Storm Systems, Inc. v. Kidd

• Decision Date: 13 February 1981
• Docket Number: No. 61124,61124
• Parties: STORM SYSTEMS, INC. v. KIDD.
• Court: Georgia Court of Appeals

Page 109

278 S.E.2d 109

157 Ga.App. 527

STORM SYSTEMS, INC. v. KIDD.

No. 61124.

Court of Appeals of Georgia.

Feb. 13, 1981.

Certiorari Denied March 18, 1981.

James H. Bone, Carrollton, for appellant.

Thomas E. Greer, Carrollton, for appellee.

SHULMAN, Presiding Judge.

Appellant-defendant brings this appeal from a verdict and judgment awarding appellee-plaintiff $24,420 on his claim for breach of express and implied warranties covering certain equipment manufactured by appellant. We affirm.

1. Appellant is a Minnesota corporation and enumerates as error the trial court's denial of its motions to dismiss for lack of personal jurisdiction and for improper venue. We find no error.

The record in this case clearly establishes that appellant manufactured the equipment in question in Minnesota and shipped the equipment directly to Carroll County to be sold there to purchasers planning to install and utilize the equipment in Carroll County. The facts are undisputed that after having purchased the equipment, appellee installed and maintained the equipment on his premises in Carroll County. Under those circumstances, there is no question that both jurisdiction and venue in this action properly lay in the Superior Court of Carroll County. See Jet America v. Gates Learjet Corp., 145 Ga.App. 258, 243 S.E.2d 584. Appellant's arguments to the contrary are without merit.

2. In its third enumeration, appellant contends that the trial court erred in denying its motion to dismiss for insufficiency of process. Appellant argues that service of process in this case was perfected through the mail. The record contains undisputed evidence that appellant's vice president was personally served with appellee's complaint in this action. Appellant's third enumeration is specious, at best.

3. Appellant next enumerates as error the trial court's denial of its motion to dismiss appellee's complaint for failure to state a claim upon which relief could be granted. In support of its five enumerations on this point, appellant raised contractual issues pertaining to the original warranty covering the subject equipment and the alleged lack of privity of contract between appellant and appellee. We find no merit in any of these issues.

"When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, 'the new rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.' (Cits.)" Tri-City Sanitation v. Action Sanitation Service, 227 Ga. 489, 181 S.E.2d 377.

Appellant has failed to demonstrate that appellee's complaint did not state a claim upon which relief could have been granted under any state of provable facts. See Harper v. DeFreitas, 117 Ga.App. 236, 160 S.E.2d 260. As a result, we find no error in the trial court's denial of appellant's motion to dismiss appellee's complaint.

4. Appellant further contends that the trial court erred in denying its motion for summary judgment. After trial and a verdict which is supported by the evidence (see Division 12, infra), this court will not reverse the judgment of the trial court denying appellant's motion for summary judgment. Melton v. Bow, 145 Ga.App. 272(5), 243 S.E.2d 590.

5. In its next five enumerations of error, appellant argues that the trial court committed reversible error in overruling its objections to the introduction of certain testimony of appellee and his witnesses. We find no merit in any of appellant's arguments in this regard. The testimony given by appellee and his witnesses was relevant to the issues being tried in this case. The proper foundations were laid before opinion testimony was elicited from any of the witnesses. Appellant's objections to the proffering of testimony on behalf of appellee were properly overruled.

6. Appellant next enumerates as error the ruling of the trial court permitting appellee to call a hostile witness for the purpose of asking that witness leading questions. However, appellant has failed to cite any authority in support of this argument and has not otherwise demonstrated in any way that the trial court abused its statutory discretion in granting appellee's request pursuant to the provisions of Code Ann. § 38-1706.

7. In enumerations of error 17 and 18, appellant asserts error in the ruling of the trial court permitting, over appellant's objections, the introduction of four of appellee's exhibits into evidence. Once again, appellant has cited no supporting...