Raven v. Dodd's Auto Sales & Service, Inc.

• Decision Date: 29 February 1968
• Docket Number: No. 2,Nos. 43134,43135,s. 43134,2
• Citation: 117 Ga.App. 416,160 S.E.2d 633
• Parties: Barbara RAVEN, by Next Friend v. DODD'S AUTO SALES & SERVICE, INC., et al. Elaine SISSON, by Next Friend v. DODD'S AUTO SALES & SERVICE, INC., et al
• Court: Georgia Court of Appeals

Page 633

160 S.E.2d 633

117 Ga.App. 416

Barbara RAVEN, by Next Friend v. DODD'S AUTO SALES & SERVICE, INC., et al.

Elaine SISSON, by Next Friend v. DODD'S AUTO SALES & SERVICE, INC., et al.

Nos. 43134, 43135.

Court of Appeals of Georgia, Division No. 2.

Feb. 29, 1968.

Rehearing Denied March 18, 1968.

Syllabus by the Court

Upon application of legal principles as set forth in the opinion to the evidence adduced on the motion for summary judgment by one of the defendants, we must hold that the trial court was in error in granting the motion.

Richardson & Chenggis, Platon P. Constantinides, Chamblee, for appellants.

Lokey & Bowden Glenn Frick, Atlanta, for appellee.

PANNELL, Judge.

Appellants Barbara Raven, a minor through her next friend, and Elaine Sisson, a minor through her next friend, brought separate suits against Dodd's Auto Sales & Service, Inc., and David Dodd, as defendants, seeking to recover damages for injuries sustained in an automobile wreck while the defendant, David Dodd, was allegedly demonstrating an automobile belonging to the defendant corporation for the purpose of sale to one of the plaintiffs. Motions for summary judgment were made on March 1, 1967, in each case by Dodd's Auto Sales & Service, Inc., on the grounds that 'David Dodd was not the agent of this defendant at the time and place of the occurrence complained of, and this defendant, therefore, is not a proper party in this action.' Attached to this motion were affidavits of H. C. Dodd, president and sole stockholder of the corporate defendant, and an affidavit of David Dodd, both dated February 23, 1967, the respective affidavits being as follows:

'I am the president and sole stockholder of Dodd's Auto Sales & Service, Inc., 3826 Clairmont Road, Chamblee, deKalb County, Georgia.

'On May 24, 1966, I purchased a 1957 Ford Thunderbird from Mr. R. J. Townley. On May 28, 1966, I sold this Ford Thunderbird to my son David L. Dodd for $800. A true and correct copy of the sales invoice from Dodd's Auto Sales & Service signed by myself and David L. Dodd, is marked Exhibit 'A' and attached hereto as part of this affidavit.

'I understand that David Dodd had a wreck in the Ford Thunderbird on May 31, 1966.

'I certify that David L. Dodd was not employed by Dodd's Auto Sales & Service, Inc. on May 31, 1966 in any capacity whatsoever. On that date neither said company nor I had any interest in the 1957 Ford Thunderbird my son was driving, nor was he operating said vehicle as a servant or employee of myself or Dodd's Auto Sales & Service, Inc.

'This affidavit is given to be used as evidence in the above entitled matter at any and all hearings and trials of same, and particularly as evidence on the hearing of the motion for summary judgment in said case. Further, deponent sayeth not.'

The affidavit of David Dodd was as follows: 'I am the son of H. C. Dodd, the president and owner of Dodd's Auto Sales and Service, Inc. I am 24 years old and am now married and living with my wife, Evenlyn Dodd.

'I was not married in May, 1966, and I was living in my father's home but I was not employed by my father or by Dodd's Auto Sales & Service, Inc.

'On May 24, 1966, my father, on behalf of Dodd's Auto Sales & Service, Inc. traded cars with a Mr. Townley and took in trade a 1957 Ford Thunderbird. I purchased the Thunderbird from Dodd's Auto Sales & Service, Inc. on May 28, 1966 as evidenced by the sales invoice, marked Exhibit 'A' attached hereto and made a part of this affidavit.

'On May 31, 1966, I was riding around in my Thunderbird. I called Barbara Raven and asked if she wanted to go for a ride. After I picked Barbara up at her home on Blackburn Way we drove over on Pine Oak Circle and picked up Elaine Sisson who was a friend of Barbara. I had never met Elaine Sisson before but I had known Barbara Raven for some time.

'After we picked up Elaine Sisson I went south on Northeast Road. We were simply riding around. I did not take them to ride with the idea of selling my car to anyone.

'I have never been employed by Dodd's Auto Sales & Service, Inc. At the time of my collision, I was driving my own car for my own personal pleasure. I was not operating said vehicle in behalf of Dodd's Atuto Sales & Service, Inc. and I was not a servant or employee of said company. Dodd's Sales and Service, Inc. had nothing to do with me or my vehicle on the occasion conplained of.

'This affidavit is given to be used as evidence in the above entitled matter at any and all hearings and trials of same, and particularly as evidence in the hearing of the motion for summary judgment in said case. Further, deponent sayeth not.'

Attached to each of these affidavits as Exhibit 'A' was a paper entitled 'invoice' showing David Lamar Dodd on May 28, 1966, purchased from the defendant corporation a 1957 Ford Thunderbird, the automobile involved in the wreck on May 31, 1966. This instrument showed the 'cash selling price of car' as $800 and as 'balance financed' $800. The space for showing by whom it was financed and method of payment was left blank and provided that 'It is agreed that the title of ownership of said car above described does not pass to me until the final cash payment is made.' This instrument was signed Dodd's Auto Sales & Service by H. C. Dodd and by David Dodd. After the filing of the motion, plaintiff took interrogatories of the defendant corporation and the defendant, David Dodd, the interrogatories being served on April 12, 1967. The defendant, David Dodd, in answer to a question as to where he was employed prior to May 31, 1966, stated 'Except for working with my father at Dodd's Auto Sales & Service, Inc., located at 3826 Clairmont Road, Chamblee, Georgia, and the other jobs as herein set out, I was in the Georgia Penal System from November 1, 1952, to May, 1966, as well as from September, 1961 to August, 1962,' that he purchased the Ford Thunderbird on May 18, 1966, for a consideration of $800, none of which has been paid; that he expected to pay for the car when funds became available, that he had no owner's certificate of vehicle registration, but only a tag receipt, and that from November 1, 1966 to April 8, 1967 he 'did mechanical work with H. C. Dodd for $50 per week.' His interrogatories further showed that while he had had various jobs since the wreck, he was living in a house owned by his father, the rental to be paid 'as soon as funds are available,' and that he had been living at that address since May 31, 1966, and that he was indebted to his father for various sums advanced to him. He denied that the corporate defendant was ever indebted to him during the past three years. The answers to the interrogatories of David Dodd were executed by him on April 27, 1967, and filed the same day. The answers to the interrogatories of the corporate defendant, sworn to by H. C. Dodd, showed that the approximate market value of the Ford Thunderbird on May 24, 1966 was $600 and on May 28, 1966 was approximately $150 to $200. In answer to the question of how the payment of the $800 price of the Ford Thunderbird was made 'on May 28, 1966' the answer was it was 'made on terms as shown by Exhibit 'A' (the sales invoice),' that the corporation had no owner certificate of vehicle registration, only a tag receipt; in answer to the question of whether David Dodd was indebted to the corporation on May 18, 1966, the answer was that an indebtedness was incurred on May 18, 1966 for the purchase of the Ford Thunderbird, that the original amount of the indebtedness was $800, and that the balance owing is $700; the interrogatories stated that David Dodd had never been employed by the corporation, that he was never listed as an employee on any Quarterly Return Form 941 of Internal Revenue Service, and that he had never received a W-2 form from the corporation, and that he was never listed as an employee on any liability insurance policy, workmen's compensation insurance policy, and group and/or life insurance policy. These interrogatories were sworn to April 24, 1967 and filed on April 26, 1967.

Barbara Raven (McClure) made an affidavit as follows:

'In the middle part of May, 1966, I was the owner of a 1964 Chevrolet Impala two door hard top automobile with a bad starter. David Dodd came to my home and pulled my automobile to Dodd's Auto Sales & Service, Inc., at 3826 Clairmont Road, in the City of Chamblee, Georgia, for the purpose of replacing the starter. David Dodd was working at Dodd's Auto Sales & Service, Inc., as a mechanic.

'On or about May 25, 1966, David Dodd brought to my home a 1963 Chevrolet convertible automobile for demonstration purposes and to interest me into purchasing the car. The car belonged to Dodd's Auto Sales & Service, Inc., and David Dodd was working for the company.

'On May 31, 1966, David Dodd brought to my home a 1957 Ford Thunderbird automobile belonging to Dodd's Auto Sales & Service, Inc., for demonstration purposes and to interest me in purchasing it. He was employed by Dodd's Auto Sales & Services, Inc., on that date. This was the automobile which was involved in the collision, the subject matter of this law suit.' The trial court sustained the motions for summary judgment of the corporate defendant in each case.

1. The movant for summary judgment has the burden of showing the absence of any genuine issues of material facts which under applicable principles of substantive law entitled him to a judgment as a matter of law. Moore's Federal Practice, Vol. 6, pp. 23, 35; Holland v. Sanfax Corp., 106 Ga.App. 1, 4, 126 S.E.2d 442. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967; National Screen Service Corp. v. Poster Exchange, Inc. (CA5th, 1962) 305 F.2d 647; Moore's Federal Practice, Vol. 6, p. 2336. See also ...