Everhart v. Rich's, Inc.

• Decision Date: 04 December 1972
• Docket Number: No. 27297,27297
• Parties: Harold D. EVERHART et al. v. RICH'S, INC., et al.
• Court: Georgia Supreme Court

Page 425

194 S.E.2d 425

229 Ga. 798

Harold D. EVERHART et al. v. RICH'S, INC., et al.

No. 27297.

Supreme Court of Georgia.

Dec. 4, 1972.

Syllabus by the Court

1. In connection with a sale of goods having a potentiality of doing harm by normal, intended, and non-negligent use, where there is no fiduciary relationship between the seller and the purchaser, and no fraud, it is the duty of the seller to warn the purchaser at the time of sale and delivery, and a breach occurs at this time if there is a failure to warn.

2. The breach of a duty to warn occurs at the time of the sale and delivery of the goods, and the statute of limitation with respect to that breach begins to run at that time. However, on a tort claim for personal injury the statute of limitation begins to run at the time the tortious act and damage resulting therefrom occur. And if the tortious act is a continuing one, inflicted over a period of time, the statute of limitation does not commence to run until such time as the continued tortious act producing injury is eliminated by an appropriate warning in respect to the hazard.

3. Mere ignorance of the existence of a right of action does not toll a statute of limitation.

4. Natural wear and deterioration of an article in its intended, ordinary, non-negligent use may be a valid consideration in determining whether a claim of injury attributable to such deterioration is barred by the statute of limitation, to the extent that the time of injury operates to commence the running of the statute, and absent other circumstances which operate to toll the statute, e.g., a continuing tort, fraud preventing discovery, and infancy or incapacity of the injured person.

Harold D. Everhart and Chrystal Smith Everhart, husband and wife, and their three minor children commenced and action in Fulton Superior Court on May 11, 1971, against Rich's, Inc., J. P. Stevens & Company, Incorporated, and Owens-Corning Fiberglas Corporation, seeking recovery for personal injuries and property damage allegedly caused by a set of gold draperies purchased from Rich's, a retail department store, in December, 1964, by Chrystal Smith Everhart, and hung in the master bedroom of the home occupied by the plaintiffs. The draperies were made from fabric manufactured by Stevens and composed primarily of fiberglas, the registered trademark of a glass fiber manufactured by Owens-Corning. In February, 1970, the plaintiffs began to suffer extreme personal discomfort and illness. Subsequently, the plaintiffs allegedly discovered that their discomfort and illness was caused, in whole or in part, by billions of fiberglas particles which had broken loose from the gold draperies and had been conducted throughout the house through the heating system. The plaintiffs further allege that the defendants gave no warning that the material could and would injure human skin. Count 1 of the petition is based on negligence in failing to warn of the danger, and Count 2 is based on a breach of implied warranty that the draperies were fit for the ordinary purposes for which they were used.

The defendants pleaded, among other defenses, that all claims were barred by an applicable statute of limitation and moved for judgment on the pleadings. The trial judge granted the motions with respect to the adult plaintiffs, and these plaintiffs appealed to the Court of Appeals. The Court of Appeals has certified to this court the following questions:

'1. When does the breach of a duty to warn occur in connection with a sale of goods having a potentiality of doing harm, there being no fiduciary relationship between the seller and the purchaser, and no fraud?

'2. If the answer to question number 1 indicates that the breach occurs at the time of the sale and delivery of the goods, does the statute of limitation on a claim of personal injury, Code § 3-1004, begin to run from the date of the breach, i.e., the date of the sale, or does it begin to run only from the time it is discovered that injury and damage has resulted from the normal, intended and non-negligent use of the goods?

'3. Does ignorance of the purchaser as to facts constituting a right of action, or that his rights have been invaded, prevent the running of the statute of limitation?

'4. Is the matter of natural wear and deterioration of an article in its intended, ordinary, non-negligent use a valid consideration in determining whether a claim of injury attributable to such deterioration is barred by the statute of limitation?'

For consideration in answering the above questions, the Court of Appeals cites the following: 'Crawford v. Gaulden, 33 Ga. 173(8); Lilly v. Boyd, 72 Ga. 83; Gould v. Palmer & Read, 96 Ga. 798 (22 SE 583); Schofield v. Woolley, 98 Ga. 548 (25 SE 769); McClaren v. Williams, 132 Ga. 352(4) (64 SE 65); Davis v. Boyett, 120 Ga. 649(2) (48 SE 185); Maxwell v. Walsh, 117 Ga. 467 (43 SE 704); Freeman v. Craver, 56 Ga. 161; Irvin v. Bentley, 18 Ga.App. 662(3) (90 SE 359); Barrett v. Jackson, 44 Ga.App. 611 (162 SE 308); Silvertooth v. Shallenberger, 49 Ga.App. 133 (174 SE 365); Silvertooth v. Shallenberger, 49 Ga.App. 758 (176 SE 829); Bryson v. Aven, 32 Ga.App. 721 (124 SE 553); Colvin v. Warren, 44 Ga.App. 825 (163 SE 268); Tabor v. Clifton, 63 Ga.App. 768 (12 SE2d 137); Dowling v. Lester, 74 Ga.App. 29(2) (39 SE2d 576); Saffold v. Scarborough, 91 Ga.App. 628 (86 S.E.2d 649); Parker v. Vaughn (Vaughan), 124 Ga.App. 300 (183 SE2d 605); Crawford v. McDonald, 125 Ga.App. 289 (187 SE2d 542); Mobley v. Murray County, 178 Ga. 388, 394 (173 SE 680); Chitty v. Horne-Wilson, Inc., 92 Ga.App. 716 (89 SE2d 816); Chitty v. Horne-Wilson, Inc., 92 Ga.App. 721 (89 SE2d 820); Wellston Co. v. Sam M. Hodges, Jr. & Co., 114 Ga.App. 424 (151 SE2d 481); Hunt v. Star Photo Finishing Co., 115 Ga.App. 1, 5 (153 SE2d 602); Whiten v. Orr Construction Co., 109 Ga.App. 267 (136 SE2d 136); Morgan Construction Co. v. Kitchings, 110 Ga.App. 599 (139 SE2d 417); Hamilton v. Lockridge, 123 Ga.App. 609(1) (181 SE2d 910); Carroll County Gas Co. v. Parker, 125(126) Ga.App. 27 (189 SE2d 913); Cheney v. Synetex Laboratories, 277 F.Supp. 386 (N.D.Ga.); Anno. 4 ALR3rd 821.'

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Robert W. Beynart, Atlanta, for appellants.

Carter, Ansley, Smith, McLendon & Quillian, W. Colquitt Carter, Gerald A. Friedlander, Nall, Miller & Cadenhead, D. N. Love, Powell, Goldstein, Frazer & Murphy, Atlanta, for appellees.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Alfred L. Evans, Jr., and J. Lee Perry, Asst. Attys. Gen., amicus curiae.

JORDAN, Justice.

1. The first headnote, as an answer to the first certified question, requires no elaboration. See Code §§ 105-103, 105-104; 65 C.J.S. Negligence § 100(2)a, pp. 1078, 1082.

2. On a tort claim for personal injury the statute of limitation generally begins to run at the time damage caused by a tortious act occurs, at which time the tort is complete. In such cases the true rule in this State was expressly recognized by the Court of Appeals in Chitty v. Horne-Wilson, Incorporated, 92 Ga.App. 716, 719, 89 S.E.2d 816, and more...