Ford Motor Co. v. Carter

• Decision Date: 07 September 1977
• Docket Number: No. 32291,32291
• Citation: 239 Ga. 657,238 S.E.2d 361
• Parties: FORD MOTOR COMPANY v. Priscilla Ann CARTER et al.
• Court: Georgia Supreme Court

Page 361

238 S.E.2d 361

239 Ga. 657

FORD MOTOR COMPANY v. Priscilla Ann CARTER et al.

No. 32291.

Supreme Court of Georgia.

Sept. 7, 1977.

Rehearing Denied Sept. 27, 1977.

Long, Weinberg, Ansley & Wheeler, John H. Stanford, Jr., Ben L. Weinberg, Jr., Atlanta, Albert Fendig, Jr., Fendig, Dickey, Fendig & Whelchel, Brunswick, for appellant.

Charles H. Hyatt, Decatur, Hutto, Palmatary, Boshears & Magda, J. S. Hutto, Brunswick, J. Edwin Peavy, Kopp, Peavy & Connor, Waycross, Frank M. Eldridge, Decatur, for appellee.

BOWLES, Justice.

We granted certiorari in Ford Motor Company v. Carter, 141 Ga.App. 371, 233 S.E.2d 444, to review the ruling in Division 2 regarding the question of whether or not a plaintiff wife and administratrix may recover for the wrongful death of her husband upon a strict liability theory.

Although most causes of action ex contractu survived at common law, those ex delicto ceased with the death of either party. Hilkey, Actions for Wrongful Death, 9 Ga. Bar Journal 261 (1947); 3 Holdsworth, History of English Law, pp. 451-2, 579, 585 (3rd ed., 1922); 3 Blackstone Commentaries 301; Shields v. Yonge, 15 Ga. 349 (1854); Georgia Railroad & Banking Co. v. Wynn, 42 Ga. 331 (1871); Watson v. Thompson, 185 Ga. 402, 406, 195 S.E. 190 (1938); Thompson v. Watson, 186 Ga. 396, 197 S.E. 774 (1938).

We are concerned here only where one is charged with the wrongful death of another. Georgia's Wrongful Death Statutes now of force have sought to modify the common law rule, and their origin and development have been outlined in prior decisions of this court. See Thompson v. Watson, supra.

The two Georgia Code sections pertinent to a decision in this case follow. Code Ann. § 105-1301 provides, "(T)he word 'homicide' as used in this Chapter shall include all cases where the death of a human being results from a crime, or from criminal or other negligence." (Ga.L.1887, p. 45); and, Code Ann. § 105-1302 provides, "(A) widow or, if no widow, a child or children, minor or sui juris, may recover for the homicide of the husband or parent, the full value of the life of the decedent as shown by the evidence." (Ga.L.1850, Cobb 476; Ga.L.1855-6, p. 155; Ga.L.1878-9, p. 59; Ga.L.1924, p. 60). We have consistently held since our statutes give a right of action not had at common law, they must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms. Thompson v. Watson, 186 Ga. 396, 405, 197 S.E. 774, supra (Russell and Jenkins, JJ., dissenting); Lovett v. Garvin, 232 Ga. 747, 208 S.E.2d 838 (1974); Ellis v. Rich's, Inc., 233 Ga. 573, 212 S.E.2d 373 (1975); Lovett v. Emory University, Inc., 116 Ga.App. 277, 156 S.E.2d 923 (1967). In construing a statute we must appreciate that what may seem to be a harsh result by using one interpretation may be a just result by using the other. We are concerned here only with the right of the wife to sue for the wrongful death of her husband under the theory of strict liability, if permitted by statute. If the wife's complaint were based solely on the negligence of the defendant, and she was not otherwise precluded, the above quoted Code sections would permit her to proceed to a jury on that theory. But here, she has affirmatively pled that the motor vehicle involved was manufactured new, by defendant Ford Motor Company, owned by co-defendant Hewlitt, and placed in the stream of commerce by Ford. She pleads further that the vehicle was not merchantable and reasonably suited for the use intended by reason of a defect existing therein at that time, and this condition proximately caused the death of her husband. She alleges that Ford is liable in damages "by reason of operation of Georgia Code Ann. § 105-106." She also pleads that Ford is liable to her by reason of "negligence" under the same facts pleaded and under the authority of the same Code § 105-106.

The defendant filed a written motion to strike those two particular paragraphs from the complaint. The trial court denied defendant's motion and on appeal the Court of Appeals affirmed. We cannot agree with the conclusion reached and must reverse.

Although several states have done so, the courts of Georgia have not adopted a general rule of strict liability. Stovall & Company, Inc. v. Tate, 124 Ga.App. 605, 184 S.E.2d 834 (1971) (cert. denied); Poppell v. Waters, 126 Ga.App. 385, 190 S.E.2d 815 (1972) (cert. denied); Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969).

Our courts have also declined to permit an action for wrongful death based on a breach of warranty for the sale of goods, except specified articles intended for human consumption or use. Lovett v. Emory University, Inc., supra; Horne v. Armstrong Products Corp., 416 F.2d 1329 (5th Cir. 1969). Our Legislature, however, has, to a limited extent, passed laws permitting certain causes of action or imposing certain responsibilities which have attributes of strict liability. Workmen's Compensation Act, Code Ann. § 114-101, et seq., as amended; Code Ann. § 105-106 (Ga.L.1968, pp. 1166, 1167).

The provisions of Code Ann. § 105-106 create a new cause of action which is also in derogation of the common law and should be strictly construed. See Tomlinson v. Sadler, 99 Ga.App. 482, 109 S.E.2d 84 (1958); Foster v. Lankford, 120 Ga.App. 573, 171 S.E.2d 662 (1969); Ellis v. Rich's, Inc., supra. As far as the issue on appeal in this case is concerned, if plaintiff can recover for wrongful death against the defendant she must do so under the provisions of Code Ann. § 105-1301 thru 1302. Upon the same premise she must recover on some theory of negligence as no crime or criminal negligence is involved in her case.

This leads us to the question of whether or not the strict liability imposed under Code Ann. § 105-106 embraces negligence. The decision appealed from holds, "if the manufacturer's product is defective, it amounts to negligence per se or as a matter of law." Thus, that decision concludes that negligence is involved in the case and that an action for wrongful death may be maintained under the responsibility imposed under this strict liability statute. ¹

We cannot agree to the result reached. We said in Center Chemical Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975), that a claimant (proceeding under the Act) is not required to prove negligence. The Court of Appeals recognized this holding, but then proceeded to hold that a violation of Code Ann. § 105-106 is negligence as a matter of law.

We hold that the strict liability imposed under § 105-106 is not based on negligence. While negligence on the part of the manufacturer may happen to be involved as a matter of fact, in a given situation, it is not necessarily so, and the statute imposes liability irrespective of negligence. As we said in Ellis v. Rich's, Inc., supra "(E)ssentially the doctrine of strict liability eliminates questions of negligence in tort actions and the Uniform Commercial Code defenses, including privity, in contract actions for breach of warranty. See Restatement of the Law, Torts 2d, § 402A."

While the Code Section itself does not conform to any model language used to describe "strict liability in tort" it does impose on manufacturers similar liability. 46 A.L.R.3d 240 (1972) (See footnotes ² & ³). The intention of the Legislature in adopting any Act must be obtained from a consideration of the Act as a whole. Williams v. Bear's Den, Inc., 214 Ga. 240, 242, 104 S.E.2d 230 (1958); Underwood v. Atlanta & West Point RR Co., 105 Ga.App. 340, 347 (124 S.E.2d 758) (1962). Where there is apparent conflict between different sections of the same statute, the duty of a court is to reconcile them if possible, so as to make them consistent and harmonious with one another. Cason v. Harn, 161 Ga. 366, 131 S.E. 88 (1925). If they cannot be reconciled the one which best conforms to legislative intent must stand. Williams v. Bear's Den, Inc., supra. Section 105-106 places liability in part on a manufacturer for goods sold when not merchantable and reasonably suited for the use intended, and eliminates the manufacturer's right to limit the operation of the Act. Responsibilities usually associated with contract law are thus included. The result is somewhat hybrid. Clearly, there is no standard of conduct set, nor any actual prohibition imposed in the Code section. See Teague v. Keith, 214 Ga. 853, 854, 108 S.E.2d 489 (1959).

To say that the strict liability is placed on the manufacturer, that Section 105-106 is bottomed upon a theory of negligence, or that when the manufacturer's product is proven defective at the time of sale it amounts to negligence per se, would not be a correct pronouncement of the law in our opinion. If negligence or lack of negligence is not involved, there is really no need to consider whether or not a violation of the Code section would be negligence per se.

The absolute liability of a common carrier for goods entrusted for shipment did not include negligence as a matter of evidence or pleading. Southern Railway Company v. Standard Growers Exchange, 34 Ga.App. 534, 130 S.E. 373 (1925). As was said in L & N RR Co. v. Warfield, 129 Ga. 473, 477, 59 S.E. 234, 236 (1907), "(W)here the law imposes an absolute duty, the failure to perform that duty to the damage of another raises a liability; and it would be superfluous to inquire into the causes that interfered with the discharge of the duty, when such causes would not relieve from liability."

Under the decisions of this state, the conduct of a party cannot be declared to be negligence per se unless it has been so declared by a lawmaking body. Garrett v. Royal Brothers Co., Inc., 225 Ga. 533, 170 S.E.2d 294 (1969); Central RR & Banking Co., v. Smith, 78 Ga. 694(1), 3 S.E. 397 (1887); Wright v. Georgia RR & Banking Co., 34 Ga. 330, 338 (1866); Barrett v. Mayor and Aldermen of Savannah, 13 Ga.App. 86(2), 78 S.E. 827 (1913).

The statute when...