TRI-CITIES HOSPITAL AUTHORITY et al. v. SHEATS, 247 Ga. 713

Jordan, Chief Justice. Respondent Sheats sued petitioners for medical malpractice four years after his treatment. Contending that a two-year statute of limitation applied, petitioners moved for

summary judgment. Sheats argued that he had been rendered mentally incompetent by his negligent care until approximately one year prior to his bringing suit. Sheats’ testimony in a deposition and statements in an affidavit offered in opposition to

summary judgment appeared to conflict on his condition during his alleged incapacity.

Summary judgment was denied. The Court of Appeals granted an interlocutory appeal, and held that inconsistencies of this nature become questions of credibility to be determined by a jury. Tri-Cities Hosp. Auth. v. Sheats, 156 Ga. App. 28 (273 SE2d 903) (1980). We granted certiorari and affirm. The rule to be applied on motion for

summary judgment when the movant would not have the burden of proof at trial was announced by this court in Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971). Burnette held that all evidence adduced on a motion for

summary judgment, including the testimony of the party opposing the motion, was to be construed more strongly against the movant. Subsequently, in Chambers v. C. & S. Nat. Bank, 242 Ga. 498 (249 SE2d 214) (1978), a distinctive factual situation arose in which a respondent to a motion for

summary judgment testified that at the time of the allegedly fraudulent conveyance he could not pay all of his debts. This fact was also shown by additional evidence introduced by the movant. 242 Ga. at 502, fn. 2. However, the respondent submitted his affidavit to the effect that he was solvent at the time of the transfer and so the conveyance in question could not have been fraudulent. He was obviously solvent or insolvent, and his statements that he was and that he was not were in direct contradiction of each other. Therefore, we held that when self-contradictory statements were made by a party in opposition to a motion for

summary judgment, the trial court would be authorized to take that portion of the testimony more unfavorable to the respondent into consideration in making a decision. In Combs v. Adair Mtg. Co., 245 Ga. 296 (264 SE2d 226) (1980), in answer to a certified question from the Court of Appeals we concluded that the rule enunciated in Burnette remained in effect and that our holding in Chambers came about as a result of factual differences. The two cases were compatible on that basis.

We take the opportunity today to reiterate that Burnette is the predominant rule and only in cases where there is a direct contradiction in the testimony of the respondent as to a material issue of fact will that party’s unfavorable testimony be taken against him. See e.g., Six Flags Over Ga. v. Hill, 247 Ga. 375 (276 SE2d 572) (1981).

In the instant case, Sheats gave deposition testimony to the effect that he had been in a coma from early September to October of 1974; that he was unable to walk or talk after regaining consciousness though these functions eventually returned; that he remained “foggy” for a period of time, was unable to get a job and relied on his brother for housing and support. He testified that until March of 1977 he essentially “laid around the house.” Decided June 23, 1981. Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Michael T. Bennett, for appellants. Davenport & Moore, W.

Gary Moore, Maurice Davenport, for appellee. Sheats’ affidavit, made some four and a half months after his deposition, stated that he was totally incapable of transacting business for himself, was able to do so only at the prompting of others, and negotiated his social security checks under someone else’s direction. These statements do not materially contradict what was said in the deposition so as to allow a trial judge to disregard the more favorable part of Sheats’ testimony. We therefore affirm the Court of Appeals’ and the trial court’s judgment that

summary judgment should not have been granted in this case. Judgment affirmed. All the Justices concur, except Smith, J., who concurs specially.