Ginn v. Morgan

• Court: Georgia Supreme Court
• Writing for the Court: DUCKWORTH
• Citation: Ginn v. Morgan, 167 S.E.2d 393, 225 Ga. 192 (Ga. 1969)
• Decision Date: 20 March 1969
• Docket Number: No. 25087,25087
• Parties: Hubert T. GINN, by Next Friend v. Aldie MORGAN et al.

Page 393

167 S.E.2d 393

225 Ga. 192

Hubert T. GINN, by Next Friend v. Aldie MORGAN et al.

No. 25087.

Supreme Court of Georgia.

March 20, 1969.

Syllabus by the Court

1. The jury alone can judge the credibility of witnesses, and it can lawfully render a verdict contrary to the opinions of a witness. In this process it considers the basis for the witness's opinion.

2. Summary judgment can never issue based upon opinion evidence alone.

3. Where a motion for summary judgment is supported only by opinion evidence, which a jury might not accepted, it is error to grant the motion and enter summary judgment.

This is an appeal from the granting of a summary judgment. The movant in the summary judgment offered affidavits to the effect that (1) the price paid for the land was the fair market value of the land conveyed and sought to be set aside based on opinion testimony, and (2) the seller never 'appeared' to be incompetent or 'abnormal' and deponent was personally acquainted with the person for 20 years, which is likewise based upon the opinion of the affidavit. The plaintiff filed an affidavit that (1) she was the sister and next friend and the price paid 'was not the fair market value of said property,' (2) the transaction was illegal in that her brother 'was incompetent and was not capable of legally entering into a contract or knowing the nature of the same,' and (3) 'she had repeatedly tendered * * * the monies' received and she, as next friend, is ready, willing and able to repay them. Counsel for appellee argues that the plaintiff's affidavit fails to set out facts on which it is based and is insufficient in that it has no probative value, and the court correctly granted summary judgment. The appeal is based on error in failing to overrule the motion.

Aaron Kravitch, Savannah, for appellant.

Z. Vance Dasher, Springfield, for appellees.

DUCKWORTH, Chief Justice.

We have here two matters that should be settled to wit: (1) When does the law allow a summary judgment, and (2) can mere opinion evidence ever warrant a summary judgment? The statute (Code Ann. § 81A-156 (c), Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238) states it is intended that summary judgment issue only when there is no issue of fact and the moving party is entitled to judgment as a matter of law. This has been its construction. See Crutcher v. Crawford Land Co., Inc., 220 Ga. 298, 138 S.E.2d 580; Scales v. Peevy, 103 Ga.App. 42, 118 S.E.2d 193; General Gas Corporation v. Carn, 103 Ga.App. 542, 120 S.E.2d 156; Word v. Henderson, 220 Ga. 846, 142 S.E.2d 244.

This inevitably leads to the question as to whether mere opinion evidence can show in such summary proceedings the presence or absence of facts. To answer this question we must give full, weight to the rule that a jury, not a judge, may construe the facts upon which such opinion is based and reach a diametrically different conclusion to that reached by the witness. See Code § 38-123; Choice v. State, 31 Ga. 424; Castleberry v. City of Atlanta, 74 Ga. 164; White v. Hammond, 79 Ga. 182, 4 S.E. 102; Baker v. Richmond City Mill Works, 105 Ga. 225, 31 S.E. 426; Alabama Great Sou. Ry. Co. v. McKenzie, 139 Ga. 410, 44 S.E. 647; Hubbard v. Rutherford, 149 Ga. 238, 96 S.E. 327; Bowman v. Bowman, 205 Ga. 796, 813, 55 S.E.2d 298; Edwards v. Employers &c. Ins. Co., 219 Ga. 121, 124, 132 S.E.2d 39; Massey v. National Homeowners &c. Corp., 225 Ga. 93, 98, 165 S.E.2d 854; Atlanta Coca-Cola &c. Co. v. Burke, 109 Ga.App. 53(2), 134 S.E.2d 909. Further, opinion testimony is never so authoritative that the jury is bound to be governed by it. Choice v. State, supra. Thus, on opinion evidence alone, a summary judgment is not demanded as a matter of law, although such opinion evidence is always sufficient to make a jury issue. Word v. Henderson, supra. In fact, the jury's verdict is compounded of evidence, law and logic. Mahone v. Bryant, 56 Ga. 294; White v. Hammond, supra. Therefore, when, on summary proceedings, the judge is confronted only by opinion evidence, and he, under the law, is without authority to determine credibility of witnesses, we believe he should not enter judgment. For clearly, if he refuses judgment and the precise evidence is produced to the jury they can discredit the witness and decide to the contrary. Thus, we reach the solid conclusion that a summary judgment can never issue based solely upon opinion evidence. In all such cases, the captains of decisions as to credibility of witnesses, the jury must decide the case. Admittedly the movant for summary...