Southern Bell Tel. & Tel. Co. v. Beaver

• Decision Date: 01 October 1969
• Docket Number: No. 1,Nos. 44716,44717,s. 44716,1
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al. v. Larry E. BEAVER. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al. v. Imojean C. BEAVER
• Court: Georgia Court of Appeals

Page 737

170 S.E.2d 737

120 Ga.App. 420

SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al. v. Larry E. BEAVER.

SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al. v. Imojean C. BEAVER.

Nos. 44716, 44717.

Court of Appeals of Georgia, Division No. 1.

Oct. 1, 1969.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, William E. Eason, Jr., Atlanta, for appellants.

Rary & Rambo, J. C. Rary, Decatur, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Imojean C. Beaver and her husband, Larry E. Beaver, brought separate actions against Southern Bell Telephone & Telegraph Company and Danny Ray Holmes, its employee, seeking recovery of damages occasioned when a vehicle owned by the corporation and driven by the employee struck the vehicle being driven by Imojean C. Beaver from the rear, causing the alleged injuries and damages. In each case, the defendants made joint motion for summary judgment based upon the depositions of the plaintiff, Imojean C. Beaver, taken by the defendants, and an affidavit of the defendant, Danny Ray Holmes. In opposition to the motion for summary judgment, an affidavit of Imojean C. Beaver was submitted. There is no material conflict between her deposition and her affidavit, which showed substantially the following: that she was driving in a northerly direction on the North Expressway in the City of Atlanta between Spring Street and West Peachtree Street at a speed of approximately 20 miles per hour in thickening traffic, that she observed two cars in front of her collide and then she immediately put on her brakes and came to a stop approximately four feet behind the car in front of her, that immediately thereafter her car was struck from the rear causing the injuries complained of, that immediately prior to the collision she did not observe the cars behind her and could not recall, because of her dazed condition immediately after the impact, whether there was only one impact or more than one impact. The affidavit of Danny Ray Holmes was substantially as follows: that he was driving a 1961 Willys Jeep owned by the corporate defendant at the time and place in question and there were no other occupants in the vehicle. The weather was clear and the pavement was dry and the highway was straight and there was a slight grade. The automobile driven by the plaintiff was in front of deponent and proceeding in the same direction in the same lane of traffic, that he was approximately one-and-one-half car lengths behind the plaintiff's vehicle and driving approximately 20 miles per hour when the plaintiff's vehicle suddenly slowed or stopped, that he applied his brakes and at the same time turned the wheels of the Jeep toward the inside lane and the Jeep came to a complete stop approximately three feet from the rear of the automobile of the plaintiff, that the automobile which mas following him and operated by Ernest G. Babich of Pittsburgh, Pennsylvania, then struck his vehicle in the rear, causing it to collide with the vehicle which the plaintiff, Mrs. Beaver, was driving. The trial judge denied the motions for summary judgment. Held:

1. 'The purpose of the Summary Judgment Act of 1959 is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.' Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442.

2. (1) Unitl the moving party produces evidence or materials which prima facie pierce the pleadings of the opposing party, no duty rests upon the...