Unger v. Bryant Equipment Sales & Services, Inc.

• Decision Date: 08 January 1985
• Docket Number: No. 69574,69574
• Citation: 326 S.E.2d 483,173 Ga.App. 364
• Court: Georgia Court of Appeals
• Parties: UNGER v. BRYANT EQUIPMENT SALES & SERVICES, INC. et al.

Page 483

326 S.E.2d 483

173 Ga.App. 364

UNGER v. BRYANT EQUIPMENT SALES & SERVICES, INC. et al.

No. 69574.

Court of Appeals of Georgia.

Jan. 8, 1985.

Rehearing Denied Jan. 29, 1985.

Kenneth M. Henson Jr., Columbus, Millard Fuller, Americus, for appellant.

William A. Erwin, Albany, John W. Denney, Columbus, William E. Smith, Americus, for appellees.

DEEN, Presiding Judge.

In the winter of 1982 appellant Douglas Unger, a Sumter County dairy farmer, purchased a computerized feeding system manufactured by appellee Farmtronix, a Wyoming firm, from appellee Bryant Equipment Sales and Services, Inc. (Bryant), a Harris County dealer authorized to sell Farmtronix products. In April 1982 Bryant installed the system, which worked satisfactorily for some three weeks and then began to malfunction to such an extent that a large percentage of the dairy herd had to be fed by hand. After considerable effort by Unger, Bryant, and others, the trouble was diagnosed as resulting from irregular voltage supply. Appellee Sumter Electrical Membership Corp. (Sumter) worked on the problem and by September of that year had apparently rectified it.

A few months later, in May 1983, further malfunctions occurred, rendering the system inoperable for various periods of time. Several experts, including Sumter engineering personnel, Bryant service personnel, and independent consultants, concluded that the 1982 and 1983 malfunctions were attributable to either improper voltage or a defect in the Farmtronix system. Farmtronix, with whom Bryant and Unger had been in touch during both the 1982 and 1983 malfunctions, ultimately sent its service manager, who investigated and was of the opinion that faulty installation lay at the root of the problem. During the investigations of both series of malfunctions, a number of system components were replaced at no charge to Unger: wires, circuit boards, and finally the computer itself were among the items replaced, and several alterations were made in specific aspects of the installation.

In the meanwhile, Unger had brought a negligence action against Sumter in the Superior Court of Sumter County, and Farmtronix and Bryant were subsequently added as parties defendant. Unger alleged that the latter two defendants were joint tortfeasors with Sumter and charged them with negligence, breach of express warranty breach of implied warranty of fitness, and breach of implied warranty of merchantability. Bryant moved to dismiss for improper venue, and Farmtronix moved for summary judgment on the same ground, also requesting a preliminary hearing on the venue issue. The trial court ruled that neither Farmtronix nor Bryant was a joint tortfeasor with Sumter, and that venue was improper on the breach of warranty claims. Unger appeals from this judgment, enumerating as error the trial court's award of summary judgment to appellees. Held:

Thorough examination of the extensive record in the instant case persuades us that under established principles of law, all the injuries allegedly caused by appellees Bryant and Farmtronix must be characterized as having resulted from a breach of duties imposed by contract. Unless an injury is alleged which occurs independently of any injury allegedly arising from a breach of contract, then a tort action will not lie. OCGA § 51-1-1; Long v. Jim Letts Oldsmobile, 135 Ga.App. 293, 217 S.E.2d 602 (1975); Orkin Exterminating Co. v. Stevens, 130 Ga.App. 363, 203 S.E.2d 587 (1973); Deacon v. Deacon, 122 Ga.App. 513, 177 S.E.2d 719 (1970). See also Mauldin v. Sheffer, 113 Ga.App. 874, 150 S.E.2d 150 (1966); Kaiser Aluminum etc. Corp. v. Ingersoll-Rand Co., 519 F.Supp. 60 (S.D.Ga.1981). Appellant has shown no such independent injury. Moreover, although appellant testified on deposition that he had encountered financial difficulties because of diminished income resulting from decreased milk production, the losses he has shown are economic losses rather than physical injury to person or property. See Long v. Jim Letts Oldsmobile, supra; Kaiser Aluminum etc. Corp. v. Ingersoll-Rand Co., supra. Thus any action by appe...