1. On motion for summary judgment, where all undisputed physical facts available are consistent with the defendant's theory that the deceased was not negligent but incapacitated by a heart attack which caused him to run off the road and into the lanes of opposing traffic, the question of negligence should be left to the jury.
2. Testimony based on hearsay evidence, and answers to hypothetical questions not based on facts in evidence, are properly excluded, even though the objections urged were too broad in that some of the material was not subject to the motion to exclude.
The petitions in these cases allege generally that the defendant is administratrix of the estate of Espy Norman who, while proceeding along the westbound section of a divided interstate highway, suddenly and without warning, and at a high rate of speed, veered from the roadway, crossed the grassy median area between the eastbound and westbound traffic lanes and crashed into an automobile driven by Wood in which Allen was riding as a passenger. Norman was killed, and Wood and Allen were injured. The plaintiffs moved for summary judgement on the issue of liability, on the hearing of which the court considered, among other things, a medical deposition taken by the defendant, and an autopsy report. Rulings on objections to the deposition and the grant of the motion form the basis of this appeal.
control was due to a sudden seizure resulting from the driver's physical condition. In deciding whether the evidence offered is motion for summary judgment "is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence." Holland v. Sanfax Corp., 106 Ga. App. 1
, 5 (126 SE2d 442
). The likelihood of the defendant losing control of the vehicle because of speed or other negligence in driving as opposed to the inference that he had a heart attack resulting from an occlusion of the coronary artery is one which cannot be weighed and decided as a matter of law. The trial court erred in granting the motion for summary judgment.
2. The defendant introduced in evidence a deposition of Dr. Ellis accompanying an autopsy report on Norman, which latter showed it was performed by the Department of Pathology of Emory University and contained the notation: "Gross and final review: Dr. John T. Ellis." The witness testified that the report was made up from the findings at the autopsy and in the regular course of autopsy procedure, and that it was the normal course of business for the resident to make pencil notes and drawings and at a later time dictate the gross description; that deponent served in supervision of the entire matter, went over the work done and notes taken, and personally examined all of the organs. Under this testimony an objection to the entire deposition on the ground that the autopsy was performed by another physician and not from the witness' personal knowledge is without merit. A further objection was on the ground that the conclusions of the witness were based on statements of other persons, facts assumed but not in evidence, and information obtained by another physician. The court overruled the objections except "with respect to conclusions based upon statements of other persons, facts assumed but not in evidence, and particularly the portion of the testimony relating to the cause of death" of Norman. We construe this as an order overruling the objections, which were directed to the deposition as a whole, plus a statement that the trial court was not considering any conclusions of the witness based either on hearsay information or on facts not in evidence, and that in particular this excluded any opinion of the witness as to the cause of death. So construed, the ruling is not error. Hearsay testimony has no probative value in any event. Thompson v. Ammons, 160 Ga. 886 (4)
, 890 (129 SE 539
). But since the autopsy report was properly in evidence as a report prepared in the regular course of business of a medical department whose regular course of business was to prepare such reports, under the supervision of the witness who had made personal examination of the organs involved, any matter of fact in the autopsy report was a proper subject for opinion evidence. Code Ann. 38-711. This would not include statements of the opinions or diagnosis of others. Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (99 SE2d 370)
; Meeks v. Lunsford, 106 Ga. App. 154 (1) (126 SE2d 531)
. As to hypothetical questions, the answer is not proof that the conclusion reached by the witness applies to or establishes any fact in the case on trial unless it also appears that there is evidence of the salient facts assumed in the hypothetical question. Central R. & Bkg. Co. v. Maltsby, 90 Ga. 630 (5) (16 SE 953)
. The only hypothetical question posed in the deposition was whether, considering the autopsy findings plus the fact that Norman, driving down the expressway, suddenly drove his automobile across the median into oncoming lanes of traffic and it was further known that he had been seen to slump over the wheel of his vehicle at some point as he came across the median, this would be "consistent with Mr. Norman having had a heart seizure of some sort that would disable him to the extent to cause him not to be able to control his vehicle." The answer was affirmative, but was not, of course, an expression of opinion as to the cause of death. On the other hand, it had no probative value because there was no testimony that Norman did in fact slump over the wheel of the car or do any other act to suggest loss of control. Of his own knowledge the witness said only that he was not in position to come to any overall conclusion as to whether Norman had suffered a heart attack, since a heart attack means necrosis of the heart which takes about 12 hours to develop and no necrosis was ob-
served at autopsy, but that, in his medical opinion, the findings were not inconsistent with his having a spontaneous heart attack of some sort. The rulings on the objections to the deposition are not erroneous because (a) the deposition should not be excluded in its entirety, and (b) with or without objection, the trial court should not consider hearsay evidence, or answers to hypothetical questions not based on facts in evidence.
The grant of the summary judgment was error.
PANNELL, Judge, concurring specially.
I concur in the opinion as written, but feel that some explanatory remarks are necessary in view of the quotation from Freeman v. Martin, 116 Ga. App. 237
, 239 (156 SE2d 511
). As I see it the rule stated does not remove liability for negligence, but, where the loss of control is caused solely by the unforeseen physical attack on the consciousness of the driver and this is the sole proximate cause of the injury complained of, and the attack causing the unconsciousness could not have been foreseen by the driver in the exercise of ordinary care, there is no negligence. If the driver also be negligent in some way and this negligence is a contributing proximate cause to the injuries complained of, the driver may be liable irrespective of the sudden physical attack causing unconsciousness. The rule stated, therefore, should be based upon the absence of negligence rather than non-liability for negligence under the circumstances.