Southern Protective Products Co. v. Leasing Intern., Inc.

• Decision Date: 04 June 1975
• Docket Number: No. 1,No. 50329,50329,1
• Parties: SOUTHERN PROTECTIVE PRODUCTS COMPANY v. LEASING INTERNATIONAL, INC
• Court: Georgia Court of Appeals

Page 725

216 S.E.2d 725

134 Ga.App. 945

SOUTHERN PROTECTIVE PRODUCTS COMPANY v. LEASING INTERNATIONAL, INC.

No. 50329.

Court of Appeals of Georgia, Division No. 1.

June 4, 1975.

Horton, Malone, Crim & Latimore, D. W. Latimore, Jr., Atlanta, for appellant.

Moffett, Henderson, Jones & Barnwell, Taylor W. Jones, Stephen C. Whicker, Atlanta, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

This appeal involves a lease agreement between the appellant plaintiff in the lower court and the appellee defendant in the lower court, wherein the plaintiff leased two trucks, a GMC van on October 30, 1972, and a Dodge truck on November 28, 1972. Both trucks were leased under a master lease agreement executed by the parties prior to the actual leasing of these two trucks. The drive shaft 'flew off' the Dodge truck on three separate occasions while being operated by the plaintiff and caused damage to nearby vehicles owned by plaintiff. Plaintiff brought suit against the defendant seeking the cost of repairs for the other vehicles, the cost of renting a replacement truck while the Dodge truck was being repaired, and those costs of repairs to the Dodge not covered by the manufacturer's warranty.

The defendant answered the complaint and filed a counterclaim against the plaintiff for the latter having prematurely terminated the lease of the GMC van. It appears that the plaintiff had returned the GMC van to the defendant in October, 1973, two years prior to the expiration of the lease on this vehicle. Plaintiff contends that it was told by an employee of the defendant that the premature termination of the lease would result only in a loss of plaintiff's security deposit on the van. The defendant, however, counterclaimed for its damages caused by the premature termination under the terms of the contract over and above the loss of the plaintiff's security deposit.

The defendant moved for summary judgment as to both the plaintiff's claim and its counterclaim, and attached to the motion a copy of the master lease agreement, the GMC lease order showing a three-year leasing term, the manufacturer's warranty for the Dodge truck, and other evidence and affidavits. The plaintiff did not respond by affidavits or otherwise, and after a hearing, the trial judge entered a judgment in favor of the defendant as to the plaintiff's complaint and as to its counterclaim. Held:

1. Even though the plaintiff did not submit evidence in opposition to the defendant's motion for summary judgment, the granting of the motion is not 'appropriate' within the meaning of Rule 56(e), CPA (Code Ann. § 81A-156(e)), unless 'the moving party is entitled to a judgment as a matter of law.' Rule 56(c), CPA (Code Ann. § 81A-156(c)). We must therefore 'carefully scrutinize' the movant's papers to determine whether it is entitled to judgment as a matter of law, regardless of the opponent's response or lack thereof. Henderson v. Atlanta Transit System, 133 Ga.App. 354(1), 210 S.E.2d 845; Ray v. Webster, 128 Ga.App. 217, 196 S.E.2d 175; Watkins Products, inc. v. England, 123 Ga.App. 179(3), 180 S.E.2d 265; Colonial Stores v. Turner, 117 Ga.App. 331, 160 S.E.2d 672; 6 Moore's Federal Practice (2d Ed.) § 56.23.

2. It is not a prerequisite for the review of the enumerated errors, that the plaintiff object to or make an issue of these errors at the trial below, when the alleged errors are asserted as reasons why the trial court should not have granted the defendant's motion for summary judgment. Rule 56(h), CPA (Code Ann. § 81A-156(h)).

3. As to the Dodge truck, the plaintiff claims its damages were the result of the defendant's breach of the bailor's warranty of Code § 12-204, in that the truck was not 'free from any secret fault' and was 'unfitted for the purposes for which it was hired.' The defendant claims that such warranty was disclaimed by the following language in the master lease agreement: '2. Maintenance and Repairs. Lessee shall keep and maintain each vehicle in good operating condition and working order . . . Lessor will be responsible for such maintenance costs as are assumed by it on Lessee's Order and except for such costs, Lessee will pay for all maintenance not covered by the manufacturer's warranty . . . 8. Indemnity. Lessee shall defend, indemnify and hold harmless Lessor . . . from and against any damage, loss, theft, or destruction of any vehicle, and against all losses, . . ., damages, . . ., costs and expenses of every kind and nature . . . arising out of and in connection with the use, condition or operation of vehicles during the lease term. 9. Lessee's Damages. Lessor shall not be responsible to Lessee, . . . for any loss of business or other damage caused by any interruption of the service herein to be furnished by Lessor, or for the time lost in the repairing or replacing of any vehicles, . . . nor for any other losses or damages sustained by Lessee hereunder, except as specifically provided in Lessor's undertaking in this Agreement . . .'

The above language pertaining to maintenance and repairs appears to apply only to routine maintenance items, and not such extraordinary repairs as were required in the present case. Furthermore, the defendant failed to include the 'Lessee's Order' for the Dodge truck, so we cannot determine what maintenance cost it assumed under this language.

However, in the remaining language above quoted, we find that defendant has legally disclaimed liability for the damages claimed by plaintiff. It has been held that similar exculpatory clauses 'are not favored by the law and will be strictly construed against the indemnitee.' Carlton v. Hoskins, 134 Ga.App. 558, 215 S.E.2d 321; Ragland v. Rooker, 124 Ga.App. 361, 183 S.E.2d 579....