Opinion
46961.
ARGUED MARCH 6, 1972.
DECIDED MARCH 16, 1972. REHEARING DENIED MARCH 31, 1972.
Action for damages. Fulton Superior Court. Before Judge Tidwell.
Phillip Slotin, for appellant.
Kilpatrick, Cody, Rogers, McClatchey Regenstein, Emmet J. Bondurant, J. D. Humphries, III, for appellees.
1. Since the evidence is undisputed that the tortious conduct complained of, if committed, was committed by a servant of Home Credit Company of Georgia, a corporation, and not by a servant of Home Credit Company of Atlanta, a corporation, summary judgment was properly granted to Home Credit Company of Atlanta.
2. For reasons stated in the opinion, it was error to grant the motion of Home Credit Company of Atlanta to set aside the order directing service on Home Credit Company of Georgia.
ARGUED MARCH 6, 1972 — DECIDED MARCH 16, 1972 — REHEARING DENIED MARCH 31, 1972 — CERT. APPLIED FOR.
Geneva Thomas filed suit against "Home Credit Company," listing its principal place of business as 935 Peachtree Street, Atlanta, alleging she had borrowed money from defendant, being loan number 6834; that one of its collectors came to her apartment and attempted to collect some money, which she was then unable to pay; that the collector left and returned ten minutes later, stating that "he had called the Company, Home Credit Company, and they told him not to leave until he had collected $21.00"; and that plaintiff was harassed, assaulted and battered by the collector.
Service of process was made upon "Home Credit Company" at 935 Peachtree Street. Defendant answered in the name of "Home Credit Company of Atlanta," stating that this was its correct corporate name and that its principal place of business was 935 Peachtree Street. All other allegations of the complaint were denied, and a motion to strike various portions of the complaint was also filed. The trial court sustained certain grounds of the motion and ordered plaintiff to file an amended complaint in conformity with the order. Plaintiff complied, listing "Home Credit Company of Atlanta" as defendant in the caption, but again naming as defendant in the jurisdictional allegation "Home Credit Company."
Home Credit Company of Atlanta filed its motion for summary judgment, attaching an affidavit of Robert Tortorelli, vice-president of Home Credit Company of Atlanta, and an affidavit of Vincent Bertolini, vice-president of Home Credit Company of Georgia. Tortorelli deposed, inter alia, that both Home of Atlanta and Home of Georgia were wholly owned corporate subsidiaries of the American Credit Corporation, but that the two had different principal offices and each operated independently of the other. He further deposed that Home of Atlanta had never had any dealings with plaintiff. Bertolini testified to the same effect as Tortorelli with respect to the corporate set-up, supplying the registered office and agent for service of Home of Georgia. It appears from certificates of the Secretary of State, submitted later by both plaintiff and Home of Atlanta, that both Home of Atlanta and Home of Georgia have the same principal officers and the same registered agent and office. Bertolini further deposed that plaintiff executed a loan note to Home of Georgia, and that one of its employees called upon her because of her nonpayment.
Plaintiff then amended her complaint by adding "Of Georgia" after "Home Credit Company" wherever the latter appeared in the complaint, and listing the agent for service as specified in Bertolini's affidavit. She also filed a motion to have process issue and served with respect to "Home Credit Company of Georgia," reciting that the original complaint had been filed against "Home Credit Company" but that the proper name, which had been amended, should have been "Home Credit Company of Georgia." The trial court entered an order to have process issue and the petition as amended served as prayed in the motion, which was accomplished.
Plaintiff submitted her affidavit, in which she deposed as follows: "Sometime prior to July 20, 1968, affiant was induced to make a loan by a television commercial sponsored by `Home Credit Company.' Said commercial promoted the name of `Home Credit Company' and designated several addresses at which plaintiff could make the loan, including 7 Forsyth Street. The content of said television commercial did not include any other name other than `Home Credit Company,' did not state the name of any other corporation, and did hold itself out as one trade name doing business at the several branch offices included in said T. V. Commercial. As a result of said T. V. commercial, plaintiff went to the most convenient branch office, namely 7 Forsyth Street, and obtained a loan from said `Home Credit Company.' Plaintiff commenced making payments on said loan, and upon each payment she was given a receipt under the name of `Home Credit Company.' All of plaintiff's receipts were under the heading of `Home Credit Company,' and none of the receipts recited or stated the name of any specific corporation, trade name or entity other than `Home Credit Company.' A copy of one of the receipts is attached as Exhibit 'A' of this affidavit. Affiant further states that the telephone directory for the City of Atlanta lists the `Home Credit Company' as one company with seven branch offices. Said telephone directory does not distinguish one branch from the other as separate, distinct entities but lists each branch under the heading of `Home Credit Company.' A copy of said directory is attached as Exhibit `B' of this affidavit." The receipt attached as Exhibit A is under the heading of "Home Credit Company," shows the loan number as 6834 as alleged in the complaint, and no other entity other than "Home Credit Company" is mentioned. The pages of the telephone directory attached as Exhibit B verify the statements made about it in the affidavit.
Plaintiff's attorney deposed as follows: "At all times herein alleged, the law firm of Kilpatrick, Cody, Rogers, McClatchey Regenstein, Located at 1045 Hurt Building, were the general counsel for Home Credit Company, a trade name doing business with multiple locations in the City of Atlanta. Said attorneys were also general counsel for Home Credit Company of Atlanta and Home Credit Company of Georgia. Affiant further states that at all times herein alleged, said Home Credit Company and said Home Credit Company of Georgia and Said Home Credit Company of Atlanta had actual notice of this suit, had copies of the complaint and had copies of the process."
There is no dispute that there is no such corporation as "Home Credit Company." Home of Atlanta moved to set aside the order "permitting plaintiff to substitute parties by having process issue against Home Credit Company of Georgia and substituting that corporation for defendant," which motion was granted. Home of Atlanta's motion for summary judgment was also granted, and plaintiff appeals.
1. As the trial court properly held in his order sustaining Home of Atlanta's motion for summary judgment, the undisputed facts show that the tortious conduct complained of, if committed, was committed by a servant of Home of Georgia and not by a servant of Home of Atlanta. Accordingly the motion for summary judgment filed by Home of Atlanta was properly sustained.
2. However, it was error to grant Home of Atlanta's motion to set aside the order directing service on Home of Georgia. It clearly appears that Home Credit Company of Georgia, a corporation, was conducting business in the trade name of Home Credit Company, which was not a corporation. "A corporation conducting business in a trade name may sue or be sued in the trade name. Executive Committee of the Baptist Convention v. Smith, 44 Ga. App. 184 ( 161 S.E. 143), affirmed 175 Ga. 543 ( 165 S.E. 573). When a complaint is brought against a defendant in a trade name, the complaint is amendable by stating the real name of the person doing business under that name, and the amendment does not introduce a new party. Hudgens Contracting Co. v. Redmond, 178 Ga. 317 (2) ( 173 S.E. 135); Mauldin v. Stogner, 75 Ga. App. 663 (2) ( 44 S.E.2d 274); Moody A.F.B. Credit Union v. Kinard, 116 Ga. App. 163, 164 ( 156 S.E.2d 526)." John L. Hutcheson Memorial Tri-County Hospital v. Oliver, 120 Ga. App. 547 (1) ( 171 S.E.2d 649). See also Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380 (2) ( 170 S.E.2d 724); Cheek v. J. Allen Couch Son Funeral Home, 125 Ga. App. 438 (4, 8) ( 187 S.E.2d 907); Powell v. Ferguson, 125 Ga. App. 683 (1).
In Parker v. Kilgo, 109 Ga. App. 698 ( 137 S.E.2d 333), it was held that where a company was sued as a corporation and service was made on its agents on Spring Street, the petition could be amended to show the company was a trade name for an individual and service could then be perfected upon the individual at his home on Friar Tuck Road. Similarly, in Black v. Jacobs, 113 Ga. App. 598 ( 149 S.E.2d 190), it was held that where "David G. Black" was named as defendant and service was made upon him on Mornington Drive, plaintiff could amend by adding the word "Junior" after defendant's name and have "David G. Black, Jr." served on Dover Road. While these latter cases are sought to be distinguished on the basis that they were decided before the effective date of the CPA, "[o]n the contrary, they have been expressly incorporated therein. `A party whose name is not known may be designated by any name, and when his true name is discovered, the pleadings may be amended accordingly.' Code Ann. § 81A-110 (a)." Atlanta Veterans Transportation, Inc. v. Westmoreland, 123 Ga. App. 466, 467 ( 181 S.E.2d 504).
Nelson v. Sing Oil Co., 122 Ga. App. 19 ( 176 S.E.2d 227) does not require a different result. In that case plaintiff, who was injured at a service station, sued "Sing Oil Company," a corporation, which had no connection with the distinct and separate partnership which operated the business except to wholesale products to it.
Moreover, Home of Georgia, which has been served with process, has made no appearance in the case and has not objected to being named and served as party defendant. It would thus appear that insofar as Home of Georgia is concerned, it has waived this procedural objection. Cf. Commercial Nat. Bank of Cedartown v. Moore Ford Co., 121 Ga. App. 424 ( 174 S.E.2d 201). In any event we cannot perceive how Home of Atlanta was harmed by the amendment to the complaint changing the name of defendant from "Home Credit Company" to "Home Credit Company of Georgia," or by the order it moved to set aside directing service on Home of Georgia. Assuming that Home of Atlanta also used the trade name, when plaintiff specified the corporation "Home Credit Company of Georgia" as the defendant, Home of Atlanta was removed from the case and was thus benefited. This is particularly true since Home of Atlanta has been granted summary judgment. Furthermore, it appears at least arguable whether Home of Atlanta, after the amendment and order for service on Home of Georgia, even had standing to move to set the order aside since it was no longer a party to the case, if it ever had been.
The order setting aside the order directing service on Home Credit Company of Georgia is reversed; the order granting summary judgment to Home Credit Company of Atlanta is affirmed. Bell, C. J., concurs. Evans, J., concurs in the judgment.