Hudgens v. Broomberg

416 S.E.2d 287, 262 Ga. 271, 92 Fulton County D. Rep. 753, 1992 Ga. LEXIS 503

Opinions

Weltner, Presiding Justice.

We granted certiorari in Broomberg v. Hudgens, 201 Ga. App. 524 (411 SE2d 521) (1991), to consider:

Whether the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), is limited, as the Court of Appeals holds, to testimony “originally given ... in the actual case.”

1. In Prophecy, supra, we reaffirmed the “contradictory testimony rule,” and held that the trial court must determine, in each case, whether the testimony of a party comes within that rule.¹

2. The Court of Appeals held:

In order to require, as a matter of law, that a party’s testimony be construed most strongly against him because it is contradictory or equivocal, it must be testimony that was originally given by him in the actual case itself and not testimony that he gave at some other time and place. [Emphasis supplied.] [Broomberg, 201 Ga. App. at 525.]

3. Testimony, however, is testimony. Because Prophecy does not contain the limitation applied by the Court of Appeals, the case is reversed and remanded.

Judgment reversed and case remanded.

All the Justices concur, except Benham, J., who dissents.

Footnotes

1

We stated:

In each case, whether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony. [Note omitted.] To say that testimony is directly contradictory adds nothing to the statement that it is contradictory. Neither does the issue turn on whether the party-witness’ second statement intentionally contradicts his first. There are situations in which an honest mistake has been made in the first statement; the proper approach is to intentionally contradict the first statement by way of explanation. We point out that even where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. [Cits.] On the other hand, a careless and untruthful witness may have simply forgotten what was said in the first statement, and tailored his second statement to meet the needs of the occasion without regard to the truth. He may have no intent to contradict the first statement, but surely the law will construe this contradiction against him. [Id. at 30.]