Federal Insurance Co. v. Oakwood Steel Co.
191 S.E.2d 298
Ga. Ct. App.
1972
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FEDERAL INSURANCE COMPANY v. OAKWOOD STEEL COMPANY et al.

47290

Court of Appeals of Georgia

JUNE 14, 1972

126 Ga. App. 479

The court‘s entire charge on alibi reads as follows: “[T]he defendant has denied his guilt of either or both of these offenses, and I charge you that alibi as a defense involve[s] a denial of guilt and the impossibility of the accused‘s presence at the scene of the offense at the time of its commission. Evidence as to alibi should be considered by the jury in connection with all other evidence in the case.” This charge is more favorable to the defendant than that which the Georgia Supreme Court has approved. See

. But see also
and
.

Judgment affirmed. Pannell and Quillian, JJ., concur.

SUBMITTED JUNE 6, 1972—DECIDED JUNE 14, 1972.

Casey Thigpen, for appellant.

H. R. Thompson, District Attorney, for appellee.

ARGUED MAY 25, 1972—DECIDED JUNE 14, 1972.

Greer, Sartain & Carey, J. Nathan Deal, for appellant.

Telford, Stewart & Stephens, J. Douglas Stewart, for appellees.

CLARK, Judge. We have for determination in a summary judgment proceeding an attack upon a supporting affidavit because it fails to meet the requirement of showing that it was based upon personal knowledge which point was not raised in the trial court. Is this permissible? Our answer is in the negative.

The general rule is that “... one is limited in his appeal to grounds of objection which he properly presented to the trial court; he cannot make them for the first time on appeal.”

. Although we find no Georgia case squarely upon this question we have a directional guide in
, where this court passed upon the reverse of our case: the objection as to failure to show personal knowledge there was raised in the trial court. Although reversing the trial court because of the defect, this court said “‘[T]echnicalities have no place in the summary judgment procedure’ and . . . objections to ‘formal defects’ should be made in the trial court or else they are waived.”

Where this court was called upon to consider an objection first made on appeal that an affidavit should not have been considered because it violated the “best evidence rule,” we declined because “... the objection should have been raised in the trial court prior to the ruling on the motion for summary judgment. [Citation].”

.

Because our summary judgment procedure as codified in Code Ann. § 81A-156 is similar to Section 56 of the Federal Rules of Civil Procedure, including the requirement that the affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein,” it is proper for us to consider the Federal rulings.

;
;
. The Federal courts have required that the defects be pointed out in the trial court in order to be considered on appeal.
;
;
. These rulings are in accord with the authoritative Moore on Federal Procedure which states “An affidavit that does not measure up to the standards of 56 (e) is subject to a motion to strike; and formal defects are waived in the absence of such a motion or other objection.” 6 Moore‘s Federal Practice (2d Ed.), Par. 56.22[1], p. 2817.

The wisdom of imposition of this requirement that such alleged defect must be raised in the trial court is illustrated in the case at bar. The trial judge, C. Winfred Smith, was called upon to decide two summary judgment motions, one being made by plaintiff and the other by defendant. In doing so he rendered two separate opinions. In each he divided his opinion into three parts: (1) a statement of facts, (2) citation and discussions, and (3) findings and conclusions. In his six-page scholarly order ruling against appellant from which this appeal is taken, he refers specifically to recitals contained in the affidavit that is now being attacked. Obviously, it would be unfair to the trial jurist for this court to be permitted to consider this appeal without consideration of the same record including this affidavit sub judice which the trial judge recognized as creating a factual issue. Furthermore, to disregard the affidavit now under attack would call upon us to consider the case on a completely different basis from that presented below and this would be contrary to the line of cases cited in

, holding, “He must stand or fall upon the position taken in the trial court.”

Not only do the decided cases lead us to this decision but such ruling accords with modern jurisprudence which seeks to eliminate the hidden litigatory pitfall.

As the record considered by the trial court and which is now before this court shows a genuine issue of fact to exist for determination by a jury, the court below is

Affirmed. Eberhardt, P. J., and Deen, J., concur.

EBERHARDT, Presiding Judge, concurring. While I concur in the judgment and in the opinion, I do think it well to recall that if there are matters in the affidavit which, on their face, constitute hearsay, unsupported conclusions, opinions, or if it sets forth facts which would not be admissible in evidence on a trial of the case, these are to be disregarded in determining whether a summary judgment should be granted or denied. They raise no issue, whether a ruling is invoked thereon or not.

;
;
;
;
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;
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;
. It may be noted too, that if the affidavit contains facts which would be admissible in evidence, and which are such as are obviously of personal knowledge, failure to so assert in the affidavit will not require disregard of them.
, and this is particularly true when no objection as to the form of the affidavit was made in the trial court.
;
.