Opinion
46958.
SUBMITTED MARCH 6, 1972.
DECIDED MAY 31, 1972. REHEARING DENIED JUNE 27, 1972.
Action for damages. Dougherty Superior Court. Before Judge Kelley.
Burt, Burt Rentz, Van Cheney, for appellant.
Landau, Davis Farkas, Edmund A. Landau, Jr., for appellee.
Under the facts of this case, there is a jury issue as to the place of residence of the defendant. The trial court erred in granting the motion for summary judgment.
SUBMITTED MARCH 6, 1972 — DECIDED MAY 31, 1972 — REHEARING DENIED JUNE 27, 1972 — CERT. APPLIED FOR.
Plaintiff brought suit against the defendant for property damage and personal injury arising out of an automobile collision which occurred in August, 1969. The complaint alleged that the defendant was a nonresident of Georgia and was amenable to the service of process under the Georgia nonresident motorist statute. The defendant denied that he was a nonresident of the State at the time of the collision. The trial court granted the defendant's motion for summary judgment on the jurisdictional issue.
The motion was supported by answers to interrogatories and the affidavit of the defendant. These show that: The defendant enlisted in the United States Navy on May 5, 1968, and at the time resided in Columbus, Ohio; in July, 1968, he was assigned to the Naval Air Station, Albany, Georgia, for duty; he married in July, 1968; his wife gave birth to a child in Columbus, Ohio, in January, 1969; shortly after the birth of this child the defendant's wife and baby moved to Albany, Georgia, where they rented an apartment. Defendant went on to say in his affidavit "when my wife and baby moved to Georgia, we established our home and permanent residence there." He also stated that in early 1969 he changed his residence address on all his records in the Navy to Albany, Georgia. He obtained a Georgia driver's license as did his wife. His automobile was titled in his father's name because of the defendant's minority and carried an Ohio license plate. The defendant was not registered to vote in any State and the only taxes. In December, 1969, the defendant was ordered to sea duty where he remained until his military service was completed in about May, 1970. After his departure from Albany in 1969 for sea duty his wife and child returned to her parents' home in Columbus, Ohio. Upon his discharge from the Naval service the defendant returned to Columbus where he took up residence and obtained employment.
If the defendant was a resident of Albany, Georgia at the time of the collision then service upon him cannot be obtained by the nonresident motorist statute. Davis v. Holt, 105 Ga. App. 125 (b) ( 123 S.E.2d 686). Although the defendant in his affidavit claims that at the time he and his wife took up an abode in Albany that he intended to become a permanent resident of Georgia, the fact that he was in this State in compliance with Naval orders, and the fact that upon completion of his service obligation he returned to Ohio, raises an inference that he was only a temporary sojourner in Georgia, and thus a nonresident. Davis v. Holt, 105 Ga. App. 125, supra; Coggins v. Rhodes, 113 Ga. App. 837 ( 149 S.E.2d 834). Thus giving the plaintiff, the opposing party, the benefit of this favorable inference, it is clear that there is a genuine material issue of fact as to the residence of the defendant for resolution by a jury. The trial court erred in granting the motion for summary judgment.
Judgment reversed. Eberhardt, P. J., and Evans, J., concur.