dissenting from Division 2. In my opinion this court should reverse both the denial of the insurer’s motion for judgment notwithstanding the verdict and the grant of plaintiff’s motion for directed verdict.
This case was before this court previously on the denial of the insurer’s motion for summary judgment. For an outline of the facts see Cotton States Mut. Ins. Co. v. Proud-foot, 123 Ga. App. 397 (181 SE2d 305). At the trial of the case, additional evidence was introduced which materially changes the results of that decision. For example, Cotton States presented the deposition of its agent in California who had personally delivered to the insured the transportation money for her attendance at the trial on two occasions, had booked the reservations, and had offered her any other assistance necessary in making the trip. He had received her assurances that she would be present. Also, Cotton States introduced a letter written to the insured which made it clear that if she did not attend the trial on the second date set, it would disclaim any further responsibility in the matter and withdraw from her defense. It also reiterated that it reserved the right to claim breach of the noncooperation clause while undertaking the defense of the suit. The record shows further that Cotton States did request a continuance when she failed to appear the second time, and it was denied. Since the evidence is substantially different from what appeared on prior review, the former ruling is not the law of the case. Sams v. McDonald, 119 Ga. App. 547 (2) (167 SE2d 668); Davis v. Wight, 207 Ga. 590 (1) (63 SE2d 405).
Therefore the issue of estoppel for failure to- serve a reservation rights notice is removed from the case and the only question is whether the insurer acted with diligence and in good faith to obtain the insured’s cooperation. H. Y. Akers & Sons, Inc. v. St. Louis Fire &c. Co., 120 Ga. App. 800 (172 SE2d 355); Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556 (177 SE2d 819). National Union Fire Ins. Co. v. *801Carmical, 99 Ga. App. 98 (107 SE2d 700); State Farm Mut. Auto. Ins. Co. v. Wendler, 117 Ga. App. 227 (160 SE2d 256); and St. Paul Fire &c. Ins. Co. v. Gordon, 116 Ga. App. 658 (158 SE2d 278) are not in conflict with Akers and Wolverine, supra. In this regard see, 8 Appleman, Insurance Law and Practice 136, §4782; 148, §4784.
The appellee contends that Cotton States showed a lack of diligence when it refused to take its insured’s deposition after she had failed to appear on the first date set for trial, especially in view of the court’s instructions to take her deposition or procure her presence. He cites several cases from other jurisdictions which indicate that in order to rely upon non-cooperation, the insurer must take the deposition where there are reasons to believe the insured may not appear. He contends that the circumstances here were such as to rouse suspicion that she would not appear.
However, the evidence also shows that she assured the California agent, the company and its lawyer that she would definitely appear on the second date—that the personal problems which had kept her away the first time had been solved.
The question is: what must an insurer do in the way of procuring its insured’s attendance in order to be deemed diligent? Recent Georgia law indicates that far less is necessary than was actually done here. "If the asserted breach is the insured’s failure to attend the trial of a case, a showing of reasonable effort to notify him of the time and place of the trial, as scheduled by the court, and a request for his attendance is sufficient.” H. Y. Akers & Sons v. St. Louis Fire &c. Ins. Co., 120 Ga. App. 800, supra, Hn. 4, and Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, supra, p. 557.
Where a party makes out a prima facie case and the other party fails or refuses to introduce any evidence, the court is required to direct the verdict. 88 CJS 674, 677, §258.
"Evidence sufficient to establish a proponent’s case puts the adversary to the necessity of producing evidence to meet the prima facie case, or to produce evidence sufficient *802to create a state of equipoise between his proof and that of the adversary. Hawkins v. Davie, 136 Ga. 550, 552 (71 SE 873); Hyer v. Holmes & Co., 12 Ga. App. 837, 846 (79 SE 58); Phillips v. Lindsey, 31 Ga. App. 479, 482 (2), 484 (4) (120 SE 923); Davison Chemical Corp. v. Hart, 68 Ga. App. 413, 417 (23 SE2d 107); 4 Jones on Evidence 1884, § 999; 1 Jones on Evidence 367, 368, § 205; 379, § 207; 31 CJS 718, § 110; 20 AmJur 134, § 132; 137, § 134; 144, § 138.” Complete Auto Transit v. Baggett, 107 Ga. App. 415 (1) (130 SE2d 271). If nothing is introduced to counter the prima facie case, the direction of the verdict is "inevitable.” Mackey v. Mutual Aid &c. Co., 94 Ga. 104, 107 (20 SE 643); Department of Revenue v. Stewart, 67 Ga. App. 281, 287 (20 SE2d 40); Lansdale Clothes, Inc. v. Wright, 217 Ga. 817, 819 (125 SE2d 502).
In my opinion the insurer has shown prima facie a breach of the cooperation clause and its diligence and good faith in seeking to obtain cooperation. The burden therefore shifted to the plaintiff, who is claiming under the policy in the shoes of the insured, to show justification or excuse for the breach. Wolverine, supra. There was no such showing made here. For these reasons the trial court erred in directing a verdict for the plaintiff and in denying the garnishee’s motion for judgment n.o.v.
Eberhardt, P. J., Deen and Quillian, JJ., concur in this dissent.