Scott v. Owens-Illinois, Inc. ( 1984 )

McMurray, Chief Judge,

dissenting.

“The function of the summary judgment is to avoid a useless trial; and a trial is not only not useless but absolutely necessary where there is a genuine issue as to any material fact.” 6 Moore’s Fed. Practice, ¶ 56.15 [1.-0], p. 56-391. “A difficult question of law does not however, warrant the denial of a motion for summary judgment, subject to the following important qualification: that the material factual issues are not in dispute and furnish an adequate basis for the application of the proper legal principles. In this event nothing is to be gained by a denial of the motion, for resolution of the question does not become easier through a process of postponement.” 6 Moore’s Fed. Practice, ¶ 56.15 [1.-0], p. 56-398. In the case sub judice no genuine issues of material fact remain for determination by a jury. The uncontroverted evidence shows that the manufacturer of the bottle in question cannot be determined from the evidence available. There is no genuine issue of material fact remaining for the jury. There remains only the need to apply the law to the uncontroverted facts of the case sub judice. I would hold that the trial court did not err in granting summary judgment in favor of the two bottle manufacturers. I respectfully dissent. See generally Fender v. Colonial Stores, 138 Ga. App. 31, 37 (2) (225 SE2d 691). I am authorized to state that Presiding Judge Birdsong and Judge Sognier join in this dissent.