Unger v. Bryant Equipment Sales and Services, Inc., 42049
| Decision Date | 02 October 1985 |
| Docket Number | No. 42049,42049 |
| Citation | 335 S.E.2d 109,255 Ga. 53 |
| Parties | UNGER v. BRYANT EQUIPMENT SALES AND SERVICES, INC. et al. |
| Court | Georgia Supreme Court |
Kenneth M. Henson, Henson & Henson, Columbus, Millard D. Fuller, Fuller & McFarland, Americus, for Doug Unger.
Wiliam A. Erwin, Albany, William E. Smith, Americus, for Farmtronix et al.
This case comes to us by way of certiorari from the Court of Appeals and the facts of the case may be found in more detail in Unger v. Bryant Equipment & Co., Inc., 173 Ga.App. 364, 326 S.E.2d 483 (1985). The appellant, Doug Unger, is a Sumter County dairy farmer who leased/purchased a computerized feeding system to feed his cows. It was manufactured by Farmtronix, a Wyoming firm, and was sold and installed by Bryant Equipment, a Harris County dealer authorized to sell and install Farmtronix products. 1 Bryant installed the system on Unger's farm and it malfunctioned.
Unger filed a complaint alleging, among other things, that; 1) Sumter EMC was negligent in selling and supplying him with electricity at an irregular and improper voltage level; 2) Bryant negligently and improperly installed and serviced the system; 3) Farmtronix negligently and improperly assisted Bryant in installing and servicing the system; 4) As a result of the concurring negligence of Sumter, Bryant, and Farmtronix, the system broke down and malfunctioned and adversely affected his dairy cows. Unger also alleged breach of express warranty and breach of implied warranties of merchantability and fitness. Bryant moved to dismiss for improper venue. Farmtronix moved for summary judgment on the same ground, and requested a preliminary hearing on the venue issue. The trial court held that neither Bryant nor Farmtronix was a joint tortfeasor with Sumter EMC 2 and that venue was improper in Sumter County on the breach of warranty claims. The Court of Appeals generally agreed with the trial court's reasoning, but reversed the grant of summary judgment and ordered the case against Bryant and Farmtronix to be transferred to Harris County. We disagree with both the trial court and the Court of Appeals and reverse.
In granting the application for certiorari we were concerned with two questions: 1) Whether Farmtronix and Bryant could be joined as joint tortfeasor under the facts of the case; and 2) Whether venue was proper in Sumter County under the principle of "transacting business" within the county, OCGA § 9-10-93. We find that the answer to each question is yes. 1. The cases relied upon by Farmtronix, Bryant, and the Court of Appeals regarding "economic loss" versus "physical damage to person or property," Long v. Jim Letts Oldsmobile, Inc., et al., 135 Ga.App. 293, 217 S.E.2d 602 (1975), and Kaiser Aluminum etc. Corp. v. Ingersoll-Rand Co., 519 F.Supp. 60 (SD Ga.1981), were concerned with products that were defective. There is nothing in Unger's complaint that indicates that the system itself was defective. He asserted only that the negligent installation and servicing of the system caused the system to break down and malfunction. The "economic loss" versus "physical damage" dichotomy that is used in products liability cases can find no application in this case. The question here is whether the appellant has asserted "a claim in tort which does not arise from the contract, but is independent of it." Sheppard v. Yara Engineering Corp., 248 Ga. 147, 148, 281 S.E.2d 586 (1981).
Although a tort is the unlawful violation of a private legal right other than a mere breach of contract, OCGA § 51-1-1, private duties may arise from relations created by contract, and the violation of a private duty accompanied by damage shall give a right of action. OCGA § 51-1-8. The Court of Appeals found that the injuries allegedly caused by Bryant and Farmtronix resulted from a breach of duties imposed by contract. We do not agree. "[I]ndependently of any duty under the contract, the law imposed upon the [appellees] the duty not to negligently and wrongfully injure and damage the property of [the appellant]." Monroe v. Guess, 41 Ga.App. 697, 700, 154 S.E. 301 (1930); E & M Construction Company, Inc. v. Bob, 115 Ga.App. 127, 153 S.E.2d 641 (1967), see also, Sheppard v. Yara Engineering Corp., supra. Unger alleged that the combined negligence of Sumter, Bryant, and Farmtronix injured his property, i.e., the system he had just leased/purchased and his cows.
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