DeMayo v. Walton

Annotate this Case

114 Ga. App. 483 (1966)

151 S.E.2d 886



Court of Appeals of Georgia.

Submitted October 5, 1966.

Decided October 13, 1966.

Marvin G. Russell, Turner Paschal, for appellant.

Powell, Goldstein, Frazer & Murphy, Robert W. Patrick, James K. Rankin, for appellee.


A general demurrer was properly sustained to a petition alleging that plaintiff took his automobile to the defendant's service station where he requested an employee to check and determine "whether or not there was sufficient antifreeze in the radiator to withstand freezing weather," and that upon having checked, the employee represented to plaintiff that the amount of antifreeze in his radiator was sufficient to withstand a freeze of 10 degrees below zero and therefore he did not need any more; that relying upon the representation he proceeded home and when the temperature dropped to 17 degrees above zero the engine block burst, resulting in damage.

No fraud is alleged, and hence plaintiff seeks to recover upon the basis of error in the employee's opinion as to whether there was sufficient antifreeze in the radiator to withstand the freeze that came. Mere error in opinion does not afford the basis of a cause of action. Snow's Laundry &c. Co. v. Georgia Power Co., 61 Ga. App. 402 (6 SE2d 159). It is not even alleged that the employee knew at the time he was speaking that his opinion as to whether there was need for additional antifreeze was erroneous. If the recovery were grounded upon deceit an essential element of the action is that there must have *484 been an intent on the part of the party making a false representation to deceive the plaintiff, and that does not appear. Scott v. Fulton Nat. Bank, 92 Ga. App. 741 (89 SE2d 892).

Judgment affirmed. Bell, P. J., and Jordan, J., concur.