Griffith v. Chevrolet Motor Division

• Decision Date: 05 March 1962
• Docket Number: No. 39244,No. 3,39244,3
• Citation: 105 Ga.App. 588,125 S.E.2d 525
• Parties: H. E. GRIFFITH v. CHEVROLET MOTOR DIVISION, etc., et al
• Court: Georgia Court of Appeals

Page 525

125 S.E.2d 525

105 Ga.App. 588

H. E. GRIFFITH v. CHEVROLET MOTOR DIVISION, etc., et al.

No. 39244.

Court of Appeals of Georgia, Division No. 3.

March 5, 1962.

Rehearing Denied March 29, 1962.

Syllabus by the Court.

1. 'A manufacturer who sells an article knowing that it is likely to be resold or used by other poeple than the buyer will be held liable for an injury to a stranger caused by a defect which might be discovered by reasonable inspections by the manufacturer.' Washburn Storage Co. v. General Motors Corp., 90 Ga.App. 380(3), 83 S.E.2d 26.

2. (a) 'A dealer may assume that the manufacturer of an article not dangerous per se has performed a required duty in properly constructing the article and in not placing upon the market an article which is defective and likely to inflict injury.' Washburn Storage Co. v. General Motors Corp., 90 Ga.App. 380(2), 83 S.E.2d 26, supra.

(b) A repairman owes an original duty to the public to use ordinary care in making repairs so as not to endanger the person or property of others by his negligent performance, when the consequences of such conduct may be foreseen.

Hoyt E. Griffith (plaintiff hereinafter) brought suit against Chevrolet Motor Division of General Motors and Nalley Chevrolet, Inc., seeking to recover damages to his automobile when it was struck by a pickup truck manufactured by Chevrolet and sold by Nalley to one Dwight G. Wood (purchaser hereinafter). Plaintiff alleged that from September 21, 1959, the date the truck was bought, the purchaser 'noticed * * * the steering gear and front wheels on said truck would vibrate' and that there was some trouble with the brakes. Thereafter, the brakes locked and the purchaser returned the truck to Nalley, complaining both about the brakes and the steering mechanism. Nothing was done at this time and the purchaser again returned the truck to Nalley, at which time Nalley installed a new brake drum, relined the brakes and told the purchaser that 'there was nothing wrong with the steering gear, that is (sic) was only natural for the steering gear to vibrate on new trucks.' The vibration of the front wheels and the steering gear continued, although the purchaser took the truck back to Nalley nine or ten times. In addition, the purchaser called one H. H. Muell, an agent of Chevrolet, about his problem and Muell stated that he would see that the condition was correct. Muell instructed the purchaser to take the truck back to Nalley, which he did, and Nalley's service manager talked with Muell on the telephone. One of Nalley's mechanics took the truck out for a test ride and told the purchaser on his return that there was 'no danger and that he could continue to drive the truck.' On January 8, 1960, the purchaser again contacted Muell, stating that the condition was getting worse, whereupon Muell instructed him to take the truck back to Nalley the following day where he, Muell, would have it fixed. On the following day as the purchaser was returning the truck to Nalley, the coupling assembly became separated from the steering shaft and box assembly causing the purchaser to lose control of the truck and strike plaintiff's parked car.

It was further alleged that the purchaser was not skilled in the manufacture, repair and upkeep of trucks and was not negligent. The pertinent allegations of negligence against each defendant will be out in the opinion.

After plaintiff amended his petition, the trial court sustained the renewed demurrers of each defendant and plaintiff excepted.

Everett L. Almon, Harvey A. Clein, Atlanta, for plaintiff in error.

Greene, Neely, Buckley & DeRieux, Buchanan, Edenfield & Sizemore, William H. Major, Atlanta, for defendants in error.

EBERHARDT, Judge.

1. The first question presented in this case is as to the liability of Chevrolet, the manufacturer. Plaintiff alleged that the defect in the steering mechanism existed at the time the truck was manufactured and could have been discovered by a reasonable inspection.

As we view it, this case is controlled by Washburn Storage Co. v. General Motors Corp., 90 Ga.App. 380 (3), 83 S.E.2d 26, where it was held: 'A manufacturer who sells and article knowing that it is likely to be resold or used by other people than the buyer will be held liable for an injury to a stanger caused by a defect which might be discovered by reasonable inspections by the manufacturer.' This, of course, is the rule laid down by Justice Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440, which has been approved in a number of Georgia cases. E. g., Simmons Co. v. Hardin, 75 Ga.App. 420, 426, 43 S.E.2d 553; Moody v. Martin Motor Co., 76 Ga.App. 456, 461, 46 S.E.2d 197; Chrysler Corp. v. Rogers, 92 Ga.App. 109, 112, 88 S.E.2d 318. See, Restatement, Torts § 395; Blashfield, Cyclopedia of Automobile Law & Practice § 4812 (1950, Supp. 1961); Hilkey, Actions for Wrongful Death in Georgia (Pt. 5), 22 Ga.B.J. 325, 337 (n. 62) (1960); Annot., 78 A.L.R.2d 460, § 3.

Chevrolet raises certain contentions about privity of contract and the lack thereof in this factual situation. Such has been done in negligence actions, we suppose, as long as they have been litigated; but less and less effectively with the passage of time. 'In 1842 Lord Abinger foresaw 'the most absurd and outrageous consequences, to which I can see no limit,' if it should ever be held that the defendant who made a contract with A would be liable to B for his failure to perform that contract properly. What happened in the next century was enough to make the learned jurist turn in his grave. The courts began by the usual process of developing exceptions to the 'general rule' of non-liability to persons not in privity. The most important of these was that the seller of a chattel owed to anyone who might be expected to use it a duty of reasonable care to make it safe, provided that the chattel was 'inherently' or 'imminently' dangerous. In 1916 there came the phenomenon of the improvident Scot who squandered his gold upon a Buick, and so left his name forever imprinted upon the law of products liability. Cardozo, wielding a mighty axe, burst over the ramparts, and buried the general rule under the exception.' Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099-1100 (1960).

The necessity for privity has long been dispensed with in Georgia where the article is 'inherently dangerous.' Bolld Balm Co. v. Cooper, 83 Ga. 457, 10 S.E. 118, 5 L.R.A. 612, 20 Am.St.Rep. 324. Articles which may be classed as 'imminently dangerous,' i. e., dangerous if imperfectly made, are also excepted from the privity requirement under the rule of MacPherson. See, Simmons Co. v. Hardin, 75 Ga.App. 420, 43 S.E.2d 553, supra, dealing with a defectively manufactured sofa bed. It would appear that, given the requisite negligence on the part of the manufacturer, the privity requirement is without vitality in Georgia. See, Annot. 74 A.L.R.2d 1192, § 23. But a consideration of the viability of the privity rule is unnecessary here since the factual situation places the case clearly within the rule of Simmons and Washburn.

Even if it be said that Nalley had actual knowledge of the defect after the purchaser first complained to it that he was having trouble with his steering mechanism and brakes, which might have the effect of changing the latent defect to a patent one and thus insulate the manufacturer from liability (Elrod v. King, 105 Ga.App. 46, 123 S.E.2d 441; Harley v. General Motors Corp., 97 Ga.App. 348, 103 S.E.2d 191), yet, it appears here that Chevrolet obtained the same knowledge of the defect when complaint was made to Muell, its agent, and that he then assumed the obligation to have Nalley correct it.

It should be observed that since plaintiff was neither a 'purchaser' nor an 'ultimate consumer' he cannot rely upon any implied warranty of the manufacturer under the provisions of the Act of 1957 (Ga. L., 1957, p. 405; Code Ann. § 96-307). See, Revlon, Inc. v. Murdock, 103 Ga.App. 842, 120 S.E.2d 912.

But the question of whether there was an imperfection in the manufacture of the truck, of the purchaser's want of ordinary care in the driving of the truck, if any, under the facts here, Cf. Cruse v. Taylor, 89 Ga.App. 611(3), 80 S.E.2d 704, and of the proximate cause of the collision are for the jury. It was error, therefore, to sustain Chevrolet's general demurrer.

2 (a) The liability of Nalley as selling dealer or vendor of the chattel made by Chevrolet is also controlled by Washburn Storage Co. v. General Motors Corp., 90 Ga.App. 380, 83 S.E.2d 26, supra, where the second headnote is 'A dealer may assume that the manufacturer of an article not dangerous per se has performed a required duty in properly constructing the article and in not placing upon the market an article which is defective and likely to inflict injury.' In the opinion, it is indicated that a dealer is not relieved of all duty of inspection under all circumstances. Accord: Restatement, Torts, § 402 (1948 Rev.). But see, 2 Harper & James, Torts § 28.29 at 1597 (n. 7) (1956).

An automobile has been held not 'dangerous per se' or 'inherently dangerous' almost since its first appearance in Georgia. Fielder v. Davison, 139 Ga. 509(1), 77 S.E. 618 (1913); Lewis v. Amorous, 3 Ga.App. 50, 54, 59 S.E. 338 (1907). Therefore, under the facts alleged here, the rule of Washburn quoted above applies and there is no liability on Nalley's part merely as dealer or vendor.

(b) A more difficult question is presented by plaintiff's other allegations as to purchaser's relationship with Nalley. The petition construed as a whole indicates that Nalley had agreed to repair purchaser's truck, giving rise to an employer-independent contractor relationship in which Nalley was a repairman.

One allegation relative to repair is that, after purchaser's initial complaint, Nalley's '* * * agent stated to [purchaser] that there...