Wood v. Hub Motor Company , 110 Ga. App. 101 ( 1964 )

Nichols, Presiding Judge,

dissenting. While I concur in the second division of the opinion which deals with the sufficiency of the allegations as against Hub Motor Company, as well as that part of the first division of the opinion which holds that under the decision in Revlon, Inc. v. Murdock, 103 Ga. App. 842 (120 SE2d 912), no cause of action was set forth in the petition of Mrs. Wood, I must dissent from the holding that the trial court erred in sustaining certain of the special and general demurrers of Ford Motor Company which attack Mr. Wood’s petition.

The sole question that will be dealt with in this dissent is whether the trial court erred in sustaining the demurrers of the defendant Motor Company to the petition of the purchaser of the automobile. The Act of 1957 (Ga. L. 1957, p. 405; Code Ann. § 96-307), supra, provides (in the absence of a contract to the contrary), for an implied warranty by the manufacturer to the ultimate consumer purchasing personalty new whether sold through a dealer or direct. This implied warranty warrants: (1) That the article sold is merchantable and reasonably suited for the purpose intended, and (2) That the manufacturer knows of no latent defects undisclosed.

While the plaintiff alleges that the automobile contained at the time of manufacture latent undisclosed defects, the plaintiff nowhere alleges that the manufacturer knew of such defects or that the manufacturer, in constructing such automobile, should have known of such defects. In the absence of an allegation of actual knowledge on the part of the manufacturer, or of facts showing that it should have known of such latent defects, no cause of action would lie under such second part of the statute, although, it may be that had such facts been alleged a cause of action would have been set out regardless of whether the statute had been enacted. See Washburn Storage Co. v. General Motors Corp., 90 Ga. App. 380 (83 SE2d 26), and cases cited.

The sole remaining question is whether the petition stated a cause of action because the automobile was not merchantable and not reasonably suited for the use intended. It is contended that the automobile was not merchantable and not reasonably suited for the use intended because it contained a latent mechanical defect between the steering mechanism and the front wheels. By amendment it was alleged that because of the impact of the collision the innumerable parts of the steering system were so badly damaged that it would be impossible for the plaintiff to allege what particular part caused the automobile to become unmanageable and uncontrollable.

The allegation that some defect existed was attacked as a conclusion unsupported by well pleaded fact and by a demand that the defective part be named. In Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695, 698 (50 SE 974), the Supreme Court held that the doctrine of res ipsa loquitur had no application to pleadings but is a rule of evidence. See also Eaton v. Blue Flame Gas Co., 91 Ga. App. 510 (86 SE2d 334). Accordingly, allegations which, if proved by evidence on the trial of the case, would authorize the doctrine of res ipsa loquitur are insufficient to withstand demurrer. The allegations of some latent defect between the steering mechanism and the front wheels is but a conclusion of the pleader and the further allegation that the steering system was so damaged after the collision that it would be impossible for the plaintiff to allege which part caused the automobile to become 'unmanageable and uncontrollable does not aid such pleadings. See Howell v. Executive Committee of The Baptist Convention, 95 Ga. App. 801 (99 SE2d 172).

This case, like the case of Wilkinson v. Rich’s, Inc., 77 Ga. App. 239 (48 SE2d 552), is based upon the theory that the article carried an implied warranty that the article was merchantable and reasonably suited for the use intended, and as there held, mere allegations of conclusions must yield on demurrer to the facts alleged. The facts alleged show that it is impossible to determine if in fact a latent defect existed which made the automobile not merchantable and not reasonably suited for the purpose intended. Accordingly, the trial court did not err in sustaining the special demurrers of Ford Motor Company which attacked the allegations referred to above and called for specific allegations as to the purported latent defect, nor did the trial court err in sustaining the general demurrer of such defendant.

The cases cited in the majority opinion in support of the holding that it is not necessary to allege the specific mechanical defect do not authorize the decision reached. In Atlantic C. L. R. Co. v. Davis & Brandon, 5 Ga. App. 214, supra, the defect was alleged to be in the spark arrestor, a specific part of the smokestack, and the cause of action was also based on the failure to keep the railroad right of way reasonably clear of combustible materials. In Hubbard v. Macon R. &c. Co., 5 Ga. App. 223, supra, the defect was alleged to be the “leaky valve” of a pump. In King Hdw. Co. v. Ennis, 39 Ga. App. 355, supra, the defective part was a “pipe” leading from a gasoline storage tank to the burners on the stove. In Bittick & Mays v. Georgia, Fla. &c. R. Co., 136 Ga. 138, supra, the allegations were that the “defendant was negligent in not equipping its engines with sufficient appliances for the purpose of arresting sparks from its furnace” as well as negligent operation. In Charleston &c. R. Co. v. Attaway, 7 Ga. App. 231, supra, while not shown by the reported opinion, the defective part was, as shown by the record on file in this court, a described “lever” on described machinery.

None of the cases relied upon by the majority supports the proposition that “good pleading” permits a plaintiff to allege as a conclusion that which he admits he cannot prove. In Gregory v. Taylor, 84 Ga. App. 717 (67 SE2d 192), it was pointed out that allegations of an injury caused “through some defect ... or some cause unknown to the petitioner” are insufficient to withstand a general demurrer. The allegation that because of the impact of the collision the innumerable parts of the steering system were so badly damaged that it would be impossible for the plaintiff to allege what particular part caused the automobile to become unmanageable and uncontrollable is no more than an allegation that for some cause unknown to the petitioner the automobile became unmanageable and uncontrollable.

While the Hudgins case, the Howell case and the Gregory case, all supra, all dealt with negligence, the same rules of pleadings apply equally to negligence cases as they do to warranty cases, and while it is not necessary in a warranty case such as this to prove negligence on the part of the defendant, it is necessary to prove a defect in the item warranted.

I am authorized to say that Frankum and Pannell, JJ., concur in this dissent.