Evershine Products, Inc. v. Schmitt

• Decision Date: 27 September 1973
• Docket Number: No. 3,No. 48032,48032,3
• Citation: 130 Ga.App. 34,202 S.E.2d 228
• Parties: , 13 UCC Rep.Serv. 439 EVERSHINE PRODUCTS, INC. v. Robert SCHMITT et al
• Court: Georgia Court of Appeals

Page 228

202 S.E.2d 228

130 Ga.App. 34, 13 UCC Rep.Serv. 439

EVERSHINE PRODUCTS, INC. v. Robert SCHMITT et al.

No. 48032.

Court of Appeals of Georgia, Division No. 3.

Sept. 27, 1973.

Rehearing Denied Oct. 19, 1973.

Swift, Currie, McGhee & Hiers, George W. Hart, Frederick F. Saunders, Jr., Atlanta, for appellant.

Charles H. Hyatt, Robert J. NeSmith, Decatur, Grogan, Jones & Layfield, Milton Jones, Columbus, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

This action was brought by a husband and wife seeking, for the husband, recovery of hospital and doctor's bills and loss of consortium, and, for the wife, damages for her pain and suffering for injuries allegedly received by her from the use of a cleaning fluid while removing wax from floors. The action was predicated on three counts. Count 1 was based on negligence 'in preparing and selling a highly acidic and caustic type material as a general household cleaner without any warning on the container stating the danger of using said product in an undiluted or full strength concentration.' Count 2 was based on an implied warranty 'of fitness (of the cleaning fluid) for use as a cleaning agent for floors and other uses and the implied warranty of merchantable quality for use as a cleaning agent and with the expressed warranty that said 'Evershine Leisure-Clean' was green magic-saves time-money-labor.' Count 2 also alleged that the plaintiff-wife purchased the bottle of cleaner 'in reliance on the judgment and representations of' the defendant. The only actual representations proven were those on the label, if any. Count 3 was based on the allegations 'that the defendant corporation by means of advertisements impliedly warranted to the public, including the plaintiff, Barbara Schmitt, that their product 'Evershine Leisure-Clean' could be used safely for household and other cleaning tasks and expressly warranted that said product was usable for all household cleaning.' Reliance thereon was also alleged. The only advertisement proven was the label on the bottle.

The evidence showed the plaintiff-wife bought and used the cleaning fluid for use in cleaning or stripping wax from a hardwood oak floor. One side of the label on the bottle of the cleaning liquid had the name of the product and the name of the defendant and the words 'For light-to-heavy cleaning' under the name, and the words 'Green magic-saves time-money.' The other side of the label showed the mixture was 'heavily concentrated', followed with directions for use: 'Wax Stripper: Add 6 parts water to 1 part Leisure-Clean (use 4 parts water if old wax has built up), spread liberally, let stand for 10 minutes, scrub lightly, wipe up and rinse. General Cleaner: Add 8 to 10 parts water to 1 part Leisure-Clean. Perfect for walls, floors, appliances, painted woodwork, kitchens, bathrooms, furniture. Also cleans boat decks, seats, trim, and leatherette. Motor Cleaner: Use full strength for easy cleaning of car and boat motors; also for those built up grease and oil spots on garage and carport floors. Spray or brush on, let stand for 10 to 15 minutes, flush away with water hose nozzle set on high pressure. White Wall Tires: Add 4 parts water to 1 part Leisure-Clean. Use this formula for carports, patios, brick, etc., also excellent for cleaning fiber glass boat hulls.' The cleaning fluid was made up according to defendant's formulation and shipped to defendant in drums and packaged by defendant with its label thereon and distributed to others for sale to the general public. Plaintiff-wife bought the cleaning fluid at a military commissary store.

Verdict and judgment was rendered in favor of the plaintiff. Defendant's motion for new trial was overruled. Defendant appealed to this court enumerating error on the refusal of the trial judge to direct a verdict as to each count of the complaint, and to grant motions for judgment notwithstanding the verdict, and on the overruling of the motion for new trial complaining of charges given, failure to charge requests and refusal to permit introduction of certain evidence. Held.

1. Generally, before a recovery may be had for breach of warranty, this state has recognized the necessity of privity between the parties where a plaintiff-purchaser of an article has been injured because of its alleged defectiveness and brings an action based on warranty. That is, if a defendant is not the seller to the plaintiff-purchaser, the plaintiff as the ultimate purchaser cannot recover on the implied or express warranty, if any, arising out of the prior sale by the defendant to the original purchaser, such as distributor or retailer from whom plaintiff purchased the product. See in this connection, Broughton v. Badgett, 1 Ga. 75; Dukes v. Nelson, 27 Ga. 457; Van Winkle & Co. v. Wilkins, 81 Ga. 93, 94(7), 7 S.E. 644; Smith v. Williams, 117 Ga. 782, 784, 45 S.E. 394; Farlow v. Jeffcoat, 78 Ga.App. 653(2), 52 S.E.2d 30; General Motors Corp. v. Halco Instruments, Inc., 124 Ga.App. 630, 185 S.E.2d 619. While the Act of 1957 (Ga.L.1957, p. 405; former Code Ann. § 96-307) provided an implied warranty to the ultimate consumer for whom the product was intended, this Act was repealed by Section 109A-10-103 of the Ga. Uniform Commercial Code (Ga.L.1962, pp. 156, 427). See Wood v. Hub Ford Co., 110 Ga.App. 101, 103, 137 S.E.2d 674. This does not mean, however, that there can be no warranties if the manufacturer or producer makes an express warranty to the ultimate consumer. This is commonly done in the sale of a number of items, such as automobiles and household appliances, etc. An exception to this rule requiring privity is expressed in Ga. Uniform Commercial Code 109A-2-318, but that exception has no application here. General Motors Corp. v. Halco Instruments, Inc., 124 Ga.App. 630, 634, 185 S.E.2d 619, supra. Whether or not advertising claims on the label here constitute an express warranty to the retail purchaser by the producer of the product, it is not necessary to decide, as the evidence here shows no breach of the claims on the label in the present case. The evidence discloses the product cleaned better than any the plaintiff-wife had ever used and there was no evidence it did not save time and money. And even should we assume there was an express warranty by implication, arising out of the words on the label that the article sold was safe to use without danger to the user, that could only apply if the article was used in a normal manner or as here, according to the directions on the label. See Rupee v. Mobile Homes Brokers, Inc., 124 Ga.App. 86, 87, 183 S.E.2d 34. The evidence here demands a finding that at all times the dilutions recommended on the label were not followed, but concentrations were used greatly exceeding the directions given. The trial judge, therefore, erred in refusing to direct a verdict on Counts 2 and 3 of the complaint, and in overruling the motions for judgment notwithstanding the verdict thereon.

2. Code § 105-106, as amended by the Act of 1968 (Ga.L.1968, pp. 1166, 1167) now provides: 'No privity is necessary to support an action for a tort; but if the tort results from the violation of a duty, itself the consequence of a contract, the right of action is confined to the parties and...