Where on the trial of a motion to quash service on a nonresident defendant under the Georgia Nonresident Motorists' Act there is evidence, although controverted by the defendant, that the moving defendant was the owner of the vehicle and had furnished it to the co-defendant for business use, and it does not affirmatively appear that at the time of the collision the co-defendant operating the vehicle was not engaged in the partnership business, it was error to grant the motion of the alleged owner and dismiss him as a party defendant prior to the trial of the case.
An Alabama application for transfer of title to a Chevrolet truck from Adams to Henley dated May 12, 1969, was subscribed and sworn to on May 20. On May 16 Henley, returning from a job of painting and carpenter work for a customer was on his way to a city bank with two employees in the truck and had a collision with the plaintiff, who sued both Adams and Henley alleging that Henley was Adams' agent. The depositions of the defendants agree that Adams gave Henley leads to customers who wanted this sort of work done and originally furnished him with equipment and the truck, that the arrangement had been going on 4 or 5 months, and that Henley had purchased or was in the course of purchasing Adams' truck. Henley stated: "We would take these jobs and we would do them and just use his truck and what material we needed and we were using his credit. We didn't have money to pay for it and he wasn't able to work very much. He kept the material there for the job and I was doing most of the work. We were splitting 50-50 on the profits . . . he helped me get all the jobs." He further testified that the contract of sale of the truck was not actually entered into on the 12th but on the 20th. "This trade was on the 20th, it wasn't before that. . . . He put that date in, I didn't put it in." As to payments for work, Henley testified that he collected the money and divided with Adams. "In other words, if I paid him a hundred dollars, fifty applied to the work, his work, and then the other fifty percent applied to the cost of this truck."
Adams, a resident of Alabama who was served under the provisions of the Georgia Nonresident Motorists' Act, filed a motion to quash service and dismiss the action as to him, and plaintiff appeals from the judgment of the trial court granting this motion.
In addition to the evidence above stated, the affidavit of Henley attached to the answer opposing the motion states that he and Adams "were partners in a painting contracting business and J. M. Adams furnished the truck for the job and credit to buy supplies for the job. He shared in the profits 50/50. Said truck was bought from J. M. Adams on May 20, 1969. The bill of sale and promissory note were backdated by J. M. Adams to May 12, 1969, which is not and was not the day of sale." This alone authorizes the inference that on May 12 legal title to the truck was in Adams and he had placed it in Henley's possession for partnership use and does not negative the inference that it was being so used at the time of the collision. The burden of showing the absence of a material fact is on the movant. D. H. Overmyer Co. v. Joe Summers Roofing Co., 120 Ga. App. 188 (169 SE2d 821)
. Adams' affidavit is based on the premise that Henley had sole title and exclusive possession of the truck, that Adams was engaged in no occupation on the date of the collision, was not employing Henley, and Henley was not working for him or on his behalf. Construed against the movant this constitutes a denial of partnership, agency relation and ownership of the vehicle involved, but not an uncontroverted factual, probative statement that, conceding the partnership existed and that Adams was furnishing his vehicle for partnership use, Henley was still at the time of the collision using it not in the business of the partnership but for his personal affairs. Cf. Early v. Ramey, 119 Ga. App. 621
, 623 (168 SE2d 629
). This possibility has not been eliminated by Henley either in his affidavit or his deposition, once we concede that title to the car and existence of the partnership are jury questions. It was accordingly error to dismiss Adams as a party defendant.