Bank of Emanuel v. Smith

• Decision Date: 13 August 1924
• Docket Number: 15436.
• Citation: 124 S.E. 114,32 Ga.App. 606
• Parties: BANK OF EMANUEL v. SMITH ET AL.
• Court: Georgia Court of Appeals

124 S.E. 114

32 Ga.App. 606

BANK OF EMANUEL v. SMITH ET AL.

No. 15436.

Court of Appeals of Georgia, Second Division

August 13, 1924

Syllabus by the Court.

Where it does not appear that a party has held back evidence within his power to produce, the nonproduction of more full and definite evidence than he presents raises no presumption against him, and there should be no charge given to the jury on the subject of such presumption. Schnell v Toomer, 56 Ga. 168(4); Shields v. Georgia Railway & Electric Co., 1 Ga.App. 172 (2), 176, 57 S.E. 980; Central Railway Co. v. Bernstein, 113 Ga. 175 (5) 38 S.E. 394.

Neither can a presumption arise prejudicial to a party for his failure to introduce a witness, if the jury may be satisfied from the evidence before them that the party who had such witness accessible has nevertheless proved his claim or established his defense. Weinkle v. Brunswick & Western R. Co., 107 Ga. 367 (4), 33 S.E. 471.

In a case where a witness is equally accessible to both parties and it would be as reasonable to expect one party to introduce him as the other, no presumption should arise against either party for a failure to introduce the witness. Southern Railway Co. v. Acree, 9 Ga.App. 104 (1), 70 S.E. 352; Brothers v. Horne, 140 Ga. 617 (3), 79 S.E. 468.

Where one who was sued by a bank upon a note pleaded and testified that on a certain date at the bank's office he paid the note by a check delivered to the bank's cashier, and where the person who at the time was assistant cashier testified in behalf of the plaintiff that he was present and heard the conversation between the defendant and the cashier and knew from that, as well as from records in the bank, that the check was delivered, not in payment of the note sued upon, but in settlement of another note, which the bank held for collection, and where the cashier, who before the trial severed his connection with the bank and was not shown to have any further interest in the bank or the transaction in question, was present at the trial, equally accessible to both parties, it was error for the judge to give in charge section 5749 of the Civil Code, providing: "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 facts did not warrant such instruction, and an exception thereto by the losing party should have been sustained.

(a) Especially was it error against the plaintiff to give this Code section in charge under the circumstances appearing in the motion for a new trial namely, that the instruction was given upon the oral request of the attorney for the defendant, made in the presence of the jury, after the...