Talley v. City Tank Corp.

• Decision Date: 09 March 1981
• Docket Number: No. 60354,60354
• Citation: 158 Ga.App. 130,279 S.E.2d 264
• Parties: TALLEY et al. v. CITY TANK CORPORATION et al.
• Court: Georgia Court of Appeals

Page 264

279 S.E.2d 264

158 Ga.App. 130

TALLEY et al. v. CITY TANK CORPORATION et al.

No. 60354.

Court of Appeals of Georgia.

March 9, 1981.

Rehearing Denied March 30, 1981.

Certiorari Denied May 6, 1981.

Richard C. Freeman III, Atlanta, for appellants.

Howell Hollis, Joe C. Freeman, James M. Poe, Atlanta, for appellees.

CARLEY, Judge.

On May 10, 1975, Jim Talley, an employee of the Sanitation Department of the City of LaGrange (City), was working on a garbage truck which had been manufactured originally by appellee-City Tank Corporation (CTC) and assembled and sold to the City by appellee-Service Systems, Inc. (SSI). The truck had been originally designed and equipped with a rear lifting and loading system operated in the following manner: The truck backed up to a trash container until contact was made between slotted pivot plates attached to the truck and a steel bar or bars, called trunions, running across the top of the container. The container would then be in position between the pivot plates mounted on the truck with the trunions on the container touching the plates and extending beyond them. When thus positioned, a cable attached to a roller mounted on the top of the truck was connected to the rear of the container. The cable would then be drawn upward, pulling the rear of the container off the ground. The weight of the container and the slope of the pivot plates caused the trunions to slide downward into the angled slots of the plates until each trunion became seated in the pivot point of each plate. As thus designed, if the trunions, which extended beyond and to the outside of the plates, began to dismount from the pivot point in the plates, the container would be restrained from lateral movement by the plates. With the trunions engaged in the slots of the pivot plates acting as a pivot bar, the container would be raised to a vertical position and empty by gravity into the truck.

The City, however, had found it necessary to modify the lifting system on its garbage trucks in order to accommodate the design of its trash containers. The modification of the truck on which Talley was working had been made by the City's own maintenance personnel. The LaGrange modification required that the pivot plate as originally designed be almost totally removed and replaced with an entirely different pivot system. Replacing the original design, the new LaGrange system consisted of a "J" shaped bracket plate welded to and extending from the two sides of the back of the truck. Unlike the original openslot plate design, the outside of the "J" bracket was enclosed so that the trunions on the container could not extend through the "J" brackets when resting in the pivot point. Consequently, in order that they could fit freely into and out of the "J" brackets with the enclosed sides, the trunions on the City's trash containers had to be shorter than those contemplated for use with the truck as originally designed. To this end the City found it necessary to also modify trash containers it purchased by shortening the trunions and removing the flanges, if any, from the trunions. Thus, the LaGrange design in this entirety required alteration of both the lifting system of the truck and the containers with which the original system was designed to couple. In short, the only unmodified component of the original lift system was the cable mechanism for hoisting the container after coupling was achieved. The original attachment components, the plates and trunions, whereby the truck and container were engaged so as to form the pivotal axis around which the container was raised and lowered were removed and replaced.

While Talley was working on the redesigned truck in May of 1975, a trash container, which had been hoisted from the ground into position to dump its contents, uncoupled from the rear of the truck and swung laterally without restraint on the end of the hoisting cable. Apparently a shortened trunion had dismounted from the "J" bracket and the then free-swinging container struck and fell on Talley. Talley died some three hours later.

The instant suit was brought against CTC and SSI in 1977 by appellant, Talley's wife, the allegations being that their negligence and defective product had resulted in the death of her husband. After discovery, both CTC and SSI moved for summary judgment. Several continuances later a hearing was held, the trial court heard arguments, and the parties were granted until June 4, 1979, to take depositions and submit affidavits pending consideration of the motion. On July 5, 1979, summary judgment was granted to both CTC and SSI. Thereafter, appellant discovered that a deposition had not been filed and obtained an order vacating the original grant of summary judgment. The trial court then reconsidered the motions and reinstated the grant of summary judgment on August 8, 1979. In September appellant timely filed her notice of appeal from this reinstated order and the case was docketed in this court. Subsequently the trial court entered an order in the case stating that in granting the motions no consideration had been given to two depositions which had been filed under an erroneous docket number until November of 1979, but that, having read them, "none of the testimony ... would alter the Court's granting of the motion for summary judgment." When this case was orally argued in January of 1980 pursuant to the notice of appeal from the order of August 1979, it was our determination that since that order did not recite that the trial court had considered the entire record in granting summary judgment and since it appeared from the record then before us that two depositions were neither opened nor considered by the trial court until after the notice of appeal was filed, the case should be remanded "with the direction that the trial court vacate the previous order granting summary judgment, consider the entire record including all depositions taken in the case, and enter a new order after which the losing party may file a new notice of appeal." This disposition of the appeal was necessary because the November 1979 order of the trial court, reciting consideration of the two depositions, was without effect, having been entered subsequent to the filing of the notice of appeal. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga.App. 525, 531, 258 S.E.2d 139 (1979). Our remand order of January 1980 further stated that "(i)n view of the stipulation by counsel in this court during oral argument, it is ordered that the trial court shall proceed immediately with the consideration and determination of the motion for summary judgment in accordance with this order without the necessity of the filing of a new motion for summary judgment or response thereto."

Pursuant to our remand of the case, on January 16, 1980, the trial court vacated its original order of August 8, 1979. On January 22, 1980, the trial court again granted the appellees' motions for summary judgment, and, in so doing, specifically refused to consider affidavits in opposition to the motion which had been filed in January 1980 after this court had remanded the case for entry of a new order. When it was discovered that the remittitur of this court remanding the case had not in fact been filed in the trial court until February 12, 1980, and not made the order of the trial court until February 18, 1980, a new order was entered on the latter date by the trial court which yet again granted summary judgment to appellees. This order specifically incorporated therein the previous January 1980 orders of the trial court. It is from this February 18, 1980 order that the instant appeal is taken.

1. On January 22, 1980 when the trial court originally reentered summary judgment, it lacked jurisdiction over the case, the remittitur of this court remanding for the entry of a new order not having been filed with the clerk of the lower court. Cf. Hagan v. Robert & Co. Assoc., 222 Ga. 469, 472(2), 150 S.E.2d 663 (1966). Therefore, the order of January 22, 1980 was a nullity. Park v. Minton, 229 Ga. 765, 769(3), 194 S.E.2d 465 (1972). However, we find unpersuasive appellant's argument that the February 18, 1980 order was itself a nullity merely because it made reference to the prior void order and incorporated it by reference. Cases relied upon by appellant do not support her position. Unlike the cases cited by appellant it is clear that the February order in the instant case was entered at a time when the trial court had jurisdiction over the case. Code Ann. § 6-1804. We know of no reason why an order entered at a time when the trial court has jurisdiction may not incorporate by reference a previous order which was void only for the lack of that jurisdiction. It is clear that in compliance with the mandate of this court that a new order be entered the incorporation by reference of the prior void order was done merely to avoid the necessity of reentering yet again a rather lengthy and scholarly order in the case. The February 18, 1980 order was a valid order of the trial court in all respects and did not, as appellant urges, "breathe life" into a void order. On the contrary, the incorporation by reference of the prior order "breathed life" into the trial court's grant of summary judgment, giving the reasons for the ruling while obviating the necessity to reenter at a time when jurisdiction was established the entire text of the voluminous void order. To hold otherwise would place form over substance and this we decline to do.

2. Appellant next urges that it was error for the trial court to refuse to consider certain affidavits submitted by her in opposition to the motions which affidavits were filed in the case during the interim between this court's order of January, 1980, remanding for entry of a new order, and February 1980, when a valid order granting summary judgment was finally entered.

"An affidavit made in opposition to a motion for summary...