dissenting.
Despite unrebutted evidence adduced by the responding party on motion for summary judgment that no marital harmony existed at the time of the accident and that the instant suit was not instituted for collusive purposes, the majority finds that the evidence here is not sufficient to create a jury question whether the doctrine of inter-spousal tort immunity is applicable. Since the husband was not entitled to summary judgment either as a matter of law or as a matter of fact, I must respectfully dissent from the majority’s finding.
I do not agree with the majority that the immunity rule is automatically applicable as a matter of law except in “extreme factual situations” where the couple is dead or has been living separately in excess of 10 years. The Supreme Court in Harris v. Harris, 252 Ga. 387 (313 SE2d 88) (1984) held that the immunity rule could be abrogated where, “realistically speaking, no ‘marital harmony’ [existed] to be protected by application of the interspousal immunity rule.” Id. at 388. The dissenting opinion in Harris amply demonstrates that the Supreme Court was aware of evidentiary problems its holding might create: “In this case, the parties have been separated for several years. What if they were separated but one year? What if they were separated but one day? Or, what if one spouse is blissfully unaware of deep trouble within the other spouse, who remains silent until after the actionable deed or word or gesture?” Id. at 389. Nevertheless, the Supreme Court reversed a grant of summary judgment to one spouse in Harris because “the reasons for the immunity rule simply do not exist here.” Id. at 388. Nothing in Harris or the case law traditionally applying the doctrine of interspousal tort immunity, see Robeson v. Intl. Indem. Co., 248 Ga. 306 (282 SE2d 896) (1981), mandates the application of the doctrine in the case sub judice.
“The cardinal rule on summary judgment is to ascertain if there is an issue of fact, not to resolve disputed fact issues. [Cit.]” Shankweiler v. McCall Procter/Densham, 183 Ga. App. 257, 258 (358 SE2d 657) (1987). In the case sub judice, the only factual reason for applying the immunity rule is evidence that the Stanfields lived as husband and wife at the time of the accident. No evidence rebuts the wife’s affidavit that the physical and mental abuse she suffered at the hand of her husband had destroyed all marital harmony between the couple long before the accident; no evidence hints at a collusive or friendly lawsuit between the Stanfields. This court held in Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985) that the question whether marital harmony realistically existed between the wife and *725husband or whether there was any collusive activity between them which would justify application of the doctrine of interspousal tort immunity was a matter properly left for jury determination. It is an equally appropriate matter here for jury resolution and thus, under the authority of Harris and Smith, I would reverse the trial court’s judgment herein.
Decided July 6, 1988. Anthony N. Perrotta, for appellant. Malcolm S. Murray, Sr., David S. Thomson, for appellee.