E. & M. Const. Co. v. Bob, 42491
| Decision Date | 19 January 1967 |
| Docket Number | No. 1,No. 42491,42491,1 |
| Citation | 115 Ga.App. 127,153 S.E.2d 641 |
| Court | Georgia Court of Appeals |
| Parties | E. & M. CONSTRUCTION COMPANY, Inc. v. Ella L. BOB |
Syllabus by the Court
A petition alleging that a contractor to repair and re-side the plaintiff's house removed the siding in wet weather and failed to repair or replace it and failed to protect the house from foreseeable damage from the elements shows a breach of a duty imposed by law independent of the contract for repair of the house.
The defendant appeals from a judgment overruling its general demurrer to the plaintiff's petition. The petition alleged that the defendant contracted with the plaintiff to re-side and repair his house; that the defendant's employees, during the middle of the winter while weather was rainy, cold and wet, removed a portion of the existing siding from the house and failed and refused to replace it with new siding or to repair the removed siding; that the defendant was negligent in failing and refusing to replace or repair the removed siding and in failing to exercise a proper degree of care to protect the plaintiff's property from damage from the elements; and that as a result of such negligence water entered the interior of the house and damaged the interior walls and floors.
Fryer & Harp, Joel J. Fryer, Vance O. Rankin, III, Atlanta, for appellant.
William T. Brooks, James C. Abernathy, Atlanta, for appellee.
The defendant contends that the petition does not allege a breach of duty imposed by law independent of the contract, and is predicated, as was the case of Orkin Termite Co., Inc. v. Duffell, 97 Ga.App. 215, 102 S.E.2d 629 on negligence in failing to perform the contract and not on the negligent performance of such contract, and therefore failed to set out a cause of action ex delicto. The above allegations show that the defendant commenced to perform the contract by removing siding from the house at a time when it could have been foreseen that damage would result if the house without siding was not protected from the elements, and that the defendant did not protect the property from such damage, which in fact resulted. This is defective performance rather than failure to perform the alleged contract.
Independently of any duty under a contract, the law imposes upon a contractor the duty not to negligently and wrongfully injure and damage the property of another. Monroe v. Guess, 41 Ga.App. 697, 700, 154 S.E. 301. Accord Mauldin V. Sheffer, 113 Ga.App. 874, 880, 150 S.E.2d 150.
'One who undertakes by virtue of a contract to repair a chattel for another owes...
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...between the parties, or because of defendant's calling or because of the nature of the harm”), citing E. & M. Construction Co. v. Bob, 115 Ga.App. 127, 153 S.E.2d 641 (noting a duty of care independent of a contract). 7. In Case No. A13A0091, Monitronics's brief states that “it is significa......
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...Corp., 248 Ga. 147, 148, 281 S.E.2d 586; accord: Tapley v. Youmans, 95 Ga.App. 161(1), 97 S.E.2d 365; E. & M. Constr. Co. v. Bob, 115 Ga.App. 127, 128, 153 S.E.2d 641; Rawls Bros. Co. v. Paul, 115 Ga.App. 731(1), 155 S.E.2d 819; Orkin Exterminating Co. v. Stevens, 130 Ga.App. 363, 365, 203 ......
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...obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him. See, e.g., E. & M. Construction Co. Inc. v. Bob, 115 Ga.App. 127, 153 S.E.2d 641; Rawls Bros. Co. v. Paul, 115 Ga.App. 731, 155 S.E.2d 819. Such an independent harm may be found because of the......
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Kaiser Aluminum & Chemical v. Ingersoll-Rand Co.
...to state the misfeasance/nonfeasance distinction does not necessarily clarify that distinction. In E & M Construction Company, Inc. v. Bob, 115 Ga.App. 127, 153 S.E.2d 641 (1967) recovery in tort was permitted when a contractor removed the siding from a house and did not take measures to pr......