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Action for damages. Fulton Superior Court. Before Judge Moore.
BELL, Presiding Judge.
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.
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 SE2d 768); Sanders v. Alpha Gamma Alumni Chapter, 106 Ga. App. 137, 139 (126 SE2d 545); Mingledorff v. Bell, 107 Ga. App. 685 (1) (131 SE2d 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 F2d 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 F2d 854, 855; Reynolds v. Needle, 132 F2d 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 sam 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.
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 SE2d 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.
Long, Weinberg & Ansley, Ben Weinberg, Jr., Gregg Loomis, for appellees.
Preston L. Holland, for appellant.
Friday May 22 20:13 EDT

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