Simmons Co. v. Hardin

• Decision Date: 15 July 1947
• Docket Number: 31475.
• Citation: 43 S.E.2d 553,75 Ga.App. 420
• Parties: SIMMONS CO. v. HARDIN.
• Court: Georgia Court of Appeals

43 S.E.2d 553

75 Ga.App. 420

SIMMONS CO. v. HARDIN.

No. 31475.

Court of Appeals of Georgia, Division No. 2.

July 15, 1947

the jury, and counsel for defendant agreed that the excerpt might be read, but defendant's counsel changed his mind and requested court in jury's presence to deny plaintiff's counsel permission to read the excerpt, and court reversed its ruling and denied plaintiff's counsel permission to read the excerpt, and on following day court again reversed its decision and authorized reading of excerpt so that jury would not infer that counsel for plaintiff in attempting to read the excerpt was attempting something improper, there was no prejudicial error.

Syllabus by the Court.

There was no error requiring the grant of a new trial, in the various rulings and instructions excepted to (and stated at length in the opinion of the court, infra); and the evidence authorized the verdict.

The plaintiff, Mrs. Nina Ruth Hardin, brought suit against the Simmons Company, a manufacturer of household furniture, for damages because of injuries alleged to have been sustained as a result of the negligence of the defendant. To the petition the defendant filed an answer in which it denied the allegations of the petition and plead contributory negligence on the part of the plaintiff. The case was tried before a jury and a verdict returned for the plaintiff. The defendant made a motion for new trial on the general and eleven special grounds. This motion was overruled on each and every ground thereof, and the defendant excepted.

The plaintiff's petition alleged in part that the plaintiff's husband, G. D. Hardin, bought from Carroll Furniture Company of Atlanta, Georgia, a sofa bed; that the said sofa bed was manufactured by the defendant; that the said sofa bed was manufactured by the defendant for the purpose of being sold to the public for use as a sofa and/or sofa bed; that on September 4, 1944, while the plaintiff was sitting in front of said sofa bed or studio-couch, which was opened for the purpose of storing bed clothing used thereon in the compartment provided for the purpose under the seat of the sofa, one end of one of the cross-wise 'U' type springs became detached and suddenly and violently struck the plaintiff in her right eye, causing a complete loss of the vision in said eye, and severe pain there ever since said occurrence; and that the injuries and damages inflicted upon the plaintiff are the direct and proximate result of the negligence of the defendant in the following particulars: (a) In that the said metal clamp, which held the end of the cross-wise spring that struck plaintiff's right eye failed and caused the said spring to strike plaintiff's said eye by reason of the weak and defective nature of said clamp, due to the cracking of the clamp in excessive cold work in crimping the clamp and punching holes therein for the nails at the time of fabrication; (b) In that the initial crack in said metal attachment produced in said excessive cold work in crimping, stamping and punching of holes, caused a loss of sufficient area in metal to carry the service load, and the resulting excessive service load caused the balance of the area through the cracked section of the metal clamp to be subjected to concentrated fatigue stresses that brought about the final failure in the breaking of the clamp and releasing of the end of the cross-wise spring so that it violently struck and injured plaintiff's right eye, causing the loss thereof; (c) In that the clamp attached to the end of the cross-wise spring which struck plaintiff's right eye in this case was cracked by excessive cold work in crimping, stamping and punching at the time of fabrication, causing an initial crack in said metal clamp where it was crimped and a hole was punched for nailing to the wooden frame; the initial crack producing a loss of sufficient area in metal to carry the service load, and the service load thereby causing the balance of the area through the cracked section of the clamp to be subject to concentrated fatigue stresses that brought about the final failure and breaking of the clamp at said cracked point and the release of the end of the spring striking plaintiff's right eye; (d) In that the nail which held the crimped section of said clamp that broke off and let the spring fly out, bore the markings of a severe load applied just below the head of the nail, causing a deep cut in one side of the nail, indicating that the metal clamp broke in two at that point and the intense load was then applied to the one nail through the top hole of the crimped section of clamp, and as the result the nail broke off under fatigue; (e) In that the defendant by proper inspection at the time of fabrication or any time before sale of the furniture, or at the time of the crimping, stamping and punching of the metal clamp could have observed the initial crack in the crimped portion of the clamp which finally resulted in the fatigue break, releasing the end of the 'U' type spring and causing it to strike plaintiff's right eye, and could have remedied the condition by attaching said spring to the framework of the sofa by a clamp which was properly crimped, stamped and punched and which did not have an initial crack or break by reason of excessive cold work or otherwise; (f) In that the defendant made no inspection whatever of said clamp at the time it was crimped, stamped and punched or at the time it was attached or at the time of fabrication or thereafter or prior to the sale of the sofa bed, when it knew or could have known by the exercise of ordinary care that its failure to do so would in all probability result in serious injury to the plaintiff or some other person; (g) In that the defendant did not give the plaintiff any warning whatever of the dangerous condition of said 'U' type spring, due to the excessive cold work in crimping, stamping and punching said clamp holding the end of said spring to the framework of the sofa bed, resulting in the initial crack in the crimped portion of said clamp as aforesaid; and (h) In that the defendant manufactured and sold for use by the public said sofa bed as an article of furniture safe and suitable for normal use as a sofa and sofa bed when it knew or could have known by the exercise of ordinary care of the initial crack in said clamp; and that said crack would gradually extend in use under fatigue load in service until failure and collapse and release of said 'U' type spring and cause it to strike plaintiff or some other person with the resulting injury; (i) In that the defendant failed to place and securely fasten under the sofa seat a strong board or some other sufficient covering, protection, or material to prevent the cross or 'U' type spring in question or any one of them from flying or jumping or springing out and striking plaintiff's said eye when the sofa seat was turned up as in this case for the purpose of placing in the storage compartment under the sofa the bedding used in converting it into a bed; (j) In that the clamp holding the lower end of the 'U' type cross spring in question as the sofa was turned up, was not firmly and securely nailed down to the wood of the sofa seat frame so that the said clamp could not work up and down as it did in this case and cause a further cracking, breaking, and final failure and complete breaking of the said clamp at the site of the crack or break produced in said excessive cold work in crimping, stamping, and punching of holes; and (k) In that the sofa bed was of cheap, defective and unsafe design, materials and construction in the particulars alleged in plaintiff's petition as amended.

Smith & Long and T. J. Long, all of Atlanta, for plaintiff in error.

G. Seals Aiken, of Atlanta, and Isaac C. Adams, of Dalton, for defendant in error.

MacINTYRE Presiding, Judge.

1. Under the general grounds of his motion for new trial, the defendant contends that the verdict, as a matter of law, is contrary to the evidence presented at the trial and should not be allowed to stand.

In his brief and argument the defendant, plaintiff in error, admits that the petition of the plaintiff, defendant in error, sets forth a cause of action and was not subject to general demurrer, but he insists that the verdict is contrary to the evidence as a matter of law. The plaintiff contends that this is a new assignment and cannot be considered by this Court, it not having been raised in the court below. This contention is not meritorius, for there is an assignment of error in the bill of exceptions to the judgment overruling the defendant's motion for a new trial which contains the usual general grounds, (1) Because the verdict and judgment is contrary to the evidence and without evidence to support it, (2) The verdict and judgment is decidedly and strongly against the weight of the evidence, and (3) Because the verdict and judgment is contrary to law and the principles of justice and equity; this raised the question for determination whether under the evidence and the facts as disclosed by the record and the law applicable thereto the verdict was authorized by the evidence. Claxton Coca-Cola Bottling Co. v. Coleman, 68 Ga.App. 302, 304, 22 S.E.2d 768; Investors Finance Co. v. Hill, 194 Ga. 236, 241, 21 S.E.2d 220; Horsley v. Woodley, 12 Ga.App. 456(2), 78 S.E. 260; Rubin v. Hardin, 173 Ga. 127, 159 S.E. 711; 5 C.J.S., Appeal and Error, § 1647(b), page 607.

2. The evidence discloses that while the plaintiff was sitting in front of the sofa bed or studio couch (hereinafter referred to as a sofa), which sofa was open for the purpose of storing bedclothes used thereon in the compartment provided for that purpose under the seat of the sofa, one end of one of the cross wise or 'U' type springs became...