Verddier v. Neal Blun Co., 47383
| Decision Date | 28 February 1973 |
| Docket Number | 2,3,No. 47383,Nos. 1,47383,s. 1 |
| Citation | 196 S.E.2d 469,128 Ga.App. 321 |
| Parties | , 12 UCC Rep.Serv. 243 Mariah VERDDIER v. NEAL BLUN COMPANY et al |
| Court | Georgia Court of Appeals |
Calhoun, Sims & Donaldson, R. B. Donaldson, Jr., Alton Kitchings, Savannah, for appellant.
Falligant, Doremus & Karsman, Stanley Karsman, Savannah, for appellees.
Syllabus Opinion by the Court
This is a products liability case. Mariah Verddier sued Frantz Manufacturing Co., the manufacturer; Neal Blun Co., its alleged agent and distributor of its products in the State of Georgia; and George Doukas, the owner of the property in whose home she was employed as a maid, and where she was injured by the use of the product on the day the alleged injury occurred. Plaintiff's injury occurred when her finger was amputated in the closing of a garage door. Certain aluminum strips in the door became a lethal instrument as she attempted to close the garage door, and the folding panels of the door amputated her finger.
Based upon the pleadings, interrogatories and certain affidavits in the record, Neal Blun Co., moved for judgment on the pleadings, which was treated as a motion for summary judgment. The motion was sustained and judgment entered dismissing this defendant from the proceeding. Appeal is from that judgment. Held:
In her complaint, insofar as it relates to defendant Neal Blun Co., the plaintiff alleges that Blun 'is and was at all times material to this action the agent of the above named corporate defendant (defendant Frantz Manufacturing Co.), engaged in distributing the products of the latter.' In answer to an interrogatory the plaintiff stated that Blun was sued as 'the supplier of the garage door.' No acts of negligence are alleged against Blun in the complaint or are shown in any of the answers to interrogatories and affidavits in support of or opposing the motion for summary judgment. Certain negligent acts are alleged against the manufacturer (defendant Frantz Manufacturing Co.) but not against the alleged agent and distributor, Blun. It is elementary that the principal is liable for the torts of its agent committed with the scope of his authority. Code §§ 105-108, 4-311. However, it is generally recognized that an agent is not liable to third persons for the failure of the principal to discharge affirmative duties which the principal may owe. Kimbrough v. Boswell, 119 Ga. 201, 45 S.E. 977. It thus appears that there is no basis for an ex delicto action by the plaintiff against defendant Blun.
As the same applies to actions ex contractu, the plaintiff's claim against defendant Blun is controlled by Code Ann. § 109A-2-318 (Ga.L.1962, pp. 156, 191) to wit:
The evidence, construed most favorably for the plaintiff and against the defendant as movant for summary judgment, at most shows that the garage door was manufactured by defendant Frantz Manufacturing Co., which sold the same to Neal Blun Co., which in turn sold the same to one Terry Harmon, a subcontractor on the house being constructed by one Dan McGee, which said house was subsequently purchased by defendant Doukas, the plaintiff's employer.
It is uncontroverted that the plaintiff was employed by defendant Doukas as a maid at the time she sustained the injury complained of. As such, the plaintiff simply does not fall into the category of persons benefiting from an implied warranty under Code Ann. § 109A-2-318, supra. Further, under this statute, a warranty does not run with the article sold except as specified therein. See Smith v. Williams, 117 Ga. 782, 784, 45 S.E. 394 for the rule prior to Ga.L.1957, p. 405 (formerly Code Ann. § 96-307) which was repealed with enactment of the U.C.C. in 1962 (Ga.L.1962, pp. 156, 427).
In this case there is no privity between the plaintiff and the defendant Neal Blun Co., as heretofore noted. No negligence is alleged against defendant Neal Blun Co. in the plaintiff's complaint or shown by any evidence.
Consequently, the trial court was correct in sustaining the defendant Neal Blun Co.'s motion for summary judgment.
Judgment affirmed.
Mariah Verddier sued Frantz Manufacturing Co., the manufacturer; Neal Blun Co., its alleged agent and distributor of its products in the State of Georgia; and George Doukas, the owner of the property in whose home she was employed as a maid, and where she was injured by the use of the product on the day the alleged injury occurred. Plaintiff's injury occurred when her finger was amputated in the closing of a garage door. Certain aluminum strips in the door became a lethal instrument as she attempted to close the garage door, and the folding panels of the door amputated her finger.
Based upon the pleadings, interrogatories and certain affidavits in the record, Neal Blun Company moved for judgment on the pleadings, which was treated as motion for summary judgment. The motion was sustained and judgment entered dismissing this defendant from the proceeding.
Affidavits were submitted for the purpose of showing that movant was not the agent of the manufacturer but only a customer; sales being made to it in Illinois by and through a manufacturer's representative who is an independent contractor and 'acting as mill agents.' However, plaintiff offered opposing affidavits to show that the installer, upon a request to install this particular door, was advised by the defendant manufacturer at its home office that 'Neal Blun was the distributor in Savannah and if I (he) wanted to buy (it) in Savannah . . . I . . . (he) would have to buy from Neal Blun Company'; and that the door was subsequently purchased from the distributor and installed 'as it came packed from the company equipped with aluminum strips covering the space between the panels.' Attention is directed to the failure to specify which 'company' is referred to in the foregoing affidavit. Webster's New International Dictionary defines a distributor as an agent or agency for marketing manufactured goods, usually in a particular territory. Under such cases as Burnette Ford v. Hayes, 124 Ga.App. 65, 183 S.E.2d 78; Gray v. American Bank of Atlanta, 122 Ga.App. 442, 177 S.E.2d 207;...
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...of his agent, acting within the scope of his authority and the prosecution of the business of the principal (Verddier v. Neal Blun Co., 128 Ga.App. 321, 322, 196 S.E.2d 469; Code Ann. §§ 105-108, 4-311 (Code §§ 105-108, 4-311)), and every person is liable for "torts committed by his wife, h......
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Anderson v. Cordell (In re Infinity Bus. Grp., Inc.)
...or agent receives while acting in the course of its employment and within the scope of his authority.”); Verddier v. Neal Blun Co., 128 Ga.App. 321, 196 S.E.2d 469 (1973) (“It is elementary that a principal is liable for the torts of its agent committed within the scope of his authority.”);......
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Anderson v. Cordell (In re Infinity Bus. Grp., Inc.)
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...do not recognize the reverse of that principle; that is, employees are not responsible for the tortious acts of their employers. In Verddier v. Neal, the plaintiff brought a products liability action against the manufacturer of an allegedly defective garage door. Verddier v. Neal Blun Co., ......