Sanders v. Alpha Gamma Alumni Chapter of Delta Phi Fraternity, 39313
| Decision Date | 13 June 1962 |
| Docket Number | No. 1,No. 39313,39313,1 |
| Citation | 106 Ga.App. 137,126 S.E.2d 545 |
| Parties | Susan L. SANDERS v. ALPHA GAMMA ALUMNI CHAPTER OF the DELTA PHI FRATERNITY, etc., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
On motion for summary judgment, where the petition and the answer construed together present an issue as to a material fact, and this issue in not conclusively eliminated by uncontradicted testimony offered at the hearing, the issue remains in the case and a judgment granting the motion must be reversed.
Plaintiff brought this action for personal injuries against an incorporated alumni chapter of a fraternity at Georgia Tech, the active chapter of the fraternity, and others. The petition alleged: that the plaintiff went to the fraternity house as an invited guest of the owners and tenant of the premises; that the fraternity and members of the fraternity had what is called a 'rush dance'; that the fraternity house was dimly and inadequately lighted, with one large downstairs space in which there were many host members of the fraternity, guests, and an orchestra; that there were sliding glass panels and one fixed glass panel constituting a partition which divided the main room from the patio; that all the glass panels had been removed except one, which was fixed and not easily removable; that plaintiff, after walking back and forth through the open spaces in which on the evening of her injury there were no glass panels, being unable to see the one fixed glass panel directly in her path, walked against and through it; that the fixed glass panel was set between two small mullions or posts and there were curtains or drapes hanging down that hid the two posts between which the five foot panel of glass was fixed; that the fixed glass panel was invisible and was not marked or indicated in any way; that she had no way of seeing it; and she was not cognizant of its presence.
The plaintiff's deposition was taken by the defendants and introduced in evidence at a hearing on the defendants' motion for summary judgment. The defendants moved for summary judgment on the ground that there was no substantial issue as to any material fact and that, under the pleadings and the deposition of the plaintiff filed in the case, there was no evidence or admitted fact sufficient to sustain any verdict or judgment in favor of the plaintiff in this case against them.
The trial judge granted the motion for summary judgment and entered judgment for the defendants. Plaintiff excepted to this grant and judgment.
Hugh G. Head, Jr., Atlanta, for plaintiff in error.
T. J. Long, Ben Weinberg, Jr., Atlanta, for defendant in error.
We are called upon in this case to consider the possibility of error in the granting of a motion for summary judgment where the only documents appearing in the record are the petition, the answer, and certain portions of the deposition of the plaintiff, Mrs. Susan L. Sanders. The deposition was taken by the opposite parties on cross-examination, and those fragments of it offered in evidence at the summary judgment hearing were tendered by the movants in support of the motion. No evidence of any kind was offered by the plaintiff in opposition to the motion.
It is urged in the defendants' brief that the case of Brand v. Pope, 103 Ga.App. 489, 119 S.E.2d 723 controls this case and demands affirmance of the judgment of the trial court granting the motion for summary judgment.
The Brand case was brought to recover for injuries sustained when the plaintiff walked through a glass door. The petition there and the one here are similar in most of their relevant aspects. In each the glass was alleged to be neither visible nor obvious, and where located, constituted a dangerous and unsafe condition. One of the holdings in Brand was that a failure to negate by allegations the presence of metal or other hardware in the construction of the door or of a track for the door to move upon as it was being opened or closed, was sufficient to put the plaintiff on notice of the presence of the door. In this...
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...dangerous condition.' Colonial Stores, Inc. v. Wilson, 118 Ga.App. 120, 122, 162 S.E.2d 750, 751. See also Sanders v. Alpha Gamma Alumni Chapter, 108 Ga.App. 137, 126 S.E.2d 545; Lucas v. Mixon, 116 Ga.App. 146, 156 S.E.2d 375; Peacock v. Adams, 118 Ga.App. 728(1), 165 S.E.2d 664. The defen......
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...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. 21......
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...Code § 61-112 as to the landlord's duty. Brand was distinguished and not followed in two glass door cases, Sanders v. Alpha Gamma Alumni Chapter, 106 Ga.App. 137, 126 S.E.2d 545, and Massey v. Hilton Heights Park, 121 Ga.App. 214, 173 S.E.2d 396. In the latter case, the minor plaintiff and ......
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