Harvey v. C. W. Matthews Contracting Co.
| Decision Date | 05 December 1966 |
| Docket Number | No. 3,No. 42415,42415,3 |
| Citation | 114 Ga.App. 866,152 S.E.2d 809 |
| Parties | Eleanor V. HARVEY v. C. W. MATTHEWS CONTRACTING COMPANY, Inc., et al |
| Court | Georgia Court of Appeals |
Stewart, Sartain & Carey, Jack Carey, Gainesville, O'Kelley, Hopkins & VanGerpen, E. J. VanGerpen, Atlanta, for appellant.
Robert E. Andrews, R. Wilson Smith, Jr., John H. Smith, Gainesville, for appellees.
Syllabus Opinion by the Court
Mrs. Eleanor B. Harvey brought this action in the City Court of Hall County against C. W. Matthews Contracting Company, Inc., W. Earl Abercrombie, and Kermit D. Totherow, seeking recovery for the alleged wrongful death of her father as the result of a collision on August 29, 1963, between the passenger automobile which he was driving and a dump truck owned by defendant Abercrombie and operated by defendant Totherow, being used at the time to transport road construction materials for defendant contracting company. Plaintiff alleged that Totherow was operating the dump truck as a joint agent and employee of the contracting company and Abercrombie. She appeals to this court from a judgment of the trial court sustaining the motion of the contracting company for summary judgment. Held:
1. Affidavits on motion for summary judgment are no place for opinions, ultimate facts, and conclusions of law, and should be restricted to admissible evidentiary facts, but the trial judge may consider such affidavits, and he is bound by the uncontradicted evidentiary matter in such affidavits, irrespective of the opinions, ultimate facts, and conclusion of law stated therein. Code Ann. § 110-1205; Planters Rural Telephone Cooperative, Inc. v. Chance, 108 Ga.App. 146, 147, 132 S.E.2d 90; Varnadoe v. State Farm Mutual Automobile Insurance Company, 112 Ga.App. 366(1), 145 S.E.2d 104; Benefield v. Malone, 112 Ga.App. 408, 411, 145 S.E.2d 732).
2. The contract between the State Highway Department and the defendant contracting company provided that the contractor could not sublet, assign, transfer, convey, sell, or otherwise dispose of any part of the contract without the consent of the Highway Department. The fact that the contractor did not report and obtain the consent of the department in respect to its agreement with the owner of the truck for hauling construction materials, and the fact that the contractor and the department did not consider the agreement as one requiring the consent of the department, will not give rise to any inferences from which a jury could conclude that the driver of the truck, while operating the truck to haul construction materials, was an agent or employee of the defendant contracting company.
3. Under the agreement as disclosed by the uncontradicted evidence on motion for...
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...Kaolin Co., 60 Ga.App. 347(1), 4 S.E.2d 100; Brett v. Thiele Kaolin Co., 86 Ga.App. 506(1) 71 S.E.2d 687; Harvey v. C. W. Matthews Contr. Co., 114 Ga.App. 866(3), 152 S.E.2d 809; Cooper v. Plott, 121 Ga.App. 488, 174 S.E.2d 446 and 226 Ga. 647, 177 S.E.2d 82. See also Bibb Mfg. Co. v. Marti......
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