Anderson v. Southern Ry. Co.
| Decision Date | 14 June 1899 |
| Citation | 33 S.E. 644,107 Ga. 500 |
| Parties | ANDERSON v. SOUTHERN RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Until the adverse party attacks the credibility of a witness either for bad character or because of contradictory statements, the party calling him cannot introduce evidence in support of his character for veracity. A mere conflict between the testimony of a witness and that of others who have testified on the opposite side will not authorize the admission of evidence to sustain the credibility of such witness. (a) The character of the defendant's witness for veracity was not put in issue by an allegation in the plaintiff's petition, and testimony introduced in support thereof, to the effect that such witness, as agent of the defendant, committed an assault which resulted in the death of the person for whose homicide the plaintiff sued.
2. Where the petition in an action against a railway company for a homicide alleged that a given person got upon the defendant's train in company with the decedent, and on the trial such person was sworn and called to the witness stand by the plaintiff, but withdrawn by him without being examined, and there was nothing to show that he was in any way under the power or control of the plaintiff, it was error to charge that "it is a rule of law on the subject of evidence, that where a party has evidence in his power, and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having some certain and satisfactory evidence in his power, relies on that which is of a weaker or inferior nature, a presumption arises that the charge or claim is well founded, but this presumption may be rebutted."
3. If either of the contentions of the plaintiff as to the cause of the death of his intestate's son was well founded, the defendant was liable, whether the decedent was rightfully or wrongfully on its train. It was therefore not error to reject, as irrelevant, testimony tending to show that he was rightfully on the train.
4. A general assignment of error upon a designated portion of the judge's charge will be considered for the purpose of ascertaining whether or not the particular language thus complained of states a correct abstract principle of law. (a) If it does, then the investigation here must end; for, in the absence of a specific assignment of error, this court will not inquire whether the words excepted to are or are not adjusted to the issues and facts of the case. (b) If an instruction, excepted to in general terms, be erroneous because it is not a correct or accurate statement of the law then, as all error is presumably prejudicial, the record will be examined for the purpose of ascertaining whether or not the party complaining has really been injured by the giving of such instruction. (c) When a portion of a charge, which is complained of generally, contains several distinct propositions, and one or more of the same is correct in the abstract, then the general assignment of error is not good and will not be further considered, because it, in effect, improperly alleges that all of such portion is erroneous, and does not show to which of the propositions--the correct or the erroneous--it is intended to take exception.
Error from superior court, Bibb county; W. H. Felton, Jr., Judge.
Action by James L. Anderson against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.
Steed & Wimberly and Guerry & Hall, for plaintiff in error.
Dessau, Bartlett & Ellis and Hill, Harris & Birch, for defendant in error.
1. Complaint was made in the motion for a new trial of the admission of testimony upon the trial to sustain the credibility of one of the witnesses for the defendant, whose character, the plaintiff contended, had not been assailed. Several witnesses testified, in behalf of the plaintiff, that the death of Andrew Wright, for whose homicide the suit was brought, was caused by McCrary, a conductor on defendant's train, willfully knocking him off the train with a piece of coal, and causing him to fall between the cars and to be run over and killed. McCrary, who was introduced as a witness by the defendant, testified, in substance, that he did not knock Wright off the train, nor throw any coal at him, nor use any violence whatever towards him. The court then permitted the defendant to prove by a number of witnesses that they knew McCrary, and knew his general character, and that it was good, and from that character they would believe him on his oath. This testimony was admitted over plaintiff's objection that it was irrelevant and illegal, in that no effort had been made in any manner to impeach McCrary. We think the court erred in allowing this evidence in support of McCrary's character for veracity to go to the jury. While it is true that his testimony was in direct conflict with that of several witnesses who testified for the plaintiff, yet it is well settled that a mere conflict between the testimony of witnesses for the respective parties to an action will not authorize the admission of evidence as to the credibility of such witnesses. See Hamilton v. Conyers, 28 Ga. 277; Insurance Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (5); Miller v. Railroad Co., 93 Ga. 480, 21 S.E. 52; Bell v. State, 100 Ga. 78, 27 S.E. 669; 5 Am. & Eng. Enc. Law (2d Ed.) 854. It was argued by counsel for the defendant that the allegations of the petition and the testimony of plaintiff's witnesses put the character of McCrary in issue, by charging him with the commission of a serious crime,--viz. with willfully and wantonly knocking Wright off defendant's train, thereby causing his death,--and that, as the plaintiff contended that McCrary represented the defendant in what he did, the defendant should be permitted to establish the general character of its agent for truth and veracity. To sustain this contention, counsel cite Civ. Code, § 5159; McNabb v. Lockhart, 18 Ga. 495; Bank v. Neel, 74 Ga. 576; Du Bose v. Du Bose, 75 Ga. 753; Falkner v. Behr, Id. 671; Railway Co. v. Christian, 97 Ga. 56, 25 S.E. 411; Association v. Farley, 102 Ga. 720, 29 S.E. 615. We do not think these authorities support the contention of defendant's counsel. Upon examination it will be seen that they are simply to the effect that, when the nature of the action involves a particular trait of character of a party thereto, evidence in reference to such trait is admissible. This is in accord with the general rule that evidence of character, when admissible, should be so restricted as to have some reference or analogy to the trait involved. 5 Am. & Eng. Enc. Law (2d Ed.) 856, and cases cited. If in the present case the witness McCrary be treated as the defendant, then the evidence to support his general character for truth and veracity was not admissible, because that particular that of his character was not involved in the assault which the plaintiff contended he made upon Wright.
2. One of the grounds of the motion was that the court erred in giving in charge, at the request of defendant's counsel section 5163 of the Civil Code, which declares that "where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted." The error assigned is that there was no evidence to justify this charge. To this ground the court...
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