Herring v. Pepsi Cola Bottling Co.

• Decision Date: 16 May 1966
• Docket Number: No. 41743,No. 3,41743,3
• Citation: 149 S.E.2d 370,113 Ga.App. 680
• Parties: E. P. HERRING v. PEPSI COLA BOTTLING COMPANY et al
• Court: Georgia Court of Appeals

Page 370

149 S.E.2d 370

113 Ga.App. 680

E. P. HERRING v. PEPSI COLA BOTTLING COMPANY et al.

No. 41743.

Court of Appeals of Georgia, Division No. 3.

May 16, 1966.

Syllabus by the Court

1. Depositions do not constitute evidence in a case until they are introduced and admitted as evidence in the trial court.

2. In the absence of evidence presenting a material issue, a summary judgment for defendant is authorized where the trial court properly could have sustained a general demurrer to plaintiff's petition.

3. Since the record in this case contains no evidence presenting a material issue and the petition fails to state a cause of action against any of defendants, the trial court was authorized to grant summary judgment for defendants.

E. P. Herring brought this action against Pepsi Cola Bottling Company of Atlanta, Fireman's Fund Insurance Company and Paul R. Bouzigues.

The petition alleged that plaintiff, a pharmacist, operated a business in Hapeville, Ga., and purchased Pepsi Cola soft drinks from the defendant bottling company for retail sale. Prior to October, 1963, a boy about ten years old removed a Pepsi Cola from the drink box in plaintiff's store, and plaintiff noticed there was a safety pin in the unopened bottle. Plaintiff took the drink from the child, and gave him another one, then placed the bottle on a shelf, where it remained for several months. Some time in October 1963, plaintiff notified the defendant bottling company of the incident, and two representatives of the bottling company came to plaintiff's store and inspected the still unopened bottle. The next day the defendant Bouzigues telephoned plaintiff, and identified himself as an insurance adjuster representing Pepsi Cola Bottling Company of Atlanta and Fireman's Fund Insurance Company. Quoting the petition, 'The defendant, Mr. Paul R. Bouzigues, during the telephone conversation stated as follows: 'That he had no business calling Pepsi Cola and he was stupid for calling them and that he couldn't get any money out of it and that he was dishonest for trying to do so. Further, the defendant, Mr. Paul R. Bouzigues, stated that he must be a pretty low character to try such a thing.' Which was denied by plaintiff to said Bouzigues at said time and place whereupon the aforesaid defendant, Mr. Paul R. Bouzigues, stated 'that plaintiff was a liar and again stated that he was dishonest.' * * * Thereafter, plaintiff shows that on the same day that the plaintiff said the words and topic of conversation was communicated to Pepsi Cola Bottling Co. of Atlanta by the defendant, Mr. Paul R. Bouzigues, and through Mr. Harold Echols, a General Manager of Pepsi Cola Bottling Co. of Atlanta, and/or Mr. Terry Pemberton.' The petition alleged further that defendant Bouzigues was acting 'at the instance and request' of the defendant bottling company and as agent of the defendant insurance company. Plaintiff prayed for general damages in the amount of $1,000,000.

Plaintiff took this appeal from the trial court's grant of summary judgment for each defendant.

Preston L. Holland, Hapeville, for appellant.

Long, Weinberg & Ansley, Ben Weinberg, Jr., As Gregg Loomis, Atlanta, for appellee.

BELL, Presiding Judge.

1. The record in this case discloses that certain depositions filed in the office of the clerk of the superior court were not introduced as evidence in the hearing upon defendant's motion for summary judgment. Not having been offered, obviously these depositions were not in evidence in the summary judgment hearing and cannot now be made a part of the record on appeal. Plaintiff's motion asking this court to complete the record by ordering the depositions transmitted to this court is denied.

2. Where there is no genuine issue as to a material fact, a summary judgment may be granted upon the pleadings alone. Dillard v. Brannan, 217 Ga. 179(3), 121 S.E.2d 768; Sanders v. Alpha Gamma Alumni Chapter, 106 Ga.App. 137, 139, 126 S.E.2d 545; Mingledorff v. Bell, 107 Ga.App. 685(1), 131 S.E.2d 118; 6 Moore, Federal Practice (2nd Ed.) § 56.11(1-1), p. 2144, § 56.11(2), p. 2151. In the Federal courts the motion for summary judgment under these circumstances is the functional equivalent of a motion for judgment on the pleadings under Rule 12(c) F.R.Civ.P., 28 U.S.C. (Dyal v. Union Bag-Camp Paper Corp. (5 Cir.), 263 F.2d 387, 391), and may properly be treated as attacking a complaint for failure to state a claim upon which relief can be granted. Dunn v. J. P. Stevens & Co. (2 Cir.), 192 F.2d 854, 855; Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161. Where plaintiff's petition does not state a cause of action, a defendant's answer denying or neither admitting nor denying its allegations does not create any genuine issue of material fact. In that status under Georgia practice, a general demurrer of the defendant would be sustained and plaintiff's petition dismissed. A motion for summary judgment under these circumstances reaches the same result. In the absence of evidence presenting a material issue, a summary judgment for defendant is authorized where the trial court properly could have sustained a general demurrer to the plaintiff's petition.

3. Plaintiff contends that this suit is not one for slander, but is an action for 'tortious misconduct,' citing Colonial Stores v. Coker, 77 Ga.App. 227, 230, 48 S.E.2d 150. See Zayre of Atlanta v. Sharpton,...