Appellants Barbara Raven, a minor through her next friend, and Elaine Sisson, a minor through her next friend, brought separate suits against Dodd’s Auto Sales & Service, Inc., and David Dodd, as defendants, seeking to recover damages for injuries sustained in an automobile wreck while the defendant, David Dodd, was allegedly demonstrating an automobile belonging to the defendant corporation for the purpose of sale to one of the plaintiffs. Motions for summary judgment were made on March 1, 1967, in each case by Dodd’s Auto Sales & Service, Inc., on the grounds that “David Dodd was not the *417 agent of this defendant at the time and place of the occurrence complained of, and this defendant, therefore, is not a proper party in this action.” Attached to this motion were affidavits of H. C. Dodd, president and sole stockholder of the corporate defendant, and an affidavit of David Dodd, both dated February 23, 1967, the respective affidavits being as follows:
“I am the president and sole stockholder of Dodd’s Auto Sales & Service, Inc., 3826 Clairmont Road, Chamblee, DeKalb County, Georgia.
“On May 24, 1966, I purchased a 1957 Ford Thunderbird from Mr. R. J. Townley. On May 28, 1966,1 sold this Ford Thunderbird to my son David L. Dodd for $800. A true and correct copy of the sales invoice from Dodd’s Auto Sales & Service signed by myself and David L. Dodd, is marked Exhibit ‘A’ and attached hereto as part of this affidavit.
“I understand that David Dodd had a wreck in the Ford Thunderbird on May 31,1966.
“I certify that David L. Dodd was not employed by Dodd’s Auto Sales & Service, Inc. on May 31, 1966, in any capacity whatsoever. On that date neither said company nor I had any interest in the 1957 Ford Thunderbird my son was driving, nor was he operating said vehicle as a servant or employee of myself or Dodd’s Auto Sales & Service, Inc.
“This affidavit is given to be used as evidence in the above entitled matter at any and all hearings and trials of same, and particularly as evidence on the hearing of the motion for summary judgment in said case. Further, deponent sayeth not.”
The affidavit of David Dodd was as follows: “I am the son of H. C. Dodd, the president and owner of Dodd’s Auto Sales & Service, Inc. I am 24 years old and am now married and living with my wife, Evelyn Dodd.
“I was not married in May, 1966, and I was living in my father’s home but I was not employed by my father or by Dodd’s Auto Sales & Service, Inc.
“On May 24, 1966, my father, on behalf of Dodd’s Auto Sales & Service, Inc. traded cars with a Mr. Townley and took in trade a 1957 Ford Thunderbird. I purchased the Thunderbird from Dodd’s Auto Sales & Service, Inc. on May 28, 1966, as evi *418 denced by the sales invoice, marked Exhibit ‘A’ attached hereto and made a part of this affidavit.
“On May 31, 1966,1 was riding around in my Thunderbird. I called Barbara Raven and asked if she wanted to go for a ride. After I picked Barbara up at her home on Blackburn Way we drove over on Pine Oak Circle and picked up Elaine Sisson who was a friend of Barbara. I had never met Elaine Sisson before but I had known Barbara Raven for some time.
“After we picked up Elaine Sisson I went south on Northeast Road. We were simply riding around. I did not take them to ride with the idea of selling my car to anyone.
“I have never been employed by Dodd’s Auto Sales & Service, Inc. At the time of my collision, I was driving my own car for my own personal pleasure. I was not operating said vehicle in behalf of Dodd’s Auto Sales & Service, Inc. and I was not a servant or employee of said company. Dodd’s Sales & Service, Inc. had nothing to do with me or my vehicle on the occasion complained of.
“This affidavit is given to be used as evidence in the above entitled matter at any and all hearings and trials of same, and particularly as evidence in the hearing of the motion for summary judgment in said case. Further, deponent sayeth not.”
Attached to each of these affidavits as Exhibit “A” was a paper entitled “invoice” showing David Lamar Dodd on May 28, 1966, purchased from the defendant corporation a 1957 Ford Thunderbird, the automobile involved in the wreck on May 31, 1966. This instrument showed the “cash selling price of car” as $800 and as “balance financed” $800. The space for showing by whom it was financed and method of payment was left blank and provided that “It is agreed that the title of ownership of said car above described does not pass to me until the final cash payment is made.” This instrument was signed Dodd’s Auto Sales & Service by H. C. Dodd and by David Dodd. After the filing of the motion, plaintiff took interrogatories of the defendant corporation and the defendant, David Dodd, the interrogatories being served on April 12, 1967. The defendant, David Dodd, in answer to a question as to where he was employed prior to May 31, 1966, stated “Except for working with my father at *419 Dodd’s Auto Sales & Service, Inc., located at 3826 Clairmont Road, Chamblee, Georgia, and the other jobs as herein set out, I was in the Georgia Penal System from November 1, 1962, to May, 1966, as well as from September, 1961 to August, 1962,” that he purchased the Ford Thunderbird on May 18, 1966, for a consideration of $800, none of which has been paid; that he expected to pay for the car when funds became available, that he had no owner’s certificate of vehicle registration, but only a tag receipt, and that from November 1, 1966, to April 8, 1967, he “did mechanical work with H. C. Dodd for $50 per week.” His interrogatories further showed that while he had had various jobs since the wreck, he was living in a house owned by his father, the rental to be paid “as soon as funds are available,” and that he had been living at that address since May 31, 1966, and that he was indebted to his father for various sums advanced to him. He denied that the corporate defendant was ever indebted to him during the past three years. The answers to the interrogatories of David Dodd were executed by him on April 27, 1967, and filed the same day. The answers to the interrogatories of the corporate defendant, sworn to by H. C. Dodd, showed that the approximate market value of the Ford Thunderbird on May 24, 1966, was $600 and on May 28, 1966, was approximately $150 to $200. In answer to the question of how the payment of the $800 price of the Ford Thunderbird was made “on May 28, 1966” the answer was it was “made on terms as shown by Exhibit ‘A’ [the sales invoice],” that the corporation had no owner certificate of vehicle registration, only a tag receipt; in answer to the question of whether David Dodd was indebted to the corporation on May 18, 1966, the answer was that an indebtedness was incurred on May 18, 1966, for the purchase of the Ford Thunderbird, that the original amount of the indebtedness was $800, and that the balance owing is $700; the interrogatories stated that David Dodd had never been employed by the corporation, that he was never listed as an employee on any Quarterly Return Form 941 of Internal Revenue Service, and that he had never received a W-2 form from the corporation, and that he was never listed as an employee on any liability insurance policy, workmen’s compensation insurance policy, and group and/or life in *420 surance policy. These interrogatories were sworn to April 24, 1967, and filed on April 26, 1967.
Barbara Raven (McClure) made an affidavit as follows:
“In the middle part of May, 1966, I was the owner of a 1964 Chevrolet Impala two-door hard top automobile with a bad starter. David Dodd came to my home and pulled my automobile to Dodd’s Auto Sales & Service, Inc., at 3826 Clairmont Road, in the City of Chamblee, Georgia, for the purpose of replacing the starter. David Dodd was working at Dodd’s Auto Sales & Service, Inc., as a mechanic.
“On or about May 25, 1966, David Dodd brought to my home a 1963 Chevrolet convertible automobile for demonstration purposes and to interest me into purchasing the car. The car belonged to Dodd’s Auto Sales & Service, Inc., and David Dodd was working for the company.
“On May 31, 1966, David Dodd brought to my home a 1957 Ford Thunderbird automobile belonging to Dodd’s Auto Sales & Service, Inc., for demonstration purposes and to interest me in purchasing it. He was employed by Dodd’s Auto Sales & Service, Inc., on that date. This was the automobile which was involved in the collision, the subject matter of this law suit.” The trial court sustained the motions for summary judgment of the corporate defendant in each case.
1. The movant for summary judgment has the burden of showing the absence of any genuine issues of material facts which under applicable principles of substantive law entitle him to a judgment as a matter of law. 6 Moore’s Federal Practice, pp. 23, 35;
Holland v. Sanjax Corp.,
2. All inferences of fact from the evidence submitted at the hearing must be drawn against the movant and in favor of the
*421
party opposing the motion
(Holland v. Sanfax Corp.,
3. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.”
Code
§ 38-1805. “When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury.”
Code
§ 38-1806. Where, on motion for summary judgment, it appears that the credibility of a witness or witnesses upon whose testimony the grant of the summary judgment depends, is at issue in the case “Neither the trial court nor this court will resolve the matter or is concerned with the credibility” but will leave this matter to the jury, rather than grant summary judgment based on the “uncontradicted” area of the testimony. of the witness, whose credibility is for the jury, and not for the trial judge or this court. See in this connection
Benefield v. Malone,
“The success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses where they contradict one another, or themselves. We do not think the judge ought on a motion for summary judgment to have considered the affidavits attacking or sustaining the character of the witness. He should not have concerned himself at this time with the question what he would do if the jury should render a verdict for plaintiffs. A judge indeed does not know what he would do in that regard until he has heard the trial in open court before the jury and has the benefit of the opinion of the jury expressed in their verdict. Only when the evidence is such that it is clear the jury would have none to go on, though they believed that unfavorable to the movant for summary judgment, can the motion be sustained and a jury trial denied.” Firemen’s Mutual Ins. Co. v. Aponaug Mfg. Co., 149 F2d 359, 363, 8 FR Serv 56c.41, Case 8 (CCA5th, 1945). (Emphasis supplied.)
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“To satisfy the moving party’s burden the evidentiary material before the court, if taken as true, must establish the absence of any genuine issue of material fact, and it must appear that there is no real question as to the credibility of the evidentiary material, so that it is to be taken as true. If the non-existence of any genuine issue of material fact is established by such credible evidence that on the facts and the law the movant is entitled to judgment as a matter of law, the motion should be granted, unless the opposing party shows good reason why he is at the time of the hearing unable to present facts in opposition to the motion. If, however, the papers before the court disclose a real issue of credibility or, apart from credibility, fail to establish clearly that there is no genuine issue as to any material fact, the motion must be denied.” 6 Moore’s Federal Practice, p. 2339. Any intimation in
Ussery v. Koch,
4. While a witness is not to be discredited because of a discrepancy as to a wholly immaterial matter
(Daniels v. Luton,
Neither the jury, nor the trial judge on motion for summary judgment, is bound in every case to accept evidence as true although it is not contradicted by direct testimony. It may be inherently subject to discredit or it may be so from the circumstances surrounding it (see
Metropolitan Life Ins. Co. v. Joye,
5. In view of the above rulings it now becomes necessary to determine whether the unexplained contradictory testimony of the defendant, David Dodd, relating to his employment and the conflict in his testimony and his father’s testimony relating to the same matter are as to a matter material to the issues in the case so as to place in question the credibility of the only two witnesses upon whose testimony the validity of the grant of the motion for summary judgment must rest. We are not here concerned with the question of contradictory statements of a witness made out of court, which required that a proper foundation be laid before such contradictory statements are admissible in evidence. See
Ussery v. Koch,
Accordingly, we must hold that the trial court erred in granting its motion for summary judgment.
We have found only one case which militates against the conclusion we have reached
here
— Ussery
v.
Koch,
“ (b) The plaintiff also argues that since the defendant Koch at one time stated to a patrolman that he was driving and then later testified that Kay Langley was driving, this contradiction creates a doubt as to his credibility which would leave his testimony subject to being impeached and thus for a jury to resolve. Counsel for plaintiff points out that it is the jury’s prerogative to ascertain if a witness has been impeached and then determine what credence to give his testimony.
Code
§ 38-1806;
Swift & Co. v. Lawson,
“This principle is applicable where a witness has been successfully contradicted as to a material matter.
Atlantic C. L. R. Co. v. Hodges,
“Evidence is not admissible for the purpose of attempting to impeach a witness by contradictory statements on an immaterial matter.
Bryant v. State,
We are not here concerned with the admissibility of the impeaching evidence of a statement made out of court; but we are concerned with the import of that decision that the contradictory statement was not on a matter material to the case. The matter at issue in the Ussery case was whether or not those on the front seat were swapping drivers at the time and place in question. Koch’s testimony that Langley was driving negatived the posi *426 tive aspects of the issue, that is, if this testimony were uncontradicted and unimpeached, it would demand a finding that those on the front seat were not changing drivers. If this be true, the evidence of a contradictory statement as to who was driving, certainly related to a fact material to the issue in the case. Where the issue is “yes” or “no” as to a fact, testimony which, if believed, would demand a “no” answer is certainly material to the issue; and evidence of a prior contradictory statement by the witness, as in the Ussery case, or where testimony of the same witness or other witnesses contradicts the same, would be evidence contradictory to material evidence on a material issue in the case. It follows, therefore, that we must disapprove of the ruling in Ussery v. Koch to the effect that the alleged contradictory statement was not as to a matter material to the issue involved. The result reached in the Ussery case is correct in that the impeaching evidence was not admissible because no proper foundation was laid for its admission, and it is not necessary to overrule the judgment reached.
Judgment reversed.