1. Where, in an action for damages allegedly resulting from a defect in an automobile in that the brake fluid contained air and caused the braking system to fail, a customer of an automobile dealer brings suit against the dealer and the manufacturer of the automobile without alleging in his petition any contractual relationship between himself and the manufacturer, and without alleging that the defect was one existing in the automobile and discoverable by inspection prior to the time it left the hands of the manufacturer, the petition, as against the manufacturer, states no cause of action as it fails to allege any breach of duty owed by the manufacturer to the customer of the dealer, and it is erroneous to overrule the manufacturer's general demurrer thereto.
2. In view of the ruling on the general demurrer, the special demurrers to the petition will not be considered.
J. V. Rogers brought an action for damages to his automobile against Lander Motors, Incorporated, a domestic corporation, and against Chrysler Corporation, chartered in the State of Michigan, doing business in this State and having an agent for service of process resident in Atlanta. The material allegations of the petition as finally amended are substantially these: (2) On August 17, 1953, the plaintiff purchased from Lander Motors a new Dodge Coronet automobile, which had been manufactured by Chrysler Corporation. The mileage indicator at the time showed that the automobile had been driven 26 miles. (3) On or about August 20, 1953, with the consent and permission of the plaintiff, the plaintiff's wife was driving the automobile south on the Buford Highway, U. S. Highway No. 23, and as she approached the intersection of that highway and Carrol Avenue in Chamblee, Georgia, the plaintiff's wife attempted to apply the brakes on the automobile so as to stop in obedience to a red light facing her at the intersection. The brakes on the automobile at the time completely failed and were ineffective in stopping or slowing the automobile, and the plaintiff's wife was unable to avoid a collision with another motor vehicle. As a result of the collision vast damage was done the plaintiff's automobile. (4) At the time of the collision the mileage indicator revealed that the automobile had been drive a distance of 45 miles, so that it appears that the plaintiff's automobile had been driven a distance of only 19 miles from the time it was purchased and delivered to the plaintiff. (5) The reasonable market value of the automobile immediately before the collision was $2,400, and after the collision the reasonable market value was only $1,400. (6) Nineteen days were required to make the repairs, and the hire of a similar vehicle per day is $10. (7) Mixed in the brake fluid which forms a part of the hydraulic braking system was air, and the air was mixed with the brake fluid when the plaintiff purchased the automobile, but this was unknown to the plaintiff. Although the air was present in the braking system prior to the failure of the brakes, when the air reached the master cylinder of the braking system, it caused the brakes to fail. (7a) The fluid was placed in the braking system of the automobile by the defendants. (7b) Brake fluid is a relatively incompressible fluid, which is effective in such braking systems as the one installed in the plaintiff's automobile in stopping the motion of vehicles when pressure is exerted upon the brake pedal of the car which transmits such pressure to the brake drums through the brake fluid lines and by friction retards the motion of the wheels of the car. However, when air is mixed with such fluid in the braking system of such automobile, and when the air reaches the master cylinder of such braking system, since air is a highly compressible mixture of gaseous substances, pressure on the brake pedal will not be transmitted to the brake drums and consequently the motion of the wheels will not be retarded. (7c) The braking system of the automobile was defective, in that the fluid forming a part of the braking system contained air, and the defendants could have discovered the presence of such defect by proper inspection and tests and could have corrected it. (8) The defendants were negligent in the following particulars: (a) in failing to properly inspect the master brake cylinder and fluid, the fluid lines and wheels cylinders so as to determine the defective character of the brakes; (b) in failing to warn the plaintiff of the defective character of the braking system on the automobile; (c) in that the defendants, by proper inspection at the time of manufacture or at any time before the sale of the automobile could have determined the defective character of the braking system on the automobile; (d) in that the defendants manufactured and sold for use by the public the automobile as suitable and safe for normal use as a motor vehicle, when they knew or should have known by the exercise of ordinary care that the braking system on the auto-
mobile was defective and would render it a dangerous instrumentality unfit for safe use by the plaintiff; (e) in turning over to the plaintiff for use upon the highways an automobile which was not equipped with efficient and serviceable brakes, in violation of a statute of the State of Georgia, Code 68-302, and by failing to inform the plaintiff of that fact. These acts of negligence constitute the direct and proximate cause of the injuries and damages, in the amount of $1,190, to the plaintiff and his automobile.
Chrysler Corporation filed to the petition as finally amended general and special demurrers, which were all overruled, and it has brought the present writ of error to have that judgment reviewed.
1. No legal or contractual relationship is alleged to exist, or to have existed, between Chrysler Corporation and Lander Motors, Incorporated. No contractual relationship is alleged to exist, or to have existed, between Chrysler Corporation and the plaintiff. All that appears from the allegations of the petition is that Lander Motors, Incorporated, took no part in the manufacture of the automobile, and Chrysler Corporation took no part in the sale of the automobile, and that whatever duty Chrysler Corporation owed to the plaintiff as purchaser of the automobile, it was not a contractual duty. We think, however, that, though it is not so alleged--as it should have been in compliance with the rules of good pleading--we may assume that Lander Motors, Incorporated, the seller, purchased the automobile from Chrysler Corporation, the manufacturers, for the purpose of resale. Under these circumstances, Chrysler Corporation owed the plaintiff purchased only the duty to exercise ordinary care to manufacture the automobile carefully. Without giving a history of the origins of the rule establishing such a duty on the manufacturers of automobiles--a good account of that is to be found in MacPherson v. Buick Motor Co., 217 N.
App]. APRIL TERM, 1955. 113
Y. 382 (111 N. E. 1050)--we think that we may safely say without fear of contradiction that in most jurisdictions it is now generally recognized that "the manufacturer of an automobile, the nature of which gives warning of probable danger if its construction is defective, who sells it to a dealer for the purpose of resale, is liable to a purchaser of the car from the dealer for its failure to exercise ordinary care in inspecting the wheels, brakes, or other parts of the machine, resulting in injury to such a customer." Blashfield, Cyclopedia of Automobile Law and Practice (Perm. ed.), Vol. 7, 371, 4812, and cases there cited under note 11. See also, in this connection, J. C. Lewis Motor Co. v. Williams, 85 Ga. App. 538
(69 S. E. 2d 816); Moody v. Martin Motor Co., 76 Ga. App. 456
(46 S. E. 2d 197). By necessary implication this rule means that the defect must be one of construction which the manufacturer by exercising ordinary care could discover by proper inspection before the automobile leaves his hands.
The sole defect alleged to have existed in the automobile at the time the plaintiff purchased it from Lander Motors, Incorporated, is that air was mixed in the brake fluid which forms a part of the hydraulic braking system on the automobile. There is no direct, positive allegation of how or when the air became mixed with the brake fluid. While it is alleged that the fluid was placed in the braking system by "the defendants," and we are compelled to take this allegation as true as against demurrer, it is not alleged that the air became mixed with the fluid before it was placed in the braking system, and that the defendants should have discovered this in the exercise of ordinary care; it is not alleged that the air became mixed with the fluid at the time "the defendants" placed the fluid in the braking system, and the defendants should have discovered this in the exercise of ordinary care; it is not alleged that the air got into the fluid and brake system through any defect, such as a leak in the system, and the defendant should have discovered this in the exercise of ordinary care; nor is it is alleged that the defendants placed an insufficient quantity of the fluid in the system, leaving air space in the system which resulted in the mixing of the air and the fluid, and that the defendants should have discovered this in the exercise of ordinary care. In the absence of any such alle-
114 CHRYSLER CORPORATION v. ROGERS. 92 Ga.
gations, it does not affirmatively appear, as it must, that the alleged defect existed in the automobile prior to the time it left the hands of the manufacturer, Chrysler Corporation; for, without an affirmative allegation that the air, which constituted the defect, was in the braking system prior to the time it left the hands of the manufacturer, all that appears from the petition is that the air got into the system at some time prior to the plaintiff's purchase of the automobile from Lander Motors, Incorporated. It is, therefore, as equally consistent to say that the air got into the system between the time it left the hands of Chrysler Corporation and the time of the sale to the plaintiff as that it got into the system before it left the hands of Chrysler Corporation; and, construing the petition most strongly against the pleader, we must hold that it got into the system after it left Chrysler Corporation. We need hardly say, therefore, that under this construction of the petition, if the air got into the system after it left Chrysler Corporation and was not there prior to that time, no amount of inspection by Chrysler would have revealed it and a failure to inspect would have resulted in no breach of the duty owed to the plaintiff.
2. What has been said in division 1 above makes it unnecessary to consider the special demurrers at this time.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.