Opinion
41743.
SUBMITTED JANUARY 11, 1966.
DECIDED MAY 16, 1966.
Action for damages. Fulton Superior Court. Before Judge Moore.
Preston L. Holland, for appellant.
Long, Weinberg Ansley, Ben Weinberg, Jr., Gregg Loomis, for appellees.
1. Depositions do not constitute evidence in a case until they are introduced and admitted as evidence in the trial court.
2. In the absence of evidence presenting a material issue, a summary judgment for defendant is authorized where the trial court properly could have sustained a general demurrer to plaintiff's petition.
3. Since the record in this case contains no evidence presenting a material issue and the petition fails to state a cause of action against any of defendants, the trial court was authorized to grant summary judgment for defendants.
SUBMITTED JANUARY 11, 1966 — DECIDED MAY 16, 1966.
E. P. Herring brought this action against Pepsi Cola Bottling Company of Atlanta, Fireman's Fund Insurance Company and Paul R. Bouzigues.
The petition alleged that plaintiff, a pharmacist, operated a business in Hapeville, and purchased Pepsi Cola soft drinks from the defendant bottling company for retail sale. Prior to October, 1963, a boy about ten years old removed a Pepsi Cola from the drink box in plaintiff's store, and plaintiff noticed there was a safety pin in the unopened bottle. Plaintiff took the drink from the child, and gave him another one, then placed the bottle on a shelf, where it remained for several months. Some time in October 1963, plaintiff notified the defendant bottling company of the incident, and two representatives of the bottling company came to plaintiff's store and inspected the still unopened bottle. The next day the defendant Bouzigues telephoned plaintiff, and identified himself as an insurance adjuster representing Pepsi Cola Bottling Company of Atlanta and Fireman's Fund Insurance Company. Quoting the petition, "The defendant, Mr. Paul R. Bouzigues, during the telephone conversation stated as follows: `That he had no business calling Pepsi Cola and he was stupid for calling them and that he couldn't get any money out of it and that he was dishonest for trying to do so. Further, the defendant, Mr. Paul R. Bouzigues, stated that he must be a pretty low character to try such a thing.' Which was denied by plaintiff to said Bouzigues at said time and place whereupon the aforesaid defendant, Mr. Paul R. Bouzigues, stated `that plaintiff was a liar and again stated that he was dishonest. . .' Thereafter, plaintiff shows that on the same day that the plaintiff said the words and topic of conversation was communicated to Pepsi Cola Bottling Co. of Atlanta by the defendant, Mr. Paul R. Bouzigues, and through Mr. Harold Echols, a General Manager of Pepsi Cola Bottling Co. of Atlanta, and/or Mr. Terry Pemberton." The petition alleged further that defendant Bouzigues was acting "at the instance and request" of the defendant bottling company and as agent of the defendant insurance company. Plaintiff prayed for general damages in the amount of $1,000,000.
Plaintiff took this appeal from the trial court's grant of summary judgment for each defendant.
1. The record in this case discloses that certain depositions filed in the office of the clerk of the superior court were not introduced as evidence in the hearing upon defendant's motion for summary judgment. Not having been offered, obviously these depositions were not in evidence in the summary judgment hearing and cannot now be made a part of the record on appeal. Plaintiff's motion asking this court to complete the record by ordering the depositions transmitted to this court is denied.
2. Where there is no genuine issue as to a material fact, a summary judgment may be granted upon the pleadings alone. Dillard v. Brannan, 217 Ga. 179 (3) ( 121 S.E.2d 768); Sanders v. Alpha Gamma Alumni Chapter, 106 Ga. App. 137, 139 ( 126 S.E.2d 545); Mingledorff v. Bell, 107 Ga. App. 685 (1) ( 131 S.E.2d 118); 6 Moore, Federal Practice (2d Ed.) p. 2144, § 56.11 [1--1]; p. 2151, § 56.11 [2]. In the Federal courts the motion for summary judgment under these circumstances is the functional equivalent of a motion for judgment on the pleadings under Rule 12 (c) F.R.C.P., 28 U.S.C. (Dyal v. Union Bag-Camp Paper Corp., 263 F.2d 387, 397), and may properly be treated as attacking a complaint for failure to state a claim upon which relief can be granted. Dunn v. J. P. Stevens Co., 192 F.2d 854, 855; Reynolds v. Needle, 132 F.2d 161. Where plaintiff's petition does not state a cause of action, a defendant's answer denying or neither admitting nor denying its allegations does not create any genuine issue of material fact. In that status under Georgia practice, a general demurrer of the defendant would be sustained and plaintiff's petition dismissed. A motion for summary judgment under these circumstances reaches the same result. In the absence of evidence presenting a material issue, a summary judgment for defendant is authorized where the trial court properly could have sustained a general demurrer to the plaintiff's petition.
3. Plaintiff contends that this suit is not one for slander, but is an action for "tortious misconduct," citing Colonial Stores v. Coker, 77 Ga. App. 227, 230 ( 48 S.E.2d 150). See Zayre of Atlanta v. Sharpton, 110 Ga. App. 587, 588 ( 139 S.E.2d 339), where this court held that one has a cause of action in this State when as an invitee on the premises of the invitor for the purpose of transacting business he is made the brunt of opprobrious, insulting and abusive words by the invitor's agent employed to deal with the invitee and which tend to humiliate, mortify, and would the feelings of the invitee. Lemaster v. Millers, 33 Ga. App. 451 ( 126 S.E. 875); Hazelrigs v. J. M. High Co., 49 Ga. App. 866 ( 176 S.E. 814); Sims v. Miller's, Inc., 50 Ga. App. 640 ( 179 S.E. 423); Southern Grocery Stores v. Keys, 70 Ga. App. 473 ( 28 S.E.2d 581); Colonial Stores v. Coker, 74 Ga. App. 264 ( 39 S.E.2d 429); and Mansour v. Mobley, 96 Ga. App. 812 ( 101 S.E.2d 786). As pointed out in Zayre, supra, at p. 589, the action for "tortious misconduct," so-called, "is based solely on the invitee relationship." See Greenfield v. Colonial Stores, 110 Ga. App. 572, 574 ( 139 S.E.2d 403). Cf. Schwartz v. Nunnally Co., 60 Ga. App. 858 ( 5 S.E.2d 91); Colonial Stores v. Sasser, 79 Ga. App. 604, 607 ( 54 S.E.2d 719); and see Judge Jordan's special concurrence in Greenfield, supra, at p. 576. In the absence of the invitee relationship, "A corporation is not liable for damages resulting from speaking false, malicious, or defamatory words by one of its agents, even where in uttering such words the speaker was acting for the benefit of the corporation and within the scope of his agency, unless it affirmatively appears that the agent was directed or authorized by the corporation to speak the words in question. Behre v. National Cash Register Co., 100 Ga. 213 [27 S.E. 986]." Southern R. Co. v. Chambers, 126 Ga. 404, 408 ( 55 S.E. 37). Note also the special concurrence of Judge Eberhardt in Zayre, p. 591, and cases cited by him. Plaintiff's petition negated the existence of facts essential to a cause of action grounded upon "tortious misconduct," and stated no cause of action upon this theory. Moreover, "in the absence of special damages, mere billingsgate, insult, and contemptuous language are not sufficient alone to state a cause of action"; mere oral abuse, without more, is not actionable in Georgia. Barry v. Baugh, 111 Ga. App. 813, 815 (2) ( 143 S.E.2d 489). The petition failed to state a cause of action upon any theory against any of the defendants.
The trial court did not err in granting summary judgment for defendants.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.