Diamond Alkali Company v. Godwin

112 S.E.2d 365, 100 Ga. App. 799, 1959 Ga. App. LEXIS 732

• Court: Court of Appeals of Georgia
• Decided: October 27, 1959
• Docket: 37922
• Status: Published

Opinions

Quillian, Judge.

1. The contention presented by the motion to dismiss the petition on the grounds that the trial court does not have jurisdiction over the remaining defendant is without merit. The petition alleged that the defendant, Diamond Alkali Company, was doing business, but did not maintain a place of business within the State, and was represented only by an agent for the purpose of receiving service. In the event that a corporation does have an agent or office for the purpose of doing business within the State, the venue will be in the county where such office exists. Adams & Co. v. Douglas-Coffee County Hosp. Authority, 209 Ga. 62 (70 S. E. 2d 730); Liberty Bell Mut. Fire Ins. Co. v. Exum, 209 Ga. 548 (74 S. E. ). However, where a foreign corporation doing business within this State does not have an agent or office for the purpose of doing business, but does have an agent for the purpose of service, venue may be laid in any county as prescribed by Code (Ann.) § 22-1509.

Decided October 27, 1959 Rehearing deniedDecember 3, 1959. Forester & Calhoun, Marcus B. Calhoun, for plaintiff in error. W. H. Long, S. Spencer Bennet, contra.

2. The petition clearly alleged that the plaintiff seeks to recover damages under a warranty implied by law. Code (Ann.) § 96-307. The intent of the statute is to require all manufacturers to warrant that the article manufactured and sold is reasonably fit for the purpose anticipated for the article’s use and that this warranty shall extend from the manufacturer to the ultimate consumer. See Void on Sales (1931), Chapter 6. While it is true that the parties may avoid the effects of this statute by express contract of disclaimer, the disclaimer attached to the insecticide container did no more than negate the defendant’s liability for personal injuries during operation of applying the insecticide. We recognize that a seller may, with the consent of the buyer, disclaim any warranty of the article sold (Hardy v. General Motors Acceptance Corp., 38 Ga. App. 463, 144 S. E. 327; Frick Co. v. Lawson, 50 Ga. App. 511, 179 S. E. 274; Annotations, 59 A.L.R. 1180), and where such disclaimer of warranty is expressed on a label on an article purchased, it is a question for the jury to determine as to whether the buyer is aware of the disclaimer of warranty and received the article with knowledge of such disclaimer; however, what is held in the instant case is that there is not a disclaimer on the label of the can which limited the implied warranties that arose under the provisions of Code (Ann.) § 96-307. The label merely contained a warning that there is a physical hazard to a person involved in applying the insecticide.

Judgment affirmed.

Gardner, P. J., Carlisle and Nichols, JJ., concur. Felton, C. J., and Townsend, J., dissent.