Benefield v. Malone
| Decision Date | 10 November 1964 |
| Docket Number | 2,3,40760,Nos. 40732,Nos. 1,s. 40732,s. 1 |
| Citation | 139 S.E.2d 500,110 Ga.App. 607 |
| Parties | Evelyn BENEFIELD v. Henrietta S. MALONE. Henrietta S. MALONE v. Evelyn BENEFIELD |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) Insofar as Division 2 of the case of Suggs v. Brotherhood of Locomotive Firemen and Enginemen, 104 Ga.App. 219, 223-224, 121 S.E.2d 661, requires elaboration in a motion for summary judgment beyond the appropriate language of the statute in order to render the motion valid, it is specifically overruled.
(b) If an absolute bar to an action requiring some sort of special plea is developed by either the pleadings or the evidence during the course of the hearing on the motion for summary judgment, it is not only appropriate but necessary at that time to take advantage of the bar by utilizing the prescribed method by which the bar is required to be raised.
2. (a) Orders denying or requiring answers to interrogatories are reviewable on appeal after final judgment if they have affected the final judgment and are not moot.
(b) Interrogatories are properly presented where for the discovery purpose intended they are reasonably calculated to lead to the discovery of admissible evidence.
3. Interrogatories and answers thereto properly may be considered by a trial court when ruling on a motion for summary judgment.
4. The trial court having erroneously predicated its grant of the defendant's motion for summary judgment on the premise that plaintiff had assigned her cause of action prior to filing her petition and therefore did not have the right to sue, the judgment granting summary judgment to the defendant must be reversed.
The plaintiff filed suit in tort for property damage to an automobile. The defendant filed a cross action.
The defendant duly served plaintiff with certain interrogatories to which plaintiff filed objections. After hearing, the trial court overruled the plaintiff's objections whereupon the interrogatories were answered by plaintiff.
Following plaintiff's return of the answers to the interrogatories, the defendant filed a motion for summary judgment. The plaintiff moved to dismiss the motion for summary judgment upon the ground that defendant had not specified in the motion the ground relied on as the basis for summary judgment. The motion to dismiss was overruled.
After a hearing, the trial court granted the motion for summary judgment and entered judgment dismissing plaintiff's petition.
The plaintiff excepts: to the order overruling her objections to certain of the interrogatories propounded to her; to the order overruling her motion to dismiss the motion for summary judgment; and to the judgment granting the motion for summary judgment and dismissing her petition.
By a cross bill the defendant excepts to the dismissal of her cross action after the trial court had entered judgment granting defendant's motion for summary judgment. The cross bill was brought merely for the purpose of preserving the defendant's cross action in the event of reversal on appeal of the orders and judgments excepted to in the main bill.
Ware, Sterne & Griffin, Richard H. Johnston, Atlanta, for plaintiff in error.
Gambrell, Harlan, Russell, Moye & Richardson, E. Smythe Gambrell, Sidney F. Wheeler, Atlanta, for defendant in error.
1. The plaintiff assigns as error the order of the trial judge overruling her oral motion to dismiss the defendant's motion for summary judgment. The motion to dismiss was based on the contention that defendant had not specified the grounds upon which the motion for summary judgment relied within the meaning of Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 104 Ga.App. 219, 223(2), 121 S.E.2d 661.
As in Suggs, the motion here merely identifies certain evidentiary material and recites the substance of the language of the summary judgment statute by stating that there exists in this case 'no genuine issue as to any material fact' and that movant 'is entitled to judgment as a matter of law.' Among other things the motion here identifies and offers as supporting evidence the interrogatories and the answers to the interrogatories which are considered in subsequent divisions of this opinion.
We recognize that the motion is insufficient under the principle announced in division 2 of the opinion in Suggs. In this status Suggs must be followed or it must be overruled. We have concluded that the rule in Suggs is unsound, tends to nullify the beneficent purposes of the Summary Judgment Act and must be overruled.
A motion for summary judgment is comparable in effect to any pleading, motion or process which permits the entering of a final judgment. It has been specifically compared in procedents to a motion for a directed verdict. McCarty v. National Life & Accident Ins. Co., 107 Ga.App. 178, 179 (1) and citations, 129 S.E.2d 408; One in All Corporation v. Fulton Nat. Bank, 108 Ga.App. 142, 144, 132 S.E.2d 116; Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga.App. 574, 575, 136 S.E.2d 505. Yet neither the language of the statute dealing with directed verdicts nor any appellate decision has required that any particular ground beyond that specified by the statute be stated. From that point on the law and the evidence governs its grant or denial.
A general demurrer as used in Georgia practice is also comparable to a motion for summary judgment. Each of these procedures has its place in the practice and the grant of either is no less fatal and final to the losing party. Yet a general demurrer is effectively presented when it merely asserts that 'no cause of action' is stated. Georgia Casualty & Surety Co. v. Reville, 95 Ga.App. 358, 362, 98 S.E.2d 210, 213. 'A general demurrer enables the party to assail every substantial imperfection in the pleadings of the opposite side without particularizing any of them in his demurrer; but if he thinks proper to point out the faults, this does not vitiate it.' Martin v. Bartow Iron Wks., 35 Ga. 320, 323, Fed.Cas.No.9,157; Haygood v. Smith, 80 Ga.App. 461, 56 S.E.2d 310.
A motion for summary judgment imports nothing more drastic in the judicial process than does a motion for directed verdict or a general demurrer. It is subject to the same safeguards prohibiting abuse. It is designed to facilitate and not retard the correct application of the law. So long as counsel and parties are diligent there is no reason to fear or mistrust the summary judgment procedure. The degree of diligence required in summary judgment is no more or less than that permeating other procedural phases of the law. There is nothing 'tricky' about it.
Respondent may resist by doing nothing, relying on the failure of the movant to remove all issues of fact from the case; or by presenting evidence showing an issuable fact. The respondent is not limited by the Summary Judgment Act to mere rebuttal of the movant's affirmations, his range of resistance to the motion is limited only by the pleadings and he may show anything properly within their ambit which portrays an issuable fact. It should be borne in mind that the trial judge has a wide discretion in allowing either party an opportunity to offer additional evidence including the method of introduction as well as by the grant of additional time although a refusal to do either does not constitute reversible error unless it is made clear that the court abused its discretion. Studsill v. Aetna Casualty & Surety Co., 101 Ga.App. 766, 768(2), 115 S.E.2d 374. If there is doubt in the trial judge's mind as to whether the movant has carried the burden of showing there is no substantial issue of material fact, he may require such additional evidence as he deems advisable and prescribe the method by which the additional evidence must be presented. A denial of the motion by the trial judge is never subject to review.
The courts have the responsibility of giving effect to legislative enactments and of keeping the application of statutes as simple as possible. A motion for summary judgment should not be hamstrung by a rule serving as a detriment to its useful purpose. Here the motion for summary judgment contained in its phraseology the essential substance of the summary judgment statute and that is sufficient.
Insofar as it requires elaboration beyond the appropriate language of the statute, the holding in division 2 of the opinion in the case of Suggs v. Brotherhood of Locomotive Firemen and Enginemen, 104 Ga.App. 219, pp. 223-224, 121 S.E.2d 661 is specifically overruled. In this connection it is appropriate to suggest that the Summary Judgment Act does not change the requirements of pleadings extant in our practice and procedure. Thus, if an absolute bar to an action requiring some sort of special pleas is developed by either the pleadings or the evidence during the course of the hearing on the motion for summary judgment, it is not only appropriate but necessary at that time to take advantage of the bar by utilizing the prescribed method by which the bar is...
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