DocketNumber: 46331
Citation Numbers: 125 Ga. App. 155
Judges: Deen, Evans, Hall
Filed Date: 11/16/1971
Status: Precedential
Modified Date: 1/12/2023
L. H. Lewis Construction Company was the prime contractor for construction of a boys’ dormitory for the Georgia School for the Deaf at Cave Springs, Georgia. It was bonded by Aetna Casualty & Surety Company. The prime contractor sublet a part of the work to Rogers Company, as to both payment and performance.
Cowan Supply Company sold materials on account to the Rogers Company, which were not paid for. Cowan Supply Company then filed suit against Aetna Casualty & Surety Company, and thereafter both the Rogers Company and United Bonding Company were added as defendants.
Plaintiff moved for summary judgment against all defendants, which motion was granted. Aetna Casualty & Surety Company complains here on the sole ground that the lower court failed to recognize a material question of fact for jury determination. Held:
Under the authority of Horne-Wilson, Inc. v. Smith, 109 Ga. App. 676 (1) (137 SE2d 356) the affidavit of plaintiff’s credit manager in connection with the invoices attached thereto made a prima facie case for plaintiff in said motion for summary judgment, creating a presumption that the materials described in the invoices were actually used on the job in question. See also Ingalls Iron Works Co. v. Standard Acc. Ins. Co., 107 Ga. App. 454, 459 (130 SE2d 606).
In opposition to the above prima facie case, defendant introduced the affidavit of John T. Russell, vice president and general counsel for one of the defendants, in pertinent part as follows: "Affiant further says on oath that af~
We are mindful that the Supreme Court of Georgia has held that while opinion evidence is not sufficient on which to have a motion for summary judgment granted, it is sufficient to preclude the grant of a motion for summary judgment. See Harrison v. Tuggle, 225 Ga. 211, 213 (167 SE2d 395); Word v. Henderson, 220 Ga. 846 (142 SE2d 244). But there is a vast difference between opinion evidence and hearsay evidence. An expert would be allowed to testify as to his opinion, but would not be allowed to testify as to hearsay evidence. See § 56 (e) CPA (Code Ann. § 81A-156 (e); Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238). In the case sub judice, the witness,
Judgment affirmed.