Standard Acc. Ins. Co. v. Ingalls Iron Works Co.

• Court: Georgia Court of Appeals
• Writing for the Court: HALL; NICHOLS, P. J., and RUSSELL
• Citation: Standard Acc. Ins. Co. v. Ingalls Iron Works Co., 136 S.E.2d 505, 109 Ga.App. 574 (Ga. App. 1964)
• Decision Date: 15 April 1964
• Docket Number: No. 2,No. 40655,40655,2
• Parties: STANDARD ACCIDENT INSURANCE COMPANY et al. v. INGALLS IRON WORKS COMPANY

Page 505

136 S.E.2d 505

109 Ga.App. 574

STANDARD ACCIDENT INSURANCE COMPANY et al. v. INGALLS IRON WORKS COMPANY.

No. 40655.

Court of Appeals of Georgia, Division No. 2.

April 15, 1964.

Syllabus by the Court

A principal debtor's defense of payment must be specially pled or added by amendment, otherwise evidence of payment is irrelevant to the issues.

This is a suit against a public work contractor, a partnership, and its surety on a contractor's payment bond under the provisions of Code Ann. § 23-1705 et seq. It was previously tried and at the conclusion of the presentation of the plaintiff's evidence the trial court granted the defendants' motion for a nonsuit, and the plaintiff appealed to this court. The pleadings and evidence presented at the trial are set out in Ingalls Iron Works Co. v. Standard Accident Ins. Co., 107 Ga.App. 454, 130 S.E.2d 606. This court held that the trial court erred in granting the nonsuit. After return of the remittitur to the trial court, the plaintiff filed a motion for summary judgment and incorporated therein a copy of the transcript of evidence taken at the trial. To this motion the defendant contractor filed an opposing affidavit sworn to by one of its partners. The trial court granted summary judgment in favor of the plaintiff, and the defendants assign error on this judgment.

G. Ralph Burger, Casper Rich, Atlanta, for plaintiff in error.

Westmoreland, Hall, Pentecost, Harry P. Hall, Jr., Atlanta, for defendant in error.

HALL, Judge.

It is the law of this case 'that the proof here was sufficient to meet the test of circumstantial proof * * *, and that it was sufficient to raise a presumption that the steel was in fact used in the school job. * * *'; the evidence being sufficient to make a prima facie case, the burden was on the defendants to overcome the presumption with some evidence. Ingalls Iron Works Co. v. Standard Accident Ins. Co., 107 Ga.App. 454, 459, 460, 130 S.E.2d 606. When the party to whom the burden of evidence has been shifted fails then to carry that burden, the trial court has authority to direct a verdict against him. Mackey v. Mutual Aid Loan & Investment Co., 94 Ga. 104(2), 20 S.E. 643; Department of Revenue v. Stewart, 67 Ga.App. 281, 289, 20 S.E.2d 40; Lansdale Clothes, Inc. v. Wright, 217 Ga. 817(2), 125 S.E.2d 502. The trial court's function in ruling on a motion for summary judgment is analogous to the function it performs when ruling on a motion for directed verdict. The essence of both motions is that there is no genuine issue of material fact to be resolved by the trior of the facts, and that the movant is entitled to judgment on the law applicable to the established facts. McCarty v. National Life & Accident Ins. Co., 107 Ga.App. 178(1), 129 S.E.2d 408; One In All Corporation v. Fulton National Bank, 108 Ga.App. 142, 144, 132 S.E.2d 116.

The question here is whether the opposing affidavit contains sufficient evidence to meet the defendant's burden to rebut the plaintiff's prima facie case. Studstill v. Aetna Cas. & Surety Co., 101 Ga.App. 766, 768, 115 S.E.2d 374; Scales v. Peevy, 103 Ga.App. 42(2), 118 S.E.2d 193; King v. Fryer, 107 Ga.App. 715, 717, 131 S.E.2d 203. The only evidence contained in the opposing affidavit that could possibly relate to this burden is...