In Cornwell v. Williams Bros. Lumber Co., 139 Ga. App. 773 (229 S.E.2d 551) (1976), the alter ego theory was raised as to the defendant's liability, however the court did not use that theory to toll the statute of limitation as to the different party named in the renewal action.Summary of this case from Heyde v. Xtraman, Inc.
ARGUED SEPTEMBER 13, 1976.
DECIDED OCTOBER 4, 1976.
Action for damages. Fulton Superior Court. Before Judge Langford.
G. Hughel Harrison, for appellant.
Henning, Chambers Mabry, Peter K. Kintz, Ronald Arthur Lowry, Shoob, McLain, Merritt Lyle, M. David Merritt, for appellees.
The appellant, plaintiff below, was involved in an automobile collision on August 30, 1972, with a truck being driven by an employee of Williams Brothers Concrete Company. Suit was filed on August 16, 1974, against Williams Brothers Lumber Company. After discovery, in which affidavits and depositions were made to the effect that the lumber and concrete companies were separate entities and that the truck involved in the accident was owned and operated by the concrete company and not the lumber company, the appellant voluntarily dismissed the action on March 4, 1975.
On March 6, 1975, the appellant filed her action for damages against both the concrete and the lumber companies, alleging that "they are in reality one entity,... and, for said reason, the acts of the agent of any one defendant is the act of the agent of the other defendant." Both defendants moved for summary judgment, the lumber company on the theory that the statute of limitation had run. Both motions were granted and the plaintiff appeals.
ARGUED SEPTEMBER 13, 1976 — DECIDED OCTOBER 4, 1976.
1. The plaintiff-appellant argues that the two defendant corporations are in reality a single entity, "by virtue of the intermingling of corporate affairs, the interchangeability of employees, the identity, or near identity of officers and directors, and the common use of advertising..., and the common listing in public directories, and the use of the same graphic device, known as `logo'..." The evidence of the appellee-lumber company is as follows: The corporations are located in the same building but on different floors leased separately from the landlord; there is no commingling of corporate assets; there are separate banking accounts; separate equipment was maintained; separate tax returns were filed; separate minute books, by-laws and corporate records were maintained; the companies had separate liability insurance policies; separate personnel were employed and separate payrolls maintained; out of eight directors only two are common to both corporations while only three of eight shareholders are common to both. The appellee-lumber company further showed that the truck involved in the accident was owned by the concrete company and was driven by that company's employee.
Nothing in the allegations of the plaintiff's petition, either collectively or individually and construed most favorably in her behalf, is sufficient to demonstrate that the concrete company is the alter ego of the lumber company or vice-versa. Porter v. Wootten, 51 Ga. App. 834 (1) ( 181 S.E. 866); Farmers Warehouse of Pelham, Inc. v. Collins, 220 Ga. 141, 149 ( 137 S.E.2d 619). The appellee-lumber company having produced evidence sufficient to negative the bare assertions of the complaint and to show that the plaintiff is not entitled to recover from it under any theory, the granting of summary judgment in its favor was proper. Code Ann. § 81A-156 (b).
2. The concrete company's summary judgment was granted on the basis of the running of the applicable statute of limitation. Code § 3-1004; Leggett v. Benton Bros. Drayage c. Co., 138 Ga. App. 761. The appellant relies on Code § 3-808 to support her position that refiling the suit within six months from dismissing the original complaint suspends the effect of the statute. The original suit was filed solely against Williams Brothers Lumber Company; the second suit was filed against both the lumber company and the Williams Brothers Concrete Company. Code § 3-808 may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued. Sheldon Co. v. Emory University, 184 Ga. 440 ( 191 S.E. 497); Floyd Lee v. Boyd, 16 Ga. App. 43 ( 84 S.E. 494). See also Vari v. Food Fair Stores, 205 A.2d 529 (Del. Supreme Court 1964).
Judgment affirmed. Quillian and Webb, JJ., concur.