Tri-Cities Hospital Authority v. Sheats ( 1981 )

Smith, Justice,

concurring specially.

The instant case raises an important issue in regard to the meaning of our holding in Chambers v. C. & S. Nat. Bank, 242 Ga. 498 (249 SE2d 214) (1978). While I agree with the judgment of affirmance, I believe the majority’s “direct contradiction” test for determining the effect of discrepancies in the respondent’s testimony on summary judgment is not adequately explained.

In Chambers, this court attempted to frame a rule governing self-contradictory statements made by a party opposing summary judgment. The rule adopted by the court is taken from an early Supreme Court opinion, Western & A. R. Co. v. Evans, 96 Ga. 481, 486 (23 SE 494) (1894): “[A] party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him.” (Emphasis supplied.)

Until Chambers, the “intentional and deliberate” requirement of Evans had been almost totally disregarded. See, e.g., Lampkin v. Edwards, 222 Ga. 288, 290 (3) (149 SE2d 708) (1966); Douglas v. Sumner, 213 Ga. 82, 85 (97 SE2d 122) (1957); Turnmire v. Higgins, 176 Ga. 368 (168 SE 5) (1933). As noted in Anno., 169 ALR 798, 807: “Upon [the] slim foundation [of Evans], [and] the assumption that the party’s testimony is intentionally and deliberately self-contradictory, the Georgia courts have framed their formula which rejects a party’s claim or defense if he happens to testify inconsistently, and any interpretation of his testimony will negative his case, unless there is other evidence in support of it.” (Emphasis supplied.)

A liberal meaning of the “direct contradiction” test would seem to revive the pre-Chambers rule. I trust this is not what the court had in mind. “[S]ummary judgment may be granted on evidence that would compel the direction of a verdict; and should be denied when a directed verdict would be improper.” 6 Moore’s Federal Practice, ¶ 56.15[4],p. 56-522. “[T]he rule followed by most courts isthataparty may rely on more favorable evidence in his own testimony to overcome the effect of his own self-injurious statement in his own testimony, no distinction being made in this respect from situations where such curative evidence is from other witnesses. According to this rule, it is for the trier of fact to decide the issue upon all the evidence.” 30 AmJur2d, 242 Evidence, § 1087.

The Court of Appeals appears to have followed the above rule in several cases reviewing lower court rulings on summary judgment. In Mathis v. R. H. Smallings & Sons, 125 Ga. App. 810 (189 SE2d 122) (1972), the court reversed summary judgment in favor of the movant, holding: “The evidence ... was in conflict. That this conflict may have been occasioned by conflicting testimony of the same witnesses, whether parties or not, does not alter the result. [Cits.]” See Giant Peanut Co. v. Carolina Chemicals, Inc., 129 Ga. App. 718, 720 (200 SE2d 918) (1973); see also General Trailer Services v. Young Engineering, Inc., 149 Ga. App. 721 (256 SE2d 35) (1979). I do not view the instant case as necessarily disapproving of this language.

On motion for summary judgment, “[a]n opposing party’s affidavit should be considered although it differs from or varies his evidence as given by deposition or another affidavit...” 6 Moore’s Federal Practice, ¶ 56.15[4], p. 56-522; Price v. Worldvision Enterprises, 455 FSupp. 252, 265 (S.D.N.Y. 1978), affirmed without opinion, 603 F2d 214 (2d Cir. 1979); Adams v. United States, 392 FSupp. 1272, 1274 (E.D. Wisc. 1975). This, however, does not eliminate Chambers. Where the opposing party’s subsequent affidavit contradicts his deposition or prior affidavit as to an immaterial fact, summary judgment, if otherwise proper, should be granted in favor of the movant. “[A] party [opposing summary judgment should not be permitted to] contend that the trier of fact might find that the statements contained in his own personal affidavit are untrue so that this alone would put his credibility in issue.” 6 Moore’s Federal Practice, ¶ 56.15[4], pp. 56-522-523. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out [spurious] issues of fact.” Perma Research and Development Co. v. Singer Co., 410 F2d 572, 578 (2d Cir. 1969). Moreover, despite the general rule that “a genuine issue can exist by virtue of a party’s affidavit even if it conflicts with earlier testimony in the party’s deposition,” (Kennett-Murray Corp. v. Bone, 622 F2d 887, 893 (5th Cir. 1980)), the rule of Chambers should apply even though the conflicting testimony relates to a material issue where reasonable minds would not differ as to whether “the contradictory affidavit constituted a sham.” Id. at 894; DiMauro v. Pavia, 492 FSupp. 1051, 1059 (D. Conn. 1979). Such a determination must be made on a case by case basis.