Opinion
37922.
DECIDED OCTOBER 27, 1959. REHEARING DENIED DECEMBER 3, 1959.
Implied warranty. Brooks Superior Court. Before Judge Lilly. July 29, 1959.
Forester Calhoun, Marcus B. Calhoun, for plaintiff in error.
W. H. Long, S. Spencer Bennet, contra.
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.2d 738). 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.
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 Vold 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.
DECIDED OCTOBER 27, 1959 — REHEARING DENIED DECEMBER 3, 1959.
L. D. Godwin filed suit in the Superior Court of Brooks County against Diamond Alkali Company, a corporation, and A. J. Powell, doing business as Powell's Farm Supply for breach of an implied warranty. The plaintiff's amended petition alleged Powell as a resident of Brooks County, Georgia, and Diamond Alkali Company as an Ohio corporation doing business in the State, but not maintaining a place of business therein, but the defendant had designated an agent for the purpose of accepting service. On July 28, 1959, after dismissal of the case as to A. J. Powell, the defendant, Diamond Alkali Company, a nonresident, filed a plea to the jurisdiction and a motion to dismiss the plaintiff's petition. The petition alleged that the plaintiff purchased and Powell sold a quantity of Black Leaf Concentrate which was manufactured by the defendant, Diamond Alkali Company. A label contained the following:
"Black Leaf. #5. 25% TDE Emulsifiable Concentrate. Net Contents % 5 Gallons.
Active Ingredients: Dichloro diphenyl Dichloroethane (TDE) ______ 25% Aromatic Petroleum Derivative Solvent _______ 71% Inert Ingredients ____________________________ 4%Diamond Black Leaf Company. Richmond, Virginia.
"Caution: Contact with skin can cause toxic symptoms. Avoid inhalation and skin contact. In case of spillage on skin, wash immediately with soap and water. Avoid contamination of feed and foodstuffs. Do not use on household pets and humans. Harmful if swallowed. Keep out of reach of children. Remove residues on tomatoes, egg plants and peppers at harvest by washing, wiping or other effective means. Keep away from fire, heat and open-flame lights, leaking packages must be removed to a safe place. Notice: Seller makes no warranty of any kind, express or implied, concerning the use of this product. Buyer assumes all risks of use or handling whether in accordance with directions or not."The plaintiff alleged that the spray was old, unmerchantable, and the ingredients were not properly emulsified and suspended in the solution so that the spray was unfit for use as a spray for insects on cabbage; that the plaintiff applied the spray in accordance with directions and the spray burned his cabbage, causing him damage in the amount sued for.
ON MOTION FOR REHEARING.
According to the pronouncement of Miller v. Southern Ry. Co., 21 Ga. App. 367 (1) ( 94 S.E. 619), and Coffee v. South Georgia c Ins. Assn., 29 Ga. App. 685 ( 116 S.E. 653), the petition was not wanting in particularity because the name of the officer or agent who made the recommendation as to the mix of the spray was not set forth.
Number 4 of the defendant's demurrer is as follows: "Defendant demurs specially to paragraph 7 of plaintiff's petition as amended on the grounds that same is vague and indefinite and fails to specify what agent, employee or representative of this defendant recommended that the plaintiff mix the spray in the proportion of two quarts of concentrate to 100 gallons of water." The defendant is a corporation and I think it was entitled to the information called for by this demurrer. The case cited by the majority, Miller v. Southern Railway Co., 21 Ga. App. 367 ( 94 S.E. 619), is not authority, in my opinion, for the majority ruling because in that case the petition described the company's agent in charge of a specified ticket-office of the company, at a specified time and place and the company was presumed to know his name.
Townsend, J., concurs in the foregoing dissent.