Opinion
43229.
ARGUED NOVEMBER 7, 1967.
DECIDED JANUARY 4, 1968. REHEARING DENIED JANUARY 17, 1968.
Action for damages. Clayton Superior Court. Before Judge Kemp.
Alston, Miller Gaines, Kenneth W. Gilchrist, Ronald L. Reid, for appellant.
Allen Baker, Verlyn C. Baker, James C. Abernathy, for appellee.
In order to successfully oppose a motion for summary judgment under Code Ann. § 110-1206 on the ground of being unable at the time of the hearing to present acceptable evidence that there is a genuine issue of fact, the opposing party's affidavit must show good reasons why he cannot then present facts essential to justify his opposition.
ARGUED NOVEMBER 7, 1967 — DECIDED JANUARY 4, 1968 — REHEARING DENIED JANUARY 17, 1968. — CERT. APPLIED FOR.
Catherine Frances McCurry brought an action against Charles Alvin Bailey for damages for the wrongful death of her husband caused by the defendant's alleged gross negligence. The petition alleges that the plaintiff's decedent was a passenger in his own automobile, which was being driven by the defendant. The defendant's alleged negligence consisted, generally, of excessive speed, failure to keep a proper lookout and wilful disregard of the hazard.
The defendant demurred to the petition and filed an answer, claiming in the answer that the plaintiff's decedent, rather than he, had been driving the automobile at all material times. The defendant filed a motion for summary judgment, supported by his affidavit, stating that, at the time and place referred to in the petition, the automobile was not being operated by the defendant but was being driven by McCurry, the plaintiff's decedent. The plaintiff filed a response to the motion and an affidavit of the investigating police officer, to the effect that he had found the defendant in the driver's seat, but could not swear who had been driving. The court granted the summary judgment, based upon the pleadings and all of the affidavits on file, but allowed the plaintiff 15 days in which to file any additional affidavits before the judgment by its terms became final.
The plaintiff timely amended her response, alleging that in a deposition presented at a hearing before the State Board of Workmen's Compensation, after which the award was appealed to Clayton Superior Court, the defendant had testified that he did not remember the collision and was not sure who had been driving at that time. In the deposition, the defendant merely reiterated that he was not driving but on the contrary was in the back seat of the automobile. He further stated in answer to a question "Who was driving at that time?" — "McCurry [plaintiff's decedent], as far as I know." The plaintiff also filed additional opposing affidavits as follows: The aforesaid police officer stated that he had found the defendant with the lower portion of his body in the driver's seat and his upper portion partially in and partially out of the left front door and that, in his opinion, none of the occupants of the automobile were capable of walking or talking due to their semi-conscious condition; a wrecker operator, stated that, when he arrived on the scene, the only person on the front seat was a person under the steering wheel in the driver's seat; another police officer stated that he assisted in removing a person from the driver's seat, the lower portion of whose body was under the steering wheel, that the left front and rear doors of the automobile were open and one other person was partially out of the left rear door, and that none of the occupants were capable of moving under his own power because they were not conscious.
The court conducted another hearing on the defendant's motion at which time the plaintiff introduced the affidavit of one of her attorneys, who swore that he had made diligent but unsuccessful effort to locate the driver and the owner of the tractor-trailer involved in the collision, that the owner's company was no longer doing business in its previous location, and that affiant had information which led him to believe that said driver could be located in time for trial of the case.
At the conclusion of the hearing the court overruled the motion for summary judgment, from which judgment the defendant appeals.
1. The trial court's first ruling on the motion did not constitute the law of the case, since it was conditional. It specifically provided that the order was stayed for 15 days to allow the plaintiff to obtain additional affidavits, if she could, to rebut the defendant's motion and that, upon her failure to do so, then the order should be of full force and effect. The plaintiff having timely filed additional affidavits, the first order, by its terms, never became effective.
2. The summary judgment law provides protection if a party who has good grounds for opposing a motion for summary judgment is unable at the time of the hearing to present acceptable evidence that there is a genuine issue of fact. The remedy is to set forth these reasons in an affidavit. Code Ann. § 110-1206. "If the reasons are adequate the trial court has a broad discretion to determine whether to deny the motion for summary judgment, order a continuance, or make some other just disposition." 6 Moore's Federal Practice 2852, § 56.23. "To obtain relief under this provision, however, the opposing party must show good reasons why he cannot present facts essential to justify his opposition." 3 Barron Holtzoff, Federal Practice and Procedure 174, § 1238. It is certainly well settled that the opposing party is not entitled to hold back his evidence until the trial upon the assertion that he may possibly find some unidentified witness. 6 Moore's Federal Practice 2854, § 56.23. This would emasculate the very purpose of summary judgment. The opposing affidavit presented here fails to set forth sufficient good reasons to justify the exercise of the trial court's discretion under Code Ann. § 110-1206.
3. The appellee contends there is a genuine issue on the material fact as to whether the defendant was driving the automobile at the time of the collision even though the defendant testified he was not driving. We disagree. While there is some circumstantial evidence from which it might be inferred that the defendant was driving, it did not demand a finding to that effect. The evidence shows a severe collision which resulted in both the front and rear left doors being open. It fails to establish where the body of the plaintiff's decedent was found. Since the defendant gave positive testimony that he was not driving, which was not contradicted or impeached, the circumstances relied on by the plaintiff are insufficient to make a jury question as to whether or not the defendant swore the truth. Myers v. Phillips, 197 Ga. 536, 542 ( 29 S.E.2d 700).
The defendant's affidavit was not impeached by his testimony on deposition before the Workmen's Compensation Board. The material issue in this case is not who was driving but whether the defendant was driving. Both in his affidavit and on deposition, the defendant's testimony is positive and unequivocal that he was not driving. While his affidavit states without equivocation that McCurry was driving, and his testimony on deposition was that "McCurry, [was driving] as far as I know," this is not an inconsistent statement which could be considered for purposes of impeachment.
The trial court erred in its judgment overruling the defendant's motion for summary judgment.
Judgment reversed. Eberhardt, J., concurs. Felton, C. J., concurs in Divisions 1 and 2 and concurs specially as to Division 3.
I concur in the judgment and in Divisions 1 and 2 of the opinion. I concur in the ultimate conclusion in Division 3 that there was no genuine issue of fact for a jury but for a different reason. I think that the defendant's testimony before the State Board of Workmen's Compensation to the effect that "McCurry [was driving] as far as I know" (emphasis supplied) is inconsistent with his affidavit on summary judgment that McCurry was driving, and would have been sufficient to impeach the defendant's testimony if proper groundwork had been laid for its consideration in this case. The defendant was not faced with his inconsistent statement by deposition or otherwise and until that was done the matter in counter showing against the motion for a summary judgment insofar as the effort to impeach the defendant was concerned was not admissible in evidence as the record now stands and there is no legal showing that there was a genuine issue of fact to be decided by the jury.