Gulf Refining Co. v. Harris

Jenkins, P. J.

This, like the case of Phipps v. Gulf Refining Co., 25 Ga. App. 384 , was an action for damages on account of an injury occasioned by the alleged negligent handling of a truck, driven by the servant of one who, under a written contract with the defendant, had engaged to sell the products of the latter. The, contract between the defendant and the local dispenser of its products was the same as that set forth in the report of the Phipps case. In neither case does it appear that the defendant retained any control over the manner, means, or methods to be employed by the local dealer in the sale of the commodities. In each case there was evidence going to show that the business of the local dealer was so conducted, with the knowledge of the defendant, as might have reasonably misled the plaintiff to infer that it was being carried on by and for the defendant corporation; but in neither case was there any sort of testimony tending to indicate that the injury complained of was in any way brought *242 about on account of the plaintiff having been so misled.

We are not prepared to hold that the doctrine of estoppel in pais has no sort of possible application whenever the action is founded upon a tort. We agree with the contention of the plaintiff in error to the extent that it can-have no possible application here, since it manifestly appears that the injury was in no wise induced by the misleading acts and conduct of the defendant. Tt is possible to conceive of eases where the rule might be different, where the action in tort is based upon the violation of a duty flowing from relations between the parties created by contract. Commercial City Bank v. Mitchell, 25 Ga. App. 837 (1) ( 105 S. E. 57 ). Judgment reversed.

Stephens and Bell, JJ., concur.