EVERHART et al. v. RICH\'S, INC. et al., 60255#128 Ga. App. 319, 60255#196 SE2d 475 (1972)
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Judgment reversed for the reasons given by the Supreme Court in answer to the certified questions, which we have adopted. Deen and Clark, JJ., concur.
Summary
Judgment reversed for the reasons given by the Supreme Court in answer to the certified questions, which we have adopted. Deen and Clark, JJ., concur.
Text
Carter, Ansley, Smith, McLendon & Quillian, W. Colquitt Carter, Nall, Miller & Cadenhead, Gerald A. Friedlander, Powell, Goldstein, Frazer & Murphy, D. N. Love, for appellees.Smith, Cohen, Ringel, Kohler, Martin & Lowe, Robert W. Beynart, for appellants.
Harold D. Everhart and his wife purchased from Rich's fiberglass draperies which were installed in their home in December, 1964. Beginning in February, 1970 it was discovered that the draperies were shedding small particles of the material and that these were an irritant to the skin and were breathed into the lungs of Mr. and Mrs. Everhart and their children, doing them serious harm.
and Mrs. Everhart, barred by the statute of limitation. The motions were sustained and the Everharts appeal. (The motions were not directed to nor did they affect the action insofar as it is brought in behalf of the minor children).
The issues raised on this appeal are: (1) as to when the statute of limitations begins to run against a claim for personal injury resulting from the negligence of another when discovery of or knowledge of the injury did not immediately make itself known or apparent and the action to recover damages was not instituted until more than two years after the transaction out of which it is contended the injury arose, and (2) when the bar of the statute of limitations applies in such a situation to a claim made for breach of warranty. Held:
1. We prepared and certified to the Supreme Court questions covering the first issue, which that court has answered, Everhart v. Rich's, Inc.,
2. The statute had run on any claim based upon a breach of implied warranty, and as to that feature of the case the action is barred as to Mr. and Mrs. Everhart. If there was a breach, it occurred when delivery or tender of delivery of the goods purchased was made, absent any specific and explicit extension of the warranty to future performance, and there was none here. UCC 2-725, Code Ann. 109A-2--725; Moody v. Sears Roebuck & Co., 324 FSupp. 844 (S. D. Ga.).
Corn Products Sales Co., 411 F2d 850 (6th Cir.); Wolverine Insurance Co. v. Tower Iron Works, 370 F2d 700 (1st Cir.); Bobo v. Page Eng. Co., 285 FSupp. 664 (W. D. Pa.) aff'd 395 F2d 991; Hoeflich v. William S. Merrell Co., 288 FSupp. 659, 660 (E. D. Pa.).
The statute itself requires that the action must be commenced within four years from the time of the breach, and "a cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." In Gardiner supra, the Supreme Court of Pennsylvania asserted that this section of the Uniform Commercial Code provides "a four year period of limitation on all actions for breach of contract for sale, irrespective of whether damages sought are for personal injuries or otherwise." A breach of warranty, express or implied, is, of course, a breach of a contract of sale, for the warranty is a part thereof, and the statute begins to run at the time the merchandise is delivered.
1972
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