dissenting.
Donmoyer, who carried on his banking business with Columbus Bank & Trust Company, had two checking accounts depleted when on September 8, 1977, an *43employee of the bank was presented with a notice of delinquency issued by the Georgia Department of Revenue by one of its field service representatives. Erroneously believing that she had been handed a fi. fa. in lieu of the notice of delinquency this employee debited two checking accounts of Donmoyer’s and paid off the notice of delinquency. She then notified the depositor by letter of September 8, 1977, that she had debited the accounts as shown above. From September 30, 1977 through November 11, 1977, thereafter, many of Donmoyer’s checks were returned due to insufficient funds and various service charges were charged against his account by the bank.
Whereupon Donmoyer sued the bank for compensatory and punitive damages alleging first that defendant was not authorized to transfer any money to the State Revenue Department for him; was obliged to honor any orders that he had made to pay to the order of any person or persons up to the full amount of the money deposited with the defendant; and defendant wrongfully dishonored certain checks and charged certain penalties against his account resulting in certain alleged specific damages. By alternative pleadings plaintiff alleged that defendant had converted money belonging to him to its own use, all of which was improper, without justification and with malice. By several amendments his complaint was amended to allege the loss of his business by reason of his cash flow problems, eviction by the landlord and averments of malice on the part of the defendant with conscious indifference to the consequences, therein increasing the amount of compensatory and punitive damages sought.
Defendant answered, admitting jurisdiction and the existence of two checking accounts. It contends that as a result of its prompt payment in response to the notice of delinquency it reduced plaintiffs liability to the Department of Revenue and obtained release of plaintiffs accounts which would not have been possible under the law if defendant had frozen the account upon receipt of the notice, thereby benefiting plaintiff. It also pleaded defenses of assumption of the risk by reason of the fact that the plaintiff continued to write checks after notice *44that funds were not available due to the debiting of his account; writing checks for amounts which exceeded the amount by which his said accounts had been debited; thus any damages to him were solely and proximately caused by his own actions and business practices.
After discovery, plaintiffs motion for summary judgment on the issue of liability was denied, and defendant’s motion was granted. The majority affirms in both instances. To this I cannot agree.
The defendant admits that it was presented a notice of delinquency by the Georgia Department of Revenue with reference to plaintiff which the defendant’s employee mistakenly thought was a fi. fa., and that it paid out erroneously the sum of $1,090.52 from two accounts of the defendant, shown as the amount of the deficiency of plaintiff for Georgia sales and use taxes covering the taxable period April 1, 1977 through June 30, 1977. Defendant bank must honor the notice which is a lien on plaintiffs accounts which expires in 30 days by law from and after receipt of such notice. See Code Ann. § 92-3423a (Ga. L. 1951, pp. 360, 375). A violation of this statute is a misdemeanor punishable as such. See Code Ann. § 92-9955 (Ga. L. 1951, pp. 360, 376).
While a state revenue levying officer deposed that a fi. fa. would probably be issued if the amounts due were not paid during the 30-day period this is mere supposition of what would have or could have occurred, and is as to future acts which may never occur. This type of evidence is opinion testimony which may not be considered on summary judgment to require the grant of same. See General Motors Corp. v. Wilson, 120 Ga. App. 156, 157 (169 SE2d 749) and cases cited. Consequently, this is not evidence on which to base a summary judgment. This witness also deposed that extensions of time might be given to pay the indebtedness before the issuance of a fi. fa., and the funds might be released from the notice of delinquency. This is likewise opinion testimony which only a jury may consider. It thus precludes a summary judgment in favor of the defendant as movant. See General Motors Corp. v. Wilson, 120 Ga. App. 156, 157, supra.
The admission of the defendant that it had paid out *45the funds of the plaintiff-depositor to another without any authority shows liability to the depositor for his funds which were not discharged in accordance with law. See Code Ann. § 109A-4—401 (Ga. L. 1962, pp. 156, 303); F. D. I. C. v. Thompson, 54 Ga. App. 611 (2) (188 SE 737); Andrews v. Citizens Bank, 139 Ga. App. 763, 765 (2) (229 SE2d 501).
Plaintiff next contends that the defendant bank having paid out his funds, thereafter it wrongfully dishonored certain checks he had written as the effect of paying of funds to the State Department of Revenue was not a payment of plaintiffs funds but funds of the bank as if it had paid out funds on a forged check. The defendant bank could therefore be liable for any damages proved by plaintiff and determined by a jury. See Code Ann. § 109A-4—402 (Ga. L. 1962, pp. 156, 303).
But if the defendant bank had properly honored the notice of delinquency, amounting to a lien on his deposit, his funds would have been frozen for 30 days in accordance with the law. Code Ann. § 92-3423a, supra. In that event, his checks would have likewise been dishonored. Further, the defendant bank has offered evidence that by paying out the indebtedness it saved the plaintiff money by preventing the freezing of his accounts, albeit, it immediately created a condition whereby there were insufficient funds in his account so as to cause it to dishonor certain checks for which it charged him a fee because of the overdrafts. Issues of material fact thus remain for jury determination as to whether or not plaintiff was damaged in any amount.
Defendant seeks to show that because of bad business management the plaintiff placed himself in the position of having his checks bounce due to the fact his account was overdrawn. However, not all of the evidence shows that his own mistakes of judgment and alleged reckless course of conduct caused his accounts to be overdrawn.
Therefore, it is my opinion that a jury question remains as to whether he was damaged, and in what amount, by the mistake of the bank in illegally paying funds to the State Department of Revenue. I would hold that the trial court erred in granting summary judgment in favor of the defendant.
*46I therefore respectfully dissent.
I am authorized to state that Judge Smith and Judge Carley join in this dissent.