Worth v. Orkin Exterminating Co., Inc., 53504

• Decision Date: 05 April 1977
• Docket Number: No. 2,No. 53504,53504,2
• Parties: Homer WORTH v. ORKIN EXTERMINATING COMPANY, INC., et al
• Court: Georgia Court of Appeals

Page 802

234 S.E.2d 802

142 Ga.App. 59

Homer WORTH v. ORKIN EXTERMINATING COMPANY, INC., et al.

No. 53504.

Court of Appeals of Georgia, Division No. 2.

April 5, 1977.

Rehearing Denied April 20, 1977.

James O. Goggins, Atlanta, Sumner & Mitchell, Douglas W. Mitchell, III, Douglas, for appellant.

Richard P. Decker, Atlanta, for appellees.

SHULMAN, Judge.

In 1969, plaintiff entered into a written contract with defendant Orkin for termite control treatment of his home. Defendant Johnson was Orkin's representative during the transaction. The contract called for reinspection and retreatment as necessary and also specifically provided that the parties were bound only by its terms and not by any other representations, oral or otherwise. Retreatments were annually provided by Orkin as contracted.

In October 1973, plaintiff demanded of defendant Orkin that they replace his house which he alleged was damaged by termite infestation almost beyond repair. Defendant refused. Plaintiff filed a three-count complaint against defendants. The first count was on breach of contract contending that Johnson as a representative of Orkin assured plaintiff orally that he had a lifetime $100,000 guaranty against repairs required by subsequent termite infestation. The second count was based on fraud and misrepresentation concerning such guaranty, and the third count sounded in tort for negligence in failing to properly treat plaintiff's home. Defendants moved for summary judgment and there was some conflicting evidence concerning plaintiff's literacy. The trial court granted summary judgment in favor of defendants as to all three counts and plaintiff enumerates error thereon.

We affirm.

1. This court cannot give effect to an alleged oral contract when the provisions of the written contract clearly contravene such action. The contract and guaranty plainly provide for the exclusion of damages and repairs to the structure and the contract also provides that the parties are bound only by the terms of the written agreement. This case appears to be quite similar to that of Orkin Exterminating Co., Inc. v. Stevens, 130 Ga.App. 363, 203 S.E.2d 587. "Though Stevens urges that this is strictly a tort suit, and we treat it as such, his brief on appeal taken as a whole is open to another implied construction, and therefore we additionally consider whether he has proved a case for damages for negligent breach of contract. On this analysis he fares no better, however, for the reason that the same contract which raises Orkin's duty to him limits that duty to retreatment, and Stevens has not contended that Orkin failed to retreat the premises when requested. The description on the original contract of the type guaranty to be issued, and the guaranty itself, make clear that Orkin in no way assumed responsibility under that type guaranty as opposed to other Orkin guaranties for any structural damage caused by termites if its treatments should be unsuccessful. Because Orkin as a private citizen owed plaintiff no duty except that assumed by the contract, there is no impediment to its limiting its contract liability by such a provision, and such limitations are usually valid. 5 Corbin 385, § 1068, supra. Absent a limiting statute or controlling public policy, parties may contract with one another on whatever terms they wish (Anken Const. Co. v. Artistic Ornamental Iron Co., 129 Ga.App. 32, 198 S.E.2d 389; Brown v. Five Points Parking Center, 121 Ga.App. 819, 175 S.E.2d 901), and the written contract defines the full extent of their rights and duties. West View Corp. v. Alston, 208 Ga. 122, 65 S.E.2d 406." Id. at 368-369, 203 S.E.2d at 592.

2. Count 2 of the complaint fares no better. There apparently was no discussion during negotiations of plaintiff's ability to read or write.

Judge Clark, speaking for this court in Maxey-Bosshardt Lumber Co., Inc. v. Maxwell, 127 Ga.App. 429, 431, 193 S.E.2d 885, 887 held: "We recognize that the question of fraud is one which is normally for a jury to determine including whether there has been the required exercise of reasonable diligence to ascertain the truth. Elliott v. Marshall, 179 Ga. 639, 640, 176 S.E. 770. Nevertheless, the decisions have held that one can not close his eyes but must show some fraud perpetrated by the other party which actually prevented him from knowing the provisions of the contract. Skene v. Jones, 111 Ga.App. 615, 142 S.E.2d 412. Also see Scott v. Fulton National Bank, 92 Ga.App. 741, 89 S.E.2d 892.

"This so-called 'blind reliance' doctrine was established by Chief Justice Richard B. Russell in Feingold v. McDonald Mtg. & Realty Co., 166 Ga. 838, 145 S.E. 90. Headnote 2 thereof states: 'A false statement is not fraudulent when there is no reason why the statement should be believed or acted upon,' and the opinion points out that there is no legal relief afforded when one 'blindly relied on the representations of the seller as...