Orkin Termite Co. v. Duffell, 37044
| Decision Date | 21 February 1958 |
| Docket Number | No. 1,No. 37044,37044,1 |
| Citation | 102 S.E.2d 629,97 Ga.App. 215 |
| Parties | ORKIN TERMITE COMPANY, Inc. v. Claudia N. DUFFELL |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
While the plaintiff's petition was not subject to the special demurrers, it did fail to set forth a cause of action for a tort. Therefore, the trial court erred in overruling the defendant's general demurrer on this ground.
Mrs. Claudia N. Duffell filed an action against Orkin Termite Company, Inc., in which she alleged that she had entered into a contract with the defendant whereby it was bound to inspect certain described property for subterranean termites and if found to treat such premises so as to prevent them from damaging such property, and that for a stated price, which was paid, the defendant was to reinspect the said premises and retreat said premises if necessary to prevent damage by subterranean termites. It was further alleged that a scientific knowledge of entomology, which the defendant possessed, but which the plaintiff did not possess, is required for the inspection, discovery and elimination of subterranean termites. The petition alleged that the defendant was negligent in failing: to reinspect, to retreat, to discover, and to prevent said termites from damaging such premises, and that such acts of negligence caused the plaintiff the resulting damage, which was alleged. Process and judgment in the amount sued for was prayed for. The defendant filed general and special demurrers to the petition, which after amendment were renewed. Certain of the demurrers, including the general demurrers, were overruled and it is to this judgment adverse to it that the defendant excepts.
Irving K. Kaler, W. Stell Huie, Atlanta, for plaintiff in error.
Harris & Gower, William T. Brooks, Atlanta, for defendant in error.
1. The plaintiff, according to the writ of error, abandoned in open court any action based on a breach of the contract and relied solely on the alleged tort. Therefore, in construing the allegations of the petition as against the defendant's demurrers no question is presented as to whether the petition would otherwise be good as an action for a breach of contract. See American Oil Co. v. Roper, 64 Ga.App. 743, 14 S.E.2d 145.
The defendant's special demurrers deal with the allegations of the petition in connection with the alleged terms of the contract between the parties. Assuming, but not deciding, that the special demurrers with reference to the terms of the contract would have been good if the action was based on an alleged breach of such contract, inasmuch as the present action is for an alleged tort 'and the contract is pleaded merely as an inducement, it is not necessary to set out the contract with as much particularity as would be required if the suit had been upon the contract.' Georgia Railroad & Banking Co. v. Sewell, 57 Ga.App 674(5),...
To continue reading
Request your trial
-
Long v. Jim Letts Oldsmobile, Inc.
...Co., 9 Ga.App. 617, 619, 71 S.E. 1017. See also, Kenimer v. Ward Wight Realty Co.,109 Ga.App. 130, 135 S.E.2d 501; Orkin Termite Co. v. Duffell, 97 Ga.App. 215, 102 S.E.2d 629; Atlanta Gas Light Co. v. Newman, 88 Ga.App. 252(1),76 S.E.2d 536; Manley v. Exposition Cotton Mills, 47 Ga.App. 49......
-
Mauldin v. Sheffer
...sufficient to set forth a cause of action ex delicto. American Oil Co. v. Roper, 64 Ga.App. 743, 14 S.E.2d 145; Orkin Termite Co. v. Duffell, 97 Ga.App. 215, 216, 102 S.E.2d 629; Kenimer v. Ward Wight Realty Co., 109 Ga.App. 130, 134, 135 S.E.2d Generally, a mere breach of a valid contract ......
-
Orkin Exterminating Co. v. Stevens
...230). A case that is directly in point, and singularly enough, is against the same defendant, Orkin, is that of Orkin Termite Co. v. Duffell, 97 Ga.App. 215, 216, 102 S.E.2d 629, wherein the plaintiff alleged that defendant failed to reinspect, instead of alleging that defendant nongligentl......
-
A. A. A. Parking, Inc. v. Bigger
...by contract and not on the defendant's misfeasance, it does not set forth a cause of action ex delicto. Orkin Termite Co. v. Duffell, 97 Ga.App. 215, 216(2), 102 S.E.2d 629; see generally Prosser, Torts (3d Ed.1964), pp. The original petition here showed that defendant abandoned the automob......