McCurry v. Bailey, 24559
| Decision Date | 23 April 1968 |
| Docket Number | No. 24559,24559 |
| Citation | 224 Ga. 318,162 S.E.2d 9 |
| Parties | Catherine F. McCURRY v. Charles A. BAILEY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where the unimpeached evidence shows the inert body of a person in the driver's position at a collision, testimony of an interested party contradicting these circumstances does not erase an issue of fact to the point of demanding a summary judgment conforming to the testimony of the interested party. It is error to reverse a judgment denying a summary judgment in such circumstances.
2. Where at a hearing of a motion for summary judgment, an affidavit is presented stating that an eyewitness to the collision which is the basis of the suit for damages-and naming him,-can in all probability be located and produced as a witness upon the trial, the judge is authorized in his discretion to refuse summary judgment. The obvious honesty of the affiant in failing to say what such witness will testify to is to the credit, rather than discredit, of the affiant.
This is a certiorari matter which is fully reported in the reports of the Court of Appeals in Bailey v. McCurry, 117 Ga.App. 100, 159 S.E.2d 425. The trial court denied an application for summary judgment after a hearing, and the Court of Appeals reversed. Since the summary judgment is only to settle cases speedily where there are no issues of fact to be tried by a jury, and since there appear to be possible issues for trial before a jury as well as a question of the right of the broad discretion of the trial judge in the grant or denial of summary judgment, the writ of certiorari has been granted.
Allen & Baker, James C. Abernathy, T. M. Allen, Jr., Verlyn C. Baker, Decatur, for appellant.
Kenneth Gilchrist, Atlanta, for appellee.
While the application for certiorari presses the contention that the Court of Appeals erred in deciding the case because of the death of the defendant, yet we believe no good purpose would be served by ruling on that question since we are reversing the judgment of that court which reversed the trial court's denial of a summary judgment.
1. The heart of the case is the ruling by the Court of Appeals that the trial court erred in refusing to enter a summary judgment. We hold that the evidence showing the nature of the collision, and the position of the body of the defendant under the steering wheel of the vehicle was enough to make an issue of fact as to who was driving at the time; and the testimony of the defendant that the deceased was driving is not enough to cancel these circumstances and to settle as a matter of law that the deceased was driving. All this presented a situation where only a jury could say who was driving. Myers v. Phillips, 197 Ga. 536, at page 542, 29 S.E.2d 700, at page 703, cited by the Court of Appeals does not support its ruling. In that case, Justice Grice said: 'Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the...
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