Bagley v. Firestone Tire & Rubber Co.

• Decision Date: 17 October 1961
• Docket Number: No. 38913,No. 2,38913,2
• Parties: C. P. BAGLEY v. FIRESTONE TIRE & RUBBER COMPANY
• Court: Georgia Court of Appeals

Page 179

123 S.E.2d 179

104 Ga.App. 736

C. P. BAGLEY v. FIRESTONE TIRE & RUBBER COMPANY.

No. 38913.

Court of Appeals of Georgia, Division No. 2.

Oct. 17, 1961.

Rehearing Denied Nov. 2, 1961.

Syllabus by the Court

A summary judgment should not be granted when the pleadings and evidence reveal an issue of fact which should be submitted to a jury.

Charles P. Bagley, doing business as Charles P. Bagley & Co., brought suit against the Firestone Tire & Rubber Co. in the Civil Court of Fulton County.

The plaintiff alleged in his petition, in substance, as follows: That he had obtained a judgment against one Fry-Duluth, Inc., hereinafter referred to as the debtor, in the amount of $2,810.07; that he had instituted garnishment proceedings based on the judgment that a summons of garnishment was served on the defendant by serving the defendant's agent in Fulton County, Ga., on May 8, 1958; that the defendant through its assistant counsel represented to the plaintiff that it had no monies belonging to the debtor at the time the summons of garnishment was served upon it; that the representation was false; that the defendant did have monies in the amount of $579.01 in its possession due the debtor at said time; that the defendant made the representation with knowledge of the falsity thereof and with a fraudulent design to induce the plaintiff 'to release said summons of garnishment'; that plaintiff relied upon the representation and released the summons of garnishment; that plaintiff had no opportunity or means of obtaining information as to the defendant's indebtedness to the debtor; that by reason of such fraud the plaintiff has been deprived of $579.01, and plaintiff prayed for damages.

The defendant filed a motion for summary judgment, and that motion was granted. The only evidence before the court when the motion was passed on consisted of the deposition of the plaintiff and certain correspondence between the parties identified by the plaintiff. The plaintiff identified the defendant's letter of May 16, 1958, which stated: 'There has been forwarded to this office a garnishment summons and your letter of May 9 to our Atlanta office. It is readily apparent that this matter may become quite controversial and, therefore, it would be helpful to have some information as promptly as possible. So that there may be no misunderstanding, you are hereby advised that if it becomes necessary so to do, we shall challenge the service of the Summons which was not served on our statutory agent for service. I do not understand where your judgment was obtained against Fry-Duluth, Inc. and have no information as to the amount of the judgment, with which information I would like to be furnished. It is true that, even though we are a substantial creditor of Fry-Duluth, we have paid to its assignee, from time to time, invoices from which certain deductions have been made because of the indebtedness to us. I am advised that of this date we have no outstanding invoices, but I think it only fair to advise that a small one was paid prior to the receipt of the summons. I think it would be in our mutual interests for you to write me rather fully about the several phases of this transaction.'

The plaintiff identified the defendant's letter of June 19, 1958, which stated: 'In further reference to our previous correspondence about the above matter, please be advised that I have checked with our people and find that they have requested Fry-Duluth to immediately forward all outstanding invoices and advised that there will be no further purchases. No invoices have been received and probably will not be received because, on the basis of information presently available, there have been no purchases or deliveries for some time. The last invoice which was paid was the one referred to in the third paragraph of my letter of May 16. I am advised that Fry-Duluth is heavily indebted to us but that, notwithstanding such situation and in an effort to help such company, heretofore we have remitted to a trustee approximately 93% of each invoice. I would appreciate your considering the above information and making whatever check your care to in connection therewith, following which I hope that you will advise you have dismissed the garnishment. If for any reason you do not dismiss the same promptly, please advise so that I may take the proper steps to protect our interests. If any invoices are received from Fry-Duluth, we shall be pleased to advise you thereof and you are assured that the same will not be paid until you have had an opportunity to canvass the matter further.'

On June 23, 1958, the plaintiff sent the defendant the following letter: 'Upon your assurance that your company was not on the date of service of the summons indebted to Fry-Duluth, Inc., has not since become indebetd, and that you will advise me if it does become indebted, I am having you released as garnishee in the matter, as per copy of letter enclosed. I will forward you the release as soon as I receive it. I am sorry for the inconvenience caused you in the matter, and I wish to thank you for your co-operation.'

The plaintiff identified defendant's letter of June 25, 1958, which stated: 'I have your letter of the 23rd and enclosure and I am somewhat disturbed about that portion which refers to 'the date of service of the summons.' In my letter of May 16, I referred to the payment of a small invoice prior to the receipt of the summons, by which I meant the receipt in Akron as distinguished from in Atlanta. You will readily appreciate that the Atlanta office would have no way of knowing anything about transactions with a manufacturer of seat covers, but the Atlanta office did forward to Akron the summons and on the next day your letter of May 9, which letter identified the transaction and the same was promptly referred to the proper department. In the meantime, on May 12, our cashier's office had mailed to the Fulton National Bank of Atlanta, assignee of Fry-Duluth, Inc., our check for $579.02. Said amount represented 93% of the invoices then in hand, the remaining percentage being retained by Firestone as a credit against the amount owed by Fry-Duluth to Firestone, as referred to in the second paragraph of my letter of June 19. The foregoing has been submitted so that there may be no possible question about the accuracy of the facts here involved.'

The plaintiff testified that he relied implicitly upon the representations made by the defendant and dismissed the summons of garnishment.

Plaintiff assigns as error the granting of the summary judgment.

Thomas M. Stubbs, Jr., Joan Larsen, Atlanta, for plaintiff in error.

Greene, Neely, Buckley & DeRieux, John D. Jones, Sanders McD. Marshall, Atlanta, for defendant in error.

FRANKUM, Judge.

The sole question for determination in this case is whether the court erred in granting a summary judgment. Unlike the construction taken of a petition when ruling upon a general demurrer, the pleadings will be construed favorably toward the pleader when ruling upon a motion for summary judgment by a defendant against a plaintiff. Likewise, all inferences from the evidence introduced (if any) will be interpreted favorably toward making an issue of fact. See Caldwell v. Mayor etc. of Savannah, 101 Ga.App. 683, 115 S.E.2d 403; Scales v. Peevy, 103 Ga.App. 42, 118 S.E.2d 193. The cardinal rule of the summary judgment procedure is that the court can neither resolve the facts nor reconcile the issues, but can only look to ascertain if there is an issue. See 35B C.J.S. Federal Civil Procedure § 1206, p. 628; 6 Moore, Fed.Practice, Supp., Par. 56.15 , at p. 2101 (2d ed.); 3 Barron & Holtzoff Fed.Practice & Procedure 96, § 1231.

The gist of the plaintiff's action is that the defendant corporation, through its assistant counsel, represented to the plaintiff the fact that the defendant corporation as garnishee, owed the debtor no amount, and by such fact the defendant corporation sought to obtain a release of the summons of garnishment served on it under the aforesaid garnishment proceedings; that the representations were made with knowledge of their falsity and with the intent...