1. The burden is on the defendant in its motion for summary judgment to affirmatively negative plaintiff s claim and show plaintiff is not entitled to recover under any theory of the case and this by evidence, which demands a finding to that effect.” First of Ga. Ins. Co. v. Josey, 129 Ga. App. 14 (3a) (198 SE2d 381) (1973). The respondent is never required to rebut the motion until the movant has carried the burden of no material issue. Ginn v. Morgan, 225 Ga. 192, 194 (167 SE2d 393) (1969). For this purpose, bare legal conclusions in affidavits, etc., create no issue of fact so far as summary judgment is concerned. Benefield v. Malone, 112 Ga. App. 408 (2) (145 SE2d 732) (1965); Resolute Ins. Co. v. Norbo Trading Corp. 118 Ga. App. 737, 742 (165 SE2d 441) (1968).
2. Neither the contract itself nor the factual situation as it appears from affidavits and depositions requires a conclusion that the defendant was the alter ego of the hospital in the incident which caused the infection and death. The death here occurred October 31, 1971, prior to Ga. L. 1974, pp. 1143, 1144, precluding suits against fellow employees. The trial court correctly held: "If [the defendant] was, a mere fellow employee of the deceased then, under the law in force at the time, he is subject to suit as a third party wrongdoer. If he falls into the category of an independent contractor, and was not also the alter ego of the Authority, he is subject to suit as a third party wrongdoer. If he was the alter ego of the *378Hospital Authority he is protected by the Authority’s Workmen’s Compensation coverage.”
(a) We have, in view of the motion to rehear, reexamined this case and determined that whether Dr. Zevallos was the alter ego of the Griffin-Spalding County Hospital Authority was, at most, a jury question, and that the grant of the summary judgment was error. That he may well not have been an alter ego of the hospital, even if the procedures which contaminated the decedent were performed or directed by him in the hospital laboratory and while he was director of pathology is well established by Winslett v. Twin City Fire Ins. Co., 142 Ga. App. 653 (236 SE2d 898) (1977). There the plaintiff was an employee and a recipient of workmen’s compensation benefits from the employer, and the defendant Green was his supervisor in charge of the job site. It was contended that as such supervisor in control of the premises where defendant worked he was in fact an "employer” or alter ego thereof. Summary judgment for the defendant based on this theory was reversed by this court with the statements: "The common law provided an injured party with an action against a tortfeasor and against his employer if the tort was committed within the course and scope of the master-servant relationship. The employer’s vicarious liability in no way abated the employee’s liability.” Contrary constructions, it continued "derogate the common law right to an action in tort, and they must not be applied loosely.” The evidence before us at this time does not demand a finding that the physician was the alter ego of the hospital as to the events here set out, which involved his nonhospital connected private practice.
(b) The defendant as of now also has a viable defense on the ground that he is an independent contractor, based on the contention that his accepting of the specimen in question and subsequent procedures with it were not in his role of hospital employee but as an independent contractor within the meaning of the contract provisions allowing him extra work while using the laboratory as to which the hospital had no claim for fees and no liability for results. The law is clear that ". . . one may be both a servant and an independent contractor with respect to his *379employer. For 'a person can be an independent contractor in one part of his activity and an employee in another.’ [Cits.] ” Moss v. Central of Ga. R., 135 Ga. App. 904, 906 (219 SE2d 593) (1975).See Hodges v. Doctors Hospital, 141 Ga. App. 649 (2) (234 SE2d 116) (1977). In his capacity as a physician, the doctor’s relationship to the hospital and patient is generally that of independent contractor. See Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242 (183 SE2d 586) (1971); Pogue v. Hosp. Auth. of DeKalb County, 120 Ga. App. 230 (170 SE2d 53) (1969). The defendant was certainly acting within the scope of his employment contract, but that contract specifically allowed him to use the facilities of the laboratory in performing services for patients, physicians and institutions outside of the hospital, as to which the hospital had no responsibility. These and other defenses cannot be resolved at this point.
(c) There is still another rule of law, exemplified by Scott v. Savannah Elec. &c. Co., 84 Ga. App. 553 (66 SE2d 179) (1951) and U. S. Fidelity &c. Co. v. Forrester, 230 Ga. 182 (196 SE2d 133) (1973), that impinges on the borrowed servant doctrine: Where there is a general employer who loans an employee to a special employer or subcontractor and where the evidence requires a finding that the employee is at the same time the servant of both, payment of workmen’s compensation may be had from either, and the payment by either precludes an action against the other as a third-party tortfeasor. The evidence here does not demand such a finding.
The grant of summary judgment is reversed.
Quillian, P. J., McMurray, Smith, Shulman and Banke, JJ., concur. Bell, C. J., Webb and Birdsong, JJ., dissent.