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.
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
"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.
Barhan & Dover, J. Carol Sherwood, Jr., for appellees.