McDermott v. Lankenau , 170 Ga. 585 ( 1930 )

ON MOTION ROE REHEARING.

Gilbert, J.

1. The defendant in error moves for a rehearing. The judgment refusing a new trial was reversed on the rulings made in the sixth, seventh, and eighth headnotes, all involving the same, or substantially the same, principles of law. The motion for a rehearing argues at length much that was said by Mr. Justice Hines in his dissent, some additional authorities are cited, and there is some additional argument. The case was carefully considered, and at great length, before this court rendered' its decision. The writer of the opinion recognized that the decisions were somewhat close, but, in view of the facts of the case, the majority of the court was of the opinion that the evidence admitted over objection, dealt with in the headnotes mentioned above, was so damaging and injririous to the complaining party* that a new trial should be awarded. Movant for a rehearing complains that the ruling in the sixth headnote was not based on the objection to the testimony actually made at the trial. By comparing what is said in the sixth headnote with the record it will be found that the objection stated in the headnote is the precise objection stated in the record as having been made at the trial. Counsel for movant does not correctly construe what the court held. This is doubtless due to language in the headnote. It is needless to repeat the grounds of objection; they are shown in the headnote and repeated in the dissenting opinion. Counsel for movant apparently construes our ruling as being based solely upon an objection that the evidence was not the basis of impeachment of Mrs. King, contending that it was intended as impeachment of Mr. McDermott. We considered the evidence as inadmissible for the impeachment of either of the parties named, and, therefore, that “the admission of this evidence was erroneous.” Having made that ruling, a reason was given why it was not a basis for impeaching Mrs. King. It would have made the decision clearer and more complete to have said expressly that it was not a basis for impeaching Mr. or Mrs. McDermott. Movant states that “no objection to said testimony was offered on the- ground given in the sixth headnote, that a witness can not be impeached by proof of a specific instance or by an oral charge of larceny in the absence of indictment and the record of conviction.” It is true that these words were not used in the objection. The objection was, however, that the testimony was irrelevant and immaterial and not a basis of impeachment of either of the parties named. The facts that it had reference to a specific instance, and was an oral charge of larceny in the absence of indictment and record of conviction, are merely reasons why it is not a basis of impeachment and should not have been admitted. We think it is obvious, if the evidence was immaterial and irrelevant and not a proper basis for the impeachment of Mrs. King, that certainly it is not a basis for the impeachment of either of the McDermotts. If it shows a contradictory statement, it is a statement as to a matter not material to the issue. Movant argues that the court overlooked the opinion of the trial judge overruling the motion for new trial, to the effect that said “impeaching evidence” was neither introduced nor used for the purpose of proving a substantive fact. The opinion of the distinguished and learned trial judge was' not overlooked, but a sufficient reply is that the trial judge did not so instruct the jury. Such statement, in an opinion overruling a motion for a new trial, can npt be the equivalent of a proper instruction to the jury.

Movant cites a number of authorities holding in effect that “although there may be a ground of objection to testimony which may be good if made, yet, if the objection made be not good, it will be overruled.” These decisions are not in conflict with what the court has ruled in this case. We think the objection actually made was good, and that the testimony was injurious to the complaining party.

Movant complains that the court overlooked the testimony of Mrs. King on direct examination by the attorney for Mrs. Mc-Dermott, apparently for the purpose of showing that she was not acting under duress, that she had never been accused of taking any of the property of Mr. and Mrs. McDermott. In another part of the motion for rehearing, counsel for defendant in error urges that the testimonjr was not offered to impeach Mrs. King, but to impeach Mr. McDermott, whereas, in making the argument just mentioned, it would seem the testimony was offered for the purpose also of impeaching Mrs. King.

Movant contends that the court overlooked the case of McGriff v. McGriff, 154 Ga. 560, 567 (115 S. E. 21) : “A party may show anything which may in the slightest degree affect the credit of an opposing witness.” The opinion in that case contains an elaborate discussion on the admissibility of evidence similar to that now in question, but an isolated sentence like that referred to is.of little value, without considering other portions of the discussion. This is shown by the language used at the bottom of page 567 to wit: “While, generally, the admission of illegal testimony which is wholly immaterial will not furnish a ground for a new trial, it will do so, if it appears of sufficient consequence to injuriously affect the party making the complaint.” Other arguments and contentions made with, respect to rulings made in the sixth headnote are mere elaborations of what has already been mentioned.

2. Movant contends that the majority of the court, in making the ruling in the seventh headnote, overlooked a number of decisions of this court. These decisions are to the effect generally that the error of admitting evidence over objection is cured by the admission of other evidence to the same effect without objection. It would require too much space to deal with all of these eases. They all turn upon the particular facts of the case, and in our opinion none of them require a different ruling from that made in this case.

3. Movant complains of the ruling in the eighth headnote, insisting that the court overlooked a fact shown in the ninth ground of the amended motion for a new trial “that the only objection made by counsel for plaintiff in error was that neither Mrs. King nor Mr. or Mrs. McDermott could be impeached upon a matter not relevant to the issue involved,” and that the court overlooked the decisions which movant cited and which are mentioned above with reference to the ruling made in the sixth headnote. For the reasons already stated, this ground of the motion for rehearing is without merit.

4. In the nineteenth paragraph of the motion for rehearing the movant complains that in the tenth headnote of the decision of this court it was ruled: “Other grounds of the motion for new trial not specifically dealt with' are either controlled by the rulings stated in the preceding headnotes or are of such character as do not require special mention and do not show error.” Movant correctly construes that headnote as ruling that the testimony of other witnesses similar in character to that dealt with in the sixth, seventh, and eighth headnotes was also inadmissible, and movant makes the same argument with reference to the tenth headnote as that made with reference to the sixth, seventh, and eighth. The motion for rehearing consists of twenty-two paragraphs, and includes much repetition, because all of the rulings complained of were of like kind, with reference to admissibility of evidence, and the argument for rehearing is substantially the same in each. After again considering all of the questions, in the light of the facts of the case, we think that the case should be remanded for a new trial on the grounds stated in the headnotes agreed to by the majority of the court; and the motion for rehearing is denied.