Moody v. Sears, Roebuck & Company

• Decision Date: 25 March 1971
• Docket Number: Civ. A. No. 965.
• Parties: Clyde L. MOODY, Plaintiff, v. SEARS, ROEBUCK & COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Georgia

324 F. Supp. 844

Clyde L. MOODY, Plaintiff, v. SEARS, ROEBUCK & COMPANY, Defendant.

Civ. A. No. 965.

United States District Court, S. D. Georgia, Brunswick Division.

March 25, 1971.

Anthony A. Alaimo, Alaimo & Taylor, Brunswick, Ga., for plaintiff.

Walter C. Hartridge, II, Bouhan, Williams & Levy, Savannah, Ga., for defendant.

ORDER DENYING SUMMARY JUDGMENT

LAWRENCE, Chief Judge.

In 1964 Gilbert Baxley ordered a 24-foot aluminum extension ladder from Sears, Roebuck & Company which he had seen advertised. It was delivered and paid for a few days later. During the next three years it was used on his farm in Appling County. The plaintiff, who was Baxley's son-in-law, was a sharecropper and lived on the farm. On July 23, 1967, Moody climbed the ladder to inspect some tobacco that was being cured in a tobacco barn. He looked through the window and, in his words, "taken one step back down, and that was when the pop occurred. It popped like a twenty-two rifle shot. Now the next thing I knowed, I was laying on the ground with my leg up in part of the ladder, and they was trying to get me out." Deposition, p. 16. The side rail had broken. So had plaintiff's ankle.

Moody sued Sears for damages in 1969. The complaint is based on negligence and breach of warranty. Defendant moves for summary judgment, contending (a) that the warranty action is barred by the limitations period of Article Two of the Commercial Code and (b) that no action lies for negligence since Sears did not manufacture the ladder but was a mere retailer and the alleged defect was not reasonably discoverable on inspection.

The implied warranty count (there was no express warranty) is clearly barred by the lapse of time between the alleged breach (1964) and the filing of the suit (1969). Such an action must be commenced within four years from the breach irrespective of the aggrieved party's lack of knowledge and the breach occurs upon tender of delivery. Code of Georgia § 109A-2-725.

Count 2 of the complaint is dismissed.

The negligence count is not barred by the statute of limitations since the suit was brought by plaintiff within two years after he was injured. Sears argues that its status was that of a retailer. The ladder was manufactured by White Metal Rolling Company. The defect was a latent one. As to the liability of a retailer in such cases see King Hardware Company v. Ennis, 39 Ga. App. 355, 147 S.E. 119, and Maddox Coffee Company v. Collins, 46 Ga.App. 220, 167 S.E. 306.

I must agree that Sears should not be expected to detect what the purchaser did not discover until the rail broke. If this were the whole story, its denouement would be quite predictable. But the showing of Sears on its motion does not reveal what came out at the argument. The name of the manufacturer did not appear on the ladder. Sears' trade-name, "Craftsman," did. There was nothing connected with the sale to show that anyone but the defendant was involved.

The weight of decisional law as well as legal commentary is that where a retailer is not a mere conduit but represents itself to be the manufacturer and holds out the product as its own it must be treated as a manufacturer and is subject to the same liability. Fruman and Friedman, Products Liability §§ 18.01 1; 22.1 2; Restatement of the Law of Torts, 2d § 400; 65 C.J.S. Negligence § 100(3)b; Mobberly v. Sears, Roebuck & Co., 40 Ohio App.2d 126, 211 N.E.2d 839; Carney v. Sears, Roebuck & Co., 4 Cir., 309 F.2d 300; Smith v. Regina Manufacturing Corporation and Sears, Roebuck and Company, 4 Cir., 396 F.2d 826.

In Carney, supra, the Fourth Circuit, dealing with Virginia law, said that the basis of the rule is that "where the vendor puts only its name upon the product without indicating that it is actually the product of another then the public is induced by its reasonable belief that it is the product of the vendor to rely upon the skill of the vendor and not the skill of any other." In Smith v. Regina, supra, the same Court dealt with South Carolina law as applied to an electric floor polish-scrubber sold by Sears under its Kenmore trade-name. In holding that the defendant assumed the responsibility of a manufacturer the court stated that while the rule had not been adopted per se in South Carolina "the pronouncements on products liability emanating from the highest court of that state clearly demonstrate a desire to protect consumers and correspondingly to impose stringent duties on sellers."

Counsel for defendant relies on Purkey v. Sears, Roebuck & Company, 220 F.2d 700, a Georgia case which was decided by the Fifth Circuit in 1955. A child was severely injured when a lawn mower sold by Sears threw a piece of concrete that was lying in the grass. The mower was not manufactured by defendant but was sold under its "Craftsman" label. In affirming the direction of a verdict in favor of Sears the Fifth Circuit said that defendant was not the...