DeLoach v. Thelen, 29384

• Decision Date: 03 December 1974
• Docket Number: No. 29384,29384
• Citation: 211 S.E.2d 304,233 Ga. 350
• Parties: J. Q. DeLOACH v. Joseph L. THELEN et al.
• Court: Georgia Supreme Court

Page 304

211 S.E.2d 304

233 Ga. 350

J. Q. DeLOACH v. Joseph L. THELEN et al.

No. 29384.

Supreme Court of Georgia.

Dec. 3, 1974.

Bennett, Saliba & Wisenbaker, Walter F. Newsom, Reginald C. Wisenbaker, Valdosta, for appellant.

Blackburn & Bright, Wilton E. Stone, Jr., Tillman, Brice, McTier & Coleman, George T. Talley, Valdosta, for appellees.

Syllabus Opinion by the Court

NICHOLS, Presiding Justice.

The plaintiff in the trial court filed a complaint seeking an injunction, actual damages and punitive damages resulting from the alleged installation of a fence on his property. The named defendants were the adjoining property owners and Sears, Roebuck & Co. The trial court granted the motion of Sears, Roebuck & Co. for a summary judgment, certified the same for immediate review and the present appeal was filed.

The complaint as amended alleged that the actual installation of the fence was done by the employees or agents of Sears, Roebuck & Co. The motion for summary judgment, and the evidence presented in support thereof, sought to show that such installation was done by an independent contractor, that the other defendants assumed sole responsibility for the location of such fence and that a judgment for the defendant Sears, Roebuck & Co. was demanded.

The contract between Sears, Roebuck & Co. and its customer calling for the installation of such fence provided in part: 'Customer hereby authorizes Sears to arrange with a qualified contractor (licensed if required by law) to install said materials on said property as provided herein (it being understood that Sears will not install said materials) and to pay said contractor his charge for said installation upon completion thereof (said contractor's charge being included in the total price stated herein), all such arrangements with and payments to contractor to be solely on behalf of Customer.'

The contract between Sears, Roebuck & Co. and the installer designates the installer as a 'contractor.' Such contract provides in part: 'Second: Contractor agrees that he will not do any extra work on any of said jobs not specified in the written proposal to customer signed by customer or in the general order to contractor submitted by Sears for customer, without express written instructions signed by Sears on behalf of customer. The general order to contractor shall specify the installation charge to be made by contractor based on the schedule of contractor's charges attached hereto, signed by the parties and made a part hereof, which said schedule of charges shall remain in force until mutually satisfactory revisions thereof shall have been agreed to in writing by contractor and Sears. It is agreed that Sears, on behalf of each of its customers, will pay contractor the installation charge specified on said general order to contractor, and that contractor will look to Sears as the paying agent for its customers for such payment. The charge...