Herring v. R. L. Mathis Certified Dairy Co.

• Decision Date: 05 February 1970
• Docket Number: No. 45026,No. 2,45026,2
• Citation: 173 S.E.2d 716,121 Ga.App. 373
• Parties: Betty Ruth HERRING v. R. L. MATHIS CERTIFIED DAIRY COMPANY et al
• Court: Georgia Court of Appeals

Page 716

173 S.E.2d 716

121 Ga.App. 373

Betty Ruth HERRING v. R. L. MATHIS CERTIFIED DAIRY COMPANY et al.

No. 45026.

Court of Appeals of Georgia, Division No. 2.

Feb. 5, 1970.

Rehearing Denied March 13, 1970.

Certiorari Denied May 7, 1970.

Frank Fuller, Freeman R. Hardisty, Atlanta, McDonald, McDonald & McDonald, Ernest McDonald, Dalton, for appellant.

Long, Weinberg, & Ansley, Palmer H. Ansley, Charles M. Goetz, Jr., O'Kelley, Hopkins & VanGerpen, H. Lowell Hopkins, Lokey & Bowden, Glenn Frick, Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

This case previously appeared as Herring v. R. L. Mathis Certified Dairy Co., 118 Ga.App. 132, 162 S.E.2d 863, and upon writ of certiorari in Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89, where there was a reversal of the judgment of this court. Our judgment was subsequently conformed to that of the Supreme Court. Herring .v. R. L. Mathis Certified Dairy Co., 119 Ga.App. 226, 166 S.E.2d 607. Reference is made to those opinions for a statement of the pleadings and facts.

Thereafter and based upon the judgment of the Supreme Court, defendants R. L. Mathis Certified Dairy Company and R. L. Mathis filed their motions for summary judgment on February 21, 1969, and defendants Mrs. Willeen Bourn and Grant Park Baptist Church filed their motions for summary judgment February 28, 1969. All motions were supported by depositions, interrogatories and affidavits which had been obtained from parties and witnesses. Plaintiff opposed the motions, and a hearing was set thereon for March 27, 1969. Plaintiff sought and obtained a continuance of the hearings until April 3, 1969. In the meantime, and pending the hearings, plaintiff took certain depositions, served certain interrogatories and asked for hearings on her applications for orders for the production of liability insurance policies and statements of certain of the parties and witnesses which were alleged to be in the possession of defendants or their counsel, which plaintiff thought might lead to admissible evidence. The court assigned all pending matters for hearing at the same time, including objections of defendants to some of the interrogatories which plaintiff had served on them.

Plaintiff urged that the motions for summary judgment were premature because she had not completed discovery procedures which she had intended to pursue, that she had served interrogatories on the defendants, portions of which had not been answered, and that there was a possibility that additional witnesses having knowledge of the occurrence might be discovered.

Interrogatories had been served on the dairy, some of which it answered, but objections were made to others and these objections were before the court. There were questions, for example, as to what a certified dairy is, how many are in the Atlanta area, what certified milk is, and its price at wholesale and retail in varying size containers; as to how large the dairy farm was in acreage and what portion of it was devoted to egg production and to general farming; as to whether the dairy advertised, what the cost of advertising was, and whether it employed the services of public relations agencies; as to whether any employee was an entertainer, and if so what his salary was, and whether the contract was written or oral, and whether he appeared at places other than the dairy; as to whether there was liability insurance, and if so, the name of the company, the number of the policy and the limits thereof. There were others.

Similar interrogatories were served on Grant Park Baptist Church, with added questions as to whether any insurance company had investigated the matter, and who had conducted it; the names of all persons who attended the picnic (this was answered by listing all who were known) and the names of all persons having knowledge of the occurrence (the name of Dr. Prue Kelley, pastor of the church, and 11 others were listed by way of answer), and whether there had been donations or contributions of any kind or in any amount by the dairy to the church (there had been none). Some questions were answered, and objections were made to others.

Interrogatories were served on Mrs. Bourn, one of the defendants, some of which were answered and others were objected to. There were questions, inter alia, as to her marital status, whether she had been previously married, the names and ages of her children, whether she had been to the area on prior occasions for picnics, whether other groups were present on this occasion, whether the dairy provided any entertainment or refreshment for the group, where she parked her car, what questions were asked of the children as to their swimming ability, whether she could swim or dive and what training she may have had as to supervising groups of children, whether she had been present on any other occasion when a person drowned and as to what inspection she made of the premises.

Extensive depositions were obtained from Mr. and Mrs. William E. Bailey, who had been present with a faculty group from Towers High School and who learned from some children that a boy in the church group was missing, after which Mr. Bailey and others of his group rendered assistance in locating and rescuing the body of plaintiff's son from the bottom of the lake near a raft.

Objections to the unanswered interrogatories on the grounds of irrelevancy, etc. were later sustained.

From the depositions, affidavits and answered interrogatories it appeared that plaintiff's son had probably gone from the shore to the raft in the middle of the lake by way of a paddle boat and that he may have remained on the raft while other children swam and played, until shortly before time for eating. The other children went to their picnic area. It was noticed that plaintiff's son was not among them, and some went out to look for him. He was not found, and had not shown up when the others had finished their meal. It was first thought that he might be walking about the grounds or in the woods, and a search party went out to look for him, but the hour was growing late and darkness was coming on and the church group became excited and distraught about his absence, and elicited help from the Towers High School faculty group. Athletic coaches from that group (who were near the lake but in another area) located the boy and obtained a resuscitator, but to no avail.

Employees of the dairy were on the property but were about their duties in the buildings and knew nothing of the occurrence until after it had happened. Recreational facilities such as picnic tables, volleyball, basketball and horseshoes and swimming were provided and made available without charge to groups on a reservation basis, but the dairy did not provide supervision of the groups, that being left in each instance to the leader or those in charge of the particular group.

The hearing scheduled for April 3, proceeded without any further objection from either side and without further request for continuance, and on May 16, 1969, the court entered orders sustaining all of the defendants' objections to the unanswered interrogatories, and, at the same time entered orders reciting that upon a consideration of the pleadings on file, the depositions, affidavits and all other evidence presented, the motions for summary judgment were sustained and the complaint was dismissed. From these orders plaintiff appeals. Held:

1. This appeal was originally directed to the Supreme Court because certain constitutional questions were sought to be raised. But that court transferred the appeal to us, in effect holding that no constitutional issue was raised or involved and that the only questions for decision were within our jurisdiction. Herring v. R. L. Mathis Certified Dairy Co., 225 Ga. 653, 171 S.E.2d 124.

2. There is no merit in the several enumerations relative to the proceeding on a hearing of the motions for summary judgment when there were pending certain discovery procedures on which orders had not been entered.

Appellant asserts that she had been delayed in completing discovery because the trial court had ordered that it be suspended pending the outcome of a former appeal to this court. We have searched the record but have found no such order, and none is listed in the portions of the record which were to be omitted from this appeal. We conclude that the order was oral. An oral announcement or direction by a judge is not a judgment until and unless it is reduced to writing. Seabolt v. Seabolt, 220 Ga. 181 (1), 137 S.E.2d 642; Construction & General Laborers Union, Local No. 246 v. Williams Construction Co., 212 Ga. 691(2), 95 S.E.2d 281. Discovery may generally proceed without leave of court. Code Ann. § 81A-126. It could not, of course, proceed in the face of a protective order under § 81A-130(d) or contrary to its provisions. But since no order of the kind is in the record, we are unable to know its provisions.

Conceding, however, that the trial court orally directed suspension of the discovery proceedings pending the former appeal, we do not find, from a careful examination of this record, anything indicating an abuse of discretion in hearing the motions at the time fixed.

Plaintiff's son drowned August 26, 1965. The suit was filed August 26, 1967. There was considerable discovery prior to the first appeal in which our judgment was entered June 14, 1968 and rehearing was denied July 8, 1968. It would seem that additional discovery, if needed, should have been accomplished well in advance of the hearing on the summary judgment motions April 3, 1969. Postponement of the hearings for further discovery was a matter in the sound discretion of the trial court. Code Ann. § 81A-130(d). This rule is recognized in the holding of the Supreme Court in McCurry v. Bailey, 224 Ga. 318, 162 S.E.2d 9 that there should be a postponement where it is sought to obtain the evidence of an identified eye witness to the occurrence-not...