Lockhart v. Beaird

• Court: Georgia Court of Appeals
• Writing for the Court: QUILLIAN; BELL, C.J., and DEEN
• Citation: Lockhart v. Beaird, 195 S.E.2d 292, 128 Ga.App. 7 (Ga. App. 1973)
• Decision Date: 26 January 1973
• Docket Number: No. 1,Nos. 47784-47786,s. 47784-47786,1
• Parties: Fred LOCKHART, Jr. v. Julius, J. BEAIRD. Fred LOCKHART, Jr. v. Geraldine W. DENTLEY. Fred LOCKHART, Jr. v. David L. WARNER

Page 292

195 S.E.2d 292

128 Ga.App. 7

Fred LOCKHART, Jr. v. Julius, J. BEAIRD.

Fred LOCKHART, Jr. v. Geraldine W. DENTLEY.

Fred LOCKHART, Jr. v. David L. WARNER.

Nos. 47784-47786.

Court of Appeals of Georgia, Division No. 1.

Jan. 26, 1973.

Dunaway, Shelfer, Haas & Newberry, L. Robert Lake, Atlanta, for appellant.

Kirby G. Bailey, Atlanta, for appellees.

Syllabus Opinion by the Court

QUILLIAN, Judge.

The instant companion appeals concern property damage suits which arise out of the same accident and involve the same issues. For purposes of clarity, we shall refer to the parties involved in the singular. The plaintiff's complaint set out that the defendant negligently abandoned a 1970 Volkswagen on Interstate Highway 20 resulting in a 7-car collision.

The defendant filed a motion for summary judgment on the grounds that there was no issue as to any material fact. In support of the motion was the defendant's affidavit which contained the following statement: while returning home from his job the defendant's 1970 Volkswagen suffered both a flat tire and mechanical failure; the defendant was in the far left-hand lane of 3 lanes of traffic heading west on Interstate 20 and because of the heavy traffic he was unable to more into the right lane; because of the rail dividing the east and west bound lanes of Interstate 20, the defendant was unable to move his car off the left side of the highway; because of mechanical failure the car did not operate on its own power and the defendant was unable to move it. The affidavit further stated that the defendant turned on his emergency blinker and raised the hood of his automobile; the defendant then left his automobile to get help and returned some minutes later with a wrecker. However, a multi-car collision had already occurred.

By supplemental affidavit the defendant set out that he had not previously had any problems with his car which at the time was only a little over a year old; that he had maintained the car in accordance with the Volkswagen Manual; that the car had passed the State inspection about a month prior to the accident and had been greased and oiled less than a week before the accident; that there was plenty of tread on the tires; that he was not aware of any defects at the time of the accident. The defendant further stated that the automobile was in excellent running condition at the time of the accident.

The trial judge overruled the motion for summary judgment and upon certificate under Section 56(h) of the Civil Practice Act (Code Ann. § 81A-156(h); Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238), appeal was taken to this court. Held:

On motion for summary judgment the defendant, as movant, must produce evidence which negates 'at least one essential element entitling the plaintiff to recovery under every theory fairly drawn from the pleadings and the evidence.' Saunders v. Vikers, 116 Ga.App. 733(2), 158 S.E.2d 324. The proof offered by the defendant in this case failed to establish as a matter of law that the defendant was not negligent in the maintenance of his automobile. The fact that the car was...