Summary
noting distinction between "a breach of the limited warranty to repair or replace" and the "defeat of the essential purpose of that limited warranty"
Summary of this case from Atl. Waste Servs., Inc. v. Mack Trucks, Inc.Opinion
A89A1091.
DECIDED SEPTEMBER 12, 1990.
Action for damages. DeKalb State Court. Before Judge McLaughlin.
Davis, Sissel Williams, Warren P. Davis, for appellant.
Chambers, Mabry, McClelland Brooks, Genevieve L. Frazier, for appellee.
In Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 113 (1) ( 332 S.E.2d 336) (1985), aff'd on other grounds, 255 Ga. 349 ( 338 S.E.2d 426) (1986), a majority of this court held that it was permissible to impeach the general credibility of an adverse witness in a civil case by proving his first offender record for commission of a felony or a crime of moral turpitude. This whole court decision in Hightower was subsequently followed in Hardman v. Hardman, 185 Ga. App. 519, 520 (4) ( 364 S.E.2d 645) (1988) and Salomon v. Earp, 190 Ga. App. 405, 407 ( 379 S.E.2d 217) (1989) but, in Whidby v. Columbine Carrier, 182 Ga. App. 638 ( 356 S.E.2d 709) (1987), it was not. In the original appearance of the instant case before us, we resolved this conflict by holding that the whole court decision in Hightower should be followed and that the decision in Whidby should be overruled. Pender v. Witcher, 194 Ga. App. 72 (2) ( 389 S.E.2d 560) (1989). On certiorari, however, the Supreme Court reversed, holding that the first offender record of an adverse witness in a civil case "is not admissible for the purpose of impeaching the witness by showing him to have been convicted of [a felony or] a crime involving moral turpitude." Witcher v. Pender, 260 Ga. 248, 249 ( 392 S.E.2d 6) (1990).
Accordingly, our decision in Pender v. Witcher, supra, is hereby vacated and the judgment of the Supreme Court in Witcher v. Pender, supra, is made the judgment of this court. It necessarily follows, therefore, that the decisions of this court in Hightower v. Gen. Motors Corp., supra, Hardman v. Hardman, supra, and Salomon v. Earp, supra, must be overruled to the extent that the holdings thereof are inconsistent with the Supreme Court's decision in Witcher v. Pender, supra, and that the decision of this court in Whidby v. Columbine Carrier, supra, remains viable authority. Because the trial court in the instant case correctly refused to allow appellant-plaintiff to use appellee-defendant's first offender record for general impeachment purposes, the judgment is affirmed. "This decision does not affect the holding of Hightower v. General Motors Corp., 255 Ga. 349 ([supra]), that evidence of a first offender record is admissible in a civil trial to impeach an adverse witness by disproving or contradicting his testimony." Witcher v. Pender, supra at 249.
Judgment affirmed. Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ., concur.