Rabun v. Wynn

• Decision Date: 13 May 1952
• Docket Number: No. 17841,17841
• Citation: 209 Ga. 80,70 S.E.2d 745
• Parties: RABUN et al. v. WYNN.
• Court: Georgia Supreme Court

Page 745

70 S.E.2d 745

209 Ga. 80

RABUN et al. v. WYNN.

No. 17841.

Supreme Court of Georgia.

May 13, 1952.

Robt. D. Tisinger, William J. Wiggins, Carrollton, for plaintiff in error.

Shirley C. Boykin, Boykin & Boykin and O. W. Roberts, Jr., all of Carrollton, for defendant in error.

Syllabus Opinion by the Court.

CANDLER, Justice.

Sarah Rabun Wynn as administratrix of the estate of J. Carl Rabun, deceased, brought an equitable proceeding in the Superior Court of Carroll County against Maude, Mae, and Belle Rabun, alleging that they were wrongfully holding possession of, claiming and converting to their own use a stock of merchandise known as 'Rabun's 5 & 10 Cent Store,' which belonged to the estate of her intestate. The petition prayed for process, injunctive relief, a receiver, an accounting, possession of the subject property, and general relief. General and special demurrers were interposed to the petition as amended. All of the demurrers were overruled and pendente lite exceptions were timely preserved, upon which error has been assigned. The defendants, by their joint answer, denied the material allegations of the petition, and averred that they purchased the property sued for on February 26, 1936, from the plaintiff's intestate, paying him a part of the purchase price of $7,500 at that time and subsequently paying him the balance due therefor, the last payment being made on September 1, 1949. On the trial a verdict for $6,481.25 was returned in favor of the plaintiff, and pursuant thereto a judgment was entered. Th defendants, in due time, moved for a new trial on the usual general grounds, amended the motion later by adding several special grounds, and excepted to a judgment overruling it as amended. Held:

1. The exception taken to the ruling upon the defendants' demurrers to the amended petition has not been argued in the brief for the plaintiffs in error or otherwise insisted upon in this court, and will for that reason be considered and treated as abandoned. Powell v. Powell, 196 Ga. 694, 27 S.E.2d 393; Knowles v. White, 199 Ga. 772, 35 S.E.2d 451; Reed v. Reed, 202 Ga. 508, 43 S.E.2d 539; Head v. Lee, 203 Ga. 191, 45 S.E.2d 666.

2. Over an objection by counsel for the defendants that they are self-serving declarations and therefore inadmissible, the court allowed in evidence two financial statements which the plaintiff's intestate purportedly made to Dun & Bradstreet on January 1, 1947, and January 1, 1948, showing himself to be the owner on those dates of the property in question. On admitting them the court stated to the jury that they were admitted in evidence only for the purpose of showing title to the property involved, if in fact they do. The admission of these statements was erroneous. They are wholly self-serving and it is well settled in this State that declarations of persons since deceased, which are not a part of the res gestae, will not be admitted in evidence, if the declarations are wholly in favor of the declarant. Drawdy v. Hesters, 130 Ga. 161(2), 60 S.E. 451, 15 L.R.A.,N.S., 190; Higgins v. Trentham, 186 Ga. 264(1), 197 S.E. 862. Such declarations are hearsay and, being such, have no probative value, even when admitted in evidence without objection. Eastlick v. Southern Ry. Co., 116 Ga. 48, 42 S.E. 499; Berry v. Brunson, 166 Ga. 523, 143 S.E. 761.

3. Over an objection that this is not a tax case and they are irrelevant, immaterial, illustrate no issue involved in the case and are not properly identified, the court allowed in evidence duplicate copies of certain Federal income-tax returns filed by the defendants Maude and Belle Robun for several tax years subsequent to February 26, 1936, and prior to the date upon which J. Carl Rabun died. In admitting them the court stated to the jury that they were being allowed in evidence for the sole purpose of showing the relation between the returning taxpayers and J. Carl Rabun, if in fact they do. The admission of these documents was not erroneous for any reason assigned. Admittedly, they were made and filed by the defendants as income taxpayers. They show each to be a 'saleslady' for her employer J. Carl Rabun, receiving annual wages from him of $720. And the evidence shows, without any dispute, that each devotes her full time to the operation of Rabun's 5 & 10 Cent Store. The returns being unquestionably declarations by them in disparagement of their own title to the property sued for, were admissible in evidence over the objection made and urged. Code, § 38-308.

4. 'Self-serving declarations are not admissible unless made in the presence of the opposite party, or as a part of the res gestae, and for the reason that a party cannot thus make evidence in his own favor.' Dozier v. McWhorter, 117 Ga. 786, 790, 45 S.E. 61, 63. See also Daniel v. Hannah, 106 Ga. 91, 31 S.E. 734. In this case and over an objection that they are self-serving declarations, as interposed by counsel for the defendants, the court allowed in evidence duplicate copies of the State and Federal income-tax returns made and filed by the plaintiff's intestate J. Carl Rabun as an individual for the several years immediately preceding his death on September 27, 1949, and subsequent to February 26, 1936, showing himself to be the owner of the property here involved and recipient of its profits. In the circumstances of the case, the admission of these documents was not erroneous for the reason urged. As they relate to the property in question, the evidence shows that the defendants knew that they were being so made annually; that they were being made from...