Orkin Exterminating Co. v. Stevens

• Decision Date: 07 November 1973
• Docket Number: 3,No. 48334,Nos. 1,2,48334,s. 1
• Citation: 130 Ga.App. 363,203 S.E.2d 587
• Parties: ORKIN EXTERMINATING COMPANY INC. v. Marion E. STEVENS
• Court: Georgia Court of Appeals

Page 587

203 S.E.2d 587

130 Ga.App. 363

ORKIN EXTERMINATING COMPANY INC. v. Marion E. STEVENS.

No. 48334.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 7, 1973.

Rehearing Denied Dec. 4, 1973.

Lawson E. Thompson, Washington, for appellant.

Walton Hardin, Washington, for appellee.

Syllabus Opinion by the Court

HALL, Presiding Judge.

This is a 'termite case' in which Stevens, a homeowner, (hereinafter, 'Stevens') received a jury verdict against Orkin Exterminating Co. Inc. (hereinafter, 'Orkin') and Orkin appeals the overruling of its motions for directed verdict and judgment n.o.v.

The appeal presents the knotty question, not answerable in any fashion save that of case by case analysis, whether as between two private contracting parties a specific act or omission in the nature of a breach of contract may also constitute a tort.

The pleadings and trial evidence showed that on April 3, 1969 Stevens contracted with Orkin for control of subterranean termites in his home, and paid $259 for initial extermination services and the issuance of a 'Guaranty.' The contract was said to be extendable by the annual payment of $25 which would entitle Stevens to a reinspection each December. Subsequent to Orkin's initial treatment and during the term of the Guaranty, Steven's home became severely infested with subterranean termites appearing to originate from untreated portions of the house. From 1969 through 1972 termites swarmed at various times; Stevens made numerous telephone requests to Orkin's office in Athens, Georgia, for retreatment; and all requested retreatments were given.

Stevens then brought a negligence suit against Orkin to recover for new termite damage to portions of the house not involved in the initial termite infestation. At trial, Orkin presented no evidence. Throughout, Stevens' suit was declared to be in tort which was wholly consistent with his pleadings (and with his stance on this appeal.) Orkin moved for directed verdict on the ground that no breach was shown, no damages were recoverable under the contract, and notice to Orkin before suit was not given as required by the contract. The trial judge overruled those motions; the case went to the jury on charges of negligence in carrying out the terms of the contract; the jury gave a verdict for plaintiff; Orkin moved on the same grounds for judgment n.o.v.; this motion was denied and the appeal followed.

Turning to the provisions of the operative contract between the parties, the guaranty to be issued later to Stevens was designated on the front of his contract, as the 'Lifetime Control' type, which was explained (but not set forth) on the back of the contract as being a guaranty only of the application at no cost of additional treatments if reinfestation occurred. This description of the Guaranty stated that Orkin's liability was to be limited to such retreatment and would not encompass responsibility 'for damages or repairs to the structure or contents.' By way of contrast, though the fact is not otherwise applicable to this case, the back of the contract also described other types of guaranties including one designated 'Special Total Protecton Lifetime Subterranean Termite Guaranty.' Under the description of that guaranty Orkin would assume responsibility up to a maximum of $100,000 for new damage to structure and contents caused by such termites after the initial treatment.

The actual guaranty document subsequently issued to Stevens provided as follows:

'Your Guarantee

In consideration of sums received and to be received for providing treatment for the above-stated wood destroying insect at the premises specified above, ORKIN guarantees, subject to the Terms and Conditions appearing on the reverse side of this Guarantee and on the Service Order bearing the above-stated number:

To inspect the premises treated, as described in said Service Order.

To apply any necessary additional treatment to such premises, At No Extra Cost, if infestation of the above wood destroying insect is found in the premises during the period that this Guaranty remains in force. This Guarantee is limited to retreatment only and in no way, implied or otherwise, covers damages and repairs to the structure or contents.' (Emphasis supplied).

The 'General Terms and Conditions' appearing on the back of the contract and on the back of the guaranty included these paragraphs:

'5. Any claim for breach of any Guaranty shall be made forthwith in writing to said Orkin Exterminating, Inc., 2170 Piedmont Road, Atlanta, Georgia, 30324.

6. No suit shall lie hereunder unless the provisions of Paragraph 5 have been complied with and unless brought within one (1) year after the making of said written demand.'

Though Stevens introduced the contract and guaranty into evidence and addresses argument here to the inapplicability or invalidity of the provisions therein concerning the limitation of damages and the requirement of notice before suit, nonetheless he emphasizes that this is a tort suit only. We will, therefore, initially consider the case as one wholly in tort.

It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract 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 relationship between the parties, or because of defendant's calling or because of the nature of the harm. See e.g., The City and Suburban R. Co. of Savannah v. Brauss, 70 Ga. 368 (duty of street railway company not wrongfully to eject passenger); Floyd v. Morgan, 106 Ga.App. 332, 127 S.E.2d 31 (duty not to provide an article represented to be safe and actually defective); Tapley v. Youmans, 95 Ga.App. 161, 97 S.E.2d 365 (relationship of landlord and sharecropper); Orkin Exterminating Co. v. Wingate, 84 Ga.App. 750, 67 S.E.2d 250 (duty not to spray flammable liquid around plaintiff's hot chimney, causing his house to burn, in carrying out an extermination contract); Moody v. Martin Motor Co., 76 Ga.App. 456, 46 S.E.2d 197 (duty to perform safety-related-auto repairs in nonnegligent manner).

However, not all breaches of contract are also independent torts: '. . . where defendant's negligence ends merely in non-performance of the contract and where defendant is not under any recognized duty to act apart from contract, the courts generally still see no duty to act affirmatively except the duty based on-and limited by-defendant's consent.' 2 Harper and James, Torts, p. 1050, § 18.6. In those circumstances, an action in tort may not be maintained for what is a mere breach through non-action or through ineffective performance (which is the same thing) of a contract duty-the duty must arise independent of contract to constitute a tort. E.G., L. & N. RR. Co. v. Spinks, 104 Ga. 692, 30 S.E. 968. Even this formulation, however, is limited by the rule that where nonperformance or inaction is of such a type as to create an unreasonable risk of harm to others, even non-performance of a contract duty-nonfeasance-may give rise to a tort action. See, Moody v. Martin Motor Co., supra, accord, 2 Harper and James, Torts, pp. 1015, 1027, §§ 18.1 and 18.2. Finally, where the breach of contract is not also a tort, limitations of liability for breach will usually be given effect. See, 5 Corbin on Contracts, p. 385, § 1068 (1964); id. Vol. 6A, p. 591, § 1472.

Examination of the facts here shows that plaintiff's tort suit must fail because he has no cause of action against Orkin in tort. The only duty Orkin is claimed to have failed to perform was its contract duty to treat the premises in such a way as to control renewed termite infestation. It performed 'treatments,' but it did not accomplish the required 'control.' Therefore, this may be regarded as a case of nonperformance of a contract obligation, and as such falls within the ambit of the above stated rule that mere failure to perform a contract obligation-or nonaction-gives rise to no claim in tort. This distinction was articulated by this court in E. & M. Construction, Inc. v. Bob, supra, where, holding that a claim in tort had been stated for defendant's negligence in so conducting the re-siding of plaintiff's house as to expose the unsided house for a considerable period to wet weather to its damage, we held: 'This is defective performance rather than failure to perform the alleged contract.' Id. at 128, 153 S.E.2d at 642. The 'defective performance' of the Bob case is misfeasance-the infliction of an independent injury over and above the mere disappointment of plaintiff's hope to receive his contracted-for benefit. On the present appeal we have failure to perform the contract obligation to control termites, and not the infliction of an independent injury constituting misfeasance. This formulation is further buttressed by Stevens' statement in his brief to this court that the damage occurred in portions of the house untreated by Orkin. This distinction between defective performance or misfeasance, and failure to perform, is fatal to plaintiff's cause of action in tort. The only detriment suffered by Stevens was termite damage caused by Orkin's failure to eradicate termites in all portions of the house; and thus he suffered only the loss of the hoped-for value of his bargain, and not an independent injury caused by misfeasance of Orkin. Therefore, this is not the type of nonfeasance which causes such an unreasonable risk of harm to others as to call for the application of tort liability.

This must be termed nonfeasance for yet another reason as will be discussed below in relation to proof of negligence, the record is devoid of evidence of wrongdoing by Orkin in the sense that Orkin is shown to have done...