Harris v. McClain

• Decision Date: 21 November 1979
• Docket Number: No. 57897,57897
• Citation: Harris v. McClain, 263 S.E.2d 233, 152 Ga.App. 447 (Ga. App. 1979)
• Parties: HARRIS v. McCLAIN.
• Court: Georgia Court of Appeals

Page 233

263 S.E.2d 233

152 Ga.App. 447

HARRIS v. McCLAIN.

No. 57897.

Court of Appeals of Georgia.

Submitted May 3, 1979.

Decided Nov. 21, 1979.

Thomas C. Sanders, Dallas, for appellant.

W. A. Foster, III, James R. Osborne, Dallas, for appellee.

UNDERWOOD, Judge.

This appeal concerns evidentiary rulings in a jury trial involving a disputed property line. The appellant, Harris, filed an action against an adjacent property owner, McClain, and the ensuing jury trial resulted in a verdict for the defendant.

A witness, Morris, called by the plaintiff testified that he owned the property immediately south of the Harris property; that he had owned such property for 30 years. The disputed boundary between the Harris and McClain parcels was parallel to the boundary between the Harris and Morris parcels, and it was Harris' contention that Morris' testimony about the parallel but undisputed boundary, i. e., how it was marked, where it was located in relation to a fence, and how it was originally established upon Morris' acquisition, would help to establish his case concerning the proper location of the disputed boundary. The trial court, upon objection by the defendant, ruled that such testimony was irrelevant and immaterial and did not admit Morris' testimony about lines or markers not in dispute. A careful review of the trial transcript leads us to the conclusion that in the circumstances present here, the exclusion of the proffered testimony concerning the parallel boundary as irrelevant was an incorrect evidentiary ruling and was harmful error. This conclusion is buttressed by the fact that certain witnesses for the defendant were allowed to testify, over objection, concerning reference corners, monuments and boundaries that were not in dispute.

This court has defined relevant evidence as evidence "which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant." McNabb v. State, 70 Ga.App. 798, 29 S.E.2d 643 (1944); MacNerland v. Johnson, 137 Ga.App. 541, 224 S.E.2d 431 (1976). We have also held that where the relevancy of the evidence is in doubt, no matter how slight the probative value, it should be admitted to the jury given proper instructions. Cox v. K-Mart Enterprises of Georgia, 143 Ga.App. 30, 237 S.E.2d 432 (1977); Patton v. Smith, 119 Ga.App. 664, 168 S.E.2d 627 (1969). The evidence the plaintiff attempted to present was circumstantial evidence because it did not prove the ultimate fact, but rather an inference from which the ultimate or main fact could be drawn. Scott v. State, 57 Ga.App. 489(3), 195 S.E. 923 (1939). The facts of a case may be proved or disproved by circumstantial evidence as well as direct evidence. C. & S. Nat. Bank v. Hodnett, 139 Ga.App. 839, 229 S.E.2d 792 (1976).

There appear to be no cases directly on point pertaining to the admissibility of a...