Mike Bajalia, Inc. v. Amos Const. Co., Inc.

• Decision Date: 06 May 1977
• Docket Number: No. 53188,No. 1,53188,1
• Parties: MIKE BAJALIA, INC., et al. v. AMOS CONSTRUCTION COMPANY, INC., et al
• Court: Georgia Court of Appeals

Page 664

235 S.E.2d 664

142 Ga.App. 225

MIKE BAJALIA, INC., et al. v. AMOS CONSTRUCTION COMPANY, INC., et al.

No. 53188.

Court of Appeals of Georgia, Division No. 1.

May 6, 1977.

Stokes & Shapiro, Thomas J. Wingfield, Atlanta, Coleman & Kitchens, William H. Kitchens, Valdosta, for appellants.

Alexander, Vann & Lilly, Roy M. Lilly, Jr., Thomasville, McLane & Dover, H. Arthur McLane, Valdosta, Jesse W. Walters, Albany, Blackburn & Bright, J. Converse Bright, Valdosta, for appellees.

McMURRAY, Judge.

An agreement was entered into between Mike Bajalia, Inc., and Amos Construction Co., Inc. on April 24, 1973, to construct a Butler space grid building. A more formal contract was to be entered at a later date, but this never occurred. This April 24, 1973, agreement was executed by Mike Bajalia, individually, and William G. Amos, individually, as well as the two corporate entities. Construction started and thereafter change orders were entered with respect to the construction.

Mike Bajalia, Inc. and Mike Bajalia became dissatisfied with the workmanship and refusal of the Amos Construction Co., Inc. and/or William G. Amos to complete the contract. Alleging breach of contract, fraud and wilful misrepresentation in the change orders and other matters of the contract, Mike Bajalia, Inc. and Mike Bajalia sued Amos Construction Co. and William G. Amos, seeking damages caused by the breach of the contract, negligent acts, failure to act, and wilful misrepresentation as direct and proximate causes of the damage to the plaintiffs. They sought a money judgment for the completion, overpayment and the expenses of litigation. Defendants answered, denying generally all averments of the complaint other than jurisdiction and adding that the memorandum agreement was never implemented and contending that it would have completed said building if it had not been prevented from doing so by the plaintiffs. Amos Construction Co., Inc., in a counterclaim, sought damages against the plaintiffs. Defendants also filed various other defenses.

The plaintiffs amended the complaint several times, adding six additional counts, and sought to add additional parties defendant, being the architects and the manufacturer, Butler Manufacturing Co., alleging breach of contract, breach of warranty, negligence in the design of the building because of latent defects, strict liability in the manufacturing process, and the failure of defendants to warn plaintiffs of the dangers inherent in the use of the building. A judgment was sought against all of the defendants jointly and severally.

After discovery and based on affidavits submitted in support of its motion for summary judgment, Butler Manufacturing Co. was granted a summary judgment, and it was dismissed as a party to these proceedings. Plaintiffs appeal. Held:

1. In the case sub judice the plaintiffs may not recover in negligence against Butler for damage to building components supplied by Butler arising from defects in these same components. Long v. Jim Letts Oldsmobile, Inc., 135 Ga.App. 293, 294(2), 217 S.E.2d 602. However, all of the components used in the construction of the building were not supplied by Butler. Several portions of the building, most notably the roof, were supplied by other sources. The plaintiffs may proceed against Butler on a theory of negligence where components supplied by sources other than Butler are damaged due to defects in the Butler components. There was evidence presented on the hearing of the motion for summary judgment that the Butler supplied components of the building were not of sufficient strength to support the roof, that Butler was aware of the problem and that the roof and other portions of the building not supplied by Butler were damaged because of the inadequate strength and other deficiencies of the Butler supplied building components. The court erred in granting summary judgment on the negligence issue. Giant Peanut Company v. Carolina Chemicals, Inc., 129 Ga.App. 718, 719(1), 200 S.E.2d 918.

2. There is no error in the court granting Butler's motion for summary judgment on the strict liability issue as to the corporate plaintiff, Mike Bajalia, Inc. Strict liability is applicable only in actions by natural persons. Code Ann. § 105-106 (Ga.L.1968, pp. 1166, 1167); Center Chemical Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580; Cobb Heating & Air Conditioning Co., Inc. v. Hertron Chemical Co., 139 Ga.App. 803 (footnote), 229 S.E.2d 681.

Recovery on a theory of strict liability as provided by Code Ann. § 105-106, supra, is allowed only where the injury is proximately caused by the condition of the product when sold by the manufacturer. Here there are jury issues as to whether the assembly of the building components supplied by Butler to defendants Amos and Amos Construction Co. resulted in a change in condition of the Butler supplied components. There was also evidence of damage to various component parts...