Cheatham v. General Motors Corp.

• Decision Date: 05 September 1984
• Citation: 456 So.2d 1101
• Parties: William CHEATHAM and Mary Cheatham v. GENERAL MOTORS CORPORATION, a corporation. Civ. 4348.
• Court: Alabama Court of Civil Appeals

Page 1101

456 So.2d 1101

William CHEATHAM and Mary Cheatham v. GENERAL MOTORS CORPORATION, a corporation.

Civ. 4348.

Court of Civil Appeals of Alabama.

Sept. 5, 1984.

Joel E. Dillard of Baxley, Beck, Dillard & Dauphin, Birmingham, for appellants.

Patricia Clotfelter of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.

PER CURIAM.

This is an appeal from a summary judgment in the Circuit Court of Jefferson County rendered in favor of General Motors Corporation (General Motors), and against William and Mary Cheatham.

The Cheathams purchased a 1979 Pontiac automobile from Doug Willey Pontiac, Inc. (Willey Pontiac) on or about March 30, 1979. The automobile contained a 350 cubic inch engine produced by the Buick division of General Motors. The Cheathams allege that they relied to their detriment on the representation by the salesman at Willey Pontiac that the automobile had a 301 cubic inch engine produced by Pontiac.

The Cheathams filed suit against Doug Willey Pontiac, Inc. and against General Motors for false or reckless misrepresentation as to the engine and asked for $8,000, compensatory and punitive damages, and costs. Subsequently, Willey Pontiac and the Cheathams entered into a pro tanto settlement and release which was made final on April 12, 1984.

The trial court granted General Motors' motion for summary judgment on March 22, 1984, which was made final on April 12, 1984.

The dispositive issue is whether the trial court properly granted the summary judgment to General Motors. We hold that it did not.

It is well settled that for a summary judgment to be properly granted the pleadings and affidavits must show that there is no genuine issue as to any material fact such that the moving party is entitled to the relief sought strictly as a matter of law and that there is not even a scintilla of evidence supporting the position of the nonmovant. Silk v. Merrill Lynch, Pierce, Fenner & Smith, 437 So.2d 112 (Ala.1983); Alabama Rules of Civil Procedure 56(c). The party moving for the summary judgment, General Motors here, has the burden of clearly showing that the nonmoving party, the Cheathams, cannot recover under any discernible set of circumstances. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981). The evidence must be viewed in the light most favorable to the nonmoving party and it must appear that the nonmoving party still cannot prevail. Forester & Jerue, Inc. v. Daniels, 409 So.2d 830 (Ala.1982).

Here, when the evidence is viewed in the most favorable light to the Cheathams, General Motors did not meet its burden and the summary judgment was not properly granted.

At issue is whether Willey Pontiac was an agent for General Motors for purposes of the circumstances surrounding the alleged misrepresentation. The issue of agency is one of fact. Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). Whether an agency relationship exists is a question of fact to be determined by the jury. Oliver v. Taylor, 394 So.2d 945 (Ala.1981); Cashion v. Ahmadi, 345 So.2d 268 (Ala.1977). Thus, summary judgment on the issue of agency is generally inappropriate. Oliver, supra; Moses v. American Home Assurance Co., 376 So.2d 656 (Ala.1979). However, the courts do not presume agency. 3 C.J.S. Agency § 491 (1973).

There must be a scintilla of evidence on the issue of agency to overcome a motion for a summary judgment.

The scintilla rule requires only that the evidence at hand furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, in support of plaintiff's complaint. Watkins v. St. Paul Fire & Marine Insurance Co., 376 So.2d 660 (Ala.1979). This glimmer or spark can come from the evidence or from reasonable inferences drawn from the evidence. Wilson v. Liberty National Life Insurance Co., 331 So.2d 617 (Ala.1976). There are at least two issues in the record which produce the necessary scintilla.

First, it is in dispute as to whether there were posters placed around the dealership at General Motors' behest. The record contains a letter from General Motors to its dealers instructing them to put the posters in their showrooms. These posters promoted General Motors vehicles and contained "information regarding the engines used in 1979 Pontiacs including the name of the General Motors division which produced such engines." One view from this evidence and the...