Humphreys v. Smith , 133 Ga. 456 ( 1909 )

Evans, P. J.

Elvira E. Black, late of Lowndes county, died seized and possessed of a certain tract of land, which her administrator, O. M. Smith, was proceeding to sell. E. M. Humphreys filed a claim to a specified portion of the land, and the papers were duly returned to the superior court of Lowndes county for trial. In the superior court Humphreys filed an equitable amendment in aid of his claim, wherein he alleged in substance that the intestate, in consideration of certain services rendered by him to her, had put him in possession of the land described in the claim, that he had erected valuable improvements thereon, and that the intestate had died without making him a deed, notwithstanding she promised and intended to do so. The trial of the case resulted in a verdict for the administrator, which the court refused to vacate on motion for a new trial. The bill of exceptions complains of this ruling.

1. At the trial the administrator read and introduced in evidence the interrogatories and answers of Elizabeth Black. Counsel for the claimant moved the court to rule out the answer to the fifth cross-interrogatory, wherein the witness was asked the following question: “Since the first trial what has your son, Richard Black, said to you about the ease; state fully and particularly?” The witness answered: “Since the first trial I have talked with Richard Black and have always told him what I have answered in these intcrrogatories to-day. He always said he believed that Elvira w'anted each one of the heirs to have an equal division, and he told me that he thought Frank Humphreys wanted to get hold of part of the land on the south side of the creek next to the home place.” It was insisted that this answer should be ruled out, because it was hearsay and irrelevant. No objection was made to the answer until after the interrogatories had been read to the jury. It was the manifest intention and purpose of the claimant, in asking the question on cross-examination, to show that a party, whose interest was adverse to the claimant, had been talking with the witness since the former trial, with a view of inducing her to give testimony favorable to the administrator. The witness was asked for hearsay testimony, and the answer was responsive to the question, though the answer was of a tenor different from what the claimant hoped it would be. A party can not by his own question elicit incompetent testimony, and then, simply because the testimony so elicited is unfavorable to him, demand as a matter of right that it be ruled out. IIearsa3r evidence is inadmissible and can always be excluded by timely objection. But where no objection is made at the time or where the complaining party himself asks for hearsa3r testimony which turns out to be unfavorable to him, it is in the sound discretion of the trial court whether the testimony will be expunged from the record; and the refusal of the court to rule out incompetent testimony received without objection will not be ground for a new trial, unless that discretion has been abused. The discretion should be exercised in the light of the circumstances of each particular case. Birmingham Lumber Co. v. Brinson, 94 Ga. 517 (20 S. E. 437); Natter of Morgan, 104 N. Y. 74, 85 (9 N. E. 861); Levin v. Russell, 42 N. Y. 251, 256; State v. Hummer, 73 N. J. L. 714 (65 Atl. 249).

2. Complaint is made that the court erred in charging the jury: "If you should believe from the testimony that a witness has been impeached, as wilfully, knowingly, absolutely and falsely swearing to a material matter in the case, then such witness would not be entitled to credit or belief in any matter; that is a matter to be determined by the jury.” The criticism upon this charge is that the court should have added that the testimony of a witness who has wilfully, knowingly, and falsely sworn should be disregarded, unless corroborated by circumstances or other unimpeached evideuce. The charge is an incomplete statement of the rule of law as to the credit to be given to a witness sought to be impeached. The Civil Code, §5295, declares that “If a witness swears wilfully, knowingly, and absolutely false, his testimony, ought to be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” It is apparent that the charge is faulty for the reason pointed out in the assignment of error. The whole charge is contained in the record, and it nowhere appears that this defect was remedied. The claimant relied, in the main upon his father’s testimony to establish a parol gift of the land which is claimed. The administrator offered testimony that- the father had made previous contradictory statements concerning the alleged parol gift. There was other evidence introduced by'the claimant, tending to support the evidence of the father. .The charge complained of was calculated to impress the jury that if they should believe the impeaching evidence, the testimony of the father was to be rejected, without reference to its corroboration by circumstances or other unimpeached evidence appearing in the case.

3. There are several other grounds in the motion for "new trial, but they are without substantial merit. It is not necessary to discuss the ground based upon newly discovered evidence, as there will be another trial.

Judgment reversed.

All the Justices concur.