An agreement was entered into between Mike Bajalia, Inc., and Amos Construction Co., Inc. on April 24, 1973, to construct a Butler space grid building. A more formal contract was to be entered at a later date, but this never occurred. This April 24, 1973, agreement was executed by Mike Bajalia, individually, and William G. Amos, individually, as well as the two corporate entities. Construction started and thereafter change orders were entered with respect to the construction.
Mike Bajalia, Inc. and Mike Bajalia became dissatisfied with the workmanship and refusal of the Amos Construction Co., Inc. and/or William G. Amos to complete the contract. Alleging breach of contract, fraud and wilful misrepresentation in the change orders and other matters of the contract, Mike Bajalia, Inc. and Mike Bajalia sued Amos Construction Co. and William G. Amos, seeking damages caused by the breach of the contract, negligent acts, failure to act, and wilful misrepresentation as direct and proximate causes of the damage to the plaintiffs. They sought a money judgment for the completion, overpayment and the expenses of litigation. Defendants answered, denying generally all averments of the complaint other than jurisdiction and adding that the memorandum agreement was never implemented and contending that it would have completed said building if it had not been prevented from doing so by the plaintiffs. Amos Construction Co., Inc., in *226 a counterclaim, sought damages against the plaintiffs. Defendants also filed various other defenses.
The plaintiffs amended the complaint several times, adding six additional counts, and sought to add additional parties defendant, being the architects and the manufacturer, Butler Manufacturing Co., alleging breach of contract, breach of warranty, negligence in the design of the building because of latent defects, strict liability in the manufacturing process, and the failure of defendants to warn plaintiffs of the dangers inherent in the use of the building. A judgment was sought against all of the defendants jointly and severally.
After discovery and based on affidavits submitted in support of its motion for summary judgment, Butler Manufacturing Co. was granted a summary judgment, and it was dismissed as a party to these proceedings. Plaintiffs appeal. Held:
1. In the case sub judice the plaintiffs may not recover in negligence against Butler for damage to building components supplied by Butler arising from defects in these same components.
Long v. Jim Letts Oldsmobile, Inc.,
2. There is no error in the court granting Butler’s motion for summary judgment on the strict liability issue
*227
as to the corporate plaintiff, Mike Bajalia, Inc. Strict liability is applicable only in actions by natural persons. Code Ann. § 105-106 (Ga. L. 1968, pp. 1166, 1167);
Center Chemical Co. v. Parzini,
Recovery on a theory of strict liability as provided by Code Ann. § 105-106, supra, is allowed only where the injury is proximately caused by the condition of the product when sold by the manufacturer. Here there are jury issues as to whether the assembly of the building components supplied by Butler to defendants Amos and Amos Construction Co. resulted in a change in condition of the Butler-supplied components. There was also evidence of damage to various component parts supplied by Butler and of corrective measures taken by Amos and Amos Construction Co. to repair that damage.
Code Ann. § 105-106, supra, imposes a statutory duty on manufacturers of personal property, the breach of which gives rise to an action on a theory of strict liability. The strict liability action, being predicated upon the breach of a legal duty, is an action ex delicto. See
Ford Motor Co. v. Carter,
Of interest here is the recent case of
Long Mfg. &c. Inc. v. Grady Tractor Co.,
In Division 4 thereof we find the language, "We do not believe recovery in strict liability in tort can be had solely for property damage to the allegedly defective property itself.” But in that case the plaintiff, a corporation and not a natural person, was suing for *228 negligence in the design and was not seeking judgment under the Georgia strict liability statute nor could it do so. See Code Ann. § 105-106, supra. The language in Division 4 is therefore obiter dicta, and does not control this case in any manner.
*228 The court erred in granting the motion for summary judgment of defendant Butler on the strict liability issue as to plaintiff Mike Bájalia, individually. In the case sub judice, the plaintiffs strict liability action is not predicated solely upon his economic loss, but is also based upon the physical injuries to the building.
3. To entitle the defendant to summary judgment the undisputed facts as disclosed by the pleadings and evidence must pierce the pleadings so as to prevent the plaintiff from recovering on any theory fairly drawn from plaintiffs pleadings and evidence. The court does not resolve the facts nor reconcile the issues, but merely ascertains if there is an issue or there are issues remaining.
Fletcher Emerson Mgt. Co. v. Davis,
By the pleadings and evidence presented on the motion for summary judgment plaintiff raised the issue as to whether Amos or Amos Construction Co. were agents, either authorized or implied, of Butler. The record contains no evidence which negates the averment of implied agency, therefore, the court erred in finding that as a matter of law there was no question of fact regarding agency. In the event the inferences of agency are proven to be true by jury determination against Butler, questions as to breach of contract and breach of warranty arising from the contract also remain.
Judgment reversed.