concurring specially. I concur in the judgment for the reason that the evidence submitted on the motion for a summary judgment does not show as a matter of law that the defendant was entitled to a summary judgment. The pleadings were therefore not pierced and a genuine issue remains as made by the pleadings. This court has no jurisdiction at this stage of the case to decide or intimate whether jury issues will or will not be involved when the case is tried on evidence which may be different from that on the motion here involved. The *830only question before this court now is whether the evidence showed as a matter of law that the defendant is not liable.