Kitchen v. Robbins , 29 Ga. 713 ( 1860 )

— Stephens J.

By the Court.

delivering the opinion.

[1.] The first error assigned is on the ruling that the admissions of the defendant founded on statements to him by the plaintiff, were sufficient proof of the fact of loss, to authorize the introduction of evidence concerning the amount of the loss. I remark in the first place, the admissions did not appear to have been founded on statements of the plaintiff, so far as was disclosed by Mr. Shockley, who was the witness that testified to the admissions. He stated the admissions to have been made without any qualification or suspicion expressed as to their truth, and without any mention of the source from which the defendant’s knowledge of tIA facts had been derived. We think the testimony of this witness was sufficient proof of the fact of loss, to authorize the introduction of evidence to show its amount, and it was not for the Judge to pronounce that the testimony of this witness was to be weakened or destroyed by the subsequent statement of the defendant, that all his knowledge had been derived from the plaintiff. The jury was the tribunal to compare the witnesses, and weigh the evidence. But why should not the admissions be good evidence even if founded on the statements of the other party ? Are no admissions good against a party, unless founded on his personal knowledge ? The admissions would not be made except on evidence which satisfies the party who is making them against his own interest, that they are true, and that is evidence to the jury that they are true. Admissions do not come in, on the ground that the party making them, is speaking from his personal knowledge, but upon the ground that a party will will not make admissions against himself unless they are true. The fact that he makes them against his interest, can be reasonably explained only on the supposition that he is constrained to do so by the force of the evidence. The source from which a knowledge of the facts is derived, is a circumstance for the jury to consider, in estimating the value of the evidence, but that is all.

[2.] And on the same principle as well as on another, we think the plaintiff had a right to the belief of the defendant when the latter was on the stand as a witness, under our statute. He was a party as well as a witness, and on the principle just stated, the plaintiff would have been permitted to prove, that the defendant had said, he believed the plaintiff had lost the watch and money. He would have been permitted to prove that the plaintiff had said so, in the presence of the defendant, and that the latter did not deny it. This evidence would show no personal knowledge of the fact stated, on the part of the silent party, but it raises a presumption that he believed it. The belief of a man against his own interest is a fact for the jury to consider as evidence, and if this belief may be proven by admissions before witnesses or inferred from silence, surely it may be proven by the oath of a witness who knows, as the party does know, what his belief is. Courts of Equity will require parties to answer not only according to their knowledge, but also according to their belief, and our Act which permits one party to put the other on the stand as a witness, is stated in its very caption to be a mode of obtaining a discovery at common law, in lieu of going into equity. And this is the additional principle on which the belief of the defendant was admissible evidence.

[3.] After the loss had been proven, was the plaintiff a competent witness to prove the amount of it ? It was urged in the argument, that the rule of evidence against a common carrier, should not apply against an innkeeper, because it was said the common carrier has a more exclusive custody of the goods than an innkeeper has. This reason goes to question the propriety of subjecting the innkeeper to the same liability for loss, but not in the least does it suggest a discrimination in the mode of arriving at the loss, the liability being admitted. A guest at an inn mayvhave more control over his trunk, than a passenger on a car has over his, but he is no more likely to exhibit the contents of it to other people, and there is no more probability of his having witnesses, therefore, to the question of contents or amount of loss. The rule stands on necessity in the one case, and we think the same necessity exists in the other case, and that the Judge properly held the rule to be the same in both cases.

Judgment affirmed.