Opinion
41869.
ARGUED MARCH 9, 1966.
DECIDED JUNE 8, 1966.
Action on insurance policy. Thomas Superior Court. Before Judge Lilly.
Altman Johnson, Sol Altman, for appellant.
Alexander, Vann Lilly, Frank T. Holt, for appellee.
On defendant's motion for summary judgment the evidence was inconclusive as to the facts alleged in plaintiff's petition and, being inconclusive in this respect, could not remove the issues of material fact from the case which the petition had raised.
ARGUED MARCH 9, 1966 — DECIDED JUNE 8, 1966.
Plaintiff brought this suit upon a homeowner's insurance policy against Nationwide Mutual Fire Insurance Company to recover the sum of $1,806.50, the value of certain jewelry, plus a penalty for bad faith and reasonable attorney's fees. Plaintiff contended that the jewelry was lost by burglary committed upon his wife's hotel room in Ankara, Turkey. The policy sued upon limited defendant's liability for loss of jewelry to $500 except for loss by burglary and other specified occasions of loss not alleged by plaintiff. Defendant admitted liability for $500 and moved for summary judgment as to any amount over $500. To support its motion defendant relied upon the deposition of plaintiff's wife.
According to the wife's testimony, she was a guest at the Kent Hotel in Ankara, Turkey. On the night before or early in the morning of November 13, 1963, she packed her suitcases for departure for Rome. At about 8 that morning, she went downstairs in the hotel for a cup of coffee and was gone for 15 or 20 minutes. During that time she left in her room her suitcases, one of which contained the jewelry in question. Her room was locked when she left and locked when she returned, and on her return to the room nothing unusual appeared. This was the only occasion after the jewelry was packed that her luggage was out of her presence until she reached the airport in Ankara. The suitcases were out of her presence again while they were being loaded on the plane bound for Rome, while they were in the baggage compartment of the plane during flight, and while being unloaded. The suitcases were returned to her at customs in Rome. During all the time in question, they were unlocked. After arriving at her hotel in Rome, she discovered that the jewelry was missing.
Plaintiff took this appeal from the trial court's grant of summary judgment for defendant.
In no sense does the Summary Judgment Act authorize the courts to sit as both judge and jury. General Gas Corp. v. Carn, 103 Ga. App. 542, 545 ( 120 S.E.2d 156); Davis v. Holt, 105 Ga. App. 125, 130 ( 123 S.E.2d 686). On motion for summary judgment the court is not authorized to try and resolve issues of fact; the function of the court, and its only authorized function under this procedure, is to determine the existence of a genuine issue of material fact. Code Ann. § 110-1203; Bagley v. Firestone Tire c. Co., 104 Ga. App. 736, 739 ( 123 S.E.2d 179); Dewey v. Clark, 180 F.2d 766, 772.
"A summary judgment upon motion therefor by a defendant in an action should never be entered except where the defendant is entitled to its allowance beyond all doubt. To warrant its entry the facts conceded by the plaintiff, or demonstrated beyond reasonable question to exist, should show the right of the defendant to a judgment with such clarity as to leave no room for controversy, and they should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. . . A summary judgment is an extreme remedy, and under the rule, should be awarded only when the truth is quite clear." Traylor v. Black, Sivalls Bryson, 189 F.2d 213, 216.
In order to pierce allegations of material fact contained in the plaintiff's petition, the evidence offered by defendant on motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged. It is not sufficient if the evidence merely preponderates toward defendant's theory rather than plaintiff's or if it does no more than disclose circumstances under which satisfactory proof of plaintiff's case on trial will be highly unlikely.
Here, the evidence relied upon by defendant did not show that the loss of the jewelry did not occur by the commission of a burglary in the plaintiff's wife's hotel room. The evidence showed only that it was just as likely, or perhaps more likely, that the loss occurred by some other criminal act not amounting to burglary. Thus this evidence did not unequivocally refute any material allegation of the petition and did not clearly show the truth of the matter. The evidence was inconclusive as to the facts alleged in the petition and, being inconclusive in that respect, could not remove the issues of material fact from the case which the petition had raised. On motion for summary judgment, the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all reasonable doubts and of all favorable inferences from it. Holland v. Sanfax Corp., 106 Ga. App. 1, 5 ( 126 S.E.2d 442); McCarty v. National Life c. Ins. Co., 107 Ga. App. 178, 179 ( 129 S.E.2d 408); Cotton States Mut. Ins. Co. v. Martin, 110 Ga. App. 309, 311 ( 138 S.E.2d 433); Malcom v. Malcolm, 112 Ga. App. 151, 154 ( 144 S.E.2d 188). "That one reasonably may surmise that the plaintiff is unlikely to prevail upon a trial, is not a sufficient basis for refusing him his day in court." Sprague v. Vogt, 150 F.2d 795, 801.
The trial court erred in granting summary judgment for defendant.
Judgment reversed. Jordan and Eberhardt, JJ., concur.