Georgia R.R. & Banking Co. v. Lybrend

• Decision Date: 27 July 1896
• Citation: 27 S.E. 794,99 Ga. 421
• Parties: GEORGIA RAILROAD & BANKING CO. v. LYBREND. LYBREND v. GEORGIA RAILROAD & BANKING CO.
• Court: Georgia Supreme Court

27 S.E. 794

99 Ga. 421

GEORGIA RAILROAD & BANKING CO. v. LYBREND.

LYBREND v. GEORGIA RAILROAD & BANKING CO.

Supreme Court of Georgia

July 27, 1896

Syllabus by the Court.

1. On the trial of a civil action, at which the plaintiff testifies as a witness in his own behalf, it is competent for the defendant to prove that the plaintiff, in furtherance of this identical cause, and for the purpose of prevailing therein had been guilty of base, dishonorable, or criminal conduct. Evidence of this character is admissible in behalf of the defendant, both to discredit the plaintiff as a witness, and to throw suspicion upon the justice of his cause of action.

2. Accordingly the defendant in such case may show that at a previous stage of the suit the plaintiff made an affidavit in which he denied the truth of material statements in another affidavit made by an adverse witness, and that the plaintiff afterwards, when testifying in the cause, admitted that his own affidavit, or a part of it, was willfully false. And where both relevant and irrelevant matters are so blended in the two affidavits as to render it necessary that both should be read in full, in order to clearly understand what and how much of the first was denied in the second, and in order to apply the substance of the latter to that of the former, the whole of the two may be offered and received in evidence together; and it will be no legal objection to their admissibility that some of the contents of one or both, taken separately, are not relevant, and, if so taken, would not be admissible.

3. An admission by a party to a cause on trial, made by him while under examination as a witness upon a former trial of the same cause, that he had intentionally sworn falsely in an affidavit intended to be used, and which was actually used in his behalf in resistance to a motion for a new trial, is admissible in evidence against him, as showing an improper and unconscionable effort on his part to interfere with the due course of justice, and also to discredit him as a witness at the trial in which evidence of such admission is offered and, where the whole of his previous examination relating to this particular matter would better indicate the scope and precise import of the admission in question than would a part only of such examination, the whole is admissible, although some of it, separately considered, may be irrelevant.

4. It is not essential to the admissibility of such affidavit and examination, for the purposes indicated, that they should contain anything in conflict with the testimony of the party at the last or pending trial, in which they are offered in evidence.

5. A party, though introduced as a witness in his own behalf, may, upon cross examination as to matters not voluntarily testified about on his direct examination, decline to give testimony which would tend to criminate him, or to bring infamy, disgrace, or public contempt upon himself or his family, notwithstanding the fact that at a previous trial of the case he had waived his privilege of remaining silent as to these matters. A waiver of this kind is not binding upon a witness at a trial subsequent to that at which the waiver was made.

6. Other than as above indicated, there was no error either in rejecting or in ruling out evidence.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by Andrew T. Lybrend against the Georgia Railroad & Banking Company. There was a judgment for plaintiff for a less sum than that demanded, and defendant and plaintiff respectively bring error and cross error. Reversed on the main bill. Affirmed on the cross bill.

Atkinson, J., dissenting.

Jos. B. & Bryan Cumming and Hillyer, Alexander & Lambdin, for plaintiff in error.

J. W. Austin and Geo. Westmoreland, for defendant in error.

LUMPKIN J.

In 1888 Lybrend brought an action for personal injuries against the Georgia Railroad & Banking Company. The case has been tried three times in the superior court. The first trial resulted in a verdict for the plaintiff, which the trial judge set aside upon the defendant's motion for a new trial. Then there was a mistrial, and afterwards another trial, in which the jury again found for the plaintiff an amount considerably smaller than that for which the first verdict was rendered. The defendant again moved for a new trial, which was refused, and it excepted. The following condensed statement will present the case so far as is material to an understanding of the points upon which this court has ruled: It appeared at the trial now under review that Lybrend purchased in Cleveland, Ohio, a coupon ticket to Augusta, Ga. The last coupon of this ticket was good for passage from Atlanta to Augusta over the Central Railroad, but not over the railroad of the defendant. On reaching Atlanta, Lybrend boarded a night train of the Georgia Railroad, which was about to leave for Augusta. Upon this train was a colored woman who held a ticket exactly similar to that of Lybrend. Soon after the train started the conductor approached the woman, examined her ticket, informed her that it was not good over the Georgia Railroad, and thereupon stopped the train and ejected her. A few minutes later he reached Lybrend, and, after looking at his ticket, gave him the same information which had been given to the woman. Lybrend, though recognizing that his ticket was not good upon that train, insisted upon remaining thereon, and urged the conductor to accept this ticket for his passage to Augusta. The conductor declined to do this, stating to Lybrend that he must pay his fare or leave the train. The latter then insisted upon being taken back to the passenger depot whence the train had started. The conductor refused to comply with this demand, and ejected Lybrend from the train. According to his account of the transaction as a witness in his own behalf, he was forced by the conductor's language and conduct, which were threatening and violent, to leave the train while it was yet in motion, and in consequence received a fall, by which his leg was broken. On the other hand, according to the testimony of the conductor, who was directly corroborated by other employés of the defendant, no harshness or violence was used towards Lybrend, the train came to a full stop, and he alighted in safety and walked away entirely unhurt. Later in the night he was found at a place some distance from the scene of his expulsion from the train, with a fractured leg. His contention was that he crawled in his injured condition over the space intervening between these points, and the contention of the defendant was that he received his injuries, in some way unknown to it or its servants, after he had been left in perfect safety by the train from which he was expelled. The testimony of the defendant's employés was further corroborated as follows: A number of disinterested witnesses testified to the expulsion of a man from a night train of the defendant at about the date upon which Lybrend was ejected. These witnesses were unable to positively identify him as the man to whom their testimony related, but they fixed the night upon which they saw the man ejected as the same upon which a colored woman had been expelled from the same train, and swore that he was not hurt. There is therefore no room for any reasonable doubt that the man whom the witnesses saw ejected from the train was Lybrend; and, if this be true, their testimony fully sustains the account of the matter given by the conductor and the other servants of the company, and accordingly tends most strongly to show that Lybrend was not injured by his expulsion from the train.

It is already obvious that the presence of the colored woman upon the train, and her expulsion therefrom, were matters of great materiality to the defense, and the importance of these facts will become the more apparent as we proceed. This woman whose name is Martha Comer, was not sworn as a witness at the first trial. Doubtless the defendant's counsel were not then aware of her presence upon the train on the night in question, or of the facts which will presently be disclosed. One of the grounds of the first motion for a new trial was based on newly-discovered evidence, predicated upon the following affidavit of this woman: "During the month of September I was frequently visited by Andrew T. Lybrend. He asked me to run off with him. I refused time and again. But he kept on begging me to go. I told him that he had a wife, and that I did not want to go. Andrew said his wife did not love him and he did not love her. I agreed to go. But when the time came I backed out. But he kept on begging me. I agreed to go several times, but every time I got scared to go and would back out. At last he said that, if I did not go, he would kill me, so I told him I would go. I asked him why he was going off in the middle of the crop-gathering season. And I asked how he was going to pay Mr. Jos. Watson, a storekeeper at Ridge Springs, the money he owed him for advances. Andrew and I were working together, and I asked him how he would get money to go on. He said he had some cotton he would sell, and that Mr. Watson could take what was left; and, if that did not pay him, he could make out the best way he could. Andrew gave me some money about the first of October. I went on the train from Wards to Augusta, arriving there about nine o'clock in the morning. By agreement, Mr. Lybrend met me at the depot in Augusta. He had driven from his home at Wards with a load of cotton, which he sold in Graniteville. He said he had $180. We were not in Augusta more than an hour. We took the Georgia Railroad and went to Atlanta. Before we left Augusta, Mr. Lybrend asked me where I wanted to go. I said I did not know. He said: 'Don't you...