Segal v. Carroll Furniture Co.

• Decision Date: 22 April 1935
• Docket Number: 24355.
• Citation: 179 S.E. 775,51 Ga.App. 164
• Parties: SEGAL v. CARROLL FURNITURE CO.
• Court: Georgia Court of Appeals

179 S.E. 775

51 Ga.App. 164

SEGAL v. CARROLL FURNITURE CO.

No. 24355.

Court of Appeals of Georgia, Second Division

April 22, 1935

Syllabus by Editorial Staff.

Retailer although otherwise not liable to purchaser injured in use of common article, ordinarily safe, contained in closed package is liable in tort for such injury, where article has been exposed by retailer in process of sale and installed by retailer with express warranty as to strength, although retailer does not actually know of weakness in article which results in injury.

Purchaser's petition against retailer for injury sustained in collapse of bed bought from retailer, alleging that retailer expressly represented that bed was extra strong, that bed was apparently secure after it was assembled by retailer's agent in plaintiff's home, and that retailer was negligent in failing to exercise ordinary care in inspection of bed, stated cause of action.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Petition by Mrs. I. S. Segal against the Carroll Furniture Company. To review a judgment dismissing the petition on general demurrer, plaintiff brings error.

Reversed.

Camp, Savage & Crawford, of Atlanta, for plaintiff in error.

Harry Hurwitz, Evins & Calhoun, Dillon, Calhoun & Dillon, Clarence H. Calhoun, and Ralph R. Quillian, all of Atlanta, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

1. Although it is the rule that where a retail dealer buys from a manufacturer for resale an article in common use and of ordinarily safe nature, contained in a sealed or closed package, he is under no duty to test or inspect the article and cannot be held liable for an injury to a purchaser from a latent or concealed defect, or even from a defect which would have been patent if the package had been opened, in the absence of actual knowledge of the defect, yet where the article has been exposed by the dealer in the process of sale and has been installed by him for the purchaser, with an express warranty that it is "extra strong," the lack of actual knowledge by the dealer of a weak and defective construction in the article will not, in an action sounding in tort, absolve him from liability to the purchaser, who in the exercise of ordinary care and without actual knowledge of the defect in the article is injured in its use. Where there has been such a representation, an allegation that the dealer knew or ought to have known of the defect is sufficient. An assurance to the purchaser as to the strength, safety, or freedom from defect of the article is the equivalent of actual knowledge on the part of the dealer, since he thereby implies the existence of knowledge, and he...