McLendon v. Baldwin

• Decision Date: 18 August 1928
• Docket Number: 6531.
• Parties: McLENDON v. BALDWIN.
• Court: Georgia Supreme Court

144 S.E. 271

166 Ga. 794

McLENDON v. BALDWIN.

No. 6531.

Supreme Court of Georgia

August 18, 1928

Syllabus by the Court.

Paragraph 1 of section 5858 of the Civil Code is not to be so extended by construction as to embrace cases not strictly within its letter. When a plaintiff institutes a suit and dies pendente lite, and his executor is made a party in his stead, such suit is not one instituted by the executor, and the surviving defendant is not incompetent to testify as to transactions or communications with the deceased plaintiff.

Where the evidence of the plaintiff on a former trial of the case had been preserved in a brief of the evidence prepared by his counsel, approved as true by the trial judge, made a part of the record, and filed in connection with the plaintiff's motion for a new trial after an adverse verdict, and where on a retrial of the case, the plaintiff having died and his executor having been made a party, the defendant introduced said testimony of the deceased plaintiff, the defendant was a competent witness to testify to transactions and communications between him and the deceased plaintiff, and denied by the latter in his testimony so introduced.

(a) The testimony of a witness, since deceased, given under oath on a former trial of the same case, is admissible on the subsequent trial thereof.

(b) On the trial of all civil cases, either plaintiff or defendant is permitted to make the opposite party a witness, with the privilege of subjecting such witness to a thorough and sifting cross-examination, and with the further privilege of impeachment, as though the witness had testified in his own behalf and was being cross-examined; and the party introducing such witness may show that the facts are different from those testified to by such witness. This principle is applicable where the surviving party introduces the evidence of his deceased adversary on a former trial of the case.

(c) By the Act of August 6, 1924 (Acts 1924, p. 62), the plaintiff or defendant in any case may take and preserve his own testimony by interrogatories or depositions, while both parties are in life and competent to testify, and such depositions or interrogatories shall be admissible upon the trial of the case, notwithstanding the death of either party and upon the trial of the case the opposite party is made competent to testify in rebuttal to the testimony contained in such depositions and interrogatories.

(d) Where a party to a cause is sworn as a witness in his own behalf on the trial of a case which he loses, and where he moves for a new trial and files therewith a brief of his testimony, which is duly approved by the court and made a part of the record, such testimony amounts to a "deposition," within the meaning of the act of 1924.

(e) Where the surviving party, after the death of the party whose testimony is so preserved, introduces such testimony on a trial of the case, he is a competent witness to rebut such testimony.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Deposition.]

Error from Superior Court, Terrell County; M. J. Yeomans, Judge.

Action by A. J. Baldwin against J. N. McLendon in which W. A Baldwin, executor of A. J. Baldwin, deceased, was made party plaintiff. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Reversed.

R. R Jones, of Dawson, for plaintiff in error.

W. H. Gurr and R. R. Marlin, both of Dawson, for defendant in error.

HINES J.

A. J. Baldwin instituted his action to enjoin J. N. McLendon from cutting timber on described land to which it was alleged plaintiff had title. The nature of the claims of both parties to the timber is fully set out in the report of this case when it was before this court on a former occasion. Baldwin v. McLendon, 161 Ga. 636, 131 S.E. 361. A. J. Baldwin died pending the suit, and his executor, W. A. Baldwin, was made the party plaintiff. A. J. Baldwin, on a former trial of this case, was sworn as a witness in his own behalf. His evidence was taken down, and was preserved by being embraced in a brief of the evidence introduced on that trial, which brief was duly approved by the court and by order made a part of the record, and filed in connection with a motion for new trial after verdict against the plaintiff. On the last trial of the case the defendant admitted a prima facie case for the plaintiff, and assumed the burden of proof. He introduced in evidence the testimony of A. J. Baldwin, deceased, delivered upon the first trial of the case. He then was sworn as a witness in his own behalf, and undertook to testify in rebuttal of the testimony of A. J. Baldwin, and to testify to facts tending to establish his claim to the timber. Upon objection by plaintiff's counsel the court ruled that the defendant was incompetent to testify as to transactions and communications had between himself and A. J. Baldwin, deceased. The defendant could not make out his defense, except by his own testimony. Thereupon the court directed a verdict for the plaintiff. The defendant moved for a new trial upon the general grounds, and upon the ruling of the court that he was incompetent so to testify, and upon the direction of the verdict. The judge overruled the motion for new trial, and the defendant excepted. It is conceded by counsel for the plaintiff that the sole question for decision by this court is whether the ruling that the defendant was incompetent to testify as to transactions and communications between him and the deceased was correct, thus impliedly conceding that a new trial should be granted if this ruling is erroneous.

1. Under our law:

"No person offered as a witness shall be excluded by reason of incapacity, for crime or interest, or from being a party, from giving evidence, either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or proceeding, civil or criminal, in any court or before any judge, jury, sheriff, coroner, magistrate officer, or party having, by law or consent of parties, authority to hear, receive, and examine evidence; but every person so offered shall be competent, and compellable to give evidence on behalf of either or any of the parties to the said suit, action, or other proceeding, except" in eight named instances or exceptions. Civil Code, § 5858; 13 Park's Code Supp. 1926, § 5858, par. 8; Acts 1924, p. 62.

In construing this section, and the exceptions therein contained, this court has held that it is safer to adhere to the plain letter of its terms, and thus avoid the confusion which arose from the attempted liberal constructions of the Evidence Act of 1866. Phillips v. Cooper, 93 Ga. 639, 20 S.E. 78; Lawson v. Prosser, 146 Ga. 421, 423, 91 S.E. 469. Code, § 5859, expressly declares that "there shall be no other exceptions allowed" than those specified in section 5858. That section 5858 is not to be so extended by construction as to embrace cases not strictly within its letter is made clear by section 5859. Woodson v. Jones, 92 Ga. 662, 664, 19 S.E. 60; Ullman v. Brunswick Title, etc., Co., 96 Ga. 625, 628, 24 S.E. 409; Hendrick v. Daniel, 119 Ga. 358, 360, 46 S.E. 438; Hawes v. Glover, 126 Ga. 305, 315, 55 S.E. 62.

The only applicable exceptions under section 5858, as amended, are the first and eighth. The first of these exceptions is as follows:

"Where any suit is instituted or defended by a person insane at time of trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person; as to transactions or communications with such insane or deceased person."

Under this exception, it is only when the suit is instituted by the personal representative of a decedent that the opposite party is incompetent to testify as to transactions or communications with such decedent, to support his defense against the latter's personal representative. Was this suit instituted by the administrator of Baldwin? To institute means to begin; to commence; to initiate; to originate. 32 C.J. 941. This suit was not begun, commenced, initiated, or originated by the personal representative of the decedent but by the latter in his lifetime. The action was instituted by A. J. Baldwin in his lifetime against McLendon. Pending suit, Baldwin died, and his executor was made a party plaintiff in his stead. So the suit was not instituted by the executor of Baldwin, and does not come within the letter of this exception. To bring this case within the scope of this exception we would have to resort to a liberal construction thereof, and extend its terms beyond their literal meaning. This cannot be done under section 5859, and under the rulings of this court that we must adhere to the plain letter of this exception, and not by a liberal construction extend the exceptions specified in section 5858. So we are of the opinion that the defendant was competent to testify in his...