Lead Opinion
Plaintiff Anderson appeals the grant of summary judgment to defendants Hughes, individually and d/b/a Saf-Ez Archery Products, Inc., in this product liability action. It alleged negligence, breach of implied warranty, and striсt liability in the manufacture of a climbing/safety belt. Anderson maintained that he was using the device while climbing a tree when the stitching holding the tree strap to the safety belt broke, causing him to fall аnd sustain injury.
Defendants moved for summary judgment on the grounds that (1) plaintiff’s claims were time-barred because of late service; (2) plaintiff’s claim under OCGA § 51-1-11 was barred because there was no “salе” of the climbing/safety belt; (3) plaintiff’s claims against Hughes individually were barred because the belt was manufactured by the corporation; and (4) plaintiff’s claims of breach of warranty were barred by reason of lack of privity between plaintiff and defendants. The trial court’s order did not specify the basis for the grant of summary judgment.
Plaintiff contends that he was not guilty of laches in perfecting service of process, that OCGA § 51-1-11 did not require a “sale” of the product, and that claims against Hughes personally were not
1. The procedural time-bar is dispositive.
“A civil аction is commenced by filing a complaint with the court.” OCGA § 9-11-3. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a comрlaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co.,
If a plaintiff has taken no action to perfect service, then a petition to permit belated service should be denied as a matter of law. Gulf Oil Corp. v. Sims,
Construed in favor of plaintiff, the facts surrounding service of process were the following. The mishap occurred on October 10, 1986. Plaintiff filed suit on September 30, 1988, against “Robert Hughes, individually and d/b/a Saf-Ez Archery Products,” ABC and XYZ corporations, and three “John Doe” defendants. Hughes went by the nickname of “Bob” and appellant mistakenly named “Robert Hughes” as defendаnt when Hughes’ correct name was “Herbert A. Hughes.” Hughes was listed in the telephone directory as “Bobby” and “Herbert A.” Hughes.
On October 8, the sheriff attempted service on “Robert” Hughes at Hughes’ residence. Hughes was not at home and the sheriff spoke with Hughes’ wife. The next day the sheriff again attempted service at Hughes’ residence. Hughes was at home and informed the deputy that his name was not “Robert” but “Herbert A.” Hughes and that he also went by the name of “Bob” Hughes. The deputy asked to see
The return of service, dated October 20, showed that service had not been accomplished on “Robert Hughes” and bore a notation that the subject at the given address was “Herbert A. Hughes.” Plaintiff amended his complaint on December 15 to reflect “Herbert A. Hughes, A/K/A Robert Hughes” and service on Hughes was accomplished by the sheriff the following day, nearly two months after the initial return of service indicating Hughes’ correct name and more than two months after expiration of the statute of limitation.
Hughes answered the suit on January 11, 1989, raising the defense that the belt was not manufactured by him individually but rather by his corporation, “Saf-Ez Archery Products, Inc.” Plaintiff again amended his complaint on February 14. Althоugh there was no change in the style of the complaint to reflect that the business was incorporated, portions of the body of the complaint named Saf-Ez as a corpоrate entity. The amended complaint was served on “Herbert A. Hughes d/b/a Saf-Ez Archery Products” more than four months after the statute of limitation had run, on February 23.
Plaintiff had the burden to investigate аnd learn where defendants might be located. See Watters v. Classon,
There was no evidence that plaintiff made any initial investigation to ascertain Hughes’ correct name, i.e., whether or not “Bob” or “Bobby” stood for “Rоbert.” He just assumed defendant’s name was “Robert.” If there was an identity of address for Hughes’ two telephone listings, a look in the telephone directory would have indicated that “Bob” or “Bоbby” was “Herbert A.” and not “Robert.” Hughes had resided at the same residence for over twenty-five years. Moreover, even though plaintiff knew that Hughes was called “Bob” he neglected to initiаlly add that name to the suit and request that service be made on the defendant bearing that alternate name. Furthermore, plaintiff initially made no attempt to serve the corpоrate de
Although suit was filed close to the expiration of the statute of limitation, appellant made no effort to expedite the initial service of process by having a sрecial agent appointed or by any other means. Even though the October 20 return of service indicated the name problem, appellant likewise made no effort to expedite service of the amended complaint but chose to let it be served in due course by the sheriff. At that belated point plaintiff still made no attempt to serve the comрany. No explanation was offered for the two-month delay in finally serving Hughes under his real name.
Contrary to plaintiff’s assertion, there is no evidence that Hughes tried to evade servicе of process. Rather, the evidence is that he told the deputy the truth that he was not “Robert” Hughes and what his correct name was. The fact that Hughes suspected that the documents might be intended for him and that he related such information to others did not show evasion. There was no evidence that Hughes denied to the deputy that the suit was intended for him or that he hid from servicе or affirmatively refused service. Moreover, actual knowledge by a defendant that a complaint has been filed does not cure a defect in service. See Adams v. Gluckman,
The evidence on summary judgment authorized the determination that plaintiff failed as a matter of law to exercise reasonable diligence in effecting service of process on both the individual and corporate defendants. Summary judgment on all claims in favor of defendants wаs warranted on this basis.
2. It is therefore unnecessary to address plaintiff’s remaining contentions.
Judgment affirmed.
Concurrence Opinion
concurring specially.
I must reluctantly agree that the majority opinion is correct in saying that the plaintiff did not adequately explain his delay in serving the defendants properly. The facts do not support a finding that Hughes evaded service; all he did was tell the process server that he was not Robert Hughеs, and showed the sheriff his driver’s license showing he was Herbert Hughes. Hughes acknowledged that he had a good idea that the suit was meant for him because he saw the name of his corporation on the complaint as well, but I am not sure we may declare a duty upon someone to go out of his way to clarify such a
More importantly, the appellant offers no excuse for the two-month delay in finally serving Hughes under his real name. It could be argued that Hughes contributed to the delay by not telling the sheriff thаt the plaintiff must have meant to sue him, but there appears to be no excuse for waiting two months before perfecting service after that. Hughes never concealed his real namе. In fact, the record shows that the appellant’s lawyer asked the sheriff to serve “Robert Hughes” again, even after the sheriff returned the process with the explanation that the resident at that address was named Herbert Hughes, not Robert Hughes.