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Action for damages. Paulding Superior Court. Before Judge Emeritus Foster.
Mrs. Fannie M. Pearson brought an action for damages against Mrs. Alice Smith Godfrey in Paulding Superior Court. The complaint alleged that the plaintiff was a guest passenger in the automobile of the defendant; that the defendant negligently drove her car at a speed of 65 to 70 m.p.h. on a state highway, with a defective tire on the automobile, causing the defective tire to blow out, whereupon the defendant lost control of the vehicle causing it to leave the highway; that as a result plaintiff was injured.
The plaintiff subsequently amended her petition to add the defendant North Cobb Tire Company. The complaint as amended, in addition to the original averments, alleged that the defendant North Cobb Tire Company supplied tires to the defendant Godfrey just prior to the date of the collision and that one of the tires furnished by North Cobb for the car was negligently mounted on the car; that the defective tire blew out causing the defendant Godfrey to lose control of the automobile, allowing the car to leave the highway and causing the plaintiff to be severely injured and damaged; that the combined negligent acts of the defendants injured and damaged the plaintiff in the sum of $10,851.25.
The defendant North Cobb moved for a summary judgment, relying on the depositions of the plaintiff and the defendant Godfrey and the affidavit of John Ed Harrison, the owner and proprietor of North Cobb Tire Company. Upon consideration of the pleadings and proof offered the trial judge entered judgment in favor of the defendant North Cobb Tire Company.
In Case 44529, C. E. Mathews was the plaintiff but the defendants were the same and the pleadings and proof offered were substantially the same. The trial judge also entered judgment for North Cobb Tire Company in this companion case and the ruling made in Case 44530 will be controlling in 44529.
As has been pointed out in many previous decisions of this court, the burden of showing the absence of a genuine issue of any material fact rests on the party moving for summary judgment. In fact, no duty devolves upon the opposing party to produce rebuttal evidence until a prima facie showing for a summary judgment is made by the movant. In order to pierce the allegations of a complaint, the evidence offered by the movant must unequivocally refute the allegations and clearly show the truth of the matter alleged. "It is not sufficient if the evidence merely preponderates toward defendant's theory rather than plaintiff's or if it does no more than disclose circumstances under which satisfactory proof of plaintiff's case on trial will be highly unlikely." Watkins v. Nationwide &c. Co., 113 Ga. App. 801, 803 (149 SE2d 749).
Here there is a complete absence of proof relative to the issue of whether the tires were negligently mounted. Thus, in this respect the movant failed to pierce the allegations of the complaint. However, the defendant North Cobb contends the evidence fails to established that any act on its part was the proximate cause of the injury. The proof offered is somewhat uncertain and inconclusive as to this issue. Nevertheless, unlike the situation on trial, the burden was on the movant to establish as a matter of law that its acts were not the proximate or contributing cause of the injury. The proof offered having failed to pierce all the material allegations of the plaintiff's complaint, the trial judge erred in granting the defendant's motion for summary judgment.
Howe & Murphy, Donald B. Howe, Jr., Long, Weinberg & Ansley, Palmer H. Ansley, Charles M. Goetz, Jr., for appellees.
Friday May 22 17:51 EDT

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