Benefield v. Malone

Bell, Presiding Judge.

The plaintiff assigns as error the order of the trial judge overruling her oral motion to dismiss the defendant’s motion for summary judgment. The motion to dismiss was based on the contention that defendant had not specified the grounds upon which the motion for summary-judgment relied within the meaning of Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 104 Ga. App. 219, 223 (2) (121 SE2d 661).

As in Suggs, the motion here merely identifies certain evidentiary material and recites the substance of the language of the summary judgment statute by stating that there exists in this case “no genuine issue as to any material fact” and that movant “is entitled to judgment as a matter of law.” Among other things the motion here identifies and offers as supporting evidence the interrogatories and the answers to the interrogatories which are considered in subsequent divisions of this opinion.

We recognize that the motion is insufficient under the principle announced in Division 2 of the opinion in Suggs. In this status Suggs must be followed or it must be overruled. We have concluded that the rule in Suggs is unsound, tends to nullify the beneficent purposes of the Summary Judgment Act and must be overruled.

A motion for summary judgment is comparable in effect to any pleading, motion or process which permits the entering of a final judgment. It has been specifically compared in precedents to a motion for a directed verdict. McCarty v. National Life &c. Ins Co., 107 Ga. App. 178, 179 (1) (129 SE2d 408); and citations; One in All Corp. v. Fulton Nat. Bank, 108 Ga. App. 142, 144 (132 SE2d 116); Standard Acc. Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574, 575 (136 SE2d 505). Yet neither the language of the statute dealing with directed verdicts nor any appellate decision has required that any particular ground beyond that specified by the statute be stated. From that point on the law and the evidence governs its grant or denial.

A general demurrer as used in Georgia practice is also comparable to a motion for summary judgment. Each of these procedures has its place in the practice and the grant of either is no less fatal and final to the losing party. Yet a general demurrer is effectively presented when it merely asserts that “no cause of action” is stated. “A general demurrer or motion to dismiss in the nature of a general demurrer on the broad ground that the petition or count does not set forth a cause of action covers all reasons or grounds which would support the broad contention. This is true even when, after making the broad averment that the petition or count sets forth no cause of action, in addition thereto, the demurrer goes on and enumerates some particular grounds, the demurrer or motion to dismiss still covers all grounds and cannot be confined to those specifically named in addition to the broad attack made on the petition or count. However, when a demurrer or motion is limited by its content to a particular ground or reason by alleging that the petition or count sets forth no cause of action ‘in that etc.,’ the only question raised is whether the petition or count sets forth a cause of action for the particular reason expressly assigned.” Georgia Cas. &c. Co. v. Reville, 95 Ga. App. 358, 362 (98 SE2d 210). “A general demurrer enables the party to assail every substantial imperfection in the pleadings of the opposite side without particularizing any of them in his demurrer; but if he thinks proper to point out the faults, this does not vitiate it.” Martin v. Bartow Iron Works, 35 Ga. 320, 323; Haygood v. Smith, 80 Ga. App. 461 (56 SE2d 310).

A motion for summary judgment imports nothing more drastic in the judicial process than does a motion for directed verdict or a general demurrer. It is subject to the same safeguards prohibiting abuse. It is designed to facilitate and not retard the correct application of the law. So long as counsel and parties are diligent there is no reason to fear or mistrust the summary judgment procedure. The degree of diligence required in summary judgment is no more or less than that permeating other procedural phases of the law. There is nothing “tricky” about it.

Respondent may resist by doing nothing, relying on the failure of the movant to remove all issues of fact from the case; or by presenting evidence showing an issuable fact. The respondent is not limited by the Summary Judgment Act to mere rebuttal of the movant’s affirmations; his range of resistance to the motion is limited only by the pleadings and he may show anything properly within their ambit which portrays an issuable fact. It should be borne in mind that the trial judge has a wide discretion in allowing either party an opportunity to offer additional evidence including the method of introduction as well as by the grant of additional time although a refusal to do either does not constitute reversible error unless it is made clear that the court abused its discretion. Studstill v. Aetna Cos. &c. Co., 101 Ga. App. 766, 768 (2) (115 SE2d 374). If there is doubt in the trial judge’s mind as to whether the movant has carried the burden of showing there is no substantial issue of material fact, he may require such additional evidence as he deems advisable and prescribe the method by which the additional evidence must be presented. A denial of the motion by the trial judge is never subject to review.

The courts have the responsibility of giving effect to legislative enactments and of keeping the application of statutes as simple as possible. A motion for summary judgment should not be hamstrung by a rule serving as a detriment to its useful purpose. Here the motion for summary judgment contained in its phraseology the essential substance of the summary judgment statute and that is sufficient.

Insofar as it requires elaboration beyond the appropriate language of the statute, the holding in Division 2 of the opinion in the case of Suggs v. Brotherhood of Locomotive Firemen and Enginemen, 104 Ga. App. 219, pp. 223-224, supra, is specifically overruled. In this connection it is appropriate to suggest that the Summary Judgment Act does not change the requirements of pleadings extant in our practice and procedure. Thus, if an absolute bar to an action requiring some sort of special pleas is developed by either the pleadings or the evidence during the course of the hearing on the motion for summary judgment, it is not only appropriate but necessary at that time to take advantage of the bar by utilizing the prescribed method by which the bar is required to be raised. See Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574, 576, supra.

The trial judge did not err in overruling the plaintiff’s motion to dismiss the defendant’s motion for summary judgment.

Exceptions are taken to the order of the trial judge denying the plaintiff’s objections to certain interrogatories propounded by the defendant. Orders denying or requiring answers to interrogatories are reviewable on appeal after final judgment if they have affected the final judgment and are not moot. Fricks v. Cole, 109 Ga. App. 143, 146 (3) (135 SE2d 512).

The purpose of these interrogatories was to determine whether the plaintiff had assigned her cause of action to an insurance company. If the cause had been assigned, the plaintiff as assignor would have no standing to bring the action. Thomas v. Cities Transit, Inc., 98 Ga. App. 694 (106 SE2d 351) and cases cited; Thompson v. Gore, 98 Ga. App. 231, 232 (2) (105 SE2d 359); and see Ernest L. Miller Co. v. Gauntt, 93 Ga. App. 178, 179 (1) (91 SE2d 104). Clearly these interrogatories were within the purview of the discovery proceedings authorized by Code Ann. §§ 38-2108 and 38-2101 (b). We are not here concerned with whether the interrogatroies and the answers would have been admissible in evidence on the trial of the case before a jury, for the questions were designed to discover whether there existed an absolute bar as a matter of law against this plaintiff in the action. For the discovery purpose intended the interrogatories were “reasonably calculated to lead to the discovery of admissible evidence” in the defense of the case. Code Ann. § 38-2101 (b). See Render v. Jones, 104 Ga. App. 807, 808 (2) (123 SE2d 196).

The trial judge properly overruled the plaintiff’s objections to the interrogatories.

The interrogatories and answers were correctly considered by the trial judge as evidence in support of the motion for summary judgment. “Interrogatories and answers thereto may properly be considered when ruling on a motion for summary judgment. We believe this to be an entirely reasonable and proper rule, particularly when answers to interrogatories must be in writing and under oath, and one which we accordingly adopt.” American Airlines, Inc. v. Ulen, 186 F2d 529, 532 (D.C.Cir. 1949). “The rule of the American Airlines case is sound and generally followed.” 6 Moore, Federal Practice ¶ 56.11 [5], p. 2080 (2d Ed. 1953).

The trial judge in his order granting the motion for summary judgment recited that “at the time this petition was filed on April 10, 1963, plaintiff had assigned her cause of action, and therefore did not have the right to sue at that time.” Clearly the grant was based on this hypothesis.

The plaintiff’s answers to the defendant’s second set of interrogatories quotes in full the language of paragraphs 4 and 5 of the “proof of loss” form as signed by the plaintiff as the insured and submitted to the insurer. Without doubt the language of these paragraphs, if the “proof of loss” containing them had been accepted by the insurer, would have effectuated an assignment of the cause of action.

There is no language other than these two paragraphs in either the “proof of loss” or the “loan receipt” forms sufficient to constitute an assignment of the cause.

As the evidence stands in the record, there is nothing to suggest that the “proof of loss” form dated November 13, 1962, unilaterally signed by the insured, was accepted by the insurer until the “loan receipt” agreement was executed by both the insurer and the insured on September 24, 1963. Even then the “loan receipt” agreement expressly recites that paragraphs 4 and 5 of the “proof of loss” were canceled. Further, these two paragraphs were actually stricken from the “proof of loss” form. Thus, on the basis of the present record, these paragraphs could not constitute a part of the settlement between the insured and the insurer. It necessarily follows that neither the “proof of loss” nor the “loan receipt” forms, as these documents appear in the record, resulted in an assignment of the cause of action.

There is nothing else in the record sufficient to have authorized the trial judge to conclude as a matter of law that the plaintiff had assigned her cause of action to another prior to commencing her suit.

The trial court erred in granting the defendant’s motion for summary judgment and entering judgment for the defendant.

It appears that the trial judge dismissed the cross action of the defendant for the sole reason that it had become moot by reason of the grant of the defendant’s motion for summary judgment.

The judgment of the trial judge dismissing the defendant’s cross action is reversed with directions that it be reinstated subject to all objections which otherwise might have been interposed to it.

Judgment reversed on the main bill and reversed on the cross bill.

Jordan, Hall, Eberhardt, Russell and Pannell, JJ., concur. Felton, C. J., Nichols, P. J., and Frankum, J., dissent in part.