Byrd v. Ford Motor Co., 43806

• Decision Date: 05 September 1968
• Docket Number: No. 2,No. 43806,43806,2
• Citation: 118 Ga.App. 333,163 S.E.2d 327
• Parties: S. J. BYRD v. FORD MOTOR COMPANY et al
• Court: Georgia Court of Appeals

Page 327

163 S.E.2d 327

118 Ga.App. 333

S. J. BYRD v. FORD MOTOR COMPANY et al.

No. 43806.

Court of Appeals of Georgia, Division No. 2.

Sept. 5, 1968.

Preston L. Holland, Hapeville, for appellant.

Troutman, Sams, Schroder & Lockerman, T. M. Smith, Jr., John D. McLanahan, Atlanta, Marson G. Dunaway, Jr., Rockmart, for appellees.

Syllabus Opinion by the Court

HALL, Judge.

This is a suit by the purchaser of a new automobile against the dealer and manufacturer. The plaintiff appeals from a judgment sustaining an oral motion to dismiss the petition as against the manufacturer.

1. This court must apply the new Civil Practice Act as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review. Hill v. Willis, 224 Ga. 263, 264-265, 161 S.E.2d 281.

2. The basic premise of the new Civil Practice Act is that it does away with 'issue pleading' and substitutes 'notice pleading.' In the famous Reynolds case, the Supreme Court of Georgia quoted with approval the Supreme Court of the United States: '* * * Under the prior federal practice, the pre-trial functions of notice-giving, issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. * * *' Reynolds v. Reynolds, 217 Ga. 234, 246-247, 123 S.E.2d 115, 128.

'(A petition) should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' American Southern Ins. Co. v. Kirkland, 118 Ga.App. 170, 162 S.E.2d 862; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80. See also Harper v. DeFreitas, 117 Ga.App. 236(1), 160 S.E.2d 260; Seaboard Air Line Railroad Co. v. Hawkins, 117 Ga.App. 797(3), 161 S.E.2d 886. In explaining the rule the Fifth Circuit Court of Appeals has said: 'We have, however, pointed out that this does not mean that there must necessarily be a full-blown trial. Exploiting the wonderful facility of pre-trial discovery, the real facts can be ascertained and by motion for summary judgment (or other suitable device), the trial Court can determine whether as a matter of law there is any right of recovery on those facts.' Shull v. Pilot Life Ins. Co., 5 Cir., 313 F.2d 445, 447.

In this case the petition, filed on December 30, 1966, alleged that the plaintiff purchased a new automobile from the defendant dealer on ...