Miller v. East Ascension Tel. Co.

• Decision Date: 29 May 1972
• Docket Number: No. 8875,8875
• Citation: 263 So.2d 360
• Parties: Douglas MILLER v. EAST ASCENSION TELEPHONE CO., Inc., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 360

263 So.2d 360

Douglas MILLER v. EAST ASCENSION TELEPHONE CO., Inc., et al.

No. 8875.

Court of Appeal of Louisiana, First Circuit.

May 29, 1972.

Rehearing Denied June 26, 1972.

Writ Refused Sept. 20, 1972.

John Rixie Mouton and Ronald E. Dauterive, of J. Minos Simon, Lafayette, for appellant.

Charles Ory Dupont, Plaquemine, and J. Robert Fitzgerald, New Orleans, for appellees.

Before LANDRY, BLANCHE and TUCKER, JJ.

TUCKER, Judge.

In this suit plaintiff, Douglas Miller, seeks to recover from the defendants, East Ascension Telephone Company, Inc. and South Central Bell Telephone Company, damages which he allegedly sustained due to the negligence of the defendants which caused the plaintiff to be unable to complete a long distance call from Jennings, La. to a financier in Gonzales, La. who was averred to be agreeable to furnishing plaintiff the necessary funds to complete a transaction for the construction of a shopping center. When the call failed to go through on June 7, 1970, plaintiff contends he could not consummate his transaction.

The defendant South Central Bell filed a motion for a summary judgment, seeking its dismissal as a party defendant in the suit. Defendant coupled with the said motion affidavits of an electrical engineer and an independent relations manager, both employees of South Central Bell. The tenor of the engineer's affidavit was to the effect that when a telephone caller in Jennings, La. dialed a number in Gonzales, La., which is serviced by the defendant, East Ascension and such caller heard a ringing sound, that the call was carried to and connected with the 'final connector switch' at East Ascension. The other affidavit attested to the fact that the defendants are separate corporations, and though there is an interconnection agreement between the two companies, setting forth a joing provision of toll and other special services, South Central Bell had no control over East Ascension in assigning local numbers and exercised no supervision over the operation of the other company . Therefore, South Central claimed there was no genuine issue of a material fact between it and the plaintiff, and that the suit should be dismissed against it.

The trial court maintained the motion and signed a judgment summarily dismissing South Central Bell as a defendant in the suit. From this judgment plaintiff has perfected this appeal.

The sole issue before this court is the determination of the question as to whether or not the motion for a summary judgment was appropriately and providently granted.

Plaintiff recites several bases for his contention that the trial court was manifestly erroneous in granting the motion. Initially he argues that the affidavits attached to the motion were ineffectual in that the affidavits do not explain why and how the telephone calls made by plaintiff were not completed. Plaintiff further urges that his affidavit to the substantial effect that he was not in possession of sufficient facts to countermand the facts set forth in the affidavits attached to the motion as such facts were within the peculiar knowledge of South Central Bell puts him in compliance with the provisions of LSA-C.C.P. Art. 967. Thirdly, plaintiff maintains that the motion was premature since East Ascension had not answered the suit, and plaintiff has no way of knowing what will be claimed by the other corporation as to the cause for the failure of the calls to be completed. In this connection it was noted that a defense or defenses offered by East Ascension might be adversely affected due to the res judicata status of the summary judgment. Lastly, plaintiff advances the proposition that sustaining such a motion would pave the way for one company to avoid liability by the simple expedience of creating two corporations, with one corporation having charge of one facet or more of the system and the other having charge of the other facets of the system.

For the purpose of this decision we quote in part the applicable provisions of C.C.P. Art. 967 as follows:

'When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.'

As indicated in the case of Penton v. Travelers Insurance Co., 220 So.2d 195 (La.App.1st Cir. 1969) the sole purpose of a motion for a summary judgment is to determine in advance of trial whether a genuine issue of fact exists between the litigants. See also Cheramie v. Louisiana Power & Light Co., 176 So.2d 209 (La.App.4th Cir. 1965) and Boothe v. Fidelity & Casualty Co. of New York, 161 So .2d 293 (La.App.2d Cir. 1964).

With regard to the requirements imposed upon a litigant to successfully oppose a motion for a summary judgment, the jurisprudence clearly delineates that the opponent cannot rely upon the allegations or denials of his petition, but must file countervailing affidavits or give 'stated reasons' why he cannot present facts by affidavit in support of his opposition to the motion for...