Haber v. Georgia Power Company

192 S.E.2d 436, 127 Ga. App. 19, 1972 Ga. App. LEXIS 763

• Court: Court of Appeals of Georgia
• Decided: September 5, 1972
• Docket: 47252
• Status: Published

Opinions

Stolz, Judge.

This is an action for damages for personal injuries sustained by the plaintiff while a guest passenger in a 1970 Ford automobile, driven by the defendant driver, which struck a utility pole, which was located within a portion of a public road which had recently been widened and paved by defendant Fulton County and which pole was allegedly owned and negligently maintained by defendant Southern Bell Telephone & Telegraph Company "and/or” defendant Georgia Power Company. In their answers to the complaint, defendant Georgia Power Co. denied and defendant Southern Bell admitted, owning the pole in question. The defendant’s sworn answers to the plaintiff’s interrogatories affirmatively showed that the pole was owned and maintained by defendant Southern Bell and that defendant Georgia Power Co. was, as to the pole, a licensee of Southern Bell, under a contract whereby Georgia Power Co. is permitted to affix power lines and equipment to the upper portion thereof. The trial judge granted the motion for summary judgment of defendant Georgia Power Co., from which judgment the plaintiff appeals. Held:

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . .” (Emphasis supplied.) Code Ann. § 81A-156 (c) (Ga. L. 1966, pp. 609, 660, as amended). Even without regard to the authenticated copy of the agreement between defendants Georgia Power Co. and Southern Bell and the affidavit of the employee of Georgia Power Co. attached in support of its motion (which the plaintiff attacks on the ground of the failure to show the affiant’s personal knowledge of the matters sworn to), the trial judge properly granted the motion based on the defendants’ answers and their sworn answers to the interrogatories. These affirmatively showed that the movant, as the grantee of an easement for the permissive use of the pole in question, was a licensee which, by definition, does not have either the status or the duties of an owner or occupier of land. Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90 (4f) (176 SE2d 487), citing Donalson v. Ga. Power &c. Co., 175 Ga. 462 (165 SE 440). Nor is a contrary result demanded by provisions in the agreement, if it is to be considered, that the owner shall give the licensee reasonable notice to remove the licensee’s attachments from poles which are to be replaced or removed, except in cases of emergency. The defendants’ answers and their answers to the interrogatories, were not rebutted by the plaintiff and there is no allegation, showing, or presumption that the movant’s attachments to the pole some 30 feet above the ground level contributed in any manner to the plaintiff’s injuries, incurred while riding in the alleged passenger automobile. "A defendant who has cast upon a plaintiff the burden of responding with evidence to create or preserve a genuine issue of fact is entitled to prevail by summary judgment in the absence of any rebuttal evidence.” Walker v. Hall, 123 Ga. App. 457 (1) (181 SE2d 508) and cit.

Argued May 23, 1972 Decided September 5, 1972. Johnson, Harper, Daniel, Ward & Stanfield, Inslee M. Johnson, Jackson C. Floyd, Jr., for appellant. Troutman, Sanders, Lockerman & Ashmore, Robert L. Pennington, Ezra H. Cohen, for appellee.

Judgment affirmed.

Bell, C. J., and Evans, J., concur. Evans, J., concurs specially.