Tri-City Sanitation v. Action Sanitation Service

227 Ga. 489 (1971) 181 S.E.2d 377

TRI-CITY SANITATION, INC.
v.
ACTION SANITATION SERVICE, INC. et al.

26356.

Supreme Court of Georgia.

Submitted March 8, 1971. Decided April 8, 1971. Rehearing Denied April 22, 1971.

Roland P. Smith, for appellant.

Charles J. Driebe, for appellees.

FELTON, Justice.

When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, "the new rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed. Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260)." Ghitter v. Edge, 118 Ga. App. 750 (1) (165 SE2d 598); Fender v. Fender, 226 Ga. 129 (4) (173 SE2d 211) and cit.

The complaint in this case, set forth in its entirety herein below, does not negative the right of the plaintiff to prevail under one or more of the theories alleged therein; therefore, the trial court erred in its judgment sustaining the motion to dismiss.

Judgment reversed. All the Justices concur.