Woodward v. Karwisch

• Decision Date: 03 March 1904
• Citation: 46 S.E. 847,119 Ga. 618
• Parties: WOODWARD. v. MILLER & KARWISCH et al.
• Court: Georgia Supreme Court

46 S.E. 847

119 Ga. 618

WOODWARD.

v.MILLER & KARWISCH et al.

Supreme Court of Georgia.

March 3, 1904.

SALE—BREACH OF WARRANTY—TORT—FRAUD —PLEADING—AMENDMENT.

1. The manufacturer of a buggy, who sells it to a municipal corporation for the use of one of its employes, representing it to be strong and in good condition, but knowing that it is in fact defective, the defect being so concealed by the use of paint and grease that the purchaser cannot detect it, is liable in damages to the person whose use of the buggy was contemplated at the time of the sale for injuries caused by such defect; and this is so notwithstanding there was no privity of contract between the plaintiff and the defendant in the sale of the buggy.

2. The amendments which were allowed merely amplified the original petition, and were not open to the objection that they set out a new

cause of action.

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Park Woodward against Miller & Karwisch and others. On the sustaining of a general demurrer to the petition, plaintiff brings error and defendants cross-error. Reversed.

Arnold & Arnold and Howell C. Erwin, for plaintiff.

Black & Jackson and W. H. Terrell, for defendants.

CANDLER, J. The main bill of exceptions assigns error upon the sustaining of a general demurrer to the plaintiff's petition. The defendants filed a cross-bill complaining of the allowance of an amendment to the petition. The case made by the declaration was, in substance, as follows: The plaintiff is superintendent of the waterworks department of the city of Atlanta, and in the performance of his duties has occasion to ride between different points in the city. The defendants are manufacturers and sellers of buggies, carriages, and other vehicles. On July 30, 1901, the plaintiff, in behalf of the city of Atlanta, bought of the defendants a buggy for his use, the defendants at the time representing to him that the buggy was in good condition, extra strong, and fitted for the service for which it was intended. After purchasing the buggy, the plaintiff began to use it, and on or about November 12, 1901, while riding In it on the streets of Atlanta, "the spindle extending from the right front axle broke, the buggy was wrecked and turned over, causing the horse to run away, and plaintiff was thrown about and around and on the Belgian block pavement, and greatly and permanently injured." The defendants were lacking in ordinary care in the manufacture, inspection, sale, and handling of the buggy. An ordinary test would have led to the discovery of the defect which caused the spindle to break. "There was a large crack in said axle, but the defendants had caused and directed the same to be covered with grease, and the crack filled in. Tins crack extended through the larger part of the spindle, and so weakened the same that the weight of the buggy caused the same to break. The crack was visible to the defendants, in the exercise of ordinary care, before they placed the grease upon the spindle, and had the defendants exercised ordinary care in sounding and testing the buggy in any way they would have discovered the break or crack." On account of the crack being filled and covered with grease, the plaintiff could not, in the exercise of ordinary care, discover its existence, and was unaware of it The defendants falsely represented to the plaintiff that the buggy was in good condition, knowing at the time that the representation was false. The plaintiff's injuries were described, and were alleged to be per-manent Two amendments to the petition were offered, and were allowed over the defendants' objection. The first alleged that the spindle which broke was made of "defective, cheap, imperfect, and improperly welded iron and steel, * * * and flaws and incipient cracks were present in it, " The second set up that at the time of his injuries the plaintiff was in the discharge of his duties as superintendent of the waterworks system of Atlanta; that the defendants, who reside in Atlanta, knew at and prior to the time the buggy was sold that it was to be used by the plaintiff in the discharge of his duties, and sold the buggy expressly for such use; and that the plaintiff was injured by being thrown out into the street by the giving way and breaking of the axle, which caused the buggy to drop to the ground. "He was not hurt by the horse running away. The horse ran away after the buggy fell, and after plaintiff was injured."

1. We do not hesitate to hold that the petition set out a cause of action. Independently of the question of liability to the plaintiff on the alleged warranty of the buggy, we are clear that under the allegations the defendants were guilty of a tort for which the plaintiff could hold them liable. The gist of the action is the alleged false representation, knowingly made, as to the quality and condition of the buggy. In this it is very similar to an action of deceit. It makes no difference that there was no privity of contract between the plaintiffs. It appears that the plaintiff's injuries were sustained while the buggy was being put to a use expressly contemplated by the parties when the...