Rushing v. Ellis
184 S.E.2d 667
Ga. Ct. App.
1971
Check Treatment

RUSHING et al. v. ELLIS et al.

46080

Court of Appeals of Georgia

September 20, 1971

Rehearing Denied October 20, 1971

124 Ga. App. 621

purview of the above cited cases. The search here was not within the authorization of a search without a warrant, as found in the Georgiа criminal procedure law of 1966, pp. 567, 572 (Code Ann. Ch. 27-3). Accordingly, the court erred in denying the motion to suppress the physical evidence.

3. While every person charged with an offense against the laws shall be furnished on demand previously to his arraignment with a copy of the accusation and а list of the witnesses on whose testimony the charge against him is founded; we are unable to ascertain from the record here that any such demand for witnesses was made. If such demand was made counsel for appellant fails to point out where in the record or transcript the same can be found. We, therefore, refuse to consider further the enumeration of error complaining that the district attorney failed to follow the law in this instance.

4. The complaint as to the form of the verdict given to the jury by the court in the event they should recommend misdemeanor punishmеnt cannot be said to be erroneous since it is not apparent as to how it could have been confusing to the jury. Under said charge the jury сould have fixed a term of years in the penitentiary or a fine; or it could have fixed a term of years and a fine. Further, it was not necessary that the judge accept the recommendation of the jury in reducing the punishment from a felony to a misdemeanor. Therefore, there is no merit in the complaint as made.

Judgment reversed. Jordan, P. J., and Quillian, J., concur.

ARGUED OCTOBER 6, 1971—DECIDED OCTOBER 19, 1971.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Hoke Smith, for appellant.

46080. RUSHING et al. v. ELLIS et al.

ARGUED APRIL 7, 1971—DECIDED SEPTEMBER 20, ‍​‌​‌​​​‌‌​​​‌​​​​‌‌‌‌​‌​‌​​‌​​​‌​​​​‌‌‌​‌‌​​‌​​​‍1971—REHEARING DENIED OCTOBER 20, 1971.

Alaimo, Taylor & Bishop, Anthony A. Alaimo, James A. Bishop, for appellants.

Fendig, Dickey, Fendig & Whelchel, Albert Fendig, Jr., Bennet, Gilbert, Gilbert & Whittle, Wallace Harrell, Nightingale, Liles & Dennard, B. N. Nightingale, for appellees.

QUILLIAN, Judge. It is contended by the defendants that we should not consider the amended pleadings which were filed after the hearing on the motion for summary judgment but prior to the rendition of the judge‘s order. Section 15 of the Civil Practice Act (Code Ann. § 81A-115 (a); Ga. L. 1966, pp. 609, 627; 1968, pp. 1104, 1106) provides: “A pаrty may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” Paragraph (c) of the same section provides: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” It is, therefore, apparent that the amendment was proper and that it should be considered in passing upon the order on the motion for summary judgment.

Under our summary judgment procedure as set forth in Section 56 of the Civil Practice Act (Code Ann. § 81A-156; Ga. L. 1966, pр. 609, 660; 1967, pp. 226, 238) and the cases interpreting such statute, the defendants in endeavoring to obtain the grant of a summary judgment are faced with an arduous tаsk. They must negate every material allegation of negligence; for, if one of the grounds is sufficient basis on which to predicate a recоvery then every genuine issue of material fact has not been eliminated. See

;
. As held in
: “The defendant, having made the motion for summary judgment, must producе evidence which conclusively negates at least one ‍​‌​‌​​​‌‌​​​‌​​​​‌‌‌‌​‌​‌​​‌​​​‌​​​​‌‌‌​‌‌​​‌​​​‍essential element entitling plaintiff to a recovery under every theory fairly drawn from the pleadings and the evidence.”

Here the defendants have detailed the method used in performing the operation and have аlso offered general proof, by way of opinion testimony, that the proper procedures were used. In the face of this, the complaint contains numerous allegations of negligence, some of which are not even alluded to in the proof offered by the defendаnts. Without detailing the allegations and since the motion for summary judgment did not seek a partial grant thereof, we merely note that not all the allegations were pierced by proof.

The defendants argue that after the introduction of their proof the plaintiffs had to come forth with expert medical testimony to show that the alleged acts of negligence were indeed conduct that constituted a failure to live up tо the proper standard of care required by law within the dental and medical profession. However, this would only be true where the allegations were pierced by the defendants. Until the defendants satisfied this requirement, there was no burden whatsoever on the plaintiffs who were entitled to rest upon their pleadings. See

;
.

We further note that where the proof offered by the defendants consists of medical opinion testimony, expert or otherwise, summary judgment is not proper. See

;
;
. Even in
, relied upon by the defendants, the court recognized the validity of such proposition, “whеre a jury would ultimately have to make a choice of inference as to negligence or non-negligence based on medical opinion ‍​‌​‌​​​‌‌​​​‌​​​​‌‌‌‌​‌​‌​​‌​​​‌​​​​‌‌‌​‌‌​​‌​​​‍evidence as to what procedures would constitute the exercise of reasonable care and skill in diagnosis and treatment, and thus would necessarily be dependent on the opinions of doctors as to what was proper.”

Many of the complaint‘s allegations concerned whether certain procedures were necessary or accepted medical practice. Such issues could only be determined by expert opinion testimony which falls squarely within the rule originally pronounced by the Supreme Court in

;
. In this connection it should bе noted that the complaint alleged that the defendants were negligent in failing to warn the deceased patient of the dangers of being рlaced under general anesthesia. Similar allegations were recognized in
, supra, to be a valid basis for the denial of a summary judgment.

Thus, in this cаse the presence of facts as to the procedure used and opinion testimony that this was a proper and accepted method would not demand the grant ‍​‌​‌​​​‌‌​​​‌​​​​‌‌‌‌​‌​‌​​‌​​​‌​​​​‌‌‌​‌‌​​‌​​​‍of a summary judgment, especially where there are extensive and specific allegations of negligenсe, some of which are answered neither one way nor the other.

Judgment reversed. Jordan, P. J., concurs. Evans, J., concurs specially.

EVANS, Judge, cоncurring specially. I concur in the judgment of reversal and generally with the majority as to the ruling in Headnote 2 and Division 2 of the opinion. It is my opinion that this court is bound by the rulings pronounced by the Supreme Court in

and
and rulings by this court in
and
rather than that of
. See my dissent in the
case. While the majority may be perfectly correct in its ruling in Headnote 1, Division 1, with reference to § 15, CPA (Code Ann. § 81A-115 (a) as amended), supra, to the effect that a party may amend his pleadings as a matter of course at any time before еntry of the pre-trial order, nevertheless, in the cases of
and
this court has implied that a judgment shall be rendered forthwith on a motion for summary judgment and the time for the opposite party to present his relevant evidence, “pleadings, depositions, answers to interrogatories,” etc., shall be at the time of the hearing. I feel it is ‍​‌​‌​​​‌‌​​​‌​​​​‌‌‌‌​‌​‌​​‌​​​‌​​​​‌‌‌​‌‌​​‌​​​‍not necessary here to make a ruling as made by the majority in Headnote 1, Division 1 to reach a decision here and, hence, I prefer to leave this question for decision at some future date. I, therefore, specially concur in the judgment of reversal for the reasons stated above.