dissenting.
I fully concur in the dissent as written by Judge Deen. However, because the majority opinion relies upon Pichulik v. Air Conditioning &c. Co., 123 Ga. App. 195, 197 (180 SE2d 286), I feel that one thing should be pointed out respecting that decision. This case is not authority for the proposition that a judge, sitting without a jury, in considering a motion to dismiss, may use a different rule than when the case is being tried before a jury. It is the law of this state that whenever a motion, the effect of which is to dispose of the case without submitting it to the jury for a decision on its merits, is under consideration, the evidence must be construed and weighed most strongly in favor of the party opposing the motion. See Whitaker v. Paden, 78 Ga. App. 145 (1) (50 SE2d 774); Curry v. Roberson, 87 Ga. App. 785, 786 (75 SE2d 282).
The law of Georgia does not allow a judge, sitting without a jury, to use a different formula in deciding whether he will dismiss a case. It is true that there is a statement in the Pichulik case, supra, which says that the judge, sitting without a jury, was not required to consider the evidence in a light most favorable towards the plaintiff. But that statement is obiter, and runs counter to the entire scheme of law of this state on the subject.