concurring specially. I concur in the judgment reached in this case, but cannot agree with the statement contained in Division 2 of the opinion that the mere denial of a summary judgment “precludes re-adjudication [on the trial] of those [issues] not expressly ruled on where the evidence is substantially the same.” Under the federal rules there can ordinarily be no judicial review of the denial of a summary judgment, and because of this, there is no law of the case established thereby. While the federal decisions in this area may not be altogether applicable, since under the Georgia practice a review can be had, and was actually had, on appeal in this case, and because of the exercise of this right of review, the law of the case may be established (see Section 60(h) of the Civil Practice Act (Ga. L. 1966, pp. 609, 622) as amended by Section *73827 of the Act of 1967 (Ga. L. 1967, pp. 226, 239; Code Ann. § 81A-160(h)); yet in the absence of an appeal the ruling on summary judgment does not necessarily preclude an adjudication of issues not expressly ruled on even though the evidence be the same. See Suggs v. Brotherhood of Locomotive Firemen &c., 106 Ga. App. 563 (2); Stein Steel &c. Co. v. Briggs Mfg. Co., 110 Ga. App. 489 (3); Walker v. Small Equipment Co., 114 Ga. App. 603, 605; Venable v. Grage, 116 Ga. App. 340, 347, all supra. While the ruling stated may be properly applicable here because there has been an appeal and decision by an appellate court (see Myers v. Johnson, 116 Ga. App. 232, supra), the ruling as stated is not so qualified and would not be applicable in the absence of an appeal from, and an adjudication on, said prior ruling by a higher court as was done here.