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MALONE et al. v. OTTINGER (two cases).
Actions for damages. Fulton Superior Court. Before Judge Holt.
1. The motions to dismiss the appeals are without merit.
2. Where the evidence properly before the trial court on motion for summary judgment showed no negligence by the plaintiffs and no reason or excuse by defendant for her failure to stop her vehicle prior to colliding with the rear of plaintiffs' vehicle, except that she did not know the car ahead had stopped, the trial judge did not err in granting summary judgment for plaintiffs on the issue of liability.
3. An affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered.
These suits arise out of an automobile collision on Atlanta's "North" Expressway. The allegations of both complaints are the same with regard to the events surrounding the collision. The plaintiffs alleged that they are husband and wife and were together in their car with Mr. Ottinger driving and Mrs. Ottinger riding as a passenger. They further alleged that traffic ahead of them on the expressway had stopped and that they too had come to a gradual stop behind it; that while they were stopped, defendant Mrs. Malone, without reducing speed, drove her car into the rear of the plaintiffs' car even though Mr. Ottinger blew his horn and waved his arms at Mrs. Malone to attract her attention. Mrs. Malone's husband, Cecil C. Malone, Jr., was also named as a defendant in both suits, it being alleged that he owned the car which his wife was driving and that she was operating it with his permission as a "family-purpose car."
The defendants denied the material allegations of both complaints and in the action by Mr. Ottinger, by way of further plea and answer, alleged that he, in the exercise of ordinary care, could have avoided injury and damage; that any injury or damage resulted from his own negligence; that such injury and damage, if any, was solely due to accident not caused or contributed to by defendants; and that if there was in fact negligence on the part of the defendants, such negligence was equaled or exceeded by the negligence of plaintiff.
Each of the plaintiffs moved for a summary judgment on the question of liability on the basis of the pleadings, interrogatories, depositions and affidavits in their respective cases, and each motion was granted. The sole enumeration of error in both suits is that the trial court erred in granting the motions.
The evidence adduced at the hearings on the motions for summary judgment is as follows:
Mr. Ottinger by deposition testified that he and his wife were driving north on the North Expressway; that there were three lanes of traffic going north and he was in the middle lane; that traffic in front of him had stopped and he came to a gradual stop behind it; that he looked in his rear view mirror and saw Mrs. Malone coming behind him in the same lane; that she was looking over her left shoulder; that he blew his horn and waved his arms to attract her attention; that she ran into their rear end; and that he heard no brakes before the collision.
Mrs. Ottinger by deposition testified that there were several cars ahead of them and they had come to a gradual stop; that she had just started to ask her husband why he was waving his arm out the window when they were hit.
Mr. Malone could add nothing regarding the accident since he was not present, but did testify in his deposition that he tried to keep the car serviced and in good working condition.
Police Officer Kenneth Young, who investigated the accident, stated by affidavit that he saw no skid marks.
1. The motions by both plaintiffs to dismiss the appeals for failure of the defendants to file transcripts within the prescribed time are without merit. No court reporter's transcript was involved in either case. The depositions, affidavits, etc., necessary for the motions for summary judgment and necessary for the appeals were on file with the clerk of the trial court and a part of the record before the notices of appeal were filed. The delay in transmitting the record to this court was certified by the deputy clerk of the trial court as "due to the stress of work in this office and is no way the fault of either party."
2. The facts of the present case are similar to those in the case of Malcom v. Malcolm, 112 Ga. App. 151 (144 SE2d 188), wherein the grant of a summary judgment for the plaintiff on the issue of liability was held to be erroneous and was reversed. However, in that case there was evidence that the plaintiff, the lead car, stopped so suddenly that the defendant in the following car could not avoid the collision. In the present case the defendant has testified only that she did not know the car ahead of her had stopped. While the party opposing a motion for summary judgment is entitled to a liberal construction in his favor of the pleadings and evidence (McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178 (129 SE2d 408)), the defendant's testimony that she did not know the plaintiffs' car had stopped can not be construed to mean that the plaintiffs' car stopped suddenly.
The case is controlled by Sutherland's Eggs, Inc. v. Barber, 116 Ga. App. 393 (157 SE2d 491), wherein it was held: "Where the evidence showed the plaintiff to be completely free of negligence and the defendant's testimony revealed no legal reason or excuse for his failure to stop the vehicle he was driving prior to colliding with the rear of the plaintiff's automobile, the trial judge did not err in directing a verdict for the plaintiff on the question of liability." See also Pike v. Stafford, 111 Ga. App. 349 (141 SE2d 780), reaching the same result on a motion for summary judgment.
It was also established by the evidence that the automobile Mrs. Malone was driving was a family-purpose automobile and this point is not disputed on appeal.
3. Code Ann. 81A-106 (d) (Ga. L. 1966, pp. 609, 617; 1967, pp. 226, 230) provides that a party's affidavits in opposition to a motion for summary judgment may be served not later than one day before the hearing, unless the court permits them to be served at some other time. We construe this to mean that an affidavit which shows on its face it had been served on the day of the hearing can not be considered as evidence on the hearing unless accompanied by something in the record, such as an order of court, showing that the court has exercised its discretion and allowed the affidavit to be served. Defendant Mrs. Malone stated in an affidavit, among other things, that the plaintiffs' car stopped suddenly and without warning. However, this affidavit shows on its face that it was filed in open court on the day of the hearing. This affidavit was barred by the statute from consideration as evidence. We find nothing in the record allowing its service by the court. The trial court could not consider it in making its determination; nor call this court. See also in this connection Code Ann. 81A-156 (c) in relation to motions for summary judgment wherein it is provided, inter alia, "the adverse party prior to the day of hearing may serve opposing affidavits." (Emphasis supplied).
There was no error in granting the motion for summary judgment on liability in each case.
Hamilton Lokey, Gerald F. Handley, A. M. Risse, for appellees.
Haas, Dunaway, Shelfer & Haas, George A. Haas, Scott A. Ray, for appellants.
Friday May 22 18:41 EDT

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