159 Ga. App. 363 | Ga. Ct. App. | 1981
Lead Opinion
1. This is an appeal by the plaintiff Pollard from the grant of summary judgment to the defendants in a personal injury action resulting from an automobile collision. We apply the usual rules of construction. All inferences will be indulged in favor of the party opposing the motion. Drake v. Leader Nat. Ins. Co., 153 Ga. App. 314 (265 SE2d 114) (1980). This is true even though the movant may not be the party upon whom the burden of proof lies upon the trial of the case. Combs v. Adair Mtg. Co., 245 Ga. 296 (264 SE2d 226) (1980). And it includes the burden resting upon the movant of establishing the nonexistence, as well as the existence, of any pertinent issue of material fact. Taylor v. Taylor, 243 Ga. 506 (255 SE2d 32) (1979). Thus, the burden is on the movant to establish that the opposite party was capable of contracting if such becomes relevant to the question at issue. Wheat v. Montgomery, 130 Ga. App. 202, 206 (202 SE2d 664) (1973). “It is not sufficient if the evidence merely preponderates toward defendant’s theory rather than plaintiffs, or if it does no more than disclose circumstances under which satisfactory proof of plaintiffs case on trial will be highly unlikely.” Shadix v. Dowdney, 117 Ga. App. 720 (162 SE2d 245) (1968). “The defendant [on the trial of the case] is entitled to the benefit of a presumption that Mrs. Wheat was normal and possessed of her mental faculties and fully capable of contracting... nothing appearing to the contrary .. . and upon a trial this would be sufficient under the evidence as it stands to call for a directed verdict. But the rule is different in summary judgment proceedings; the incidence of the burden of proof is different. On the trial the plaintiff, asserting her incapacity to contract because she was taking prescribed drugs, has the burden of proving that she was not, at the time of signing the releases, capable of contracting, while on summary judgment the movant has the burden of showing that she was capable ... [I]n the face of her assertion of incapacity, movant must, on summary judgment, rebut the claim. On a trial the rule is otherwise; plaintiff there has the burden of sustaining her claim.” Wheat v. Montgomery, 130 Ga. App. 202, supra.
2. The undisputed evidence offered by affidavit and deposition on the hearing of the motion for summary judgment is substantially as follows: Plaintiff Faris, in the cab of his truck, was proceeding along the highway when he topped a hill and saw a car approaching on his side of the road, approximately 8 or 10 car lengths ahead of him. He pulled to the right as far as possible, honked, came to a full stop, and put the car in neutral or reverse, when he was hit head-on. His
3. It is also contended that a summary judgment was properly granted because the plaintiff received and cashed a check for $800, signed a complete release and never tendered back the benefit. Such a release, of course, would under those circumstances constitute an end to the litigation. Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58 (239 SE2d 381) (1977); Riker v. McKneely, 153 Ga. App. 773 (266 SE2d 553) (1980). We grant that the plaintiffs statements that the $800 check was intended only to apply to property damage would not in and of itself be sufficient to relieve the plaintiff of the consequences of his actions in signing the release, accepting the check, and keeping the proceeds. However, under the evidence here and the case of Wheat v. Montgomery, 130 Ga. App. 202, supra, a jury question was
Since there were issues for jury determination it was error for the trial court to grant the defendants’ motion for summary judgment.
Judgment reversed.
Concurrence Opinion
concurring specially.
I concur fully in the judgment reversing the grant of summary judgment in this case. I also agree with all that is said in Divisions 1 and 2 of the opinion. I further endorse the ruling of Division 3. However, I am not convinced of the applicability of the statutory provisions relied upon by the majority nor am I certain that the failure to answer the letter constitutes “a justifiable inference that the tender, if carried out in all formality, would still be rejected” so that, under the cases cited, a formál tender is unnecessary. However, I do agree with the majority that the defendant’s failure to reply to plaintiffs letter is crucial because “if the party to whom tender is to be made should obstruct or prevent a tender, [there is] no reason why in that event tender should not be held to have been waived. It would be unfair for the first party to a contract to purposely avoid and prevent the performance of a contract by the other party.” Blount v. Lynch, 24 Ga. App. 217, 221 (100 SE 644) (1919). Thus, while I do not believe that the failure to answer this particular letter could be construed as an admission or as an indication that the ultimate tender proposed would be refused, I do believe that the defendant’s failure to respond in any way could be found to be an attempt to obstruct or prevent the tender. Therefore, it is clear that summary judgment was improperly granted in this case.