Truluck v. Funderburk

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119 Ga. App. 734 (1969)

168 S.E.2d 657

TRULUCK v. FUNDERBURK.

44324.

Court of Appeals of Georgia.

Argued March 3, 1969.

Decided April 28, 1969.

Rehearing Denied May 21, 1969.

Reinhardt, Ireland, Whitley & Sims, Tyron Elliott, for appellant.

Twitty & Twitty, Whelchel & Whelchel, Hoyt H. Whelchel, Jr., for appellee.

QUILLIAN, Judge.

This is an appeal from the granting of a summary judgment for the defendant in a malpractice case. The ultimate fact for determination is whether the defendant's *735 services were performed in an ordinarily skillful manner. Ga. Northern R. Co. v. Ingram, 114 Ga. 639, 640 (40 SE 708). This question can only be decided, except in a few extreme circumstances, upon the expert opinion and testimony given by physicians. Shea v. Phillips, 213 Ga. 269 (98 SE2d 552).

"While opinion evidence is sufficient in a proper case to present a jury issue and thus preclude a summary judgment, yet the opinion testimony of the ultimate fact to be decided in the case is never sufficient to authorize the grant of a summary judgment." Harrison v. Tuggle, 225 Ga. 211 (2) (167 SE2d 395), and Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393).

Under the holding in the Harrison case the opinion testimony in the case sub judice would not be sufficient to authorize the granting of the defendant's motion for summary judgment. Anything held to the contrary in Jackson v. Tucker, 118 Ga. App. 693 (165 SE2d 466), decided prior to the Harrison and Ginn cases, supra, must yield to those decisions.

Judgment reversed. Felton, C. J., and Pannell, J., concur.