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WORTH v. ORKIN EXTERMINATING COMPANY, INC. et al.
53504.
SHULMAN, Judge.
Action on contract. Fulton Superior Court. Before Judge Etheridge.
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 guarantee against repairs required by subsequent termite infestation. The second count was based on fraud and misrepresentation concerning such guarantee, 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.
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. v. Maxwell, 127 Ga. App. 429, 431, 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 SE 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 SE2d 412). Also see Scott v. Fulton National Bank, 92 Ga. App. 741 (89 SE2d 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 SE 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 to matters of which he could have informed himself.' P. 840.
"When our Supreme Court in B. E. Robuck, Inc. v. Walker, 212 Ga. 621 (94 SE2d 696) reversed upon certiorari this court's holding in Walker v. B. E. Robuck, Inc., 93 Ga. App. 820 (93 SE2d 178) on the matter of the defense of fraud in the procurement of the defendant's signature to a written contract it stated that the case was controlled by the unanimous ruling in Lewis v. Foy, 189 Ga. 596 (6 SE2d 788). It quoted with approval from page 601 of the earlier decision that 'the law . . . demands of everyone that he make use of his own facilities to avoid being defrauded. No other rule could safely be adopted and enforced by the court with reference to written instruments. It is essential to all business relationships that the validity and solemnity of written contracts, freely and voluntarily executed, be upheld.' "
There is nothing responsive to defendant's motion for summary judgment that shows "blind" reliance on representations made by Johnson in the case at bar.
Plaintiff in his deposition states that he cannot read. He also states therein that he ". . . looked in my phonebook and found Orkin in my phonebook and I called . . ." Defendant Johnson's affidavit states that he had no reason to believe that Mr. Worth was in truth and in fact unable to read. If in fact he could not read he also had a wife who could read and a daughter who was a college graduate, both living at home with him, and he had possession of the contract and guaranty for four years in which he could have had it read to him.
3. As to the claim of negligence involving the treatment of plaintiff's home, there is no responsive evidence whatsoever for plaintiff in this connection. In his deposition he actually testifies that he did not see what defendant was doing at the time the house was being treated. "Negligence is not to be presumed, but is a matter for affirmative proof. Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475, 487 (170 SE2d 848), affd. 226 Ga. 221 (173 SE2d 691), op. supp. 121 Ga. App. 717 (175 SE2d 410). In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence. 65A CJS 444, Negligence, 204. Plaintiff has not overcome this presumption. The trial court erred in sending the question of negligence to the jury in the absence of evidence of Orkin's negligence. See, Metzel v. Canada Dry Corp., 125 Ga. App. 460 (188 SE2d 175)." Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 368, supra.
The trial court was correct in determining that there was no genuine issue as to material fact and in granting summary judgment in favor of defendants as to all 3 counts of the complaint.
Richard P. Decker, for appellees.
ARGUED MARCH 7, 1977 -- DECIDED APRIL 5, 1977 -- REHEARING DENIED APRIL 20, 1977 -- CERT. APPLIED FOR.
Friday May 22 07:07 EDT


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