Maroney Et Ux v. Montgomery Ward &

Decision Date02 May 1945
Docket NumberNo. 30812.,30812.
Citation34 S.E.2d 302
CourtGeorgia Court of Appeals
PartiesMARONEY et ux. v. MONTGOMERY WARD & CO.

Rehearing Denied May 23, 1945.

Syllabus by the Court.

The court did not err in directing a verdict for the defendant.

Error from Superior Court, Glynn County; M. Price, Acting Judge.

Action by W. G. Maroney and wife against Montgomery Ward & Co. for damages ex delicto arising from explosion of an oil stove bought by plaintiffs from defendant. To review a judgment for defendant based on a directed verdict, the plaintiffs bring error.

Affirmed.

Mr. and Mrs. W. G. Maroney sued Montgomery Ward & Company for damages ex delicto arising from the explosion of an oil stove bought by them from the defendant, the explosion resulting from a defect in the stove and setting fire to their house.

After the introduction of evidence by both parties, counsel for the defendant made a motion for a directed verdict for the defendant; on the ground that the undisputed evidence disclosed that the stove was manufactured by a reputable concern, and was shipped to the plaintiffs in the same unbroken crate or package in which it was received by the defendant from the manufacturer; and, therefore, the defendant was not liable. The court sustained the motion and directed a verdict for the defendant; and that judgment is assigned as error in the bill of exceptions.

Colon J. Cogdell, of Brunswick, for plaintiffs in error.

Reese, Scarlett, Bennet & Gilbert, of Brunswick, ' for defendant in error.

BROYLES, Chief Judge (after stating the foregoing facts).

The undisputed evidence showed the following facts: 1. The stove in question was manufactured by the United Stove Company; 2. The United Stove Company was a reputable concern; 3. The stove was so crated by the stove company that it could not be examined without uncrating it;

4. The stove was not uncrated by the defendant, but was sent in the original unbroken crate or package to the plaintiffs;

5. The stove was uncrated by the plaintiffs and used by them for six months before it exploded. There was no allegation in the petition, and no evidence upon the trial showing that the defendant had any knowledge, positive or imputed, as to any defect in the stove; and no intention of deceit on the part of the defendant was alleged or shown by the evidence.

In Bel v. Adler, 63 Ga.App. 473, 477, 11 S.E.2d 495, 497, the court said: "The petition did not set out a cause of action for breach of an implied warranty. There is no implied warranty by a dealer that an article or goods in a perfect appearing original package, manufactured by a...

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