Opinion
71306, 71307.
DECIDED OCTOBER 29, 1986.
Action for damages. Gwinnett Superior Court. Before Judge Merritt.
Alexander P. LeVorse, Kimberly A. Richardson, John R. Grimes, for appellant (case no. 71306).
Michael J. Gorby, Richard P. Decker, for appellees.
Richard P. Decker, Stevan A. Miller, Deborah L. Taylor, for appellant (case no. 71307).
John R. Grimes, for appellee.
Michael J. Gorby, Suzanne Wynn, amici curiae.
This case returns to us from the Supreme Court's opinion in Stiltjes v. Ridco Exterminating Co., 256 Ga. 255 ( 347 S.E.2d 568) (1986). In Division 1 of Stiltjes v. Ridco Exterminating Co., 178 Ga. App. 438 ( 343 S.E.2d 715) (1986), the author of the opinion affirmed the grant of summary judgment against Stiltjes on the issue of strict liability on the basis that a death allegedly resulting from a defectively packaged product did not give rise to a claim under Georgia's wrongful death statute, OCGA § 51-4-1. The specially concurring judges reached the same judgment but disagreed with the construction given to OCGA § 51-4-1 and concluded that the author's holding in Division 2 of the opinion, regarding the issue of negligence in the packaging of the product as raised by Dettelbach Pesticide Corporation in its cross-appeal, was determinative of the main appeal in Division 1. The Supreme Court, having granted the writ of certiorari solely to consider the opinion expressed by the author in Division 1, disavowed the premises stated therein. However, the Supreme Court did not reach the alternate ground for affirming the judgment in the main appeal as set forth in the concurring opinion and thus let stand that judgment. We now substitute and make the judgment and opinion of the Supreme Court the opinion of this court; and the premise set forth in the concurring opinion is likewise adopted and made the final judgment of this court.
Judgment affirmed in Case No. 71306. Judgment reversed in Case No. 71307. Birdsong, P. J., and Carley, J., concur.