Jordan v. Scherffius, 45154

• Decision Date: 21 April 1970
• Docket Number: No. 45154,No. 2,45154,2
• Citation: 121 Ga.App. 685,175 S.E.2d 97
• Parties: Steve JORDAN v. Andrew M. SCHERFFIUS, III, et al
• Court: Georgia Court of Appeals

Page 97

175 S.E.2d 97

121 Ga.App. 685

Steve JORDAN v. Andrew M. SCHERFFIUS, III, et al.

No. 45154.

Court of Appeals of Georgia, Division No. 2.

April 21, 1970.

Fortson, Bentley & Griffin, Herbert T. Hutto, Athens, for appellant.

Shoob, McLain & Jessee, C. James Jessee, Jr., M. David Merritt, Atlanta, for appellees.

Syllabus Opinion by the Court

JORDAN, Presiding Judge.

This is an appeal from the grant of a summary judgment eliminating prenatal injuries as the cause of a child's death. The mother was injured in an automobile collision on May 10, 1968. The child was born on July 30, 1968, and died on October 12, 1968. The claimed cause of death is refuted by the uncontradicted medical opinion of the physician who delivered the child, who observed no evidence of prenatal injury, and another physician who examined the child after death and listed the cause of death as pneumonia on the death certificate, without the benefit of an autopsy.

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, 167 S.E.2d 395; Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393; Truluck v. Funderburk, 119 Ga.App. 734, 168 S.E.2d 657; Williams v. Melton, 120 Ga.App. 466, 171 S.E.2d 318.

Judgment reversed.

PANNELL, J., concurs.

EBERHARDT, J., concurs specially.

EBERHARDT, Judge (concurring specially).

It is probably true that the doctor applies his medical knowledge to the situation found and then expresses an opinion as to the affliction suffered or as to the cause of death. Everett v. State, 62 Ga. 65; Hook v. Stovall, Dunn & Co., 26 Ga. 704(6). But compare Johnson v. State, 69 Ga.App. 377(1), 25 S.E.2d 584 and Donley v. State, 72 Ga.App. 429, 430, 33 S.E.2d 925, holding that a witness states a fact rather than an opinion when he testifies that a defendant was under the influence of intoxicating liquors. And see Brown v. Sheffield, 121 Ga.App. 383(2a), 173 S.E.2d 891.

There is a certified copy of the death certificate in evidence which shows pneumonia to have been the cause of death. This makes a prima facie defense to the claim and there is nothing in the record rebutting it. Code Ann. § 88-1724(c); Woodruff v. American Mutual Liability Ins. Co., 67 Ga.App. 554, 560, 21 S.E.2d 298; Metropolitan Cas. Ins. Co. v. Reese, 67 Ga.App. 628, 21 S.E.2d 455.

The cases cited in the majority opinion seem to sustain the result reached. But for them the summary judgment was proper under Code Ann. § 81A-156(e). However, if the evidence remains the same on a trial of the case we apprehend that defendant would be...