Friend v. General Motors Corporation

165 S.E.2d 734, 118 Ga. App. 763, 1968 Ga. App. LEXIS 1519

• Court: Court of Appeals of Georgia
• Decided: October 22, 1968
• Docket: 43756, 43757
• Status: Published

Opinions

Jordan, Presiding Judge.

The Friends, husband and wife, filed separate actions against General Motors Corporation and Fred Jones, d/b/a Fred Jones Chevrolet Company, for damages arising out of the same incident. In 1962 the husband purchased from Jones a new Greenbriar truck manufactured by General Motors. In 1963, while he was driving in the rain on a public highway, with his wife as a passenger on the right front seat, and with a load of luggage and photographic equipment weighing less than 300 pounds in the storage area behind the front' seats, he lost control of the vehicle. It left the highway and the front end struck a culvert on the shoulder of the highway. The seats were secured to the vehicle by “one small bolt” and the impact of the vehicle with the culvert caused the load behind the seats to move forward and strike the rear of the seats. This second impact caused the seats to fold over, injuring the occupants. The husband seeks, recovery on the basis of a breach of implied warranty, and the wife seeks recovery on the basis of negligence. The trial court dismissed both petitions, and the plaintiffs appeal: Held:

1. The claim of error with respect to dealer liability, although properly raised in each appeal, is not supported in the brief of either plaintiff by citation or argument, and is therefore deemed to be abandoned. Rule 17 (c) (2), this court. This leaves the orders of the court dismissing the actions with respect to Jones undisturbed, and eliminates him as a party defendant.

2. The husband alleged by amendment, apparently intending to refer to the pleaded fact that the front seats were secured by “one small bolt,” that the vehicle was unmerchantable and not reasonably suited for the use intended, and “that the defect in the design, manufacture and installation of said rear [sic] seats was one that could not be discovered by petitioner ... by the use of reasonable caution . . . and that [he] did not know of said defect nor was same called to his attention either directly or indirectly.”

What does the manufacturer of an automobile impliedly warrant? Under the terms of the 1957 Act (Ga. L. 1957, p. 405; former Code Ann. § 96-307) in effect in 1963 at the time of the incident, the manufacturer (absent any contract to the contrary, and none is here shown) warranted that the vehicle is merchantable and reasonably suited to the use intended, and that the manufacturer knows of no latent defects undisclosed. It is settled law that the use intended means the use for which the article is manufactured and commonly intended by the manufacturer. Atlanta Americana Corp. v. Sika Chemical corp., 117 Ga. App. 707 (5) (161 SE2d 342), and cases there cited. “The maker of an article for sale or use by others must use reasonable care and skill in designing it and in providing specifications for it so that it is reasonably safe for the purposes for which it is intended, and for other uses which are foreseeably probable. . . By and large the standard of safety of goods is the same under the warranty theory as under the negligence theory.” 2 Harper & James 1541, 1584, §§ 28.4, 28.22.

We think that with respect to a combination cargo and passenger vehicle manufactured and marketed for use on the public highways this means a vehicle so constructed and designed as to provide the operator and a passenger sitting beside him with reasonable safety from injury by the collapse of the front seats caused by the impact of shifting cargo in the rear produced by a sudden stop, an occurrence which may reasonably be foreseen and anticipated in normal use on public highways, at the same time recognizing that this does not require the manufacturer to provide a “collision safe” vehicle, that the manufacturer is not an insurer of the safety of an operator or passengers, and that the operator and others are not excused from the exercise of ordinary care to prevent injury.

Under former pleading requirements all the plaintiff had to show was “that the automobile was not reasonably suited for the purposes for which it was commonly intended and that because of its unsuitability he was damaged.” Wood v. Hub Motor Co., 110 Ga. App. 101, 105 (137 SE2d 674). The new pleading requirements of the Georgia Civil Practice Act are based on the federal rules, as to which Mr. Justice Black said, “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41, 45 (78 SC 99, 2 LE2d 80). See also Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260). Under such simplified procedure, the complaint merely provides notice of the claim, and the parties have liberal opportunity for discovery and other pre-trial procedures to disclose more precisely the basis of both the claim and the defense. Viewing the husband’s petition in this light we cannot say that beyond doubt, as a matter of law, the plaintiff shows that he cannot prove facts which would authorize recovery.

3. There is no material difference in the wife’s petition, other than the theory of recovery, and allegations in support thereof, to the effect that the manufacturer was negligent in marketing a vehicle which could not be used with safety on account of the seat installation, and in failing to warn of the dangers involved. Non-statutory negligence as the proximate cause of injuries is a matter which the courts ordinarily refuse to determine as a matter of law, and it cannot be said that the allegations of the plaintiff eliminate, beyond doubt and as a matter of law, negligence on the part of the manufacturer as the proximate cause of the plaintiff’s injuries. Viewing the wife’s petition under the rules set forth in the preceding division, her petition is also not subject to dismissal for failure to state a claim.

4. The trial judge erred in dismissing the petitions as failing to state a claim against General Motors Corporation.

Judgments reversed as to General Motors Corporation, otherwise affirmed.

Felton, C. J., Bell, P. J., Hall and Deen, JJ., concur. Eberhardt, J., concurs specially. Pannell, Qidllian and Whitman, JJ., dissent. Argued July 3, 1968 Decided October 22, 1968 Rehearing denied December 4, 1968 Wall, Armstrong & Fuller, Alford Wall, for appellants. Greene, Buckley, DeRieux, Moore & Jones, Ross L. Malone, Otis M. Smith, Ferdinand Buckley, James A. Eichelberger, Neely, Freeman & Hawkins, John V. Skinner, Jr., Thomas H. Harper, Jr., for appellees.