Shockley v. Henslee , 122 Ga. App. 163 ( 1970 )

Jordan, Presiding Judge.

We affirm. The above uncontradicted evidence clearly shows how the explosion occurred, completely dissipating the theory alleged in the petition that the explosion was caused by the defendant’s trash fire. The evidence is clear also that at least on this particular occasion the boys were trespassers on the defendant’s property, having been expressly directed by the defendant and by the parents of Gary Shockley not to come upon the premises. It further appears that defendant did not know the boys were on his property after he had asked them to leave nor is there any evidence that defendant was aware of any danger from the drums which were empty. Under the facts here presented, neither count of the petition presents a theory under which plaintiff could recover.

While recognizing that a party opposing a motion for summary judgment is entitled to the benefit of all favorable inferences, if after this is done the record still shows no genuine issue of a material fact, a summary judgment for the moving party is authorized. McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178 (129 SE2d 408); Scott v. Gulf Oil Corp., 116 Ga. App. 391, 392 (157 SE2d 526). The defendant’s evidence clearly pierced the material allegations of plaintiff’s petition, thus requiring the plaintiff to present conflicting evidence. This not having been done the defendant was entitled to a summary judgment and the trial court did not err in granting it.

While the weight given to the testimony of an expert is a question for the jury, the expert’s testimony in this case is merely cumulative of other evidence ample to support the summary judgment. No issue is raised by the appellant as to the admissibility of certain statements claimed to be a part of the res gestae.

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, Deen, Quillian, and Whitman, JJ., concur. Pannell and Evans, JJ., dissent.