dissenting:
I concur with the majority in the view that, on the undisputed facts in this case, plaintiff is entitled to judgment on the liability issue as a matter of law.
Except for the decision in Cutts v. Casey, it'would have been my opinion that, if the same evidentiary matters' before the judge on this motion for summary judgment had stood un-contradicted as the only evidence before a court on á motion for directed verdict, it would be one of those rare cases where a directed verdict in favor of the party with the' burden of proof would have been proper. [It must be noted that the evi*93dence in Cutts v. Casey was conflicting and, therefore, it would have been error to direct a verdict in favor of either party.]
In any event, I do not agree that the rule announced in Cutts v. Casey, which appears to proscribe a directed verdict in favor of a party with the burden of proof, compels the same decision when that party moves for summary judgment, even where the evidentiary matters on the motions are identical. Although a part of the same struggle, the motions come at different stages of the conflict. The statutes place specific responsibilities on the parties at each encounter and, by his inaction at one, a party may lose the shield that would otherwise be available for the next.
Before the directed verdict question can arise, a party must, of necessity, have theretofore preserved his right to contest an issue at trial. He has done this at the pleading stage of the conflict by, among other things, refuting the allegations of the complaint by answer or other pleadings. If defendant here had ignored the complaint and failed to respond, he could have lost his right to have the jury pass on the issue of liability. The struggle then moved on to the summary judgment arena. Plaintiff supported his attack with affidavits showing that the loss of .his aircraft was within the scope of the coverage insured by defendant and, therefore, that there were no issues of fact with respect to liability. Defendant then abandoned the field. It did not attempt to refute these affidavits with either a denial of their truthfulness, an indication that there were other facts which would keep the defense of nonliability alive or any reason why it could not then present facts essential to justify its opposition to the motion. To me, Rule 56 contemplates that this inaction may result in forfeiture of any right to dispute the facts at a later stage of the conflict just as would have resulted from defendant’s failure to deny at the pleading stage. In either event defendant must be said to have retreated when the statutes required him to attack in order to keep a. factual controversy alive for resolution at trial. Since there was no factual controversy, only a question of law remained. I would affirm the judgment.