Baird v. Dodson Bros. Exterminating Co., Inc.

• Decision Date: 04 March 1977
• Docket Number: No. 760374,760374
• Parties: S. Baron BAIRD, Jr. v. DODSON BROTHERS EXTERMINATING COMPANY, INCORPORATED. Record
• Court: Virginia Supreme Court

Page 770

232 S.E.2d 770

217 Va. 745

S. Baron BAIRD, Jr. v. DODSON BROTHERS EXTERMINATING COMPANY, INCORPORATED.

Record No. 760374.

Supreme Court of Virginia.

March 4, 1977.

Enos Richardson, Jr., Fredericksburg, for plaintiff in error.

William B. McLeod, White Stone, for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

COCHRAN, Justice.

S. Baron Baird, Jr., as plaintiff, filed a motion for judgment in the trial court against Dodson Brothers Exterminating Company, Incorporated (Dodson), defendant, seeking damages alleged to have resulted from Dodson's breach of a contract to control certain wood-eating insects on Baird's property. In a jury trial a verdict was returned for plaintiff in the amount of $8,640, which, upon defendant's motion, was set aside by the trial court, and judgment was entered for the defendant on November 26, 1975.

The sole question on appeal is whether there was sufficient evidence to support the jury verdict in favor of Baird.

Since 1946, Baird and his wife had resided in a frame house on Baird's farm in Essex County. In 1968, W. I. Shackelford, Dodson's representative, inspected the dwelling and informed Baird that there was termite damage under the northeast corner of the dining room. On March 15, 1968, a contract for treatment of the property was signed for Dodson by Shackelford, and for Baird by his wife. On the same day Dodson's employees treated the property. For this initial treatment Baird paid Dodson the sum of $173.50 by check dated March 19, 1968, and received a one-year, bonded guarantee. In accordance with the contract provisions Baird renewed the contract annually by paying $22.50 for each of the years 1969, 1970, 1971, 1972, 1973, and 1974.

Under the contract Dodson agreed to treat Baird's property for 'Subterranean Termites' and for 'Powder Post Beetles' as specified on a 'graph sheet' and itemized list attached to and incorporated in the contract. The list indicated that a chemical spray was to be used in the treatment. Dodson further agreed 'to make any necessary retreatment for the control of the above mentioned wood destroying insects' at no additional charge and to inspect the property at least once each year. The contract also provided that Dodson would not be responsible for damages except those due to its 'neglect'.

The graph sheet was an inspection report prepared by Shackelford, containing a diagram of the basement and crawl area under the first floor. No insect infestation was shown on the report. On the back of the graph sheet was a list of services to be performed by Dodson if specified. Blank speaces were filled to indicate that services were to be furnished as specified to insulate the building against both termites and powder-post beetles. In the blank space at Item 14, however, providing for treatment for powder-post beetles with Dodson Beetle Toxic, was written the word 'No.'.

Baird testified that on the first visit Shackelford inspected the property by going 'through the house', 'under' it, and 'around' it to determine whether there was any damage caused by insects. Immediately after the initial treatment Baird employed a local carpenter to place a new sill and extra footing under the northeast corner of the dining room to repair what Shackelford had said was the only damage that he could find. About the same time, either shortly before or shortly after the 1968 treatment, Baird put new joists under the kitchen to level the floor and added a storage area.

Over a period of several days in 1969 or 1970, Baird and his wife saw what they thought were termites in the dining room and outside the house. In two successive years Baird wrote on his annual renewal check to Dodson a request that the exterminating company determine what the insects were. In 1972, he tried without success to communicate by telephone with Dodson's representative, Thompson, because the Bairds had seen more insects and had observed that the floors in the dining room and living room were beginning to 'give'. His calls to Thompson were never returned. In 1973, after cracks in the floor of the hallway and stairway were observed, Mrs. Baird talked with Thompson by telephone, and Thompson came to the residence, but Baird did not see him. The next year, when floors were 'giving' throughout the house, Baird had his attorney communicate with Dodson. Thompson returned, and Dodson employees re-treated the house. Nevertheless, the residence was badly damaged. Baird testified that prior to the 1968 treatment he had not had any trouble with wood-destructive insects.

Mrs. Baird's testimony was corroborative of her husband's. She also testified that Thompson came to the property in early 1974, inspected the area under the first floor, and told her that there were powder-post beetles under the house and that if it were his house he would 'bulldoze it down'. He requested that she obtain two estimates of the cost of repairing the damage, and this was done. She conceded that only the floor in one room, which was not damaged by insects, had been refinished since 1968.

William H. Robinson, Assistant Professor of Entomology at Virginia Polytechnic Institute and State University, described the distinctive characteristics, life cycles, and eating habits of termites and powder-post beetles. He identified damage to joists and floor boards taken from the Baird house as having been caused by these two kinds of wood-devouring insects. He could not determine when the damage was done, since there were no live insects in the wood samples when he examined them; the damage could have occurred either before or after 1968. Robinson also testified that once a floor was finished, powder-post beetles would probably not infest it, as these insects generally bore into untreated wood.

Edward Beane, Jr., trained in the exterminating business by Dodson but employed by a competing company, testified that he inspected the Baird house prior to trial. He found 'heavy and extensive termite damage' under the first floor and powder-post beetle damage under the dining room area. Having observed sawdust drifting out of the powder-post beetle holes, he testified that the infestation appeared to be of...