Jordan v. Scherffius

*686Eberhardt, 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 SE2d 584) and Donley v. State, 72 Ga. App. 429, 430 (33 SE2d 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 SE2d 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 Mut. Liab. Ins. Co., 67 Ga. App. 554, 560 (21 SE2d 298); Metropolitan Cas. Ins. Co. v. Reese, 67 Ga. App. 628 (21 SE2d 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 entitled to a directed verdict, for in that event the plaintiff will have failed to make out her case and, additionally, the defendant will have made out a prima facie defense to the claim. There are instances when the grant of a summary judgment is inappropriate, although a directed verdict would be proper (Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (3) (170 SE2d 737)), and this seems to be one of them.