Opinion
44422.
ARGUED APRIL 9, 1969.
DECIDED MAY 16, 1969.
Action for damages. Habersham Superior Court. Before Judge Smith.
Neely, Freeman Hawkins, John V. Skinner, Jr., Mitchell Mitchell, Warren N. Coppedge, Jr., Ellard Frankum, Stephen D. Frankum, for appellant.
The admissibility of evidence on motion for summary judgment, whether contained in affidavits, depositions, interrogatories, or otherwise, is subject to the rules relating to the admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would generally be inadmissible on motion for summary judgment. Where conclusions would be objectionable as evidence of negligence at the trial and, even if admitted, would be without probative value, they cannot be considered as evidence of negligence on motion for summary judgment.
ARGUED APRIL 9, 1969 — DECIDED MAY 16, 1969.
Thurston Matthews brought suit against Willie Lee Wilson, Brady R. Little, Waymon Long, and Waymon Long Trucking Company seeking to recover for personal injuries sustained in a three-car collision. The automobiles were being operated by Matthews, Little and Wilson. Wilson filed a counterclaim, alleging that Matthews and Little negligently caused their automobiles to collide with each other and with his. Matthews moved for a summary judgment on the counterclaim which was denied; and, upon certificate of the trial court, the matter is here for review.
The general situation disclosed by the record is that as Matthews' vehicle approached the crest of a hill going westward on Georgia Highway No. 53 toward Fairmount, either Wilson or Little (there is an issue of fact as to whether the vehicle passing Matthews was driven by Wilson or Little), who was following Matthews, attempted to pass him to the left. At the same time, the other vehicle (operated either by Wilson or Little) crested the same hill proceeding in the opposite, or eastwardly, direction, whereupon the Wilson and Little vehicles collided involving the Matthews vehicle.
Matthews directed interrogatories to Wilson, and the following was adduced: "Please state whether or not you observed the automobile of T. H. Matthews prior to the collision. If so, please state when and where and describe the circumstances." "I recall that there was a vehicle approaching me from the opposite direction, said vehicle was in the lane of traffic to my left. I cannot say exactly how far away this vehicle was when I first saw it, nor could I say exactly how long I observed it, but the best I recall, this vehicle remained in its path and had it not been for the automobile which swerved into my lane of travel, it is my opinion that the car which I have later learned was driven by Mr. T. H. Matthews would have made an uneventful routine pass to my left as we traveled in opposite directions on the highway." "Please state your best opinion as to the speed of Brady Little's vehicle just before the wreck and as to the speed of T. H. Matthews' vehicle just prior to the wreck." "Both vehicles appeared to be moving rather rapidly, but I could not say with any degree of certainty as to just how fast either was traveling." "Please state in narrative form just exactly how you remember the wreck happening." "I was traveling along Georgia Highway Number 53 late in the afternoon at a time when it was nearly dark, probably around 6:30 p. m. or 6:45 p. m. As best I recall, the road was straight and I was meeting a car coming from the opposite direction [Matthews' vehicle]. Just as that car and my car were very close to passing, suddenly, a pair of headlights swung out from behind the car which I was meeting and into my lane of traffic. I have no further recollection of what happened."
Subsequent to Wilson's filing of the above answers to the interrogatories, Matthews filed a supplemental interrogatory requesting the specifications of negligence Wilson was relying upon in his counterclaim against him. Wilson answered: "A. Failure to control his vehicle. B. Driving too fast for conditions. C. Failure to yield to his right after he had notice of an impending emergency."
Wilson's deposition was taken, and he stated repeatedly that he could recall nothing as to how the collision occurred. Little, in his deposition, stated that he was going east and met Matthews and Little traveling west. He testified that Matthews was properly in his west bound lane, did nothing to cause the collision and could have done nothing to avoid it.
Both Little and Wilson claimed that they were going east meeting Matthews, each claiming that the other was passing Matthews from the rear.
Under this evidence Matthews claims that there is no genuine issue as to any material fact as to the counterclaim filed against him by Wilson.
Matthews' motion for summary judgment on the counterclaim should have been granted. The only matter in the record indicating any negligence on his part is Wilson's statement in the interrogatories as to the specifications of negligence he relied upon. These, of course, are conclusions and not statements of facts. "In considering depositions and affidavits in support of or in opposition to motions for summary judgments the facts contained therein, and not the conclusions stated, determine whether a genuine issue of fact exists." Varnadoe v. State Farm Mut. Auto. Ins. Co., 112 Ga. App. 366 (1) ( 145 S.E.2d 104).
As to affidavits, CPA § 56 (e) ( Code Ann. § 81A-156 (e)) specifically provides that they shall "set forth such facts as would be admissible in the evidence." The same rule applies to depositions, interrogatories, and other evidence submitted on motion for summary judgment under the principle that admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would be inadmissible on motion for summary judgment. Roucher v. Traders General Ins. Co., 235 F.2d 423 (CA 5); 608 Hamilton St. Corp. v. Columbia Pictures Corp., 244 F. Supp. 193 (E.D. Pa.); Standard Rolling Mills v. Nat. Mineral Co., 2 FRD 236 (E.D. N.Y.); Morrissey v. Procter Gamble Co., 379 F.2d 675, 677, note 2 (CA 1); Chan Wing Cheung v. Hamilton, 298 F.2d 459 (CA 1); Youngblood v. Board of Public Instruction, 230 F. Supp. 74 (N.D. Fla.); Taylor v. Rederi A/S Volo, 249 F. Supp. 326 (E.D. Pa.), reversed on other grounds 374 F.2d 545.
Since the specifications would be objectionable as evidence of negligence at the trial and, even if admitted into evidence, would be conclusions without probative value (see, e.g., Patterson v. Cotton States Mut. Ins. Co., 221 Ga. 878, 882 ( 148 S.E.2d 320)), they cannot be considered as evidence of negligence on motion for summary judgment.
It was error to deny the motion. Scott v. Gulf Oil Corp., 116 Ga. App. 391 (3) ( 157 S.E.2d 526); White v. Augusta Motel Hotel Inv. Co., 119 Ga. App. 351 ( 167 S.E.2d 161).
Judgment reversed. Bell, P. J., and Deen, J., concur.