Lawson v. Duke Oil Co. , 155 Ga. App. 363 ( 1980 )

McMurray, Presiding Judge.

Duke Oil Company, as plaintiff, brought this action against Billy Lawson, as defendant, alleging that Lawson negligently damaged its tractor-trailer in a collision of motor vehicles on February 14, 1973. Lawson answered, denying the claim and counterclaimed for personal injuries and property damage to his vehicle arising out of the collision, said vehicle allegedly being operated by an agent, servant and employee of the defendant within the scope of his employment. Defendant later amended to admit that plaintiff was the owner of the tractor trailer as alleged in plaintiff’s petition. The case was then regularly called for trial “pursuant to a special calendar,” and there being no response or appearance by the plaintiff, the case was ordered dismissed for want of prosecution. However, it was later reinstated when this order was vacated.

Plaintiff responded to the counterclaim and denied that it was the owner of the tractor-trailer which “was owned by S. W. Duke Distributors, Inc. at the time of the collision,” contending that at the time of the collision it had no right, title or interest in the tractor-trailer.

Duke Oil Company then moved for summary judgment, attaching the affidavit of Tommy Duke, president of Duke Oil Company and also president of “S. W. Duke Distributor, Inc.,” setting forth certain facts with reference to the collision, naming the driver and type of tractor involved in the collision, and deposing therein that the driver was never employed by Duke Oil Company, with exhibits attached with reference to the certificates of title dated May 12,1971, in the name of “S. W. Duke Oil Distributor, Inc.” as to the tractor and April 21, 1971, in the name of “S. W. Duke Oil Distributors, Inc.” as to the trailer, tax receipts, and other business records. The motion for summary judgment was heard, and based on the evidence it was held that the plaintiff Duke Oil Company was “entitled to judgment in its favor as to the Counterclaim filed by the defendant as a matter of law.” The counterclaim was dismissed, and the defendant appeals. Held:

“The burden is upon the moving party to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant.” Holland v. Sanfax Corp., 106 Ga. App. 1, 4(1) (126 SE2d 442). See also Giant Peanut Co. v. Carolina Chemicals, 129 Ga. App. 718,719 (1) (200 SE2d 918); Jaffe v. Davis, 134 Ga. App. 651, 654 (215 SE2d 533).

Here we have the anomaly of a petitioner whose action for damages has been reinstated after dismissal then offering evidence counter to its pleadings and having its motion for summary judgment as to the counterclaim granted, leaving the main action pending in the trial court in which action it claims damages for the loss of a vehicle it now denies owning. The rule as to admissions in pleadings is clear. “Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” Code § 38-402. See Gray v. Atlanta Transit System, 136 Ga. App. 573, 574 (1, 2) (222 SE2d 67). Even if the pleadings were formally withdrawn and therefore not solemn admissions in judicio, an admission can be given such credence and effect as a jury may determine upon the trial of the case. Joyner v. William J. Butler, Inc., 143 Ga. App. 219, 220 (3) (237 SE2d 685). Where matter is contained in pleadings from which inferences may be drawn beneficial to the opposite party, it may be considered as evidence in his favor. McLendon Elec. Co. v. McDonough Const. Co., 145 Ga. App. 137, 146 (243 SE2d 537); reversed on other grounds in McDonough Const. Co. v. McLendon Elec. Co., 242 Ga. 510 (250 SE2d 424).

On consideration of summary judgments we and the trial court must look at the entire record. “While pleadings remain of record they constitute solemn admissions in judicio; they may be stricken, and thereafter, if they contain admissions against interest, they may be introduced by the opposite party for the purpose of contradiction to show a shift of position between mutually contradictory positions.” Davis v. Calhoun, 128 Ga. App. 104, 107 (2) (195 SE2d 759). See also Joyner v. William J. Butler, Inc., 143 Ga. App. 219, 220 (3), supra. In the latter case we held that the trial court erred in granting a motion for judgment notwithstanding the verdict (mistrial) in that there was an admission by the defendant in the pleadings which raised a factual issue. The same situation would apply to a motion for summary judgment. Further, where a party offers evidence in his own behalf, his testimony is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866); Ryder v. Schreeder, 224 Ga. 382, 386 (162 SE2d 375); Lampkin v. Edwards, 222 Ga. 288, 290 (149 SE2d 708). See also Chambers v. C. & S. Nat. Bank, 242 Ga. 498, 502 (249 SE2d 214), in which the Supreme Court, in quoting from W. & A. R. Co. v. Evans, 96 Ga. 481, 486 (23 SE 494), stated that “ ‘ [ A] party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him.’ ”

Submitted February 5, 1980 Decided July 16, 1980. John F. Sweet, for appellant. H. Lowell Hopkins, Patrick J. McKenna, for appellee.

Accordingly, the trial court erred in granting summary judgment in favor of the plaintiff against the defendant as to the counterclaim and in dismissing it. Conflicting evidence remains before the court which prevents a determination that there is “no genuine issue as to any material fact,” and the plaintiff is entitled to judgment as a matter of law. Code Ann. § 81A-156 (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759); Farris v. Sneed, 144 Ga. App. 488 (241 SE2d 605); Giant Peanut & Grain Co. v. Long Mfg. Co., 129 Ga. App. 685, 688-689 (201 SE2d 26). Compare Brittain v. Reid, 220 Ga. 794, 797 (2) (141 SE2d 903); Moore v. Wachovia Mtg. Co., 138 Ga. App. 646, 649 (4) (226 SE2d 812).

Judgment reversed.

Deen, C. J., Quillian, P. J., Shulman, Birdsong, Carley and Sognier, JJ., concur. Smith and Banke, JJ., dissent.