Parzini and two other restaurant employees, attempting to open a plastic bottle of drain cleaner, were injured when after an unsuccеssful attempt to open the bottle Parzini held it tightly while a co-worker removed the top with a pair of pliers, as a result of which the liquid, alleged to bе almost pure sulphuric acid, squirted into the air and fell on the plaintiffs head, severely burning and blinding him. A jury trial resulted in a verdict for the defendant manufacturer from whiсh plaintiff appeals. Held:
1. We are forced to the conclusion that to the extent that breach of an implied warranty is a
contract
notion, the plaintiff, bеing an employee of the purchaser rather than a "person who is in the family or household of his buyer or who is a guest in his home” may not rely on express or implied warranties of the manufacturer because of lack of privity. Code Ann. § 109A-2 — 318. For a remedy we must look to the action of the legislature, nоt the courts. As was pointed out in
Chaffin v. Atlanta Coca Cola Bottling Co.,
2. However, by Code Ann. § 105-106 an attempt was made to fill the lacuna with the language: "However, the manufacturer of any personal property sоld as new property, either directly or through a dealer or any other person, shall be liable in tort, irrespective of privity, to any natural person who may use, consume or reasonably be affected by the property and who suffers injury to his person or property because the prоperty when sold by the manufacturer was not merchantable and reasonably suited to the use intended and its condition when sold is the proximate causе of the injury sustained; a manufacturer may not exclude or limit the operation hereof.”
*415
Merchantability and suitability for the use intended are implied warranties. Code Ann. § 109A-2 — 314, 109A-2 — 315. In this manner warranty, which was in its origin a concept arising out of tort liability (Restatement, Law of Torts 2d, § 402A, p. 355) and from there removed to contraсt, again spreads beyond the confines of contract law in that it removes the necessity for privity. Further, as was pointed out by Taylor, Georgia’s New Statutory Liability for Manufacturers: An Inadequate Legislative Response, Vol. 2, Ga. L. Rev., pp. 538, 563: "Certainly, it seems implicit in the section that negligence need nо longer be shown as a requisite to recovery in tort”; pointing out, however, certain ambiguities in the language used. These have in large measure beеn cleared up by the recent case of
Ellis v. Rich’s, Inc.,
Again, that part of Code Ann. § 105-106 here dealt with tracks former Code § 96-307 (repealed, Ga. L. 1962, pp. 156, 427) except that in the latter, eliminating privity, the manufacturer
warranted
to the ultimate consumer that the article sold was merchantable and reasonably suited to the use intended, whereas in the former, where these warranties are breachеd, the manufacturer is
liable in tort.
In either case we deal with a breach of two conditions which are in fact implied warranties. In
Wood v. Hub Motor Co.,
3. Enumeration of error 29 complains of the dis-allowance of a deposition on the ground that a proper foundation had not been laid in that the witness who gave the deposition had not been subpoenaed. This enumeration is not passеd upon as not likely to recur.
4. The evidence being in conflict, the first four enumerations of error are without merit.
5. Enumerations of error 20, 21 and 27 are without merit. As to those remaining, the law of the case is as established in
Parzini v. Center Chemical Co.,
Judgment reversed.