Opinion
41243.
DECIDED SEPTEMBER 8, 1965. REHEARING DENIED SEPTEMBER 22, 1965.
Action for damages. Wayne Superior Court. Before Judge Flexer.
Albert E. Butler, for plaintiff in error.
Bouhan, Lawrence, Williams Levy, Frank W. Seiler, Walter C. Hartridge, II, contra.
1. (a) A certificate of title issued by the State Revenue Commissioner under provisions of the Motor Vehicle Certificate of Title Act is prima facie evidence of the facts appearing in the certificate. Code Ann. § 68-411a (c).
(b) The name of the owner of a vehicle stated in the certificate in the bracket entitled "Owner's Name" as required by the Act is a fact within the meaning of this provision.
(c) The signature of an individual appearing on the certificate in the bracket entitled "Personal Signature of Owner" is merely a matter of formality in making application for the certificate and does not denote a fact within the meaning of Code Ann. § 68-411a (c).
2. Hearsay statements in an opposing affidavit and statements based upon "advice and belief" rather than upon personal knowledge of the affiant cannot be considered in ruling upon a motion for summary judgment.
3. There being no material issue of fact in the case the trial court properly granted defendants' motion for summary judgment.
DECIDED SEPTEMBER 8, 1965 — REHEARING DENIED SEPTEMBER 22, 1965.
George H. Thornton sued M. L. Alford, M. H. Edwards and W. H. Holt, individually and doing business as Western Auto Associate Store, to recover damages for injuries received by plaintiff when plaintiff lost control of a vehicle which he was operating as an employee of Mache of Jesup, Inc. Plaintiff based the action upon alleged negligence of defendants in furnishing to Mache of Jesup, Inc., a vehicle which was mechanically defective. Defendants filed their answer to plaintiff's petition and thereafter moved for summary judgment. Plaintiff excepts to the trial court's judgment granting summary judgment for defendants.
The supporting affidavit of one defendant showed that previously to April 11, 1962, the defendants owned and operated in partnership the Western Auto Associate Store in Jesup, Ga.; that on that date the defendants organized the corporation Mache of Jesup, Inc., and assigned to this corporation all the partnership assets; that from that date the business known as Western Auto Associate Store of Jesup was owned and operated by the corporation; that W. H. Holt was employed as manager of the store and none of defendants had any individual proprietary interest in the business; that the truck allegedly owned by the individual defendants was in fact paid for and owned by the corporation; and that after the plaintiff sustained his injuries he filed a claim against the corporate employer under the Workmen's Compensation Act and received benefits according to the provisions of the Act.
Plaintiff's opposing affidavit stated that signs displayed on the front and back of the Western Auto Associate Store read "Western Auto Associate Store, locally owned and operated by W. H. Holt" and "plaintiff is advised and believes that W. H. Holt has a private, independent, profit-sharing agreement as to this store under which he claims ownership." A certified copy of the title registration certificate shows in the space provided for the owner's name that the owner is "Western Auto Associate Store" and in the space provided for the personal signature of the owner that the writing was signed by W. H. Holt without qualification as to the capacity in which he affixed his signature.
1. Sec. 11 (c) of the Motor Vehicle Certificate of Title Act (Ga. L. 1961, pp. 68-76; Code Ann. § 68-411a (c)) provides: "A certificate of title issued by the Commissioner is prima facie evidence of the facts appearing on it." The owner's name stated in the certificate of title is required by Code Ann. § 68-411a (a2) of the Act, and is a "fact" within the meaning of Code Ann. § 68-411a (c). Thus, it is a "fact" uncontradicted by other evidence that the owner of the vehicle was "Western Auto Associate Store." The evidence shows without dispute that "Western Auto Associate Store" was a trade name used by Mache of Jesup, Inc., and it follows that the truck in question was in fact owned by Mache of Jesup, Inc.
There is no merit in plaintiff's contention that the personal signature of W. H. Holt appearing on the certificate in the bracket entitled "Personal Signature of Owner" is a fact showing Holt is the owner. The certificate shows that the Commissioner issued the certificate of title upon the same form used by the applicant in applying for the certificate. Under these circumstances the personal signature of the owner obviously is not a fact within the meaning of Code Ann. § 68-411a (c), but merely a matter of form in making application for the certificate under Code Ann. § 68-408a.
2. Code Ann. § 110-1205 provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated [t]herein." Plaintiff's statement as to the content of signs on the store which might indicate ownership of the truck by W. H. Holt was mere hearsay. His statement that "plaintiff is advised and believes" that W. H. Holt had a proprietary interest in the store (and hence in the truck) was not evidence based upon the personal knowledge of the affiant, and it was ineffectual to aid him against defendants' evidence to the contrary. Planters Rural Tel. Co-op., Inc. v. Chance, 108 Ga. App. 146, 147 ( 132 S.E.2d 90).
As there was no material issue of fact in the case, the trial court properly granted the defendants' motion for summary judgment.
Judgment affirmed. Frankum and Hall, JJ., concur.