Bush v. Fourcher
| Decision Date | 25 November 1907 |
| Docket Number | 384. |
| Parties | BUSH v. FOURCHER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The verdict of a jury should not be set aside upon the assignment of error that it is without evidence to support it, if there is any evidence to support it, unless it be further made to appear (a) that some ruling of the court improperly withheld evidence from the jury; (b) or illegally permitted the jury to consider testimony which should not have been submitted to them; or (c) that the court's instructions, as applied to the evidence, were erroneous, inapplicable, or misleading.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3928.]
The evidence authorized the verdict.
[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Work and Labor, § 55.]
Books of account may be introduced in evidence, even though it may not have been shown that the merchant or other proprietor kept no clerk. Such books may tend to support the credit of the plaintiff before the jury, and, for the purpose of corroboration, they may be admitted. The mere fact that a book is kept in ledger form is not a valid objection to its admission as a book of original entries, and, even if the ledger in this case was not a book of original entries, its admission was harmless to the defendant, as the entries thereon tended only to prove facts already submitted to the jury by other means in the testimony. The books contemplated by Civ. Code 1895, § 5182, are permanent books. Irregularities in books of account sought to be introduced in evidence "should be exceedingly gross and palpable to justify the court in arresting the evidence from that tribunal whose peculiar province it is to judge of the credibility of testimony." Bower v. Smith, 8 Ga. 77. Where it appears from the record that prior to the admission of the books the plaintiff and his clerk and bookkeeper were thoroughly examined in the presence of the court with reference to them (the nature of such examination rendering a thorough examination of the books necessary in view of the court), and that the judge had ample opportunity to inspect them, he will be presumed to have seen and to have been satisfied that they were free from any suspicion of fraud.
[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence §§ 1443, 1455, 1628; vol. 3, Appeal and Error, §§ 3735, 4161, 4162.]
A trial judge is not required to give in charge to the jury the contents of a written request if any portion thereof is erroneous. No complaint can be made where the judge presents to the jury that portion of the request which is legal, and omits and declines to charge the portion of the request which is not in accordance with law.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 660.]
One who claims that another was liable for the hire of his automobile, used without his knowledge and consent, is only entitled to recover reasonable hire for its actual use as found by the jury. In the absence of any contract between parties, the fact whether he who used the automobile did or did not make a practice of doing so would be immaterial.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 6, Bailment, §§ 87, 88.]
The charge excepted to in the fifth ground of the motion, while inapt in expression, is not sufficiently erroneous, when considered with other instructions of the court upon the same subject, to require the grant of a new trial.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-717.]
Error from City Court of Richmond County; W. F. Eve, Judge.
Action by H. E. Fourcher against W. E. Bush. From a judgment for plaintiff, defendant brings error. Affirmed.
C. E. Dunbar, for plaintiff in error.
Oswell R. Eve, for defendant in error.
The defendant in error, a locksmith and repairer of bicycles and automobiles, sued the plaintiff in error upon an open account, and the jury returned a verdict for the plaintiff for $181.65. The verdict was less than the account sued for. The original petition of plaintiff alleged an indebtedness of $152.75, but was subsequently amended to read $186.65. The alleged indebtedness was claimed to be due on account of certain repairs and material furnished in the repairing of the defendant's automobile and bicycle during a period of seven months of the year 1905. He filed an answer, denying the indebtedness and setting up a counterclaim for $600 for hire and damages to the automobile. After the verdict in favor of plaintiff, the defendant filed a motion for a new trial, which was overruled, and he excepts to the judgment overruling the motion. The evidence for the plaintiff shows that he was authorized and instructed to repair defendant's automobile and bicycle; that the defendant placed the automobile with him, with direction to put the machine in repair and sell it; that he, following the instructions, put the machine in working order and endeavored to dispose of it. He testified (and his testimony was corroborated by other witnesses) that Bush knew that the repairs were being made upon the machine, and that they were done with Bush's full knowledge and consent. Plaintiff's witnesses testified that the repairs upon the bicycle were done on instructions from Bush's office by telephone and messenger, and from time to time bills were presented to Bush without his objecting to any items thereon or to their correctness.
1, 2. The first and second grounds in the motion for new trial aver that the verdict is contrary to law and the evidence, and contrary to justice and equity. There was conflict in the evidence. The jury settled the issues of fact by preferring the testimony for the plaintiff, and it was sufficient to authorize their finding. In a court for the correction of errors, the verdict of a jury should not be set aside upon the assignment of error that it is without evidence to support it, if there is any evidence to support it, unless it be further made to appear (a) that some ruling of the court improperly withheld evidence from the jury; (b) or illegally permitted the jury to consider testimony which should not have been submitted to them; (c) or that the court's instructions, as applied to the evidence, were erroneous, inapplicable or misleading. We held in a former automobile case from Augusta (Murphy v. Meacham, 1 Ga.App. 155, 57 S.E. 1046): "The case depending upon disputed issues of fact arising from conflicting evidence, the settlement which is solely for the jury, and the verdict having been approved by the trial judge, the judgment of the court below will not be disturbed."
3. The third ground of the motion for new trial alleged the improper admission of the books of account of the plaintiff, under section 5182 of the Civil Code of 1895. The books were properly and legally admitted. The conclusion of the opinion in Petit v Teal, 57 Ga. 148, cited by plaintiff in error, itself sustains the ruling; the language of Judge Bleckley, who delivered the opinion, being as follows: "As a party to the suit, though competent, is nevertheless liable to be discounted by the jury in credibility by reason of his interest, and as his books may tend to support his credit, there may be use for them for that purpose; and for that purpose, if for no other, there may be reason to admit them." The plaintiff had a clerk and bookkeeper who was qualified to testify, and who was introduced as a witness by him, and who testified as to the books and the nature and manner in which they were kept, and as to each item as it appeared charged upon the books to the defendant, as to who made the entries, who sold the goods, etc. Consequently there was no necessity of proof upon the part of the plaintiff that he kept no clerk, or that his clerk was dead or otherwise inaccessible, or that for any reason his clerk was disqualified from testifying. The introduction of the clerk answered the requirement, showing that the plaintiff did have a clerk, and that he was neither dead nor inaccessible. The fact that the plaintiff kept a clerk and bookkeeper, and that the clerk and bookkeeper testified, did not preclude him from introducing the books of account for the purpose of corroboration. 2 Cyc. Ev. 662 (g). The introduction of the clerk and bookkeeper and of the books themselves was proper. It was held in Bagley v. Roberson, 57 Ga. 148, that, though the person who kept the books is or can be examined, the books themselves can also be admitted; and in Day v. Crawford, 13 Ga. 510, it is said: "Let the clerk prove the books, who made the entries in the due course of business."
In the case at bar all the parties to the transaction were present at the trial and testified as to their connection therewith and the correctness of the same. The machinist who did the work, the clerk who sold the goods, the party who charged the items, the bookkeeper who sold some of the goods and kept the books, all testified. There were no missing links in the evidence. It cannot be maintained that because the clerk, the proprietor, the machinist, and the bookkeeper were all present and testified the books themselves cannot be introduced. The books in such cases as this may not be immediate proof of the correctness of the account, but may be corroborative evidence of the other testimony as to the correctness of the account, and are admissible as a part of the res gestae. 1 Greenleaf, Ev. (15th Ed.) § 117. See Dunlap v. Hooper, 66 Ga. 211. The account was made up of numerous...
To continue reading
Request your trial