Pollard v. Faris

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; BANKE, J., concurs. CARLEY; CARLEY
• Citation: Pollard v. Faris, 283 S.E.2d 338, 159 Ga.App. 363 (Ga. App. 1981)
• Decision Date: 09 July 1981
• Docket Number: No. 62213,62213
• Parties: POLLARD v. FARIS et al.

Page 338

283 S.E.2d 338

159 Ga.App. 363

POLLARD v. FARIS et al.

No. 62213.

Court of Appeals of Georgia.

July 9, 1981.

Rehearing Denied July 21, 1981.

Certiorari Denied Sept. 30, 1981.

Clifford J. Steele, Atlanta, for appellant.

John F. Daugherty, Louis W. Rice, III, Atlanta, for appellees.

DEEN, Presiding Judge.

1. This is an appeal by the plaintiff Pollard from the grant of summary judgment to the defendants in a personal injury action resulting from an automobile collision. We apply the usual rules of construction. All inferences will be indulged in favor of the party opposing the motion. Drake v. Leader Nat. Ins. Co., 153 Ga.App. 314, 265 S.E.2d 114 (1980). This is true even though the movant may not be the party upon whom the burden of proof lies upon the trial of the case. Combs v. Adair Mtg. Co., 245 Ga. 296, 264 S.E.2d 226 (1980). And it includes the burden resting upon the movant of establishing the nonexistence, as well as the existence, of any pertinent issue of material fact. Taylor v. Taylor, 243 Ga. 506, 255 S.E.2d 32 (1979). Thus, the burden is on the movant to establish that the opposite party was capable of contracting if such becomes relevant to the question at issue. Wheat v. Montgomery, 130 Ga.App. 202, 206, 202 S.E.2d 664 (1973). "It is not sufficient if the evidence merely preponderates toward defendant's theory rather than plaintiff's, or if it does no more than disclose circumstances under which satisfactory proof of plaintiff's case on trial will be highly unlikely." Shadix v. Dowdney, 117 Ga.App. 720, 162 S.E.2d 245 (1968). "The defendant [on the trial of the case] is entitled to the benefit of a presumption that Mrs. Wheat was normal and possessed of her mental faculties and fully capable of contracting ... nothing appearing to the contrary ... and upon a trial this would be sufficient under the evidence as it stands to call for a directed verdict. But the rule is different in summary judgment proceedings; the incidence of the burden of proof is different. On the trial the plaintiff, asserting her incapacity to contract because she was taking prescribed drugs, has the burden of proving that she was not, at the time of signing the releases, capable of contracting, while on summary judgment the movant has the burden of showing that she was capable... [I]n the face of her assertion of incapacity, movant must, on summary judgment, rebut the claim. On a trial the rule is otherwise; plaintiff there has the burden of sustaining her claim." Wheat v. Montgomery, 130 Ga.App. 202, 202 S.E.2d 664 (1973).

2. The undisputed evidence offered by affidavit and deposition on the hearing of the motion for summary judgment is substantially as follows: Plaintiff Faris, in the cab of his truck, was proceeding along the highway when he topped a hill and saw a car approaching on his side of the road, approximately 8 or 10 car lengths ahead of him. He pulled to the right as far as possible, honked, came to a full stop, and put the car in neutral or reverse, when he was hit head-on. His head went through the front windshield, bounced back, and cracked the glass partition between the back of his seat and the rear of the truck. He was knocked unconscious and, when he came to, was dazed and could not stand. In the subsequent months, he suffered increasingly violent headaches and on several occasions went into violent rages in which he committed acts of destruction on automobiles and a guitar. He was not aware of when these fits took place, did not remember them afterward, and apparently could not foresee their imminent approach. They ceased about a year after the accident. Prior to that time he had been in good health and had not suffered any mental aberrations. There appear in the record the affidavit and notarized statement of Dr. Richard Franco, a neurologist who diagnosed a post-concussive syndrome consisting of positional vertigo and intermittent vascular headaches, accompanied by acute rage reactions and dissociative episodes which he concluded to be triggered by the post-concussive symptoms and to be related to some of the consequences of his accident. This is opinion evidence which, although insufficient to authorize the grant of a summary judgment (Blackstone Industries v. Andre, 232 Ga. 715, 208 S.E.2d 815, 1974) is sufficient, when offered by the opponent, to preclude the grant and thus make a case for jury decision. Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969); Harrison v. Tuggle, 225 Ga. 211, 167 S.E.2d 395 (1969). It appears from the court's conclusions of law in the order in this case granting a summary judgment to the defendant that he was led astray by failing to realize the effect of the medical opinion evidence and ruling that it was not admissible for any purpose because "not based on affiant's personal knowledge." The affiant was a neurologist, a medical expert to whom the plaintiff had been referred, and his conclusions, based on his examination and diagnosis, should have been considered by the trial court, and, when considered, were sufficient to preclude this motion both on the issues of negligence and injuries to the plaintiff.

3. It is also contended that a summary judgment was properly granted because the plaintiff received and cashed a check for $800, signed a complete release and never tendered back the benefit. Such a release, of course, would under those circumstances constitute an end to the litigation. Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 239 S.E.2d 381 (1977); Riker v. McKneely, 153 Ga.App. 773, 266 S.E.2d 553 (1980). We grant that the plaintiff's statements that the $800 check was intended only to apply to property damage would not in and of itself be sufficient to relieve the plaintiff of the consequences of his actions in signing the release, accepting the check, and keeping the proceeds. However, under the evidence here and the case of Wheat v. Montgomery, 130 Ga.App. 202, 202...