Lestine L. McNeely and William R McNeely sued Wal-Mart Stores, Inc. for the slip and fall of Mrs. McNeely on April 26, 1997, in its Cornelia store just outside of the McDonald’s located therein. Mrs. McNeely fell in a pool of clear liquid. Wal-Mart performed safety sweeps two to four times per day where the employee checks the area where he or she worked; however, no such sweep had been performed within a reasonable time to inspect prior to the fall, giving rise to a jury issue as to constructive notice.
The key to Wal-Mart’s defense was an off-day employee eyewitness, whose testimony was impeached by a prior felony conviction and by disproving the facts to which he testified. The employee, Stephen Hightower, who was not working that day, testified by affidavit and by deposition that he was in the store as a customer, was sitting in the McDonald’s, saw the plaintiff fall, and saw water on the floor, eight to twelve inches in circumference. He testified that when he entered the area five to ten minutes earlier there had been no liquid on the floor. However, Hightower had been convicted in 1970 of possession of a controlled substance and in 1966 of felony breaking and entering in Orlando, Florida, and served a year in prison. He testified under oath that the breaking and entering charge had been thrown out when in fact he pled guilty to the charge to serve five years on probation. After reporting what he saw to Wal-Mart loss control personnel after the fall, he later asked for a promotion and received it along with a 400 per hour pay raise. Based upon High-tower’s testimony, the trial court granted summary judgment to WalMart. We reverse, because determination of interest and of the weight and credibility of a witness’s testimony and whether the witness has been impeached is uniquely for the jury as triers of the facts.
a. It was error for the trial court to grant summary judgment under the circumstances of this case, because the trial court usurped the jury’s function, the determination of impeachment and weight and credibility of an impeached witness. See
Stephens v. Adkins,
Under OCGA § 24-9-84, a witness may be impeached by evidence as to his general bad character. The conviction of an offense involving moral turpitude or a felony is a proper method of showing bad character and tends to impeach the credibility of that witness within the meaning of this Code section.
Paradise v. State,
“The credit to be given a witness’s testimony where impeached for general bad character . . . shall be for the jury to determine.” OCGA § 24-9-85 (a).
It being the exclusive province of the jury to determine the credibility of all witnesses, when an effort is made by any of the methods pointed out by law to impeach a witness, the jury then becomes the triors of the credibility, respectively, of the witness sought to be impeached, and of the witness or witnesses by whose testimony the impeachment is attempted; and, accordingly, they have the right, under all the attendant circumstances and conditions, to determine whether credit shall be given to the witness whose credibility has been attacked, or to the witness or witnesses by whose testimony such attack is made, and thereupon decide whether the witness has or has not been impeached. (a) Under the previous rulings of this court, if a witness has been impeached, it is the duty of the jury to disregard his testimony, unless corroborated in material particulars. (b) The seeming conflict existing between those cases ruling, in substance, that, though a witness may be impeached and may not be afterwards corroborated, yet it must still be a question for the jury whether he is to be believed or not, notwithstanding the “impeachment,” and those cases holding that it is the duty of the jury to disregard the testimony of an impeached and uncorroborated witness, grows out of a failure, in applying the doctrine, to keep in mind the distinction between impeachment and an attempt to impeach, and as to the duty of the jury in dealing with the testimony of an impeached witness and that of a witness whose credibility has been attacked by way of impeachment. The incautious use of the terms “impeachment” and “attack upon the credibility” as synonymous, has caused most, if not all, of the difficulty. A witness is never impeached, in contemplation of *854 law, until there is a mental conviction, produced upon the mind of the jury by proof, that he is unworthy of credit.
Powell v. State,
If a witness has been successfully impeached by evidence of conviction of a felony, then the credit, if any, is for the jury to determine under proper instructions from the trial court.
Taylor v. Marsh,
b. Further, under OCGA § 24-9-68, the interest of a witness and his feeling toward a party, his employer, “may always be proved for the consideration of the jury” regarding weight and credibility. See
Canada v. Shropshire,
c. Under oath, Hightower testified that the felony breaking and entering charge was dismissed; however, plaintiff provided evidence that in fact Hightower pled guilty to such charge. A jury was entitled to conclude that Hightower’s testimony had been disproved and that he had wilfully and knowingly sworn falsely. OCGA §§ 24-9-82; 24-9-85 (b);
Kelley v. State,
Judgment reversed.