Bodrey v. Cape, 44550

• Decision Date: 05 December 1969
• Docket Number: No. 44550,Nos. 1,2,3,44550,s. 1
• Parties: Martha Jean C. BODREY v. Charles CAPE et al
• Court: Georgia Court of Appeals

Page 643

172 S.E.2d 643

120 Ga.App. 859

Martha Jean C. BODREY v. Charles CAPE et al.

No. 44550.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Dec. 5, 1969.

Rehearing Denied Dec. 19, 1969.

Certiorari Denied Feb. 9, 1970.

Syllabus by the Court

In this action for invasion of the right of privacy, the trial court did not err in refusing to grant the plaintiff's motion for summary judgment on the issue of liability.

This case involves an action for damages for invasion of privacy. The sufficiency of the complaint as stating a claim for relief has not been questioned by the defendants. The question before us with regard to the matter is whether the trial court erred in denying the plaintiff's motion seeking a summary judgment on the issue of liability only. The denial of the motion was certified for direct review in accordance with Code Ann. § 81A-156(h) and has been enumerated as error.

The complaint alleges in substance that the defendants intentionally and wilfully trespassed about and upon her property for the purpose of peeping at, watching, eavesdropping and spying upon plaintiff and otherwise invading her right of privacy. The plaintiff is Martha Jean Cape Bodrey. In support of her motion for summary judgment she attached as an exhibit the transcript of evidence and proceeding in the case of Charles Willie Bodrey v. Martha Jean Cape Bodrey, Civil Action No. 1177, in the Crisp County Superior Court. (The latter case was a habeas corpus proceeding in which Charles Willie Bodrey sought and won a change of custody of his minor son, Russ, from his ex-wife to himself. The result of that proceeding was affirmed on appeal to our Supreme Court. Bodrey v. Bodrey, 224 Ga. 348, 161 S.E.2d 864). The transcript which is attached to plaintiff's motion is not a stenographic record. It recites that no stenographic record was taken; that it was transcribed from the memory of counsel, and that there was agreement of counsel for the parties as to its contents. Following such recitation, under the notation 'approved,' are the signatures of plaintiff's counsel, defendant's counsel, and the trial judge. There is also a certification of the Clerk of Crisp Superior Court that the document is a Verifax copy of the evidence and proceedings filed in office on March 11, 1968 in the matter of Bodrey v. Bodrey, Case No. 1177.

Plaintiff in this case takes the position that the sworn testimony in the habeas corpus case shows that there is no genuine issue of material fact as to the issue of liability and that her motion for summary judgment should have been granted. Plaintiff's husband, Charles Willie Bodrey, testified in the habeas corpus case. So did one Charles Cape, one Wilbur Randall Matthews, and one Larry J. Bullock. They have all been named as defendants in the present action.

Guy V. Roberts, Jr., Cordele, for appellant.

Luther U. Bloodworth, T. Coleman Bloodworth, J. Alton Gladin, Macon, for appellee.

JORDAN, Presiding Judge.

1. There is the preliminary question of whether the transcript of evidence from the habeas corpus matter could properly be considered in this action on plaintiff's motion for summary judgment. The trial judge, in denying plaintiff's motion, made no reference to what he considered in making his determination.

On motion for summary judgment '(t)he court is authorized to examine proffered materials extraneous to the pleadings, not for the purpose of trying an issue, but to determine whether there is a genuine issue of material fact to be tried.' 6 Moore's Federal Practice § 56.04(1), p. 2060. Such extraneous matter most often consists of depositions, answers to interrogatories, admissions on file and affidavits, if any. Also among that which may be considered is oral testimony, judicial notice, presumptions, stipulations, concessions of counsel, certified transcript of a court, exhibits and others papers that have been identified by affidavit or otherwise made admissible in evidence or useable at trial. See 6 Moore's Federal Practice §§ 56.11(1.-6)-56.11(1.-8), pp. 2147-2149.

It has been said that 'a certified transcript of a court record is better evidence of its contents than an affidavit with regard thereto.' Fletcher v. Bryan, 175 F.2d 716, 717 (4 Cir., 1949). Also see Steven v. Roscoe Turner Aeronautical Corp., 324 F.2d 157, 162, 7 A.L.R.3d 1332 (7 Cir., 1963); Shulins v. New England Ins. Co., 360 F.2d 781, 785 (7 Cir., 1963). In the case of Ramsouer v. Midland Valley R. Co., 135 F.2d 101 (8 Cir., 1943) the plaintiff was suing for damages for the death of her husband. The defendant moved for summary judgment based on the record of oral testimony taken and offered in a prior case. Such prior case was one brought by the same plaintiff against the same defendant on the same cause of action, but which she had dismissed without prejudice. The trial court considered the former testimony and granted the defendant's motion for summary judgment. On appeal the appellate court also considered the former testimony in determining the propriety of the trial court's conclusion, noting that a court's duty on summary judgment was not to decide any issue of fact but merely to ascertain, from what was presented, whether there was any issue to be decided.

Thus, on the basis of the above cited cases, and on the basis that a transcript of previously sworn to testimony is of equal dignity with a deposition, and on the basis that testimony given under laboratory conditions, i.e., the courtroom itself, must be accorded reliability, we have concluded in this case that the testimony contained in the certified transcript of the previous habeas corpus proceeding, insofar as such testimony may be relevant and material to the present proceeding, is subject to examination by the court in carrying out its duty on summary judgment.

2. We now proceed with an examination of all the material before the court on the motion. In the habeas corpus proceeding, Charles Willie Bodrey testified that:

'Finally, in September, Jimmy Lewis and I watched Jean's house. We concealed ourselves in some trees and in the outbuildings around the house. Jean and Clarence (Clarence R. Bodrey is defendant's father) came out of the house and sat down on the back steps and began hugging and kissing. Russ came to the back door and Jean scolded Russ and made him go back into the house. Clarence and Jean became suspicious as it was thundering and lightning, and the dogs were barking.

'I have watched Clarence and Jean's house 20 times or more, all at night, whenever Clarence is at home they get together. * * *

'On September 26, 1967, Randall Matthews and I concealed ourselves a short distance from Jean's house at about 7 or 8 p.m. Shortly thereafter Clarence came in and walked up to Jean's house and went in. We left about 3:30 a.m. and Clarence was still in Jean's house with all the lights off * * *

'December 1, 1967, Randall Matthews and I went out to Jean's house, concealed my car and hid ourselves in front of the house. Clarence came to Jean's house at about 7:10 and one of his farm hands took his truck and drove off. About 7:30 Jean and Clarence came out of Jean's house, got in her car and drove to Clarence's house. They got out, went in his house, and turned on the lights, stayed about 12 minutes, and returned to Jean's house. About 9 all the lights went off in Jean's house. Randall watched until 7 a.m. I went back and forth all night checking on Randall.

They were still together at 7 a.m. when we left.

'On December 2, 1967, Charles Cape, Randall Matthews, Larry Bullock and I passed Jean's house about 6:30 p.m. Clarence was getting out of his truck. He went into Jean's house. I put Charles Cape, Randall Matthews and Larry Bullock out, they walked back and laid down in front of the house. I parked my car at my grandmother's house about a mile away and walked back where the other boys were. Clarence and Jean came out of her house about 8:00 p.m., got in Clarence's truck, did not turn on any lights on the truck, and drove down to Clarence's house without turning on any lights. We watched until about 2 a.m. It was raining so we had to leave, but Clarence and Jean were still in Clarence's house. We could see clearly because the carport lights burn every night, and security lights at both houses * * *'

In defendant Bodrey's answer to the plaintiff's complaint, by way of further answer, he stated:

'The defendant shows that he became so concerned for the welfare of his minor son and in order to protect his minor son, he and Jimmy Lewis went to a place near the home of the plaintiff in early September, 1967, so that he could observe the activities and conduct of the plaintiff. The defendant further shows that on September 26, 1967, he and the defendant Wilbur Randall Matthews, went to a place a short distance from the plaintiff's house in order to observe the plaintiff's conduct and activities. The defendant, Charles Willie Bodrey, shows that on December 1, 1967, he and the defendant Wilbur Randall Matthews, went to a place near the plaintiff's home in order that they might observe the conduct and the activities of the plaintiff, and the defendant, Charles Willie Bodrey, shows that on December 2, 1967, he and the defendants, Charles Cape, Wilbur Randall Matthews, and Larry Bullock, went to a place near the plaintiff's home so that they could observe the plaintiff's conduct and activities. The defendant says that on each of these occasions he and the witnesses went to the places indicated for the purpose of observing the plaintiff's conduct and to determine if the reports that had been made to him were true * *

'Further answering, the defendant shows that the plaintiff and Clarence R. Bodrey have associated together publicly all over Crisp County, Georgia, and the defendant shows that Clarence R. Bodrey has supported the plaintiff and given her lavish gifts. The defendant shows that Clarence R. Bodrey paid an indebtedness in the amount of $2,000...