Lineberger v. Colonial Life & Accident Insurance Co.

182 S.E.2d 643 (1971)

12 N.C. App. 135

Joe C. LINEBERGER v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY.

No. 7127DC421.

Court of Appeals of North Carolina.

August 4, 1971.

*644 Tim L. Harris by Don H. Bumgardner, Gastonia, for plaintiff appellant.

Hollowell, Stott & Hollowell by L. B. Hollowell, Jr., Gastonia, for defendant appellee.

GRAHAM, Judge.

The only evidence possibly justifying the entry of summary judgment for defendant arose from statements made by several examining physicians in the letters produced by plaintiff for defendant's examination and copying. These letters were not under oath and could therefore not be considered as affidavits. Ogburn v. Sterchi Brothers Stores, Inc., 218 N.C. 507, 11 S.E.2d 460.

The letters were lacking in still another respect. G.S. § 1A-1, Rule 56(e) provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (Emphasis added). The letters in question contain various opinions which the physicians would be competent to relate in court only if they first were established to be medical experts. Stansbury, N.C. Evidence 2d, §§ 133, 135. There was no admission before the court that any of the witnesses were medical experts and none of the letters contain information which would support a finding that they were.

The burden is on the party moving for summary judgment to establish the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425. Where the evidentiary matter supporting the moving party's motion is insufficient to satisfy his burden of proof, it is not incumbent upon the opposing party to present any competent counter-affidavits or other materials. Griffith v. William Penn Broadcasting Co., (E.D.Pa.1945), 4 F.R.D. 475. Here defendant did not carry its burden of proof by establishing by competent evidence that there was no triable issue of fact. Hence, judgment granting summary judgment to defendant may not be affirmed, even though defendant failed to come forward with any evidence showing that he is entitled to recover as alleged in the complaint.

Reversed.

BROCK and VAUGHN, JJ., concur.