Potts v. Seifert, s. 49838-49840

• Decision Date: 07 January 1975
• Docket Number: No. 3,Nos. 49838-49840,s. 49838-49840,3
• Citation: 212 S.E.2d 88,133 Ga.App. 675
• Parties: J. R. POTTS v. Robert L. SEIFERT et al. Mrs. J. R. POTTS v. Robert L. SEIFERT et al. Duane C. PUTNAM et al. v. Robert L. SEIFERT et al
• Court: Georgia Court of Appeals

Page 88

212 S.E.2d 88

133 Ga.App. 675

J. R. POTTS v. Robert L. SEIFERT et al.

Mrs. J. R. POTTS v. Robert L. SEIFERT et al.

Duane C. PUTNAM et al. v. Robert L. SEIFERT et al.

Nos. 49838-49840.

Court of Appeals of Georgia, Division No. 3.

Jan. 7, 1975.

Wm. Lewis Spearman, David U. Crosby, Atlanta, for Potts.

Greer, Pollock & Klosik, Richard G. Greer, Kenneth C. Pollock, Frank Klosik, Jr., Atlanta, for Putnam.

Carter, Ansley, Smith & McLendon, M. D. McLendon, Atlanta, for appellees.

Syllabus Opinion by the Court

PANNELL, Presiding Judge.

J. R. Potts and Mrs. J. R. Potts brought separate actions in tort against Steven B. Seifert, the son, and Robert Seifert, the father, and Steve M. Putnam, the son and Duane C. Putnam, the father and Patricia Putnam, the mother, seeking to recover damages for injuries received in an automobile collision which involved cars driven by J. R. Potts, Steve M. Putnam and Steven B. Seifert. The Putnam mother and father, cross claimed against the two Seiferts, seeking recovery for damages to their automobile. The automobiles driven by Steve M. Putnam and Steven B. Seifert were alleged to be family purpose automobiles furnished by Duane C. Putnam and Patricia Putnam, father and mother as to the one; and furnished by Robert Seifert, the father, as to the other. Robert Seifert made motions for summary judgment based upon the contention that the automobile driven by his son was not a family purpose automobile.

The evidence in support of the motion for summary judgment shows without dispute that title to the automobile driven by Steven B. Seifert was in the father and was insured under the father's family combination automobile policy. The father's explanation of this state of affairs in answer to interrogatories was that he took title in his name 'as a matter of convenience' and at a later time by deposition, that he took title in his name so as to insure the automobile in question under his policy to get a cheaper rate. The evidence, by testimony of the father and the son disclosed that the son was allowed to work on a distributive education program while in High School and that he deposited the proceeds of this work in a bank in his own name over a period of several years, and that this was the money he used to pay for the automobile in question; that the father, although he attended the purchase of the automobile, did not remember whether the purchase price was paid by check or cash, nor from whom the car was purchased, although prior thereto in answer to interrogatories, had given the name and address of the purchaser. The son testified to substantially the same facts as the father regarding the purchase of the automobile. The evidence further showed that the son was allowed to keep all of his earnings and that while he was off at school, after the occasion under investigation, the family paid his tuition and board and other funds as were recommended by the school and no more; but did pay for his clothes and food, and at the time of the occasion under investigation he was living with his parents in their home and had done so up to that time. The occasion under investigation occurred during the summer before he went off to school; that with an exception or two, the son was the only person that used the automobile and no other person, including members of the family, could use it without his consent; that the son had the exclusive possession and control of the automobile and paid all expenses of maintenance and operation, etc. The following are questions asked and the answers given by the father regarding the certificate of title to the automobile: 'Q. Did you apply for a title with the State of Georgia on that automobile? A. Yes, sir. Q. Did you receive a title on that automobile from the State of Georgia? A. Yes, sir. Q. Did you sign that title application that was submitted for that title? A. Yes, sir. Q. Did you sign it in the presence of a notary public? A. I don't know. Q. All right. Did you state that that car was your automobile at the time you applied for the title? A. (Nodded negatively). Mr. McLendon: Well, I- A. (Continuing) No, sir. Q. You did not state that? A. I did not state that. Q. Not on the application? A. I don't know. I did not state that.' The father testified that when the automobile was sold, to a person whose name he did not recall, that the son received the proceeds of the sale, but he also testified that the check was made payable to him. No documentary evidence was offered in proof of the son's earnings or in proof of his bank account, nor was any evidence offered as to the contents of the father's insurance policy. There was no bill of sale on the purchase of the automobile. The title certificate was lost, or its whereabouts unknown.

The trial judge granted the motions and the appeals to this court followed. Held:

Prior to the Evidence Act of December 15, 1866 (Ga.L.1886, p. 138) parties to a case and persons interested financially in the outcome were incompetent as witnesses. Graves v. Harris, 117 Ga. 817, 818, 45 S.E. 239. The preamble to that Act reads: 'Whereas, the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in civil and criminal cases, should be laid before the persons who are to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced for the truth of testimony.' The emphasis on the word 'credit' is contained in the Act itself. Now, all such parties as enumerated in the Act are competent witnesses and compellable to testify with certain exceptions. It was said in Laramore v. Minish, 43 Ga. 282, 287, after quoting the preamble above set forth, 'We think under a proper construction of this law that witnesses introduced under its provisions are lifted out of the general rule, and that the jury may exercise their judgment on the credit of such witnesses from the fact of their interest, irrespective of other impeachment or attack.' (Emphasis supplied.)

In Gabbett v. Sparks, 60 Ga. 582, 585, it was said: 'Ordinarily, either party, when sworn, goes to the jury not as pure as a disinterested witness; but the credibility of such party-witness is a question for the jury.' In Detwiler v. Cox, 120 Ga. 638(1), 48 S.E. 142, it was held that 'The interest of a witness in the result of the suit may always be considered in passing upon his credibility; and where there are circumstances inconsistent with the truth of his testimony, the jury are not obliged to believe him, even though he is not contradicted by any other witness.' (Emphasis supplied.)

In Armstrong v. Ballew, 118 Ga. 168, 170, 44 S.E. 996, 997, the Supreme Court, after quoting with approval the above statement from Laramore v. Minish, 43 Ga....