DeMayo v. Walton
| Decision Date | 13 October 1966 |
| Docket Number | No. 42355,No. 3,42355,3 |
| Citation | 114 Ga.App. 483,151 S.E.2d 886 |
| Parties | Maurice DeMAYO v. Jess WALTON |
| Court | Georgia Court of Appeals |
Marvin G. Russell, Turner Paschal, Atlanta, for appellant.
Powell, Goldstein, Frazer & Murphy, Robert W. Patrick, James K. Rankin, Atlanta, for appellee.
Syllabus Opinion by the Court
A general demurrer was properly sustained to a petition alleging that plaintiff took his automobile to the defendant's service station where he requested an employee to check and determine 'whether or not there was sufficient antifreeze in the radiator to withstand freezing weather,' and that upon having checked, the employee represented to plaintiff that the amount of antifreeze in his radiator was sufficient to withstand a freeze of 10 degrees below zero and thus he did not need any more; that relying upon the representation he proceeded home and when the temperature dropped to 17 degrees above zero the engine block burst, resulting in damage.
No fraud is alleged, and thus plaintiff seeks to recover upon the basis of error in the employee's opinion as to whether there was sufficient antifreeze in the radiator to withstand the freeze that came. Mere error in opinion does not afford the basis of a cause of action. Snow's Laundry & Dry Cleaning Co. v. Georgia Power Co., 61 G.App. 402, 6 S.E.2d 159. It is not even alleged that the employee knew at the time he was speaking that his opinion as to whether there was need for additional antifreeze was erroneous. If the recovery were grounded upon deceit an essential element of the action is that there must have been an intent on the part of the party making a false representation to deceive the plaintiff, and that does not appear. Scott v. Fulton National Bank, 92 Ga.App. 741, 89 S.E.2d 892.
Judgment affirmed.
To continue reading
Request your trial
-
Parris & Son, Inc. v. Campbell, s. 47512
...129 S.E.2d 846; Williams v. Lockhart, 221 Ga. 343(3), 144 S.E.2d 528; Walker v. Story, 14 Ga.App. 803, 82 S.E. 355; DeMayo v. Walton, 114 Ga.App. 483, 151 S.E.2d 886. 4. There was no relationship of principal and agent between the insured and the agent of the insurer, and thus no fiduciary ......
-
Federal Deposit Ins. Corp. v. Lattimore Land Corp.
...for fraud based on opinion is not sufficient in Georgia. Wrenn & Sons v. Truitt, 116 Ga. 708, 43 S.E. 52 (1902); DeMayo v. Walton, 114 Ga.App. 483, 151 S.E.2d 886 (1966). But the difference between fact and opinion has been called a "subtle and elusive distinction." United States v. Northea......
-
Hertz Corporation v. Cox, 26251.
...cites two cases in urging that its representations were merely opinions. Both are clearly distinguishable. In DeMayo v. Walton, 114 Ga.App. 483, 151 S.E.2d 886 (1966), the court held that a representation was a mere statement of opinion upon which an action for fraud could not be predicated......
-
United States v. NORTHEAST CONSTR. CO. OF WEST VIRGINIA
...action for fraud based upon mere opinion is insufficient in Georgia. Wrenn & Sons v. Truitt, 116 Ga. 708, 43 S.E. 52; DeMayo v. Walton, 114 Ga.App. 483, 151 S.E.2d 886; Sherwin-Williams Co. v. St. Paul-Mercury Indemnity Co., 97 Ga.App. 298, 102 S.E.2d 919. The difference between fact and op......