Opinion
41768.
SUBMITTED JANUARY 4, 1966.
DECIDED MARCH 11, 1966.
Action for damages. Bulloch Superior Court. Before Judge Usher.
Sharpe, Sharpe Hartley, T. Ross Sharpe, for appellant.
Neville Neville, Oliver Maner, Edwin Maner, Jr., for appellee.
The petition stated a cause of action for negligence sufficient as against general demurrer.
SUBMITTED JANUARY 4, 1966 — DECIDED MARCH 11, 1966.
Daisy Oglesby Wilson brought an action against Soderhamn Machine Manufacturing Company for damages for the wrongful death of her husband, Robert James Oglesby, allegedly resulting from the malfunction of a machine manufactured by the defendant. The petition alleged substantially as follows: That on or about October 5, 1962, the defendant sold and delivered a wood chipping machine to decedent's employer, Southern Pine Products, Inc., for use at its Statesboro sawmill; that the defendant manufactured the machine and intended it to be used in the condition in which it was delivered by the defendant, which condition was unchanged up to the time of decedent's death; that the machine essentially consisted of an electrically driven, rapidly rotating metal wheel, to one side of which were attached six blades for cutting timber into chips and to the other side three fans, fastened by bolts and turned by steel studs connected with the wheel, to blow the chips out of the metal housing and up through an enclosed chute for sorting; that the machine made a knocking sound on every day of its operation until the decedent's death, commencing on the first day of its operation, October 8, 1962, on which day the defendant was so notified by Southern Pine Products, Inc.; that the defendant's agent and employee who was sent to work on the machine shortly after receipt of said notice assured the mill's employees that the noise was caused by a harmless air pocket, which they could disregard, and that he then spent almost an entire afternoon working on, examining, testing and running the machine and adjusting the cutting blades; that the defendant had negligently failed to weld securely one of the studs which drove one of the fans, thereby putting an increased burden on the fan bolts, which eventually caused them to break; that the fan was thus disengaged from the wheel and thrown against the hinged housing cover, which came open and struck and killed the decedent on December 11, 1962; that the defendant had actual knowledge of the weak and defective clamp which was supposed to have held closed the hinged cover and had available, prior to decedent's death, an improved clamp, but negligently failed to warn the machine's users of this inherently dangerous condition or to advise the installation of the improved clamp; that the defendant alone had the knowledge or the opportunity of discovering the details of said defects, since the machine was delivered already fully assembled; that the machine had been operated in the manner intended by the defendant manufacturer ever since its delivery; that the aforesaid defects were not such as could have been discovered by decedent, but could have been discovered by the defendant by a proper inspection between the times of the manufacture and delivery of the machine; that if the defendant was not aware of said defects, its failure to know of them was one of its acts of negligence which were the proximate cause of decedent's death. The court overruled the general demurrer to the petition, from which judgment the defendant appeals.
It is contended that the petition is an attempt to state a cause of action based upon implied warranty and that the plaintiff does not have the privity of contract requisite to the bringing of such an action. Although there are allegations of negligence in the manufacturing of the machine, the fact that the action is not predicated upon the theory of implied warranty is evidenced by the absence of any reference whatsoever to this term in the petition.
The petition contains allegations of the defendant's negligence subsequently to the manufacture of the machine — not only in failing either to correct the potentially dangerous defects, of which it allegedly knew or which it could have discovered, or to warn the vendee, the decedent, or other users of the machine of such defects, but also in making positive representations that the machine was in safe operating condition. For cases holding that such negligence may be found to be actionable, see: MacPherson v. Buick Motor Co., 217 N.Y. 382 ( 111 N.E. 1050, LRA 1916F 696, AC 1916C 440); Maytag Company v. Arbogast, 42 Ga. App. 666 (1, 2) ( 157 S.E. 350); Simmons Co. v. Hardin, 75 Ga. App. 420, 423 ( 43 S.E.2d 553); Washburn c. Co. v. General Motors Corp., 90 Ga. App. 380 (3) ( 83 S.E.2d 26); G. Bernd Co. v. Rahn, 94 Ga. App. 713, 720 ( 96 S.E.2d 185); Hand v. Harrison, 99 Ga. App. 429, 432 ( 108 S.E.2d 814); Smith v. Clarke Hardware Co., 100 Ga. 163 ( 28 S.E. 73, 39 LRA 607); Floyd v. Morgan, 106 Ga. App. 332, 334 ( 127 S.E.2d 31). The allegation of the knocking sounds emitted from the machine from the date of its initial operation up until the date of decedent's death does not show that decedent had notice of any defects in the machine, since it is also alleged that the defendant inspected the machine after receiving notice of these sounds and represented that such sounds were caused by a harmless air pocket and could be disregarded. The petition shows no reason why the plaintiff's recovery would be barred.
The petition alleges actionable negligence; therefore, the court did not err in overruling the general demurrer thereto.
Judgment affirmed. Frankum and Pannell, JJ., concur.