concurring specially.
I concur specially because the trial judge as trior of the facts was correct in holding the plaintiff "failed to sufficiently make out the case as pled,” stating at the conclusion of plaintiffs evidence that she failed to carry the burden of proof. The court then sustained defendant’s *868motion to dismiss.
The majority are of the opinion that they are bound by Pichulik v. Air Conditioning &c. Co., 123 Ga. App. 195 (180 SE2d 286) holding also that the judge was authorized to find the facts adversely to the plaintiff. No finding of facts was made nor were the conclusions of law made specially; but here they were expressly waived in writing (Code § 81A-152, as amended, Ga. L. 1970, pp. 170, 171). The court did not have to make such a finding. The Pichulik case has been followed in such cases as Kennery v. Mosteller, 133 Ga. App. 879, 881 (212 SE2d 447) (a three judge opinion, as was Pichulik) and Comtrol v. H-K Corp., 134 Ga. App. 349, 351 (214 SE2d 588) which was a six judge decision (three judges dissenting). I am probably bound by these decisions, nevertheless I prefer to affirm the lower court in that he sustained the motion to dismiss because plaintiff failed to prove her case.