R. F. Burton Co. v. Southern Marine Associates, Inc., 48437
| Citation | 130 Ga.App. 111,202 S.E.2d 544 |
| Decision Date | 27 September 1973 |
| Docket Number | No. 48437,No. 1,48437,1 |
| Parties | R. F. BURTON COMPANY v. SOUTHERN MARINE ASSOCIATES, INC |
| Court | Georgia Court of Appeals |
Zachary & Segraves, Robert G. Nardone, Decatur, for appellant.
King & Spalding, A. Felton Jenkins, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
Burton owned a boat which under an oral agreement the defendant Southern Marine Associates was to keep housed in a covered docking space. The boat was removed to open docking space after a storm, and the plaintiff contracted with a third party to strip and repaint the bottom during this time, and arranged for the defendant to remove it from the water on barrels so that this could be done. The defendant then wanted a part of the work, and the third party agreed that it should do the sandblasting preliminary to the painting. The entire job should have taken between one and two weeks. However, defendant, after removing the boat from the water, failed to do the preliminary stripping, as a result of which the boat was left exposed to the sun for between two and three months and suffered damage to its superstructure. All work, including sandblasting, was eventually done by the third party. Plaintiff sues for this damage and also for the loss of certain personal property which he contends, and the defendant denies, it was the duty of the latter to protect.
The defendant moved for and was granted summary judgment. The plaintiff appeals on the grounds that there were issues of fact (a) as to negligence and breach of contract in the defendant's duties as landlord, and (b) as to negligence by the defendant in its capacity as bailee in failing to exercise ordinary care in protecting the plaintiff's property. Held:
1. The defendant is correct in its contention that one not in privity of contract with another cannot maintain an action against him for breach of the contract, and that therefore any damage which accrued to the plaintiff's boat as a direct result of a breach of the subcontract between the defendant and a third party is not recoverable by the plaintiff. McWhirter Material Handling Co. v. Ga. Paper Stock Co., 118 Ga.App. 582, 164 S.E.2d 852; First of Ga. Ins. Co. v. Augusta Ski Club, 118 Ga.App. 731, 165 S.E.2d 476.
2. However, there was a contract directly between the plaintiff and defendant which, according to the plaintiff's contentions, imposed a burden on the defendant to...
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...to raise the duty of the defendant to use due care in his performance of it.' See also R. F. Burton Co. v. Southern Marine Assn., Inc., 130 Ga.App. 111, 112(2), 202 S.E.2d 544 (1973). Neither of the cases cited by appellants supports the proposition that a citizen can sue one who contracts ......
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