Washburn Storage Co. v. General Motors Corp.

• Decision Date: 09 July 1954
• Docket Number: No. 2,No. 35156,35156,2
• Citation: 90 Ga.App. 380,83 S.E.2d 26
• Parties: WASHBURN STORAGE CO. v. GENERAL MOTORS CORP. et al
• Court: Georgia Court of Appeals

Page 26

83 S.E.2d 26

90 Ga.App. 380

WASHBURN STORAGE CO. v. GENERAL MOTORS CORP. et al.

No. 35156.

Court of Appeals of Georgia, Division No. 2.

July 9, 1954.

Syllabus by the Court.

1. The motion to dismiss is without merit for the reasons given in the body of the opinion.

2. A dealer may assume that the manufacturer of an article not dangerous per se has performed a required duty in properly constructing the article and in not placing upon the market an article which is defective and likely to inflict injury.

3. A manufacturer who sells an article knowing that it is likely to be resold or used by other people than the buyer will be held liable for an injury to a stranger caused by a defect which might be discovered by reasonable inspections by the manufacturer.

Washburn Storage Company (whom we shall call the plaintiff) filed a petition against General Motors Corporation and Downtown Chevrolet Company. We shall refer to General Motors Corporation as the manufacturer, and Downtown Chevrolet Company as the dealer. The petition alleges:

'1. That the defendants herein are Downtown Chevrolet Company, a corporation, and General Motors Corporation, a corporation, both of whom are subject to the jurisdiction of this court.

'2. On or about July 30, 1952, the petitioner purchased through defendant, Downtown Chevrolet Company, a Chevrolet truck bearing serial number 8VWSA-1149, motor number KEA-4354, paying for said truck the consideration of Twenty-Six Hundred and Sixty-Six and 30/100 ($2,666.30) Dollars. The said truck was manufactured by defendant, General Motors Corporation, and sold to defendant, Downtown Chevrolet Company, for the purpose of being resold, for trucking purposes.

'3. At the time of the said purchase the defendant, Downtown Chevrolet Company, was an agent for General Motors Corporation.

'4. At the time of the sale defendant, Downtown Chevrolet Company, well knew that the purpose for which the truck was intended was the movement of household goods. This fact was known to Mr. Lee Ouzts, an employee of the Downtown Chevrolet Company.

'5. Petitioner shows that on November 24, 1952, when the said vehicle herein described, had been driven less than twenty-five hundred (2500) miles and while it was traveling north from Macon, Georgia, on a public road of the State of Georgia, the front axle of the same broke, causing the truck to overturn and to damage said truck to the extent of One Thousand and no/100 ($1,000.00) Dollars, and to damage household goods being hauled in said truck to the value of Five Hundred and no/100 ($500.00) Dollars.

'6. Petitioner shows that the reason for the break in the axle was through a latent defect in the axle, in that there was a petted groove across the top of the axle which could not be seen by a layman on cursory examination of the vehicle but which caused the axle to be weak and when it was traversing the highway, as heretofore described, the said axle broke at said defective place, causing the body of the truck to fall down upon the wheels and forcing the truck out of control and throwing it over on its side.

'7. Petitioner shows that in addition to the damages above set forth, the truck was out of use for a period of fifteen (15) days, and that the said truck produces income for Washburn Storage Company, which derives all of its revenue from the use of trucks, at One Hundred and no/100 ($100.00) Dollars a day. This caused the petitioner to lose the sum of Fifteen Hundred and no/100 ($1500.00) Dollars.

'8. Plaintiff shows that the proximate cause of the injuries sustained to this plaintiff in damage to the said truck, to the load of household goods being moved thereon, and the loss of service of the truck to petitioner was General Motors Corporation Chevrolet Division failing to make a reasonable inspection of said truck which if done would have discovered the defect in the front axle, and the failure to make said reasonable inspection and discover this defect was negligence on the part of the defendant, General Motors Corporation.

'9. This plaintiff shows that in addition to the liability and negligence on the part of the defendant General Motors Corporation in failing to properly inspect the truck and discovering said defect in the front axle, that the defendant Downtown Chevrolet Company was likewise negligent in failing to make an inspection and discovering the defect as alleged herein. Plaintiff shows that if such an inspection had been made it would have disclosed the imperfection and defect in the front axle of the said truck. That by reason of the negligence in failing to inspect or in making an inspection they were negligent in that the same failed to uncover the said defect and was the proximate cause of the injuries herein set forth and sued for.

'10. This plaintiff further shows that an inspection carefully made would have disclosed the said defect in the front axle and if remedied would have avoided the damages herein set forth.

'11. This plaintiff shows that niether of the defendants herein disclosed to this plaintiff the existence of the defect. The said defect was not one which could have been discovered by the plaintiff which is not an automobile dealer or manufacturer, but could readily have been ascertained by inspection by the defendants named herein.

'12. It is shown that the front axle of the said truck is an important item of the truck and makes the said truck a thing of danger in the event the said axle breaks or gives way.'

The manufacturer and the dealer filed general and special demurrers. The trial court did not pass on the special demurrers but sustained the general demurrers of the manufacturer and the dealer and dismissed the petition.

James L. Flemister, Marjorie Thurman, Atlanta, for plaintiff in error.

Burt DeRieux, Marshall, Greene & Neely, Gaines, Simpson & Peabody, Atlanta, for defendants in error.

GARDNER, Presiding Judge.

1. A motion is made to dismiss the bill of exceptions on two grounds. The first is as follows: Because no party was named therein as defendant in error, and further the acknowledgment of service by counsel for the manufacturer and the dealer did not purport to acknowledge service for any particular person, firm, or corporation.

Where the parties defendant are ascertainable from the caption of the bill of exceptions or the record, the bill of exceptions will not be dismissed for a failure to name specifically the parties defendant. Web & Martin v. Anderson-McGriff Hardware Co., 188 Ga. 291, 3 S.E.2d 882; Carter v. Parrish, 154 Ga. 531, 114 S.E. 709; Pierce v. Powell, 188 Ga. 481, 4 S.E.2d 192; Galfas v. City of Atlanta, 88 Ga.App. 385, 76 S.E.2d 641.

The present bill of exceptions recites that the parties in the court below were Washburn Storage Company v. General Motors Corporation and Downtown Chevrolet Company; and that the trial court sustained the demurrers of each defendant, and the exception is to that judgment sustaining the demurrers of each defendant.

Where a bill of exception which can be identified as excepting to a specific judgment is served on counsel of record in the case, such service shall be held to bind all parties whom said counsel represented in the trial court. Code, § 6-912; McEachin v. Jones, 165 Ga. 403, 140 S.E. 878. The record shows that Burt DeRieux of Neely, Marshall & Green was of counsel for General Motors Corporation in the case, and it...