Opinion
47683.
ARGUED JANUARY 9, 1973.
DECIDED FEBRUARY 2, 1973. REHEARING DENIED FEBRUARY 16, 1973.
Action for damages. Gwinnett Superior Court. Before Judge Merritt.
Grogan, Jones Layfield, Milton Jones, Charles H. Hyatt, Robert J. NeSmith, for appellant.
Lokey Bowden, Glenn Frick, for appellee.
"The grant of a summary judgment may be improper where, at the trial, the grant of a directed verdict may be proper, when the party making the motion for summary judgment is not required to carry the burden on the trial of the case." Werbin Tenenbaum v. Heard, 121 Ga. App. 147 (3) ( 173 S.E.2d 114). Accord: Morrow v. Thomason, 127 Ga. App. 309 ( 193 S.E.2d 256); E. Raymond Smith v. Allstate Ins. Co., 127 Ga. App. 571 (1) ( 194 S.E.2d 339); Jones v. Carr, 127 Ga. App. 332 ( 193 S.E.2d 255). In the instant case, construing all the evidence adduced on defendant's motion for summary judgment most strongly against defendant-movant, and giving plaintiff the benefit of all reasonable doubts and of all favorable inferences ( Burnette Ford v. Hayes, 227 Ga. 551 ( 181 S.E.2d 866); Smith v. Sandersville Production Credit Assn., 229 Ga. 65, 66 ( 189 S.E.2d 432)), we cannot say that defendant has carried his burden of demonstrating that he is entitled to judgment as a matter of law. Code Ann. § 81A-156 (c). Accordingly the grant of summary judgment to defendant must be reversed.
In the event defendant more fully develops the facts on further motion for summary judgment, or in the event the parties proceed to trial where the burden rests upon plaintiff, the instant case may well fall within the ambit of Sanders v. Jefferson Furniture Co., 111 Ga. App. 59 ( 140 S.E.2d 550) and cits.; Associated Distributors v. Canup, 115 Ga. App. 152 ( 154 S.E.2d 32); Butler v. Jones, 85 Ga. App. 158 ( 68 S.E.2d 173) and other similar cases.
Judgment reversed. Pannell and Stolz, JJ., concur.