Opinion
45138.
ARGUED MARCH 2, 1970.
DECIDED MAY 26, 1970. REHEARING DENIED JUNE 18, 1970.
Action for damages. Habersham Superior Court. Before Judge Smith.
Robinson, Thompson, Buice Harben, B. Carl Buice, for appellant.
Mitchell Mitchell, Warren N. Coppedge, Jr., Ellard Frankum, Stephen D. Frankum, Erwin, Epting, Gibson Chilivis, Nickolas P. Chilivis, for appellees.
The evidence was sufficient to support the verdict and the overruling of the defendant's motion for a directed verdict was not error.
ARGUED MARCH 2, 1970 — DECIDED MAY 26, 1970 — REHEARING DENIED JUNE 18, 1970 — CERT. APPLIED FOR.
Thurston H. Matthews filed a claim against Willie Lee Wilson for damages resulting from a collision. The collision occurred at approximately 6:40 p. m., on Georgia Highway 53 (a two-lane highway) about 2.8 miles west of the city limits of Jasper, Georgia. It involved three vehicles: a Chevrolet automobile owned and operated by Thurston H. Matthews, a white Dodge automobile owned and operated by defendant Willie Lee Wilson and a pick-up truck owned by Waymon Long Trucking Company and operated by Brady R. Little. The complaint was stated in two counts. In count 1 it is contended that the Matthews vehicle was approaching a hillcrest and that the collision occurred when the Little pick-up truck began to pass the Matthews vehicle and the Wilson Dodge came over the hill from the opposite direction. In count 2 of the complaint it is contended that the collision occurred when the Wilson Dodge attempted to pass the Matthews vehicle while approaching a hillcrest and the Little pick-up truck came over the hill from the opposite direction. Both counts were submitted to the jury.
While the jury was out, it was agreed between attorneys for all parties and the judge that, if a verdict was returned against one of the defendants only, judgment could be entered thereupon and it was stipulated that such verdict and judgment reflected a finding that the defendant held liable had been found by the jury to be the driver of the passing vehicle.
The jury returned a verdict against Willie Lee Wilson only.
The testimony of the plaintiff and his wife would not support a finding that the defendant Wilson was driving the vehicle which was passing them at the time of the collision. Both the plaintiff and his wife testified that at the time the collision occurred it was a truck (driven by defendant Little) that was attempting to pass.
It was conceded that the record contains testimony which conflicts with the testimony of the plaintiff. The defendant Brady R. Little testified, in his own behalf, that at the time of the collision it was the Wilson Dodge which was passing the Matthews automobile. The defendant also offered the evidence of Sheriff Harley Cantrell who stated that, in his opinion, the collision occurred as described by the defendant Little.
The defendant Wilson testified that he had no memory of how the collision occurred because of a head injury he received. However, on cross examination he stated: "A. As far as I know I was going toward Calhoun, that's all I can tell you, I don't know, I am not going to lie about it, I am not going to do that. Q. It is fair to say then, in so far as your testimony is concerned that you were going toward Calhoun at the time that this collision occurred? A. Yes."
At the conclusion of all of the evidence the defendant made a motion for a directed verdict which was overruled. The defendant appealed and the case is here for review.
The defendant contends that the evidence will not support the verdict because the plaintiff's own testimony was that it was not the defendant who was attempting to pass at the time of the collision. With this contention we cannot agree. While it is true that the plaintiff's version of how the collision occurred was contrary to the conclusion reached by the jury, there was other testimony from a different source to establish his case and support the verdict. Fowler v. Glover, 105 Ga. App. 216 ( 123 S.E.2d 903); Sears, Roebuck Co. v. Wilson, 215 Ga. 746, 751 ( 113 S.E.2d 611).
The Encyclopedia of Georgia Law (Vol. 11, § 149, p. 391) contains an excellent discussion of the rule involved in the case sub judice: "The question as to the extent a party is bound by his own testimony has caused difficulty in the cases. It has been said to be `one of the most troublesome questions in the law of evidence and has been the subject of much diversity of judicial opinion.' There are many Georgia cases and some of them do raise questions, but the rule seems clear. The testimony of the party is only evidence and the party may introduce evidence to contradict his own testimony. The difficulty comes from the statement found in a number of cases to the effect that a party is `not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.' This statement comes from an early case where the court added to the statement, `in the absence of information from other sources.' [ W. A. R. Co. v. Evans, 96 Ga. 481, 485 ( 23 S.E. 494).] The failure to add this clause distorts the meaning of the statement. In a proper case, the court generally has added the clause, but the use of the statement without the added clause could cause confusion. The danger is that a court might misconstrue the rule and say that a party could not introduce evidence to contradict his own testimony."
The overruling of the motion for a directed verdict was not error.
Judgment affirmed. Bell, C. J., and Whitman, J., concur.