Smith v. Mullinax

• Decision Date: 17 November 1970
• Docket Number: 2,3,45387,Nos. 1,Nos. 45386,s. 45386,s. 1
• Citation: 122 Ga.App. 833,178 S.E.2d 909
• Parties: Earl SMITH et al. v. Clara MULLINAX. Earl SMITH et al. v. A. J. MULLINAX
• Court: Georgia Court of Appeals

Page 909

178 S.E.2d 909

122 Ga.App. 833

Earl SMITH et al. v. Clara MULLINAX.

Earl SMITH et al. v. A. J. MULLINAX.

Nos. 45386, 45387.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 17, 1970.

Syllabus by the Court

The harsh sanctions (dismissal or default) of Code Ann. § 81A-137(d) against a party for wilfully failing to appear before an officer for the taking of a deposition apply only where there is a conscious or intentional failure to appear as distinguished from an accidental or involuntary non-compliance.

In two actions for damages resulting from a collision between plaintiffs' automobile and a truck, defendants appeal from the grant of summary judgment on the issue of liability.

There are four defendants in this action. Smith is the owner of the truck and Hill, an employee of Smith, was the driver. At the time of the collision, the truck was being operated under lease of the truck with the driver to defendant Arrow Transfer, Inc. Its insurance carrier, Continental Insurance Company, was later included as a defendant.

The collision occurred on June 24, 1967. Suit was filed July 18, 1968. Driver Hill filed a timely answer and other pleadings. Through his attorney he was given notice to appear for a deposition on March 20, 1969. The attorney was unable to locate him. Hill had changed employers and moved some time in early 1969. He had still not been reached by May 29, 1969, the second date set for the deposition, as he was on a long distance trip. On June 24, 1969, the court entered a default judgment against him (liability only) based on Code Ann. § 81A-137(d) (wilful failure to appear for a deposition).

Plaintiffs thereafter on September 10, 1969 filed a motion for summary judgment on liability against the remaining defendants. The court granted the motion as to Arrow and Continental and gave a certificate of immediate review.

Kenyon, Gunter, Hulsey & Sims, William B. Gunter, Edgar H. Sims, Jr., Gainesville, for appellants.

Reed & Dunn, R. Elliott Dunn, Jr., Gainesville, Charles H. Hyatt, Decatur, for appellees.

HALL, Presiding Judge.

1. The motions to dismiss the appeals are denied. The default judgment on liability against Hill which was entered on July 9, 1969 was not a final judgment subject to direct appeal and could not become the law of the case by virtue of not appealing within thirty days from the order. See State Highway Department v. Rosenfield, 120 Ga.App. 439(1), 170 S.E.2d 837.

2. Several of the enumerations deal with a contended lack of jurisdiction and insufficiency of process as to Arrow and, by extension, as to its insurer Continental. It is not necessary to list the extensive evidence or relate the arguments advanced by defendants on this subject. The documentary evidence in the record supports the trial court's finding that the named defendant Arrow Transfer, Inc. had an agent for service of process in Georgia prior to the filing of this suit and that this agent was properly served. The court did not err in overruling the objections and motions pertaining to this matter.

3. The summary judgments against Arrow and Continental are based upon the default judgment (liability only) against Hill. Defendants contend the default judgment against Hill was improper since his failure to appear for the taking of depositions was not 'wilful' as required by § 81A-137(d), but resulted from his lack of actual notice. The court's order simply recited that Hill failed to appear. There was no mention of wilfulness, nor does the evidence suggest it.

There are no Georgia cases directly on point, but Code Ann. § 81A-137(d) is identical to Rule 37(d) of the Federal Rules which had been interpreted to require 'a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.' Weston & Brooker Co. v. Continental Casualty Co., 4 Cir., 303 F.2d 91; Brookdale Mill, Inc. v. Rowley, 6 Cir., 218 F.2d 728; 4 Moore's Federal Practice, § 37.04. Moore explains that this is because subdivision (d), unlike the other subsections of the rule, provides only for the harsh sanctions of dismissal, default or the striking of pleadings. 'If the failure is not wilful, the rule has no application. Indeed constitutional doubts would be raised were the drastic sanctions of this subdivision to be applied except to a wilful failure.' 2A Barron & Holtzoff, 553, 554, § 855. See Societe Internationale Pour Participations Industrielles Et Commercials, S.A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255.

It is true that the trial court has a discretion in whether the sanctions of dismissal or default should be entered under Code Ann. § 81A-137(d). Hohlstein v. White, 117 Ga.App. 207(1), 160 S.E.2d 232; Williamson v. Lunsford, 119 Ga.App. 240(1), 166 S.E.2d 622. However, in considering another subsection of the Rule, the Georgia Supreme Court has also recognized the desirability of choosing the less harsh measure when circumstances warrant, stating that 'Justice is the object of all judicial investigations.' Milholland v. Oglesby, 223 Ga. 230, 154 S.E.2d 194.

Since Hill had no actual notice to appear for a deposition and the record discloses he has subsequently been located and in now available for discovery and trial, we cannot believe justice would be served in this case by imposing a sanction which would preclude a trial on the merits. Under similar facts, the 10th Circuit Court of Appeals reversed the default as an abuse of discretion. Patterson v. C.I.T. Corp., 352 F.2d 333.

As the court abused its discretion in entering the default judgment against Hill, it follows, of course, that the court erred in granting summary judgment against Arrow and Continental since their liability is only vicarious to Hill's.

Judgment reversed.

BELL, C.J., JORDAN, P.J., EBERHARDT, DEEN and WHITMAN, JJ., concur.

PANNELL, QUILLIAN and EVANS, JJ., dissent.

EVANS, Judge (dissenting).

I cannot concur in the opinion as written nor in the judgment of reversal. To logically discuss the case I must review the facts.

The defendant, Pat N. Hill, was served personally with copy of summons and complaint by W. L. Reed, Jr., Sheriff of Hall County, and he appeared in court in response to this service by filing defensive pleadings, signed by his counsel of record. Thereafter, on the 5th day of March, 1969, plaintiff, in writing, notified said Hill's counsel that Hill's depositions would be taken on the 20th day of March, 1969. Hill did not appear and the plaintiff moved for sanctions, which was to strike the answer of defendant Hill and for the entry of a default judgment. The court ordered a hearing on the motion, and at this hearing, granted a continuance to allow counsel for defendant additional time to locate his client. Thereafter the court struck the defendant's answer and entered default judgment against this defendant on July 9, 1969. The written notice to Hill's counsel as to the taking of depositions was in effect notice to Hill, himself. The law specifically provides for service of such notices upon the counsel, and not on the party. See § 5 C.P.A. (Ga.L.1966, pp. 609, 615; 1967, pp. 226, 229; Code Ann. § 81A-105(b)). Defendant's only excuse for not appearing was the failure of counsel to contact the defendant in time to appear and give depositions, yet the court continued the case, allowing additional time for contacting the defendant.

1. No reason or justification is given for Hill's failure to keep in contact with his counsel after he had appeared in court by filing defensive pleadings. His counsel knew that he was subject to being deposed, and there was a duty on the part of client and counsel to keep in touch with each other so they might respond to legal and proper requirements, such as interrogatories and depositions.

The majority opinion states that there was not a 'wilful' failure to appear for the depositions. But this overlooks the wilful conduct of the client in not keeping in touch with his counsel. Such failure, in my opinion, is such great negligence as to amount to 'conscious indifference to consequences' and it has been held by our appellate courts that such conduct may be equated to wilful misconduct. Frye v. Pyron, 51 Ga.App. 613(3), 181 S.E. 142; King v. Smith, 47 Ga.App. 360, 366, 170 S.E. 546; Dixon v. Merry Bros., 56 Ga.App. 626, 629, 193 S.E. 599. It has been held that 'reckless indifference to the rights of others * * * is equivalent to an intentional violation of them. The act must have been done under such circumstances as show a disregard for the rights of others, or an intention to set at defiance the legal rights of others, or the ordinary obligations of society.' See Charleston & W.C. Ry. Co. v. McElmurray, ...