Opinion
44579.
SUBMITTED JULY 8, 1969.
DECIDED JULY 10, 1969.
Appellate procedure. Fulton Superior Court. Before Judge Emeritus Moore.
Neely, Freeman Hawkins, Edgar A. Neely, Jr., for appellant.
The judgment appealed from in its only pertinent portion reads as follows: "After argument and consideration of plaintiff's motion for summary judgment vs. Travelers Insurance Company the court is of the opinion that there is some liability of said insurance company to plaintiff in this litigation." Although the order does not so recite, the notice of appeal states that this judgment is one "sustaining the motion for summary judgment as to liability against the Travelers Insurance Company." As we construe the judgment it is not one granting judgment on liability. While our statutes authorizes the grant of a summary judgment on liability only and makes this appealable ( Code Ann. § 81A-156 (c)), there is no such thing in negligence cases as the grant of a summary judgment for partial liability. The grant in negligence cases may be entered only where there is no issue as to liability (although there may be a genuine issue as to the amount of damages) and the liability is total. Comparative negligence leading to partial liability is always a jury question. Here the judge in his order said there is "some" liability. This is meaningless. He erred in entering a judgment of that nature and it should be expunged from the record. In the meantime, since we construe the judgment appealed from as one not granting a summary judgment on liability, it is not a final judgment and in absence of a proper certificate by the judge is unappealable.
Accordingly the appeal is
Dismissed. Eberhardt and Deen, JJ., concur.