Hudgens v. Broomberg

262 Ga. 271 (1992) 416 S.E.2d 287 HUDGENS et al. v. BROOMBERG et al. MANAGEMENT CLEANING CONTROLS, INC. v. BROOMBERG et al. S92G0173, S92G0182. Supreme Court of Georgia. Decided May 21, 1992. Reconsiderations Denied June 10, 1992. And June 12, 1992. *273 Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, for appellants (case no. S92G0173). Dillard, Landers & Bower, Daniell S. Landers, Bryant H. Bower, Jr., for appellant (case no. S92G0182). Barhan & Dover, J. Carol Sherwood, Jr., for appellees. 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.] *272 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. BENHAM, Justice, dissenting. I disagree with the majority's reversal of the Court of Appeals' decision which limited the "contradictory testimony" rule to testimony given by a party/witness in that case. I am in full accord with the Court of Appeals' reliance on the rule first enunciated in Branan v. LaGrange Truck Lines, 94 Ga. App. 829 (3) (96 SE2d 364) (1956), and elaborated upon in Slaton Machine Sales v. Owens-Illinois, 138 Ga. App. 80, 82 (225 SE2d 473) (1976): "In order to require as a matter of law that a party's testimony be construed most strongly against [her] because it is contradictory or equivocal, it must be testimony presented by the party on the trial of the case and not testimony adduced at some other time and place. ..." Here, Mrs. Broomberg's testimony on deposition in her personal injury lawsuit purportedly conflicted with her testimony in a proceeding in which she sought workers' compensation benefits.[2] In my opinion, it is up to a jury to determine whether Mrs. Broomberg's personal injury testimony is impeached by her workers' compensation testimony. It is not a question of law to be determined by the trial court after Mrs. Broomberg has had an opportunity to offer a reasonable explanation of the purported contradictory statements. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). Permitting, as the majority opinion does, the intertwining of two separate and distinct actions will, I predict, result in a trial within a trial as parties try to explain testimony from past cases that is allegedly inconsistent with testimony given in the current case. The efforts to explain alleged discrepancies may, in fact, overtake and overwhelm the case itself. Such prior testimony should be used for impeachment purposes, and not as a tool through which cases are disposed of summarily. I respectfully dissent. NOTES [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.] [2] The Court of Appeals noted that there is some doubt that appellees have even shown the existence of intentional self-contradictory testimony.