform its designed function of continually cutting off the gas units of the furnace when the furnace overheated; that both the defect in the blower control system and the defect in the safety limit switch could have been discovered by the manufacturer of each unit had a proper inspection been made prior to the sale and delivery of the same; that each of the defendant companies knew that the system manufactured and supplied by each was to become an integral part of a blower type house furnace utilizing gas as a fuel, which furnace is an inherently dangerous article and, therefore, each of the corporate defendants was under a legal obligation to inspect the units of the furnace system properly before permitting the units manufactured or assembled by each, respectively, to be used on the furnace and that the defects in the units were such that a reasonably prudent manufacturer should have discovered them before releasing the system for use on a gas furnace.

The defendant King, d/b/a Mechanical Service Co., was charged with being negligent in installing in the house: a gas furnace with defective blower controls; a gas furnace with a defective control mechanism; a gas furnace with a defective regulator; a gas furnace with a defective safety switch; a gas furnace without testing the control mechanisms to determine whether or not the mechanisms would properly operate the furnace; insulation material on the furnace having an inflammable nature; a gas furnace and failing to use non-inflammable insulation material in connection with the installation of this furnace; a furnace and failing to correct the malfunctions in the blower system after having received actual knowledge that it was not functioning properly; and in installing a gas furnace and failing to warn plaintiff of the dangers involved in the malfunction after King had received actual knowledge of it.

To the petition each defendant filed general and special demurrers. After a hearing the trial court on July 20, 1961, sustained the general demurrer of the defendant Minneapolis-Honeywell Regulator Co. and five of its special demurrers, and dismissed the petition as to that defendant. On July 29, 1961, the trial court sustained the general demurrer and six special demurrers of the defendant King, and sustained the general and five special demurrers of the defendant York Corporation, dismissing the petition as to these defendants. The plaintiff excepted to these orders of the trial court.

Rogers, Magruder, Hoyt, Wright & Walther, Clinton J. Morgan, Rome, for plaintiff in error.

Hardin, McCamy, Minor & Vining, Carlton McCamy, Dalton, Matthews, Maddox, Walton & Smith, John W. Maddox, Oscar M. Smith, Parker, Clary & Kent, Jack Kent, Jr., Rome, for defendant in error.

BELL, Judge.

1. In the amended petition it was charged, 'The defendant Mechanical Service Company had actual knowledge after installation that the blower control system was not functioning in a usual and proper manner, and in spite of such knowledge it failed and neglected to either correct said malfunction or to warn the plaintiff of the danger thereof.' (Emphasis added.)

The defendants York Corporation and Minneapolis-Honeywell Regulator Co. contend that, construing the petition against the pleader on general demurrer, it clearly appears that the direct and proximate cause of the damage to the house was the intervening act of a separate agency.

While generally the failure of a retailer or other person to inspect or discover a latent defect is not such an intervening cause as will break the chain of causation, the rule in Georgia is that where a latent defect is charged in a manufactured item but the defect is discovered later by one under a duty to repair the defect or give warning of it, this discovery will insulate the manufacturer from any damages resulting from its manufacture of a latently defective machine. Harley v....