Williamson v. Perret's Farms, Inc.
| Decision Date | 03 April 1973 |
| Docket Number | No. 47853,No. 3,47853,3 |
| Parties | Gaston B. WILLIAMSON v. PERRET'S FARMS, INC., et al |
| Court | Georgia Court of Appeals |
Peek, Whaley & Haldi, Glenville Haldi, R. Joseph Costanzo, Jr., Atlanta, for appellant.
Henning, Chambers & Mabry, Walter B. McClelland, Atlanta, for appellees.
Syllabus Opinion by the Court
Gaston B. Williamson brought an action in tort in the Superior Court of Cobb County against Perret's Farms, Inc., Gibson Discount Stores, Inc., and others, alleging (in Par. 2(b)): 'The defendant Perret's Farms, Inc. is a resident of 6705 Dunn Avenue, Jacksonville, Florida, transacts business in this state, but maintains no agent for service of process in this State, and may be served by second original at 6705 Dunn Avenue, Jacksonville, Florida in accordance with Ga.Code 24-113.1 and 24-115, and is consequently subject to the jurisdiction of this court' and (in Par. 3) '(o)n or about February 2, 1972, the plaintiff Gaston B. Williamson did enter the Gibson Discount Store in Vidalia, Georgia and while in that store did approach the milk cooler owned by defendant Perret's Farms, Inc. and maintained by the defendants Perret's Farms, Inc. and Gibson Discount Stores, Inc., and while engaged in an attempt to obtain milk from the cooler was severely, permanently and painfully injured by the explosion of a fluorescent light bulb attached to the interior of the milk cooler.' Negligent maintenance and use of the cooler was alleged as the cause of plaintiff's injuries. Summons was issued against all the defendants. In an affidavit of service, entitled in the cause, M. J. Pope, under oath, made a return of service reciting 'That he is a regularly appointed, qualified and acting Deputy Sheriff of the County of Duval, in the State of Florida, over the age of twenty-one years, not a party to nor in any way interested in the above entitled action and competent to be a witness therein; that he personally served the Summons & Complaint upon George Sheffield, Office Manager, Perret's Farms, Inc. by delivering to and leaving with the said George Sheffield, Office Manager personally at 3:00 p.m., April 28, 1972, at 6705 Dunn Ave., Jacksonville, Florida, the said Summons & Complaint that he knew the said George Sheffield, Office Manager to be the same person mentioned as he admitted his identity.' (The italicized matter indicates blank spaces lettered in on a printed form.)
After an extension of time for filing defenses, Perret's Farms, Inc., along with its answer, filed a paper entitled 'Motion to Dismiss and motion to quash return of service on Perret's Farms, Inc.' containing the following grounds:
'(1) That Perret's Farms, Inc. is not subject to the jurisdiction of this Court as provided by law.
(2) That service has not been properly perfected upon Perret's Farms, Inc. as provided by law.
(3) That the venue as to this defendant, Perret's Farms, Inc., is improper in that the plaintiff has not complied with Georgia Code Annotated, Section 24-116 and has not brought this action in the county wherein this defendant conducts any business whatsoever, or wherein the alleged act or omissions on behalf of this defendant occurred, or wherein this defendant owns any real property situated within the State of Georgia.
(4) That Gibson's of Vidalia, Inc., and Gibson Discount Stores, Inc. are two separate and distinct legal entities and therefore jurisdiction may not be obtained over this Defendant, Perret's Farms, Inc., pursuant to the provisions of Georgia Code Annotated, Section 2-4904, Const. art. VI, § XIV, par. 4.
(5) That the plaintiff's complaint fails to state a claim for which relief can be granted against Perret's Farms, Inc., and therefore should be dismissed.'
Attached to the motion was an affidavit of Donald E. Perret, which recited that he was President of Perret's Farms, Inc., and that the facts set out therein were made on his personal knowledge. The affidavit then stated 'The defendant, Perret's Farms, Inc., does not conduct any business whatsoever or own, use or possess any real property situated in Cobb County, Georgia.' The motion and supporting affidavit were duly served on plaintiff-appellant on the same date it was filed. The motion was set down for hearing on July 20, 1972, but was continued. The motion was again set down to be heard on September 28, 1972 but was continued until October 5, 1972 by motion of the plaintiff's present counsel who made his appearance in the case on September 25, 1972, other counsel having withdrawn from the case. On September 25, 1972, plaintiff served defendant Perret's Farms, Inc. with interrogatories relating to its activities and business if any done within this state. The order continuing the hearing on the motion from September 28th to October 5th provided and ordered that Perret's Farms, Inc. have 30 days from the date the motions are heard in which to answer the interrogatories and that there would be no further continuance except for cause.
At the hearing on October 5th, the court considered the affidavit of Donald E. Perret and announced that it was treating the motion as a motion for summary judgment, instead of a motion to dismiss. Whereupon, the plaintiff objected to the hearing proceeding and made a motion for a continuance on the grounds that he had not had 30 days notice as provided by Section 56(c) of the Civil Practice Act (Code Ann. § 81A-156(c)). Plaintiff also objected to the hearing proceeding without first requiring Perret's Farms, Inc. to answer the interrogatories previously propounded and served. The trial judge overruled both motions and sustained 'the motion to dismiss and motion to quash return of service on Perret's Farms, Inc., considered as a motion for summary judgment, and 'sustained' the defendant Perret's Farms, Inc.'s motion for summary judgment and 'dismissed' Perret's Farms, Inc. as a defendant in the above styled case with all costs upon the plaintiff.'
The plaintiff appealed enumerating the following errors:
1. The affidavit of the President of Perret's Farms, Inc., that Perret's Farms, Inc., 'does not conduct any business whatsoever or own, use or possess any real property situated in Cobb County, Georgia.' In using the present tense 'does,' necessarily refers to the time the affidavit was made, May 29, 1972, and is, therefore, totally useless as evidence on the essential issues raised by the motion. And since the defendant corporation has denied it is a resident of the State of Florida and has also denied that it 'does not have an agent in the State of Georgia on whom service may be perfected' there are no admitted material facts shown by the pleadings. This leaves us with a case absolutely devoid of any evidence or proof upon which the trial court could have based his sustaining of the various 'speaking' grounds of the motion. It appears, therefore, that, irrespective of the error in considering the grounds 1, 2, 3 and 4 as having been converted to a motion for summary judgment because of consideration of the affidavit (see Knight v. U.S.F. & G. Co. et al., 123 Ga.App. 833, 834, 182 S.E.2d 693; Hemphill v. Con/Chem, Inc., 128 Ga.App. 590, 197 S.E.2d 457; Boyd Motors, Inc. v. Radcliff, 128 Ga.App. 15, 195 S.E.2d 291; Section 12(b) of the Civil Practice Act (Code Ann. § 81A-112(b); 2A Moore's Fed. Practice, p. 2297), and assuming, without deciding, that the consideration of said...
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