Trump v. Scott Exterminating Co.

Pannell, Presiding Judge.

The plaintiff brought suit against Scott Exterminating Company, Inc., to recover for damages to her home resulting from termite infestation. She alleged that the defendant was negligent in inspecting her home and in fraudulently representing the premises to be free of termites. In its answer, the defendant set up various defenses and counterclaimed against the plaintiff. The trial judge heard the case without a jury. After appellant had completed the presentation of her evidence, the defendant made a motion to dismiss plaintiffs action. The judge granted the motion. He also dismissed defendant’s counterclaim. The plaintiff appeals from the granting of defendant’s motion to dismiss. Held:

Submitted April 7, 1976

Decided June 9, 1976.

Skidmore, Barrett & Jenkins, J. Stephen Jenkins, for appellant.

J. Sam Plowden, for appellee.

Appellant urges error in the court’s granting defendant’s motion to dismiss. Section 41 (b) of the Civil Practice Act (Ga. L. 1966, pp. 609, 653; Code Ann. § 81A-141 (b)) provides that upon defendant’s motion to dismiss at the close of plaintiffs evidence in a nonjury trial, the judge has the power to adjudicate the case on the merits. There is no obligation on the part of the trial judge to consider the facts in the light most favorable to the plaintiff. He may sustain the motion to dismiss even though the facts viewed in a light most favorable to the plaintiff would have authorized a judgment in her favor. Pichulik v. Air Conditioning &c. Co., 123 Ga. App. 195 (180 SE2d 296). A review of plaintiffs evidence indicates that the trial judge was authorized to find the facts adversely to plaintiff. Accordingly, the granting of defendant’s motion to dismiss was proper.

Judgment affirmed.

Marshall, J., concurs. McMurray, J., concurs specially.