Summary
In Burnette Ford, Inc. v. Hayes, 124 Ga. App. 65 (183 S.E.2d 78) (1971), this court relied upon the Supreme Court's answer to a certified question in that case.
Summary of this case from Collins v. Altamaha Elect. c. Corp.Opinion
45684.
ARGUED OCTOBER 5, 1970.
DECIDED JUNE 16, 1971.
Action for damages. Whitfield Superior Court. Before Judge Vining.
Dennis Fain, Robert E. Corry, Jr., for appellant.
Mitchell Mitchell, Warren N. Coppedge, Jr., Stafford R. Brooke, for appellees.
1. Where a party to a case, upon whom the burden of proof upon the trial of the case does not lie, makes a motion for summary judgment, all of the evidence adduced on said motion, including the testimony of the party opposing the motion, must be construed most strongly against the movant. Burnette Ford, Inc. v. Hayes, 227 Ga. 551 ( 181 S.E.2d 866); Durrett v. Tunno, 113 Ga. App. 839, 841 ( 149 S.E.2d 826); Boatright v. Padgett Motor Sales, 117 Ga. App. 578, 581 ( 161 S.E.2d 402).
2. Upon application of the above principle to the testimony of the plaintiff in the present case (by deposition and answer to interrogatories presented by the defendant and by affidavit presented by plaintiff) on motion for summary judgment by the defendant in an action seeking recovery for injuries sustained as a result of alleged negligent repairs made to plaintiff's truck by the defendant, we cannot say that the testimony of the plaintiff demanded a finding that he was guilty of such negligence as would bar his recovery. It follows, therefore, that the trial judge did not err in overruling the defendant appellant's motion for summary judgment.
ARGUED OCTOBER 5, 1970 — DECIDED JUNE 16, 1971.
(1, 2) This court certified to the Supreme Court the following question: "Where a party to a case, upon whom the burden of proof upon the trial of the case does not lie, makes a motion for summary judgment, is all of the evidence adduced on said motion, including the testimony of the party opposing the motion, construed most strongly against the movant?" and with the question so certified sent to the Supreme Court the following reference: "See in connection with this question the following cases on the burden being upon the movant in a summary judgment and the construction of the evidence and pleadings on summary judgment. Burden of Proof: Moore's Federal Practice, Vol. 6 (2d Ed.), par. 56.15 [3], pp. 2341-2343; Bagley v. Firestone Tire Rubber Co., 104 Ga. App. 736, 739 ( 123 S.E.2d 179); Cotton States Mut. Ins. Co. v. Martin, 110 Ga. App. 309 ( 138 S.E.2d 433); Georgia Mut. Ins. Co. v. Morgan, 115 Ga. App. 520 ( 154 S.E.2d 720); Southern Bell Tel. Tel. Co. v. Beaver, 120 Ga. App. 420 (3, 4) ( 170 S.E.2d 737); Brown v. Sheffield, 121 Ga. App. 383, 388-389 ( 173 S.E.2d 891); Bryant v. Rucker, 121 Ga. App. 395 ( 173 S.E.2d 875). Construction of Evidence: Holland v. Sanfax Corp., 106 Ga. App. 1 (1) ( 126 S.E.2d 442); McCarty v. National Life Accident Ins. Co., 107 Ga. App. 178 (1, 2) ( 129 S.E.2d 408); Malcom v. Malcolm, 112 Ga. App. 151, 152 ( 144 S.E.2d 188); White v. Morris, 114 Ga. App. 618, 620 ( 152 S.E.2d 417); King v. Schaeffer, 115 Ga. App. 344, 345 (2) ( 154 S.E.2d 819); Word v. Henderson, 220 Ga. 846, 848 ( 142 S.E.2d 244). See also Durrett v. Tunno, 113 Ga. App. 839, 841 ( 149 S.E.2d 826) and Boatright v. Padgett Motor Sales, 117 Ga. App. 578, 581 ( 161 S.E.2d 402), holding that on motion for summary judgment by a defendant the plaintiff's testimony is to be construed in favor of the plaintiff. And ruling to the contrary: Dykes v. Hammock, 116 Ga. App. 389 ( 157 S.E.2d 524); Scott v. Gulf Oil Corp., 116 Ga. App. 391 (1) ( 157 S.E.2d 526); McKnight v. Guffin, 118 Ga. App. 168 (4) ( 162 S.E.2d 743); Davis v. Ferrell, 118 Ga. App. 690, 692 ( 165 S.E.2d 313) and Chandler v. Gately, 119 Ga. App. 513, 514 (3) ( 167 S.E.2d 697) which cites Lampkin v. Edwards, 222 Ga. 288 (3, 5) ( 149 S.E.2d 708); Ryder v. Schreeder, 224 Ga. 382, 386 ( 162 S.E.2d 375); and Dykes v. Hammock, 116 Ga. App. 389, supra, as controlling authority."
The Supreme Court answered the question in the affirmative. Accordingly, anything to the contrary in Lampkin v. Edwards, 222 Ga. 288 (3, 5) ( 149 S.E.2d 708); Ryder v. Schreeder, 224 Ga. 382, 386 ( 162 S.E.2d 375); Dykes v. Hammock, 116 Ga. App. 389 ( 157 S.E.2d 524); Scott v. Gulf Oil Corp., 116 Ga. App. 391 (1) ( 157 S.E.2d 526); McKnight v. Guffin, 118 Ga. App. 168 (4) ( 162 S.E.2d 743); Davis v. Ferrell, 118 Ga. App. 690, 692 ( 165 S.E.2d 313) and Chandler v. Gately, 119 Ga. App. 513, 514 (3) ( 167 S.E.2d 697), can no longer be considered as binding authority on this court.
Headnote 2 requires no further elaboration. However, we do not deem it inadvisable to state that our holding here is not to be construed as a holding of whether the evidence of the plaintiff on the trial of the case, if it be identical with that in the present case and be construed most strongly against him on the trial, would or would not demand a verdict against him. That question is not before this court at the present time.
Judgment affirmed. Jordan, P. J., and Eberhardt, J., concur.