Opinion
44044.
SUBMITTED NOVEMBER 8, 1968.
DECIDED DECEMBER 5, 1968.
Action for damages. Fulton Superior Court. Before Judge Shaw.
Gilbert Carter, Fred A. Gilbert, Warren S. Gritzmacher, for appellant.
Hicks, Eubanks Scroggins, Frank W. Scroggins, for appellee.
1. From the affidavits and deposition submitted in support of its motion for summary judgment it affirmatively appears that the defendant was not guilty of the acts of negligence alleged in the complaint. Hence, the trial judge did not err in granting a summary judgment.
2. When a deposition is incorporated in a motion for a summary judgment by reference, it becomes a part of the motion that may be considered upon the hearing of the same and need not be introduced into evidence.
SUBMITTED NOVEMBER 8, 1968 — DECIDED DECEMBER 5, 1968.
Roy Watson Milam filed suit against Miss Georgia Dairies, Inc., and MoJonnier Brothers Company. The petition, in regard to defendant Miss Georgia Dairies, Inc., alleged in part that: the plaintiff was employed by Miss Georgia Dairies, Inc., to clean a certain pressure mixing tank; to clean the tank it was necessary that he remove the lid by releasing one large safety bolt and several safety latches; there was a pressure gauge on the tank for the purpose of verifying the amount of pressure in the tank; on November 24, 1961, when he proceeded to remove the lid on the tank the gauge indicated a pressure of zero; relying upon the pressure gauge he removed the safety bolt and one safety clip from the lid; the lid blew open with a "powerful gusher of air" and his body was thrown in the air and upon the concrete floor causing him injuries; the tank was negligently manufactured by MoJonnier Brothers Company and the pressure gauge contained a "hidden defect that could not be determined by visual examination."
The petition further alleges that the defendant, Miss Georgia Dairies, Inc., was negligent "in that they did not warn your petitioner of the impending danger, when they knew or should have known by the exercise of ordinary care that said gauge was defective and subject to imparting the wrong information; the defendant Miss Georgia Dairies, Inc., could have through examination and regular tests of said pressure gauge, determined that said gauge was faulty and would not function properly, and was, therefore, dangerous and knew, or should have known that said defective pressure gauge would result in injury or damage to your petitioner. The defendant Miss Georgia Dairies, Inc., was further negligent in the following particulars: (a) In failing to warn your petitioner of the impending danger; (b) in carelessly and negligently leaving the pressure in said tank after the pressure gauge indicated zero `O'; (c) in failing to provide your petitioner a reasonable safe place to work; (d) in failing to make reasonable and periodical inspections of said pressure gauge; (e) in failing to provide your petitioner with the proper safety equipment."
The petition also alleged that the defendant had rejected the terms of the Georgia Workmen's Compensation Act.
The defendant filed a motion for summary judgment on the grounds that "it affirmatively appears from the deposition of plaintiff, the affidavit of Mr. Holmes and the petition of the plaintiff that this defendant, who stood in the relationship of an employer, did not know of the alleged defect in the machinery supplied nor should have it known, and that, therefore, as a matter of law, it is entitled to judgment in its favor."
The motion was granted and the case is here for review.
1. The appellant contends that the appellee through the exercise of ordinary care should have discovered the latent defect in the pressure gauge and its failure to do so was a violation of the provisions of Code § 66-301 which provides in part: "If there are latent defects in machinery, or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning in respect thereto."
With this contention we cannot agree. The plaintiff by deposition testified in part that: he had washed the tank the day before and the gauge was working properly; all phases of the tank had always worked properly prior to the time of his injury; with visual observation he could not determine whether the gauge was working properly.
Willis Key, the chief engineer, stated in his affidavit that he was in charge of inspecting the machinery, and "to his knowledge" the gauge had not been inspected nor had any repairs been made on it. However, Palmer L. Holmes, the supervisor of the plant, stated in his affidavit that: at the time of the accident the gauge was working properly; that the same gauge was still being used on the date of the affidavit which was July 2, 1963; he had checked the gauge approximately three times a week both prior to and subsequent to the date of the plaintiff's injuries and had always found it to be in proper working order; he was the only person who had washed the tank for approximately eight or nine months after the date of the plaintiff's injuries and always found the pressure gauge to be working properly; he and the plaintiff are the only ones who have ever cleaned the tank.
In the case sub judice as in Stewart v. Seaboard Air-Line R., 115 Ga. 624 (3) ( 41 S.E. 981) the appliance had worked properly a short time before the accident; on the day in question there was nothing to indicate why it could not be safely used; the cause of the defect in the appliance was not determined. In the Stewart case, supra, p. 628, it was held: "Taking the case as a whole, our conclusion is that the failure of the brakes to work on the day in question was not the result of any negligence on the part of the defendant company, but simply one of those unforeseen results sometimes occurring in the operation of machinery of this character, where the employer was not at fault in reference to the machinery furnished, nor the employee at fault in reference to the manner in which he operated it on the particular occasion. It rather appears to have been an accident pure and simple, unmixed with negligence on the part of either the plaintiff or the defendant."
From the evidence submitted in support of the summary judgment in the present case it affirmatively appears that the defendant did not know of the latent defect in the pressure gauge nor should it have discovered the defect in the exercise of ordinary care. The trial judge did not err in granting the summary judgment as to the defendant Miss Georgia Dairies, Inc.
2. The appellant argues that his deposition should not be considered in connection with the motion for summary judgment because it was not introduced in evidence. This argument is without merit. The motion incorporated the deposition by reference. When a deposition is incorporated in a motion for a summary judgment by reference, it becomes a part of the motion that may be considered upon the hearing of the same and need not be introduced into evidence. Passmore v. Truman Smith Institute, 117 Ga. App. 620 (1) ( 161 S.E.2d 323).
Judgment affirmed. Bell, P. J., and Hall, J., concur.