Harison-Gulley Chevrolet, Inc. v. Carr

• Decision Date: 21 March 1975
• Docket Number: HARISON-GULLEY,No. 1,No. 50076,50076,1
• Citation: 214 S.E.2d 712,134 Ga.App. 449
• Parties: , 16 UCC Rep.Serv. 962 CHEVROLET, INC. v. Eleanor CARR
• Court: Georgia Court of Appeals

Page 712

214 S.E.2d 712

134 Ga.App. 449, 16 UCC Rep.Serv. 962

HARISON-GULLEY CHEVROLET, INC. v. Eleanor CARR.

No. 50076.

Court of Appeals of Georgia, Division No. 1.

March 21, 1975.

Rehearing Denied April 4, 1975.

Allgood & Childs, T. Allen Childs, Jr., Augusta, for appellant.

John D. Watkins, Augusta, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

This is an appeal from the denial of a motion for summary judgment by appellant Harison-Gulley Chevrolet, Inc. Appellee Eleanor Carr brought suit in Richmond Superior Court against appellee Harison-Gulley Chevrolet, Inc., in which she sought to recover for the wrongful death of her two children, under the provisions of Code § 105-1307 of the Code of Georgia of 1933, as amended. Appellee Carr's complaint alleged that her decedent, Cynthia Carr, purchased a 1973 Volkswagen automobile from appellant, Harison-Gulley Chevrolet, Inc., on August 24, 1973. The complaint alleges that the vehicle was a used vehicle and that it was 'practically new, having been driven only 6,000 miles.' It was further alleged that the vehicle did not have the standard size steering wheel for a vehicle of its kind and that it had oversized tires on the front and rear and that appellee sold the vehicle to appellant's decedent knowing that it was in an unsafe and dangerous condition. The complaint further alleged that at the time the vehicle was sold, the steering mechanism was faulty and that this condition was not discovered by appellee's decedent until four or six days following the sale transaction. It is further alleged that upon discover, Cynthia Carr, the deceased daughter of appellee, took the car back to appellant for correction of 'the faulty steering mechanism' but that appellant failed and refused to make such correction then or at any time prior to the death of Cynthia Carr. The complaint further alleges that appellee's decedent, Cynthia Carr, was driving the vehicle West on Georgia State Highway 402 at a point 11.8 miles from Madison, Georgia, when the steering mechanism suddenly failed to operate porperly causing appellee's children, Cynthia Carr and Thomas Carr, to be instantly killed. The complaint further alleged that the proximate cause of the death of the two children of appellee was the negligence of appellant in selling the motor vehicle to Cynthia Carr with an improper size steering wheel, oversized tires and a faulty steering mechanism.

Appellant filed defensive pleadings in which it denied liability and asserted other defenses. Subsequently, depositions were taken and appellant filed its motion for summary judgment based on the pleadings, the deposition of one John Byrum, the deposition of Bennie Hill, the deposition of Thomas Carr and supporting affidavits. After a hearing on the motion for summary judgment before the Judge of Richmond Superior Court, the court denied appellant's motion for summary judgment and appellant appealed to this court.

The sole issue to be determined by this court is whether or not the trial judge erred in overruling appellant's motion for summary judgment. Held:

The trial judge erred in overruling appellant's motion for summary judgment. In a motion for summary judgment, the burden is on the movant to demonstrate that there are no genuine issues of fact and that the movant is entitled to judgment as a matter of law. Citizens Bank v. Barber, 123 Ga.App. 507(2), 181 S.E.2d 545; Werbin & Tenenbaum, Inc. v. Heard, 121 Ga.App. 147(2), 173 S.E.2d 114. For the following reasons we hold that the trial judge should have granted appellant's motion for summary judgment.

(a) Appellant was not liable to appellee on the theory of breach of implied warranties. Appellee's decedent joined with another in purchasing a used motor vehicle and they accepted the vehicle as it was after test driving it. There is no dispute in the evidence that the Volkswagen in question was obtained by appellee as a used car, with a very low speedometer mileage and an unexpired safety sticker affixed, and that it was offered for sale as a used vehicle. The deposition of Bennie Hill also reveals that he and Cynthia Carr inspected the Volkswagen, including the steering wheel and the tires, and that they also test drove the vehicle prior to the purchase. Code Ann. § 109A-2-316(3)(b) provides: 'when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him.' Thus, even if appellee's complaint reasonably raises the theory of breach of implied warranty, such ground of recovery cannot be maintained as to the oversized steering wheel and tires. Implied warranties as to any other defects were excluded by the express terms of the sale that the vehicle was sold 'as is.' Code Ann. § 109A-2-316(3)(a).

(b) Appellant is not liable to appellee on a negligence theory. At the time appellant obtained possession of the vehicle in question, it was under no duty to inspect for latent defects. The undisputed evidence in this case is that there was an unexpired inspection sticker (or certificate) affixed to the Volkswagen in question. The 1971 revision of Code Ann. § 68-1726.6 reads, as follows: 'Now and used car dealers-No dealer engaged in the business of selling new or used motor vehicles shall sell at retail any vehicle required to be inspected by this Article (§§ 68-1723 through 68-1726.7) unless there appears on said vehicle an unexpired certificate.' Ga.L.1965, pp. 188, 195; 1971, pp. 515, 516. The change in the wording of the Code Section clearly indicates that as of effective date of the 1971 revision, the General Assembly did not intend to place an obligation upon an automobile dealer to inspect a used vehicle for sale in the event it already had affixed thereon an up-to-date inspection sticker.

Furthermore, the vehicle possessed no obvious defects which would have constituted notice to appellant that the vehicle possessed dangerous qualities. Bennie Hill's deposition reveals that the two purchasers were aware that the vehicle lacked a radio antenna and that the signal lights and the horn functioned improperly. When these defects were brought to the attention of appellant's employees at the time of the sale, the purchasers were advised that appellant did not work on Volkswagens and they were told to take the vehicle to Coleman, another repair facility.

As to latent defects, the evidence shows that the two purchasers, Cynthia Carr and Bennie Hill, did not discover the faulty steering mechanism until four or six days following the purchase of the vehicle. Both Mr. John Byrum, employee of appellant, and Bennie Hill testified on deposition that the vehicle was not returned to appellant for the purpose of making any corrections after the sale was completed. Knowledge by appellant of defects in the radio...