Shiver v. Norfolk-Southern Railway Co.

501 S.E.2d 832, 232 Ga. App. 282, 98 Fulton County D. Rep. 1974, 1998 Ga. App. LEXIS 654

Opinion

Eldridge, Judge.

In Shiver v. Norfolk-Southern R. Co., 269 Ga. 168 (496 SE2d 903) (1998), the Supreme Court reversed the holding of this Court’s opinion in Shiver v. Norfolk-Southern R. Co., 225 Ga. App. 544 (484 SE2d 503) (1997). In our opinion, applying Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), we found that because Shiver’s sworn testimony conflicted with his prior unsworn statement to the claim agent, and because he offered no explanation for the conflict, the favorable portions of his sworn statement must be construed against him. The Supreme Court held that ruling to be error and found that the ruling in Prophecy Corp. applies only to self-contradictory testimony under oath. Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

When Prophecy Corp. is not applied in construing plaintiff’s testimony, plaintiff’s testimony under oath creates a jury question. Therefore, the trial court’s grant of summary judgment to defendant must be reversed.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.