Waller v. Transworld Imports, Inc.
| Decision Date | 21 May 1980 |
| Docket Number | No. 58521,58521 |
| Citation | 271 S.E.2d 1,155 Ga.App. 438 |
| Parties | WALLER v. TRANSWORLD IMPORTS, INC. |
| Court | Georgia Court of Appeals |
John C. Gray, Charles Ratz, Atlanta, for appellant.
Rex D. Smith, Andrew M. Scherffius, III, Atlanta, for appellee.
Asserting that he had been forced to have the transmission in his BMW automobile replaced six times between October of 1973 and April of 1978, Waller filed suit against the manufacturer, BMW, and the seller-repairman, Transworld. On each of the six instances of transmission replacement Waller alleged negligent repair and maintenance by Transworld, as well as their provision of a new transmission which was not merchantable or fit for its particular intended use. On at least five of these occasions the transmissions were worked on or replaced without charge. The trial court granted summary judgment to Transworld and Waller appeals. We affirm as to the negligence count but otherwise reverse.
1. Waller insists that a negligence claim was established in tort against Transworld from a breach of duty created by its gratuitous promise to repair and replace the transmission. However, it is clear from his complaint he did not allege that this negligence caused any damages to his person or property but that he sought both punitive and actual damages for diminution in value, loss of use, inconvenience, repair costs and other damages "attendant to his receiving a vehicle not up to the standards that he contracted to purchase; he simply sued for loss of the benefit of his bargain." Chrysler Corp. v. Taylor, 141 Ga.App. 671, 234 S.E.2d 123 (1977). Under these particular circumstances, Chrysler Corp. v. Taylor, supra.
2. We do not agree, however, that the breach of warranty theory of recovery relied upon by Waller cannot fairly be drawn from the record, or that it is foreclosed by the statute of limitations as to the replacement transmissions. Accord; Ford Motor Co. v. Hooks, 143 Ga.App. 823, 240 S.E.2d 205 (1977). "To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (cits.) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff." Henderson v. Atlanta Transit System, 133 Ga.App. 354, 356(1), 210 S.E.2d 845 (1974).
Having certified the question to the Supreme Court, it is clear that conflicting evidence in the record as to Waller's partial payment for one of the transmissions...
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