Herndon v. Aultman-Beasley, Inc. , 127 Ga. App. 743 ( 1972 )

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127 Ga. App. 743 (1972) 195 S.E.2d 250
HERNDON
v.
AULTMAN-BEASLEY, INC. et al.
47602.
Court of Appeals of Georgia.
Submitted October 2, 1972. Decided November 15, 1972. Rehearing Denied December 6, 1972.
Robert F. Higgins, Virgil H. Shepard, for appellant.

Jones, Cork, Miller & Benton, Wallace Miller, Jr., Harris, Russell & Watkins, Joseph M. Davis, for appellees.

STOLZ, Judge.

Herndon sued Georgia Power Company and Aultman-Beasley, Inc., to recover for fire damage to his *744 property resulting from the spread of fire from the nearby electrical transmission line right-of-way of the defendant power company, which had contracted with the defendant contractor to clear away and burn with brush burning equipment the brush within the right-of-way. It was alleged that the contractor buried the residue of the burned brush underground, but that its earth-moving equipment uncovered some of the buried smoldering embers, which the wind caused to ignite into a fire, which spread to the plaintiff's place of business. The plaintiff appeals from the sustaining of the power company's motion to dismiss it as a party defendant. Held:

"Under the Civil Practice Act, a motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted ought not to be sustained unless it can be said that under no conceivable state of facts which the plaintiff might prove under the allegations of the complaint would he be entitled to any relief. Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260); Ghitter v. Edge, 118 Ga. App. 750 (165 SE2d 598); Ansley v. Moss, 121 Ga. App. 43 (172 SE2d 654)." Sixth Street Corp. v. City Stores Co., 229 Ga. 99, 100 (189 SE2d 407); Tri-City Sanitation v. Action Sanitation Service, 227 Ga. 489 (181 SE2d 377) and cit.

The complaint in this case, summarized hereinabove, does not negative the right of the plaintiff to prevail under the theory of one or more of the following statutes: Code § 105-502 (1, 2, 4); Code Ann. § 26-9926a (Ga. L. 1971, p. 577). Therefore, the trial judge erred in his judgment sustaining the motion to dismiss.

Judgment reversed. Bell, C. J., and Evans, J., concur.