Kemp v. Bell-View, Inc.

• Decision Date: 01 July 1986
• Docket Number: INC,BELL-VIE,No. 72151,72151
• Citation: 179 Ga.App. 577,346 S.E.2d 923
• Parties: , 2 UCC Rep.Serv.2d 178 KEMP et al. v.
• Court: Georgia Court of Appeals

Page 923

346 S.E.2d 923

179 Ga.App. 577, 2 UCC Rep.Serv.2d 178

KEMP et al. v. BELL-VIEW, INC.

No. 72151.

Court of Appeals of Georgia.

July 1, 1986.

Ronald W. Hallman, Claxton, William J. Neville, Jr., Metter, for appellants.

Joe W. Rowland, Wrightsville, for appellee.

BEASLEY, Judge.

The parents of a minor child sued the manufacturer/seller of windows for property damage to their home (count one) and personal injury to their child (count two) after a window fell on the child's hand resulting in the amputation of two fingertips. Count one was dismissed as barred by the statute of limitation. A jury trial on the remaining count resulted in a verdict in favor of the defendant company. The Kemps appeal from the judgment entered on the verdict for defendant and from the denial of their motion for new trial, motion for judgment notwithstanding the verdict, and motion to enter judgment in favor of plaintiffs, to conform judgment to verdict or to set aside judgment.

1. Appellants first assert that the property damage claim was not time-barred because the statute of limitation was tolled by the company's alleged repeated promises to repair or replace the windows.

The windows manufactured by Bell-View were sold to the Kemps on June 2, 1976 and the injury to the child's hand occurred on September 28, 1981. Count one of the Kemps' suit alleged that the windows had been "negligently manufactured and sold, defective, unmerchantable, unreasonable hazardous and not reasonably fit for the purposes intended" and that as a proximate result the value of the Kemp home had been reduced damaging the Kemps in the amount of $25,000 and further entitling them to reimbursement of the purchase price of the windows and door, $957.40. This count also alleged: "Defendant has repeatedly, with the last promise being made on June 1, 1981, promised to repair or replace said windows and door, but has deliberately failed to do so even though plaintiffs have relied upon defendant's representation that it would so correct the problem. As a result thereof, plaintiffs have been defrauded and are further entitled to damages set forth above as compensation for said fraud."

An action for damage to realty must be brought within four years after the right of action accrues. OCGA § 9-3-30. Whether count one is construed as a claim for breach of contract, breach of implied warranty, negligence, or strict liability, it is governed by a four-year limitation for filing suit. See OCGA § 11-2-725, Smith v. Dixon Ford Tractor Co., 160 Ga.App. 885, 887-888, 288 S.E.2d 599 (1982) (breach of contract, warranty); Millard Matthews Bldrs. v. Plant Improvement Co., 167 Ga.App. 855, 307 S.E.2d 739 (1983) (negligence); Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383 (1983) (strict liability). Plaintiffs do not maintain otherwise. The windows were part of the initial construction of the home. Therefore, the cause of action would have accrued at the time of the allegedly defective construction. Bicknell v. Richard M. Hearn Roofing, etc., 171 Ga.App. 128, 318 S.E.2d 729 (1984); Millard Matthews Bldrs. v. Plant Improvement Co., supra; Atlanta Gas Light Co. v. City of Atlanta, 160 Ga.App. 396, 287 S.E.2d 229 (1981).

The date of installation (construction) and sale of the windows was June 2, 1976; the action filed on September 16, 1983, was too late unless the statute of limitation was effectively tolled, or unless the circumstances here allow a finding of a different beginning point in time from which the statute would run.

Appellants cite Teledyne Indus. v. Patron Aviation, 161 Ga.App. 596, 288 S.E.2d 911 (1982) for the proposition that where there is an agreement to repair or replace, the warranty is not breached until there is a refusal or failure to repair, i.e., the applicable statute of limitation would begin to run at that time. Teledyne does not control the situation in count one of this case inasmuch as Teledyne involves a claim of breach of a warranty of repair, not a breach as to the windows themselves. The allegations regarding promises to repair are offered in justification of the tardy filing here, as actions of defendant constituting fraud which would toll the statute of limitation as to the causes of action relating to manufacture.

OCGA § 9-3-96 provides: "If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud." This statutory provision must be strictly construed, inasmuch as it is an exception to the general statute of limitation rule. Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 344, 245 S.E.2d 297 (1978). The type of fraud required under OCGA § 9-3-96 to toll the statute of limitation "must be of that character which involves moral turpitude, that is, actual fraud rather than constructive fraud, in the absence of a confidential relationship, and in addition, such actual fraud must have the effect of debarring and deterring the plaintiff from his action. [Cits.] Curlee v. Mock Enterprises, 173 Ga.App. 594, 597(2), 327 S.E.2d 736 (1985). "Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events. [Cits.]" Riddle v. Driebe, 153 Ga.App. 276, 281, 265 S.E.2d 92 (1980).

There is no allegation of the type of fraud necessary to stop the clock from running as to plaintiffs' claim for property damage and thus to save count one from the dismissal.

2. Appellants maintain that the court erred in refusing to permit a witness to give an expert opinion as to whether the window was defectively designed or built. They argue that inasmuch as the witness testified that he had constructed several hundred houses and had installed a substantial quantity of windows as well and was in fact the dealer who had sold the subject windows to them, "[c]ertainly he was as much an expert on window design as the wrecker driver who testifies as to accident causation, the deputy sheriff who testifies as to ballistics or the common property owner who testifies as to value."

The witness himself disavowed any knowledge whatsoever about window design, the subject on which his opinion was sought. "[W]hether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. [Cits.]" Rose Mill Homes v. Michel, 155 Ga.App. 808, 809(1), 273 S.E.2d 211 (1980). There is no suggestion of such an abuse of discretion here. The court would not be required by law to assume expertise about window design or window construction from a familiarity with window installation.

3. It was wrong, appellants contend, for the court to charge the jury on the defense of "accident" because this was a products liability action. Such a charge in that context is harmful as a matter of law, they urge, relying on Chadwick v. Miller, 169 Ga.App. 338, 312 S.E.2d 835 (1983).

Appellants argument here fails for several reasons. First, the very charge on accident to which appellants now take exception tracked the written request to charge submitted by the Kemps themselves. "One cannot complain of the giving of a charge that was specifically requested by the complaining party." Citizens & Southern Nat. Bank v. Morgan, 142 Ga.App. 337, 340(3), 235 S.E.2d 767 (1977).

Secondly, the gravamen of Chadwick is that "[t]he defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable." Chadwick v. Miller, supra 169 Ga.App. at 344(1), 312 S.E.2d 835.

The Kemps had asserted a claim based on negligence as well...