Woodward v. Karwisch

CourtSupreme Court of Georgia
Writing for the CourtCANDLER
Citation46 S.E. 847,119 Ga. 618
PartiesWOODWARD. v. MILLER & KARWISCH et al.
Decision Date03 March 1904

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-

[46 S.E. 848]

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...

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28 practice notes
  • Holmes v. Worthey, No. 61573
    • United States
    • United States Court of Appeals (Georgia)
    • July 13, 1981
    ...v. Spahos, 89 Ga.App. 885, 887-888, 81 S.E.2d 491, overruled on other grounds in Whiten v. Orr Const. Co., supra; Woodward v. Miller, 119 Ga. 618, 46 S.E. 847; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050. The principle of merger surely may be a defense to a count for breach o......
  • King Hardware Co v. Ennis, (Nos. 19064, 19065.)
    • United States
    • United States Court of Appeals (Georgia)
    • February 22, 1929
    ...constructing the article and of making it safe for the common use intended. Smith v. Clarke Hardware Co., supra; Woodward v. Miller, 119 Ga. 618(1), 48 S. E. 847, 64 L. R. A. 932, 100 Am. St. Rep. 188; Peaslee-Gaulbert Co. v. McMath, 148 Ky. 265, 146 S. W. 770, 39 L. R. A. (N. S.) 465, Ann.......
  • Holland v. Sanfax Corp., Nos. 39342
    • United States
    • Georgia Court of Appeals
    • May 9, 1962
    ...as to the quality of the product. This is an intentional tort for which the plaintiff can hold them liable. Woodward v. Miller, 119 Ga. 618, 46 S.E. 847, 64 L.R. A. 932; Restatement of the Law of Torts, 840, § 310. The plaintiff alleges that all the defendants conspired together and with ea......
  • Seagraves v. ABCO Mfg. Co., No. 43795
    • United States
    • United States Court of Appeals (Georgia)
    • September 30, 1968
    ...Automobile Co. v. Shinall, 103 Ga.App. 695, 701, 120 S.E.2d 351; Restatement, Second, Torts 2d, § 311(1). See also: Woodward v. Miller, 119 Ga. 618, 619, 46 S.E. 847, 64 L.R.A. 932; King Hardware Co. v. Ennis, 39 Ga.App. 355, 363, 147 S.E. 119; Segal v. Carroll Furniture Co., 51 Ga.App. 164......
  • Request a trial to view additional results
28 cases
  • Holmes v. Worthey, No. 61573
    • United States
    • United States Court of Appeals (Georgia)
    • July 13, 1981
    ...v. Spahos, 89 Ga.App. 885, 887-888, 81 S.E.2d 491, overruled on other grounds in Whiten v. Orr Const. Co., supra; Woodward v. Miller, 119 Ga. 618, 46 S.E. 847; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050. The principle of merger surely may be a defense to a count for breach o......
  • King Hardware Co v. Ennis, (Nos. 19064, 19065.)
    • United States
    • United States Court of Appeals (Georgia)
    • February 22, 1929
    ...constructing the article and of making it safe for the common use intended. Smith v. Clarke Hardware Co., supra; Woodward v. Miller, 119 Ga. 618(1), 48 S. E. 847, 64 L. R. A. 932, 100 Am. St. Rep. 188; Peaslee-Gaulbert Co. v. McMath, 148 Ky. 265, 146 S. W. 770, 39 L. R. A. (N. S.) 465, Ann.......
  • Holland v. Sanfax Corp., Nos. 39342
    • United States
    • Georgia Court of Appeals
    • May 9, 1962
    ...as to the quality of the product. This is an intentional tort for which the plaintiff can hold them liable. Woodward v. Miller, 119 Ga. 618, 46 S.E. 847, 64 L.R. A. 932; Restatement of the Law of Torts, 840, § 310. The plaintiff alleges that all the defendants conspired together and with ea......
  • Seagraves v. ABCO Mfg. Co., No. 43795
    • United States
    • United States Court of Appeals (Georgia)
    • September 30, 1968
    ...Automobile Co. v. Shinall, 103 Ga.App. 695, 701, 120 S.E.2d 351; Restatement, Second, Torts 2d, § 311(1). See also: Woodward v. Miller, 119 Ga. 618, 619, 46 S.E. 847, 64 L.R.A. 932; King Hardware Co. v. Ennis, 39 Ga.App. 355, 363, 147 S.E. 119; Segal v. Carroll Furniture Co., 51 Ga.App. 164......
  • Request a trial to view additional results

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