" Following these two cases, this court and the Court of Appeals have repeatedly ruled that summary judgment may not be granted on opinion evidence. In medical malpractice cases, which resemble legal malpractice cases in the method of proof by experts, the Court of Appeals has applied the rule on opinion evidence in numerous cases. For instance see Truluck v. Funderburk, 119 Ga. App. 734 ( 168 S.E.2d 657) (1969); Williams v. Melton, 120 Ga. App. 466 ( 171 S.E.2d 318) (1969); Elberton-Elbert County Hosp. Authority v. Watson, 121 Ga. App. 550 ( 174 S.E.2d 470) (1970); Jordan v. Scherffius, 121 Ga. App. 685 ( 175 S.E.2d 97) (1970); McGlamry v. Smallwood, 124 Ga. App. 401 ( 184 S.E.2d 52) (1971); Rushing v. Ellis, 124 Ga. App. 621 ( 184 S.E.2d 667) (1971). In Anderson v. Crippen, 122 Ga. App. 27 ( 176 S.E.2d 196) (1970), and Dickerson v. Hulsey, 138 Ga. App. 108 ( 225 S.E.2d 464) (1976), (with four Judges dissenting in each case), the Court of Appeals affirmed the grant of summary judgment to defendant physicians because of the failure of the plaintiffs to support their contentions of negligence with any evidence, opinion or otherwise.
Opinion testimony of the ultimate fact to be decided in a case is never sufficient to authorize a summary judgment. Harrison v. Tuggle, 225 Ga. 211, supra; Ginn v. Morgan, 225 Ga. 192 ( 167 S.E.2d 393); Truluck v. Funderburk, 119 Ga. App. 734 ( 168 S.E.2d 657); Jordan v. Scherffius, 121 Ga. App. 685 ( 175 S.E.2d 97); Life Cas. Ins. Co. v. Moore, 125 Ga. App. 485, 486 ( 188 S.E.2d 118). Based upon the foregoing, the trial court erred in granting summary judgment for Banks County.
Further, the motion is based upon the opinion testimony of both the defendant and the State patrolman. Opinion testimony of an ultimate material fact is never sufficient as a basis for the grant of a motion for summary judgment. Waldrop v. Padgett, 121 Ga. App. 313 ( 173 S.E.2d 457); Ga. Osteopathic Hospital v. Davidson, 121 Ga. App. 371 ( 173 S.E.2d 734); Jordan v. Scherffius, 121 Ga. App. 685 ( 175 S.E.2d 97). The testimony was circumstantial as to whether the child was first hit by the front or rear wheels; it was conflicting as to whether the child ran into the side of the truck; the testimony was conflicting as to the speed of the truck and the condition of the brakes. The truth of these issues can be solved only by a jury, and in such cases, summary judgment should not be granted. Elder v. Smith, 121 Ga. App. 461 ( 174 S.E.2d 239); Caldwell v. Gregory, 120 Ga. App. 536 ( 171 S.E.2d 571); Connors v. City Council of Augusta, 120 Ga. App. 499 ( 171 S.E.2d 578). Issues as to negligence, assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence and comparative negligence, all of which are in this case, are ordinarily not susceptible of summary adjudication, but require determination by a jury.
" Inasmuch as the defendant failed to establish the cause of death as other than accidental except by "professional opinion" and documentary evidence based thereupon, it is unnecessary to determine, for summary judgment purposes, whether the rebuttal evidence has any probative value as to the cause of death. "Opinion testimony of the ultimate fact to be decided in a case is never sufficient to authorize a summary judgment." Jordan v. Scherffius, 121 Ga. App. 685 ( 175 S.E.2d 97), and citations. Judgment affirmed. Deen and Clark, JJ., concur.
This was preceded by Truluck v. Funderburk, 119 Ga. App. 734 ( 168 S.E.2d 657), in which the court reversed the grant of a summary judgment for the defendant physician, and both of these opinions rely on the general statement by the Supreme Court in Harrison v. Tuggle, 225 Ga. 211 (2) ( 167 S.E.2d 395), not a malpractice case, that "opinion testimony of the ultimate fact to be decided in the case is never sufficient to authorize the grant of a summary judgment." Also, see Ginn v. Morgan, 225 Ga. 192 ( 167 S.E.2d 393); Jordan v. Scherffius, 121 Ga. App. 685 ( 175 S.E.2d 97). The present case is controlled by these rulings. We do not regard the holding in Anderson v. Crippen, 122 Ga. App. 27 ( 176 S.E.2d 196), as precedent for a contrary view. There the court was confronted with the unchallenged medical testimony of the defendant, which in the opinion of the majority disclosed facts from which the only possible inference was that he had used proper surgical procedures.
Seigler, Seigler Earle, of Columbia, for Appellant, cite: As to the Insured's not dying in consequenceof bodily injury affected solely through external, violentand accidental means within the meaning of the AccidentalDeath Policy involved: 251 S.C. 98, 160 S.E.2d 523; 258 S.C. 253, 188 S.E.2d 477; 18 Tenn. App. 452, 79 S.W.2d 292; 161 Tex. 391, 340 S.W.2d 787, 93 A.L.R.2d 560; 227 Or. 139, 360 P.2d 774; 235 Mo. App. 263, 131 S.W.2d 887; 183 S.C. 199, 190 S.E. 451. As to Appellant's being entitled to have itsmotion for summary judgment granted: Rule 56 of the Federal Rules of Civil Procedure, S.C. Supreme Court Rule 44, Barron and Holtzoff, Federal Practice and Procedure, par. 1231. As to the Court's erring in granting Respondent'smotion for summary judgment: 121 Ga. App. 685, 175 S.E.2d 97; 225 Ga. 211, 167 S.E.2d 395; 120 Ga. App. 466, 171 S.E.2d 318; Opinion No. 19478, Smith's Advance Sheet, 191 S.E.2d 251. Messrs. James H. Howey, of Lancaster, and Hammerand Bernstein, of Columbia, for Respondent, cite: As to acerebral hemorrhage sustained by an insured upon witnessingan automobile collision in which his son was involvedbeing a bodily injury: 52 S.C. 323, 29 S.E. 905; 40 L.R.A. 679; 232 S.C. 593, 103 S.E.2d 265; 158 S.C. 251, 155 S.E. 145; 7 Wn.2d 151, 109 P.2d 422. As to the bodily injury (cerebral hemorrhage) sufferedby the insured being sustained solely through externalviolent and accidental means: 183 S.C. 199, 190 S.E. 451; Vance on Insurance Law, Sec. 181, page 957; 383 F.2d 952, at page 959; Couch on Insurance 2d, Section 4141, page 67; 249 App. Div. 243, 291 N.Y.S. 912; 80 Me. 251, 14 A. 13; 53 S.W. 49, 66 Ark. 588; 235 Mo. App. 263, 131 S.W.2d 887; 161 Tex. 391, 340 S.W.2d 787, 93 A.L.R.2d 560; 168 Tenn. 647, 80 S.W.2d 92; 37 Tenn. App. 546, 267 S.W.2d 115;