This is а personal injury-products liability case. Mrs. Thelma H. Lee purchased a 1971 Ford Maverick automobile from a franchise dealer as a new car pursuant to a written warranty. On a cold morning in March, Mrs. Lеe, prior to getting dressed and going to work, decided to start her automobile and let it warm up by idling. At this time the vehicle was still within the period of the warranty. The vehicle had an automatic transmission. Mrs. Lee attеmpted to start the vehicle with one leg in the vehicle and one leg out of the vehicle, while it was in "park.” She turned on the ignition, stepped on the accelerator, a loud roar occurrеd, and the vehicle immediately jumped forward without warning, proceeded down the street and ultimately collided with another vehicle, and Mrs. Lee was injured.
Mrs. Lee sued the dealer and the manufacturer in fоur counts based upon negligence in manufacture and failure to discover the defect as a cause of the collision in Count 1. Count 2 alleged a breach of warranty in selling a vehicle with the defects alleged. Count 3 was premised upon the failure to properly design the faulty mechanism and in designing a vehicle which would permit same to be *487 started in an "unlocked park” position. Other parts of Counts 3 and 4 involving the dealer are no longer relevant here since the dealer is no longer a party.
A covenant not to sue was executed by Mrs. Lee, the plaintiff, with Fireman’s Fund Insurance Companies аnd the dealer, defendant, for the sum of $17,500.
Thereafter, the case proceeded to trial against the manufacturer, resulting in a verdict of $30,000 in favor of the plaintiff. Judgment was rendered by the court, but first the sum of $17,500 wаs subtracted, leaving a balance against Ford Motor Company, defendant, for only $12,500.
Ford Motor Company filed a motion for judgment notwithstanding the verdict and in the alternative for new trial, which was denied. Defеndant appeals in case No. 51486, and plaintiff cross appeals in case No. 51487. Held:
1. The maker of an article for sale or use by others must use reasonable care and skill in designing it and providing spеcifications for it so that it is reasonably safe for the purposes for which it is intended, and for other uses which are foreseeably probable.
Friend v.General Motors Corp.,
2. A manufacturer who sells or releases a vehicle into the stream of commerce, knowing that it is likely to be resold or used by others than the buyer, will be held liable for an injury caused by a defect which might be discovered by reasonable inspection by the manufacturer.
Washburn Storage Co. v. General Motors Corp.,
3. In an action predicated on a breach of warranty, there is no defense per se of contributory negligence, but such defense presents a jury question as to whether the injuries resulted from the breach.
Jacobs Pharmacy Co. v. Gipson,
4. While ordinarily under Code Ann. § 109A-2 — 314 (see also § 109A-2 — 318), and
Chaffin v. Atlanta Coca Cola &c. Co.,
5. Defendant argues there were other intervening acts which were the proximate cause of plaintiff s injuries, and that she had knowledge of the car previously "jumping оut of gear.”
The evidence does not disclose that any latent defect of the car, in that it "jumped in gear” was discovered and repaired by the plaintiff. The plaintiff testified that "it jumped out of geаr,” but subsequent questioning shows that she meant jumping into gear. This testimony also shows that she was at a service station at the time and she was advised to immediately take it to the dealer, which she did, and was advised by the dealer that there was nothing wrong with the car after they had examined it out of her presence. This evidence is totally insufficient, as a matter of law, to show the defendant had knowledge of any latent dеfect which existed in the automobile at that time.
But even if plaintiff knew of a defect, "jumping in gear,” and the danger it presented, this would have been a jury question for determination as to whether or not she "рroceeded unreasonably to use the product.”
Center Chemical Co. v. Parzini,
The testimony discloses not merely one reason for the car "jumping in gear,” but that it could have been caused by various and sundry reasons, resulting from other possible latent defects as shown by the accident reconstruction expert witness whose testimony included the following reasons therefor, to wit; (1) Idling unnecessarily at a high rate of speed. (2) Traveling at a speed of 35 miles per hour without depressing the accelerator. (3) Engine would start with transmission in park, transmission selection in park, but transmission lever not in locked position. (4) Linkage out of adjustment. (5) Unusual rotation оf engine in starting. (6) Force of starting the car, rotation of engine, and racing of engine could cause selector lever to tumble into drive. The expert witness testified that the resulting deficiencies, if it crеates a dangerous and inoperative situation, would be considered as design deficiencies. There is no merit in this complaint.
6. The evidence here was sufficient to support the verdict in favor of the plaintiff.
Yale & Towne, Inc. v. Sharpe,
7. A direction of verdict is proper only where there is no conflict in the evidence as to any material issue; and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.
State Farm &c. Ins. Co. v. Snyder,
8. Defendant’s contention that the covenant not to
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sue, given to defendant-dealer amounted to a release, is not meritorious. While Code Ann. § 20-909 provides that a covenant never to sue is equivalent to a relеase, this statute applies to the parties with whom the covenant is made and not to another tortfeasor. A covenant not to sue one tortfeasor will not bar actions against another tortfeasor.
Gordon County v. Cochran,
9. There was no affirmative defense of accord and satisfaction filed in this case under Code § 81 A-108 (c); hence, there is no merit in defendant’s contention as to accord and satisfaсtion. See Code Ann. § 105-1901;
Ga. S. & F. R. Co. v. Blanchard,
10. During the course of the trial, defendant introduced a covenant not to sue, executed by plaintiff, which showed that plaintiff had already recovered and collected something on her injuries and damages from dealer. The court never did instruct the jury, nor in any way apprise them that the jury’s verdict was to be reduced by the amount already received by plaintiff under the aforementioned covenant not to sue. Perhaps it would have done no damage or wrong to plaintiff if the court had plainly instructed the jury that the amount of their verdict, if in plaintiffs favor, would be reduced by the amount рlaintiff had already received. In such case, the jury would have had the opportunity and might have rendered a verdict for a larger sum of money than actually was rendered.
But for the jury to render a verdiсt in ignorance of the fact that it was to be reduced, and for the judge to subtract from the jury’s verdict the amount already paid to plaintiff under the covenant not to sue, was definitely to the disadvantagе of plaintiff and was erroneous.
It is true that a plaintiff is entitled to but one satisfaction of the claim.
A. C. L. R. Co. v. Ouzts,
11. The judgment and execution shall conform to the verdict. Code Ann. §§
110-105,110-106; Herndon v. Sims,
12. Since the view we have of the case is an affirmance of the judgment on the main appeal, no review of the other enumerated errors on the cross appeal is necessary except as to the reduction of the verdict. Correction of that error requires no new trial.
Judgment affirmed on the main appeal and on the cross appeal with direction that a judgment be entered in accordance with the verdict of the jury in the amount of $30,000.