DECIDED OCTOBER 17, 1961. REHEARING DENIED NOVEMBER 2, 1961.
Summary judgment, etc. Fulton Civil Court. Before Judge Etheridge.
Thomas M. Stubbs, Jr., Joan Larsen, for plaintiff in error.
Greene, Neely, Buckley DeRieux, John D. Jones, Sanders McD. Marshall, contra.
A summary judgment should not be granted when the pleadings and evidence reveal an issue of fact which should be submitted to a jury.
DECIDED OCTOBER 17, 1961 — REHEARING DENIED NOVEMBER 2, 1961.
Charles P. Bagley, doing business as Charles P. Bagley Co., brought suit against the Firestone Tire Rubber Co. in the Civil Court of Fulton County.
The plaintiff alleged in his petition, in substance, as follows: That he had obtained a judgment against one Fry-Duluth, Inc., hereinafter referred to as the debtor, in the amount of $2,810.07; that he had instituted garnishment proceedings based on the judgment; that a summons of garnishment was served on the defendant by serving the defendant's agent in Fulton County, Ga., on May 8, 1958; that the defendant through its assistant counsel represented to the plaintiff that it had no moneys belonging to the debtor at the time the summons of garnishment was served upon it; that the representation was false; that the defendant did have moneys in the amount of $579.01 in its possession due the debtor at said time; that the defendant made the representation with knowledge of the falsity thereof and with a fraudulent design to induce the plaintiff "to release said summons of garnishment"; that plaintiff relied upon the representation and released the summons of garnishment; that plaintiff had no opportunity or means of obtaining information as to the defendant's indebtedness to the debtor; that by reason of such fraud the plaintiff has been deprived of $579.01, and plaintiff prayed for damages.
The defendant filed a motion for summary judgment, and that motion was granted. The only evidence before the court when the motion was passed on consisted of the deposition of the plaintiff and certain correspondence between the parties identified by the plaintiff. The plaintiff identified the defendant's letter of May 16, 1958, which stated: "There has been forwarded to this office a garnishment summons and your letter of May 9 to our Atlanta office. It is readily apparent that this matter may become quite controversial and, therefore, it would be helpful to have some information as promptly as possible. So that there may be no misunderstanding, you are hereby advised that if it becomes necessary so to do, we shall challenge the service of the summons which was not served on our statutory agent for service. I do not understand where your judgment was obtained against Fry-Duluth, Inc. and have no information as to the amount of the judgment, with which information I would like to be furnished. It is true that, even though we are a substantial creditor of Fry-Duluth, we have paid to its assignee, from time to time, invoices from which certain deductions have been made because of the indebtedness to us. I am advised that of this date we have no outstanding invoices, but I think it only fair to advise that a small one was paid prior to the receipt of the summons. I think it would be in our mutual interests for you to write me rather fully about the several phases of this transaction."
The plaintiff identified the defendant's letter of June 19, 1958, which stated: "In further reference to our previous correspondence about the above matter, please be advised that I have checked with our people and find that they have requested Fry-Duluth to immediately forward all outstanding invoices and advised that there will be no further purchases. No invoices have been received and probably will not be received because, on the basis of information presently available, there have been no purchases or deliveries for some time. The last invoice which was paid was the one referred to in the third paragraph of my letter of May 16. I am advised that Fry-Duluth is heavily indebted to us but that, notwithstanding such situation and in an effort to help such company, heretofore we have remitted to a trustee approximately 93% of each invoice. I would appreciate your considering the above information and making whatever check you care to in connection therewith, following which I hope that you will advise you have dismissed the garnishment. If for any reason you do not dismiss the same promptly, please advise so that I may take the proper steps to protect our interests. If any invoices are received from Fry-Duluth, we shall be pleased to advise you thereof and you are assured that the same will not be paid until you have had an opportunity to canvass the matter further."
On June 23, 1958, the plaintiff sent the defendant the following letter. "Upon your assurance that your company was not on the date of service of the summons indebted to Fry-Duluth, Inc., has not since become indebted, and that you will advise me if it does become indebted, I am having you released as garnishee in the matter, as per copy of letter enclosed. I will forward you the release as soon as I receive it. I am sorry for the inconvenience caused you in the matter, and I wish to thank you for your co-operation."
The plaintiff identified defendant's letter of June 25, 1958, which stated: "I have your letter of the 23rd and enclosure and I am somewhat disturbed about that portion which refers to `the date of service of the summons.' In my letter of May 16, I referred to the payment of a small invoice prior to the receipt of the summons, by which I meant the receipt in Akron as distinguished from in Atlanta. You will readily appreciate that the Atlanta office would have no way of knowing anything about transactions with a manufacturer of seat covers, but the Atlanta office did forward to Akron the summons and on the next day your letter of May 9, which letter identified the transaction and the same was promptly referred to the proper department. In the meantime, on May 12, our cashier's office had mailed to the Fulton National Bank of Atlanta, assignee of Fry-Duluth, Inc., our check for $579.02. Said amount represented 93% of the invoices then in hand, the remaining percentage being retained by Firestone as a credit against the amount owed by Fry-Duluth to Firestone, as referred to in the second paragraph of my letter of June 19. The foregoing has been submitted so that there may be no possible question about the accuracy of the facts here involved."
The plaintiff testified that he relied implicitly upon the representations made by the defendant and dismissed the summons of garnishment.
Plaintiff assigns as error the granting of the summary judgment.
The sole question for determination in this case is whether the court erred in granting a summary judgment. Unlike the construction taken of a petition when ruling upon a general demurrer, the pleadings will be construed favorably toward the pleader when ruling upon a motion for summary judgment by a defendant against a plaintiff. Likewise, all inferences from the evidence introduced (if any) will be interpreted favorably toward making an issue of fact. See Caldwell v. Mayor c. of Savannah, 101 Ga. App. 683 ( 115 S.E.2d 403); Scales v. Peevy, 103 Ga. App. 42 ( 118 S.E.2d 193). The cardinal rule of the summary judgment procedure is that the court can neither resolve the facts nor reconcile the issues, but can only look to ascertain if there is an issue. See 35B C.J.S. 628, Fed. Civil Procedure, § 1206; 6 Moore Fed. Practice 2d ed., p. 2101, par. 56.15 ; 3 Barron Holtzog Fed. Practice Procedure 96, § 1231.
The gist of the plaintiff's action is that the defendant corporation, through its assistant counsel, represented to the plaintiff the fact that the defendant corporation, as garnishee, owed the debtor no amount, and by such fact the defendant corporation sought to obtain a release of the summons of garnishment served on it under the aforesaid garnishment proceedings; that the representations were made with knowledge of their falsity and with the intent to mislead the plaintiff, and that the plaintiff was misled and did dismiss the summons of garnishment, when the defendant owed the debtor the amount of $579.01, at the time the summons of garnishment was served on it.
Plaintiff's counsel assert that the present suit is predicated upon Code § 105-302, which provides: "Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood."
The defendant contends that the action fails to show a case of deceit because actual fraud is not shown, citing Southeastern Greyhound Lines v. Fisher, 72 Ga. App. 717 ( 34 S.E.2d 906); Brown v. Ragsdale Motor Co., 65 Ga. App. 727 ( 16 S.E.2d 176); Camp Realty Co. v. Jennings, 77 Ga. App. 149 ( 47 S.E.2d 917). Construing all inferences from the pleadings and evidence against the movant, we are of the opinion that there was an issue of fact to be submitted to a jury on this point, and that the court erred in granting the motion for summary judgment.
"Fraud may be actual or constructive. Actual fraud consists in any kind of artifice by which another is deceived. Constructive fraud consists in any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another. The former implies moral guilt; the latter may be consistent with innocence." Code § 37-702.
The intention to deceive and the immoral element are supplied by knowledge of the falsity of the representations when they were made. See an explanation of actual fraud in Northwestern Mut. Life Ins. Co. v. Montgomery, 116 Ga. 799 ( 43 S.E. 79).
In a case involving the fraudulent inducement of one to enter into a contract, this court held in Deibert v. McWhorter, 34 Ga. App. 803, 804 ( 132 S.E. 110): "Thus, where the basis upon which the contract was entered upon lies in the existence or nonexistence of certain material facts, the verity of which needs must be ascertained from the statement of one acquainted with such facts, each of the contracting parties has a right to rely upon the truth of the other's statements with reference thereto, when such statements relate to matters apparently within the knowledge of the party asserting them; and to do this without checking up the statements with the declarations of other and different persons, in order, by such an investigation, to test their probable truth." We are of the opinion that the principle is likewise applicable here.
In Boroughs v. Belcher, 211 Ga. 273 (1) ( 85 S.E.2d 422), it was held: "A fraudulent or reckless representation of facts as true, even if the party may not know them to be false, if intended to deceive, is equivalent to knowledge of the falsehood. Code § 105-302. Whether or not a party who misrepresents a fact knows it to be false is immaterial, for the affirmation of what is not known to be true, or believed to be true, is equally, in morals, or law, as unjustifiable as the affirmation of what is positively known to be false. [citations]."
As stated in Wood v. Cincinnati Safe c. Co., 96 Ga. 120, 123 ( 22 S.E. 909): "Fraud is exceedingly subtle in its nature. There are infinite means by which it can be accomplished. In its conception human ingenuity is limitless in its capabilities. It is therefore impossible to state any general rule by which particular frauds are to be identified. Classification is almost, if not quite, impossible. It may be perpetrated by willful misrepresentations made by one person to another, with a design to mislead and which do actually mislead another. It may be perpetrated by signs and tricks, and even silence may in some instances amount to fraud."
The undisputed facts show that the summons of garnishment was served on the defendant at its office in Atlanta on May 8, 1958. A check was sent to the debtor on May 12, 1958. Between May 8 and May 16, the summons of garnishment was forwarded to the defendant's home office in Akron, Ohio.
On May 16, 1958, the defendant's assistant counsel wrote the plaintiff a letter in which he stated in the third paragraph, "I am advised that of this date we have no outstanding invoices [owing to the debtor], but I think it only fair to advise that a small one was paid prior to the receipt of the summons." The issue revolves around whether the defendant's assistant counsel used the word "receipt" to mean service of the summons of garnishment, or receipt of such summons in the Akron office.
The letter in its present form is ambiguous. Construing all inferences therefrom in favor of the plaintiff, a fact issue was presented in the case as to whether the letter of the defendant was written for the purpose of, and did, mislead the plaintiff into dismissing the summons of garnishment. The financial records concerning transactions between the debtor and the defendant were in the possession and control of the defendant. The defendant's letter of May 16, in view of the surrounding circumstances, would authorize a finding of fact that the letter was intended to, and did, represent that the defendant owed the debtor nothing on the date the summons of garnishment was served.
It is a jury question whether the defendant made the representations with knowledge that they were false, and if thus made, whether the plaintiff believed them to be true and relied upon them and acted to his injury. The petition charges: "The said representations made by defendant through its agent were false; said representations were made knowing them to be false and were fraudulently designed to induce plaintiff to release the said summons of garnishment, all to the detriment of your petitioner."
This allegation prevails because, "On a motion for summary judgment, the pleadings of opposing party must be taken as true, unless by the admissions, depositions or other material introduced it appears beyond controversy otherwise." Hiern v. St. Paul c. Co., 262 F.2d 526. There is a duty on the party opposing a motion for summary judgment to present relevant evidence in rebuttal of the movant's evidence ( Scales v. Peevy, 103 Ga. App. 42, supra), but there is no duty upon an opposite party to produce evidence unless the movant successfully pierces the allegations of the petition by competent evidence to show that no fact issue exists. Griffith v. William Penn Broadcasting Co., 4 F.R.D. 475; 6 Moore Fed. Practice, 56.15  .
The defendant insists that the deposition of the plaintiff shows neither diligence on the part of the plaintiff to discover the true facts, nor a right of the plaintiff to rely upon the representations of the defendant. As stated in King v. Towns, 102 Ga. App. 895, 901 ( 118 S.E.2d 121): "Of course, a party cannot blindly rely upon representations of anyone without rhyme or reason, but the question of diligence of the party alleged to have been defrauded relating to whether he exercised due care to ascertain the truth of the alleged misrepresentations is usually a matter for the jury. Dorsey v. Green, 202 Ga. 655 ( 44 S.E.2d 377); Johnson v. Sherrer, 197 Ga. 392 ( 29 S.E.2d 581); Alpha Kappa Psi Bldg. Corp. v. Kennedy, 90 Ga. App. 587 ( 83 S.E.2d 580); Norris v. Hart, 74 Ga. App. 444 [40 S.E.2d 96]."
The Supreme Court said in Fenley v. Moody, 104 Ga. 790, 795 ( 30 S.E. 1002): ". . . we are not aware of any rule of law, or decision of any court, that goes to the extent of saying that one who has been imposed upon by a deceitful and false statement can have no relief unless, before acting upon such a statement, he had exhausted all means at his command to ascertain its truth. This would be, in effect, holding that scarcely under any circumstances will relief be granted to one who has been the victim of misplaced confidence in his fellow-man."
The court erred in granting the motion for summary judgment.
Judgment reversed. Nichols, P. J., and Jordan, J., concur.