Syllabus by the Court
1. From the affidavits and deposition submitted in support of its motion for summary judgment it affirmatively appears that the defendant was not guilty of the acts of negligence alleged in the complaint. Hence, the trial judge did not err in granting a summary judgment.
2. When a deposition is incorporated in a motion for a summary judgment by reference, it becomes a part of the motion that may be considered upon the hearing of the same and need not be introduced into evidence.
Roy Watson Milam filed suit against Miss Georgia Dairies, Inc., and MoJonnier Brothers Company. The petition, in regard to defendant Miss Georgia Dairies, Inc., alleged in part that: the plaintiff was employed by Miss Georgia Dairies, Inc., to clean a certain pressure mixing tank; to clean the tank it was necessary that he remove the lid by releasing one large safety bolt and several safety latches; there was a pressure gauge on the tank for the purpose of verifying the amount of pressure in the tank; on November 24, 1961, when he proceeded to remove the lid on the tank the gauge indicated a pressure of zero; relying upon the pressure gauge he removed the safety bolt and one safety clip from the lid; the lid blew open with a 'powerful gusher of air' and his body was thrown in the air and upon the concrete floor causing him injuries; the tank was [118 Ga.App. 792] negligently manufactured by MoJonnier Brothers, Company and the pressure gauge contained a 'hidden defect that could not be determined by visual examination.'
The petition further alleged that the defendant, Miss Georgia Dairies, Inc., was negligent 'in that they did not warn your petitioner of the impending danger, when they knew or should have known by the exercise of ordinary care that said gauge was defective and subject to imparting the wrong information; the defendant Miss Georgia Dairies, Inc., could have through examination and regular tests of said pressure gauge, determined that said gauge was faulty and would not function properly, and was, therefore dangerous and knew, or should have known that said defective pressure gauge would result in injury or damage to your petitioner. The defendant Miss Georgia Dairies, Inc., was further negligent in the following particulars: (a) In failing to warn your petitioner of the impending danger; (b) in carelessly and negligently leaving the pressure in said tank after the pressure gauge indicated zero 'O'; (c) in failing to provide your petitioner a reasonable safe place to work; (d) in failing to make reasonable and periodical inspections of said pressure gauge; (e) in failing to provide your petitioner with the proper safety equipment.'
The petition also alleged that the defendant had rejected the terms of the Georgia Workmen's Compensation Act.
The defendant filed a motion for summary judgment on the grounds that 'it affirmatively appears from the deposition of the plaintiff, the affidavit of Mr. Holmes and the petition of the plaintiff that this defendant, who stood in the relationship of an employer, did not know of the alleged defect in the machinery supplied nor should have it known, and that, therefore, as a matter of law, it is entitled to judgment in its favor.'
The motion was granted and the case is here for review.
Gilbert & Carter, Fred A. Gilbert, Warren S. Gritzmacher, Atlanta, for appellant.
Hicks, Eubanks & Scroggins, Frank W. Scroggins, Atlanta, for appellee.
1. The appellant contends that the appellee through the exercise of ordinary care should have discovered [118 Ga.App. 793] the latent defect in the pressure gauge and its failure to do so was a violation of the provisions of Code s 66-301 which provides in part: 'If there are latent defects in machinery, or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning in respect thereto.'
With this contention we cannot agree. The plaintiff by deposition testified in part that: he had washed the tank the day before and the gauge was working properly; all phases of the tank had always worked properly prior to the time of his injury; with visual ...