Branch v. Carr ( 1990 )

Carley, Chief Judge.

Appellant-plaintiff sued defendant and others seeking damages pursuant to 42 USC § 1983 based upon her allegations that defendant assaulted her on January 4, 1985, at the time of her admission to a hospital. Suit was filed on May 22, 1987, and defendant-appellee affirmatively asserted that the cause of action was barred by the statute of limitations. In her complaint, appellant alleged that since the date of the incident complained of, she has been “incompetent to manage her affairs.” In opposition to appellee’s motion for summary judgment, appellant contended that the period of limitations was tolled because of this alleged incapacity. See OCGA §§ 9-3-90; 9-3-91. However, in her deposition, appellant testified that she was “mentally competent to handle [her] affairs and to bring this lawsuit” and that “since January of 1985,” she has been able “to handle [her] personal and legal affairs.” Other than the averments of her complaint, appellant has produced no evidence of incapacity which would constitute a tolling of the statute of limitations. The trial court, finding that appellant’s “own testimony indicates that she was competent to manage her affairs,” granted summary judgment in favor of appellee on the basis that appellant’s action was barred by the statute of limitations.

“The test is one of capacity — whether the individual, being of unsound mind, could not manage the ordinary affairs of [her] life. [Cit.]” (Emphasis in original.) Tri-Cities Hosp. Auth. v. Sheats, 156 Ga. App. 28, 30 (273 SE2d 903) (1980), aff’d 247 Ga. 713 (279 SE2d 210) (1981). In Sheats, as in this case, the plaintiff asserted that the statute of limitations was tolled based upon the allegations in the complaint that she was mentally incapacitated. Thus, this Court “conclude[d] that the allegations of Sheats’ mental incapacity were pierced by his own deposition [cit.], and that the burden then shifted báck to Sheats to come forward with evidence demonstrating that an issue of fact remained. [Cit.]” Tri-Cities Hosp. Auth. v. Sheats, supra, 31. In Sheats, this Court affirmed the denial of the defendant’s motion for summary judgment because the record showed that the plaintiff did come forward with evidence “demonstrating that an issue of fact remained.” Unlike the situation in Sheats, however, appellant has not “come forward” with any evidence contradicting her deposition testimony that, at all relevant times, she has been capable of managing her own affairs.

“Sanity or insanity is a proper subject for opinion evidence, and where the question under examination . . . shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. [Cits.]” (Emphasis supplied.) Jarrard v. State, 206 Ga. 112 (3) (55 SE2d 706) (1949). In addressing the issue of whether the statute of limitations has been tolled, the courts of this State have consistently relied upon the testimony that was given by a plaintiff as to his or her own mental soundness or unsoundness. See Chapman v. Burks, 183 Ga. App. 103 (357 SE2d 832) (1987); Whisnant v. Coots, 176 Ga. App. 724 (337 SE2d 766) (1985); Curlee v. Mock Enterprises, 173 Ga. App. 594, 596 (2) (327 SE2d 736) (1985); Tri-Cities Hosp. Auth. v. Sheats, supra. Accordingly, on the basis of the record before the trial court, no genuine issue of material fact remained, and the trial court correctly granted summary judgment based upon appellee’s statute of limitations defense.

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ, concur. McMurray, P. J., dissents.