Pool v. Warren County

• Decision Date: 14 June 1905
• Citation: 51 S.E. 328,123 Ga. 205
• Court: Georgia Supreme Court
• Parties: POOL. v. WARREN COUNTY.

123 Ga. 205

51 S.E. 328

POOL.

v.WARREN COUNTY.

Supreme Court of Georgia.

June 14, 1905.

1. Evidence—Declarations—Res Gestæ.

It is incumbent on a party seeking to introduce hearsay evidence as part of the res gestæ to prove that the declarations testified to were so nearly connected with the transaction under investigation, in point of time, as to be free from any suspicion of device or afterthought.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 302, 351-368.]

2. Same—Time When Made.

The word "immediately" is a relative expression; and it is not sufficient, in order to render declarations admissible as part of the res gestae, to show that they were made "immediately" after the transaction, without showing, at least approximately, how nearly they were connected therewith in point of time.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 302, 351-368.]

3. New Trial—Objections to Evidence.

A ground of a motion for a new trial complaining of the admission of evidence which does not show that the objections set out in the motion were raised at the time the evidence was offered will not be considered.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. New Trial, § 64.]

4. Jurors—Disqualification.

In a suit against a county, a brother of one of the county commissioners was not disqualified to act as a juror; it appearing that the commissioner was not pecuniarily interested in the result of the suit, other than as a citizen of the county, and that in defending the action he acted purely in his official capacity.

5. Defective Bridges — Evidence—Liability of County.

The evidence was conflicting, but was sufficient to authorize a finding that the bridge through which the plaintiff claimed to have been precipitated by reason of the defendant's negligence was built prior to the passage of the act approved December 29, 1888 (Acts 1888, p. 39), and that the county was therefore not liable for any injuries arising out of its defective condition.

(Syllabus by the Court.)

Error from Superior Court, Warren County; H. M. Holden, Judge.

Action by Emma Pool against Warren county. Judgment for defendant, and plaintiff brings error. Affirmed.

W. M. Hawes and Evans & Evans, for plaintiff in error.

E. P. Davis, for defendant in error.

CANDLER, J. Mrs. Pool sued the county of Warren for damages on account of injuries alleged to have been sustained by her on account of the negligent construction of a bridge in the county, and the negligent failure of the county to keep the bridge in reasonably safe repair; the bridge having given way while she, with others, was crossing it in a surrey, precipitating her to the water below, and causing the injuries of which she complained. The jury found a verdict for the defendant, whereupon the plaintiff made a motion for a new trial, which was overruled, and she excepted.

1, 2. The court excluded the following evidence of the plaintiff's husband, offered in her behalf: "I knew my wife was hurt, because she complained immediately after the accident of being injured in her right side." It is contended that this was error, as the evidence offered was part of the res gestae, and, as such, should have been admitted. Evidence of declarations of a per-son other than the witness is, as a general rule, inadmissible, as hearsay. An exception is made to this rule where the declarations accompany an act under investigation, or are "so nearly connected therewith in time as to be free from all suspicion of device or afterthought." Civ. Code 1895, § 5179. It is, of course, incumbent upon a party seeking to introduce hearsay evidence contrary to the general rule to lay the foundation for its introduction by showing that it is within the exception to the rule provided by law. In other words, one who seeks to introduce hearsay evidence as part of the res gestæ of a transaction must show that it is in fact part of the res gestæ. The word "immediately" is a relative term. It may mean a minute, an hour, a day, or a week, according to the circumstances of the case, or other periods of time which the witness has in mind when speaking. In the present case it was incumbent upon the plaintiff to show that the declarations sought to be introduced were so closely connected with the incident of her precipitation through the bridge as to be free from any suspicion of device or afterthought. We cannot say that this was done by the use of the word "immediately." The witness could easily have told approximately, at least, how long after the accident it was that his wife made the complaints as to which he testified. It was not error...