39342, 39343, 39344.
DECIDED MAY 9, 1962.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Reuben A. Garland, for plaintiff in error.
Gambrell, Harlan, Russell, Moye Richardson, Robert R. Richardson, Edward W. Killorin, contra.
1. The purpose of the Summary Judgment Act of 1959 is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.
2. As to all the defendants except one, the affidavit in support of summary judgment fails to establish the lack of a genuine issue as to any material fact and the right to a judgment as a matter of law with respect to a cause of action for negligence.
3. The affidavit in support of summary judgment fails to establish the lack of genuine issue as to any material fact and the right to a judgment as a matter of law with respect to a cause of action for the intentional tort of knowingly making a false representation as to the quality of a product and for conspiracy of the defendants to commit this tort.
DECIDED MAY 9, 1962.
Aaron B. Holland filed his petition in Fulton Superior Court against Center Chemical Company, Oxford Chemical Corporation, Sanfax Corporation (all Georgia corporations) and The Sanfax Company, a partnership consisting of Nat Sandler and Dave Center, who were also named parties defendant, seeking damages of $600,000, later amended to $1,000,000, for injuries alleged to have been incurred from an explosion resulting from the use of one of defendants' products.
The original petition alleged in substance as follows: The defendants jointly and severally manufactured and sold a cleansing product known as "New Cento 46, Super Action, with Komax," for use by industries and the general public in cleaning refuse from drains and sewers. This product was inherently dangerous to human safety and life, capable of explosion under the conditions for which it was to be used, and it was necessary to use extreme caution to prevent such explosion. The defendants knew or should have known these facts by the exercise of ordinary care. A salesman acting on behalf of the defendants had, one week prior to the alleged explosion, recommended the use of said product to clean out the drains in the dairy plant at which the plaintiff was employed. In using the product the plaintiff had first read the instructions printed on the container, which had no label advising that an explosion would or could take place and applied it exactly as instructed by the defendants and their salesman, but nevertheless an explosion occurred, causing the plaintiff to have a permanent 95% blindness in both eyes and a consequent inability to work. The defendants were negligent in not warning the plaintiff, by adequate label and instructions on the can or otherwise, of the dangerous and explosive nature of the product.
Each of the defendants filed separate answers; each one except Center Chemical Company and Oxford Chemical Corporation filed a motion for summary judgment, each supported by an affidavit of defendants Dave Center and Nat Sandler, which showed, in substance, the following facts relative to this appeal: Affiants Center and Sandler are chairman of the board and president, respectively, and stockholders of Oxford Chemical Corporation, Center Chemical Company and Sanfax Corporation. On or about September 1, 1959, the partnership, The Sanfax Company, in which the deponents were partners, was terminated. Since that date Sanfax Corporation and Center Chemical Company have been wholly-owned subsidiaries of Oxford Chemical Corporation, and the product in question is manufactured by the parent company, Oxford Chemical Corporation, and sold by Center Chemical Company. "Since the organization of Sanfax Corporation on or about September 1, 1959, it has never sold any products, through any of its salesmen, agents, representatives or employees under any trade name or label except `Sanfax' and the said Sanfax Corporation has never sold any products under the trade name or label of `Cento 46' or `Cento 46 with Komax.' Neither deponent has ever personally manufactured or sold any cleaning product and neither has ever personally manufactured or sold a product known as `Cento 46' or `Cento 46 with Komax.' Neither deponent, as a member of a partnership or as an individual proprietor, has manufactured or sold a product known as `Cento 46' or `Cento 46 with Komax.'"
After the motions for summary judgment and accompanying affidavits were filed, the plaintiff filed an amendment to his petition and a motion to dismiss the defendants' motions for summary judgment. The plaintiff's amendment alleged that each of the defendants had actual knowledge that the product in question had a propensity and tendency to explode when poured into drain pipes and drain sewers; that Nat Sandler and Dave Center, individually and as officers of Oxford Chemical Corporation, had control, supervision and responsibility for the manufacture, sale, and distribution of the product and with actual knowledge of its dangerous propensity allowed and ordered it to be manufactured, sold, and distributed for the express purpose of being poured into drain pipes and drain sewers; and that each of the individual and corporate defendants did conspire together with each other to manufacture, sell and distribute the product for the express purpose of being poured into drain pipes and drain sewers, with actual knowledge of the aforesaid dangerous propensity.
After hearing the trial court overruled the plaintiff's motion to dismiss and granted the defendants' motions for summary judgment.
The plaintiff in error excepts to each of the judgments, excepting that one granting the motion for summary judgment of defendant, The Sanfax Company.
1. The Summary Judgment Act of 1959 is substantially identical with Rule 56 of the Federal Rules of Practice and Procedure, 28 U.S.C.A. Rule 56. Therefore, it is appropriate that we resort to "Federal cases" as to its construction. Moore v. Atlanta Transit System, 105 Ga. App. 70, 72 ( 123 S.E.2d 693). See Echols v. Thompson, 211 Ga. 299 ( 85 S.E.2d 423), Judgment Notwithstanding the Verdict Law of 1953 and 28 U.S.C.A. Rule 50; Hobbs v. New England Ins. Co., 212 Ga. 513 ( 93 S.E.2d 653), Request For Admissions Law of 1953 and 28 U.S.C.A. Rule 36; and Reynolds v. Reynolds, 217 Ga. 234 ( 123 S.E.2d 115); Depositions and Discovery Law of 1959 and 28 U.S.C.A., Rules 26 through 35, and 37.
The purpose of the Summary Judgment Act of 1959 is to eliminate the necessity for a jury trial where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Code Ann. § 110-1203; Dillard v. Brannan, 217 Ga. 179 ( 121 S.E.2d 768); Wells v. Wells, 216 Ga. 384 ( 116 S.E.2d 586); Moore v. Atlanta Transit System, 105 Ga. App. 70, supra; Scales v. Peevy, 103 Ga. App. 42 ( 118 S.E.2d 193); General Gas Corp. v. Carn, 103 Ga. App. 542 ( 120 S.E.2d 156); Suggs v. Brotherhood of Locomotive Firemen Enginemen, 104 Ga. App. 219 ( 121 S.E.2d 661); Studstill v. Aetna Cas. c. Co., 101 Ga. App. 766 ( 115 S.E.2d 374). It is designed to enable the trial judge, by piercing the formal verbiage of the pleadings, to filter out the sham issues which might otherwise cause needless and time-consuming litigation. Scales v. Peevy, supra; General Gas Corp. v. Carn, supra; Edward B. Marks Music Corp. v. Continental Record Co., Inc. (CA 2 1955) 222 F.2d 488. The burden is upon the moving party to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. 3 Barron Holtzoff, Federal Practice Procedure, 138, § 1235; 6 Moore's Federal Practice, 2123, § 56.15(3). The party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence. McHenry v. Ford Motor Company (CA 6 1959) 269 F.2d 18; Revlon, Inc. v. Regal Pharmacy, Inc., 29 F.R.D. 169 (ED Mich. 1961); 3 Barron Holtzoff, Federal Practice Procedure, 139-140, § 1235. The act cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact, and it is indeed a great responsibility to say that "in truth there is nothing to be tried." However, a shadowy semblance of an issue is not enough to defeat the motion. The trial judge must separate what is formal or pretended in denial or averment from what is genuine or substantial, so that only the latter may subject a party to the burden of a trial.
The act offers a variety of methods for the presentation of materials to the court, both in support of and in opposition to the motion. Code Ann. § 110-1201 et seq. Where the affidavit is used, as in this case, it must be made upon personal knowledge, setting forth facts which would be admissible in evidence, and show affirmatively that the affiant is competent to testify as to the matters stated. Code Ann. § 110-1205. The safe way to proceed in this regard is to let the affidavit follow substantially the same form as though the affiant were giving testimony in court. A statement in the jurat to the effect that the affidavit is made upon personal knowledge is generally sufficient. Lawson v. American Motorists Ins. Corp. (CA 5 1954) 217 F.2d 724; Puente v. President and Fellows of Harvard College (CA 1 1957) 149 F. Supp. 33, affirmed (D Mass. 1957) 248 F.2d 799. However, where the contents of the deposition show that the material parts of it are statements of personal knowledge, the requirement as to personal knowledge is met although the jurat does not so state. Lawson v. American Motorists Ins. Corp., supra.
2. In order to determine whether or not a genuine issue exists as to any material fact, we must first ascertain upon what theory of law the plaintiff is seeking recovery. The petition, as amended after the defendants' motions and affidavit in support of summary judgment, is duplicitous in that in one count it includes a cause of action for negligence and a cause of action for an intentional tort. White v. American Security Co., 48 Ga. App. 370, 372 ( 172 S.E. 853); Buffington v. Atlanta, B. c. R. Co., 47 Ga. App. 85, 88 ( 169 S.E. 756); Flint Explosive Co. v. Edwards, 84 Ga. App. 376, 385 ( 66 S.E.2d 368). However, since no special demurrer on the ground of duplicity is before us, this defect in the petition does not affect the merits of this appeal.
The original petition charged all of the defendants with negligence. The answers of al the defendants substantially deny all the essential allegations of the petition. The allegations of the amendment that Nat Sandler, individually and as president, and Dave Center individually and as chairman of the board, of Oxford Chemical Corporation, controlled and ordered the manufacture, sale and distribution of "New Cento 46, Super Action, with Komax" for the express purpose of being poured into drain pipes and drain sewers, charges these individuals with wrongful acts done in the prosecution of the business of Oxford Chemical Corporation, which would make them personally liable. Southern R. Co. v. Sewell, 18 Ga. App. 544 ( 90 S.E. 94); Atlantic C. L. R. Co. v. Knight, 48 Ga. App. 53 ( 171 S.E. 919); Southern R. Co. v. Smith, 55 Ga. App. 689 ( 191 S.E. 181); Risby v. Sharp-Boylston Co., 62 Ga. App. 101 ( 7 S.E.2d 917); Stapleton v. Stapleton, 85 Ga. App. 728, 730 ( 70 S.E.2d 156). Accord Borochoff v. Fowler, 98 Ga. App. 411, 414 ( 105 S.E.2d 764); Echols v. Chattooga Mercantile Co., 74 Ga. App. 18 ( 38 S.E.2d 675). The amendment's allegations charging that the defendants conspired together do not aid the plaintiff's right to recover from the movants on account of negligence, in which the element of intent is absent. An allegation of a conspiracy to commit negligence is a non sequitur. "There can be no conspiracy without a purpose, express or implied, to do something unlawful, oppressive, or immoral . . . the element of wrongful intent must be as fully proven as the element of confederating." 1 Eddy on Combinations, 240.
The affidavit of Nat Sandler and Dave Center states that neither of them has ever personally or as a member of a partnership or as an individual proprietor, manufactured or sold any cleaning product or the product in question. The plaintiff presented nothing in opposition to this affidavit nor did he seek to call upon the exercise of the trial court's discretion under Code Ann. § 110-1206. See Studstill v. Aetna Cas. c. Co., 101 Ga. App. 766, supra; 6 Moore's Federal Practice, 2343-2350, § 5624. However, the affidavit of Sandler and Center in no way refutes the allegation of the petition, as amended, that Sandler and Center individually and as corporate officers controlled and ordered the manufacture, sale, and distribution of the product, and there remains a genuine issue as to these material facts concerning the cause of action for negligence against Sandler and Center.
The affidavit of Nat Sandler and Dave Center further states that the defendant Sanfax Corporation, a corporation in which they are president and chairman of the board of directors, respectively, has never sold the product in question nor has it ever sold the product through any of its salesmen, agents, representatives or employees. This evidence, being unrefuted, shows that as to the Sanfax Corporation there is no genuine issue as to any material fact and therefore it would have been entitled to a summary judgment as a matter of law with respect to the cause of action for negligence.
3. The allegations of the amendment also inject into the petition a second tort of a different kind. The petition as amended alleges that Nat Sandler and Dave Center controlled and ordered the manufacture, sale, and distribution of, and Center Chemical Company and Oxford Chemical Corporation manufactured, sold and distributed, a product inherently dangerous when used for cleaning drains and recommended it to plaintiff for this use. Labels and instructions on the product did not warn of its dangerous quality. These defendants had actual knowledge of the inherent dangers in the product when used as they recommended. The other defendants, including Sanfax Corporation, also had actual knowledge of the dangers. All the defendants conspired together and with each other to manufacture, sell, and distribute the product for a special use, with actual knowledge that in that use it was inherently dangerous.
The allegations show that the individual defendants in controlling and ordering the sale, and the defendants Center Chemical Company and Oxford Chemical Corporation in selling and recommending the product, for use for cleaning drains, with actual knowledge that it was dangerous for this purpose, knowingly made a false representation as to the quality of the product. This is an intentional tort for which the plaintiff can hold them liable. Woodward v. Miller, 119 Ga. 618 ( 46 S.E. 847, 64 LRA 932, 100 ASR 188); Restatement of the Law of Torts, 840, § 310. The plaintiff alleges that all the defendants conspired together and with each other to manufacture, sell and distribute the product for the express purpose of being poured into drain pipes and drain sewers with knowledge of its propensity and tendency to explode when so used. This allegation refers to the Sanfax Corporation as well as the defendants just named.
"A conspiracy is the combining of two or more persons for the purpose of doing something unlawful, oppressive, or immoral, as a means or an end." Woodruff v. Hughes, 2 Ga. App. 361 (2) ( 58 S.E. 551). Conspiracy may be pleaded in general terms, and the law recognizes the intrinsic difficulty of proving a conspiracy. Cook v. Robinson, 216 Ga. 328 ( 116 S.E.2d 742); National Bank of Savannah v. Evans, 149 Ga. 67 ( 99 S.E. 123); Bishop v. Peoples Loan c. Corp., 101 Ga. App. 53 ( 113 S.E.2d 161). The defendants cite the case of Oxford Chemical Corp. v. Detrex Chemical Industries, 217 Ga. 126 ( 121 S.E.2d 130), as authority that the allegations of conspiracy in the amended petition are both insignificant and insufficient. That case involved a ruling on demurrers, and the Supreme Court merely held that the petition did not sufficiently allege that any defendant "aided and abetted" or "conspired with, or acted in concert with, or acted jointly with, or acted with the knowledge, consent or direction of" the others, so as to authorize an injunction against them jointly. Furthermore, the rule that on general demurrer the plaintiff's petition will be construed most strongly against him has no application in a motion for summary judgment for the reason that in the latter situation all doubts are resolved against the movant.
The affidavit in support of summary judgment in no way refutes the intentional tort alleged against Nat Sandler, Dave Center, Oxford Chemical Corporation, and Center Chemical Corporation. Nor does the affidavit refute the alleged conspiracy to commit this unlawful act between these defendants and the Sanfax Corporation. Therefore, there remains a genuine issue of fact as to the intentional tort alleged against Nat Sandler, Dave Center, Oxford Chemical Corporation, and Center Chemical Corporation. There also remains a genuine issue of fact as to the alleged conspiracy to commit this unlawful act between Nat Sandler, Dave Center, Oxford Chemical Corporation, Center Chemical Corporation, and Sanfax Corporation.
The court below erred in granting the motions for summary judgments of the defendants.
Judgments reversed. Felton, C. J., and Bell, J., concur.