Rogers v. Saye

• Decision Date: 13 July 1962
• Docket Number: 3,2,Nos. 1,No. 39426,39426,s. 1
• Citation: 127 S.E.2d 161,106 Ga.App. 453
• Parties: Sara S. ROGERS v. D. D. SAYE et al
• Court: Georgia Court of Appeals

Page 161

127 S.E.2d 161

106 Ga.App. 453

Sara S. ROGERS v. D. D. SAYE et al.

No. 39426.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 13, 1962.

Rehearing Denied July 31, 1962.

syllabus by the Court.

1. When there was no evidence authorizing a finding that a legally enforceable agreement, express or implied, existed, it was not error for the court to fail to charge on the meaning of such an agreement.

2. When a prior inconsistent statement of a witness was admitted in evidence for the purpose of impeachment, and the witness gave testimony for the purpose of explaining away the inconsistency and rebutting the discrediting effect of the prior statement, and the court was not requested to charge and did not charge on impeachment of witnesses, the court had no duty in the absence of a request to charge the jury with respect to their obligation or right to disregard the witness' previous written statement if they should believe the evidence offered to explain the statement and rebut its discrediting effect.

A mother (plaintiff in error) sued to recover damages for the alleged tortious homicide of her son, the defendants (defendants in error) being the driver of the automobile, whose negligence allegedly killed plaintiff's son, and the father of the driver, the action against the latter being under the family-purpose car doctrine. The petition, in a single count, was so worded as to set forth a cause of action for ordinary negligence on the hypothesis that the driver of the car and the deceased had an express or implied agreement or arrangement to share the expenses of the trip on which the homicide occurred, and to set forth a cause of action for gross negligence on the hypothesis that the deceased was a guest of the defendant driver. The parties and the court so construed the petition and the case was tried on this basis without objection. The jury found for the defendants, and the plaintiff excepts to the overruling of her motion for a new trial as amended. (The exception to the overruling of the general grounds has been abandoned).

James Barrow, Athens, for plaintiff in error.

Erwin, Birchmore & Epting, Eugene A. Epting, Athens, for defendants in error.

HALL, Judge.

1. With reference to the right to recover for ordinary negligence the court charged the jury that 'Where a share-the-expense ride in a motor vehicle is prearranged by a legally enforceable agreement, such a situation makes the passenger a passenger for hire and not a guest, and requires ordinary care.' The evidence did not authorize a finding that there was a prearrangement, either express or implied, of a duty on the part of the deceased to share the expenses of the fatal trip. There was no express promise to do so nor any facts from which an implied obligation could be inferred. Therefore, it was not harmful, as the plaintiff contends, for the court to fail to charge without request on the meaning of the terms 'legally enforceable agreement resulting from an express contract' and 'legally enforceable agreement resulting from an implied contract.' The trial court did not err in overruling grounds 4 and 5 of the motion for new trial.

2. There was admitted in evidence for the purpose of impeachment, a written statement of a witness who had given testimony at the trial inconsistent with the prior statement. The witness testified that he did not remember signing a written statement in regard to the accident; that he recognized his signature but didn't write the statement or remember signing it, and didn't know when it was signed; that the date appearing on the statement was two days after the accident occurred, when he was in the hospital with a broken back and neck injury and was not in a condition to write the statement; that he did not know who J. W. Kline, whose name appeared on the statement as a witness, was; that he remembered somebody coming to the hospital and asking him some questions, but didn't know whether that person wrote the statement while sitting there; that his injuries were painful during the first few days after the accident and they gave him quite a few shots of sedatives.

Ground 6 of the motion for new trial complains of the court's failure to charge without request that the statement should be disregarded and not considered by the jury (a) if the jury should believe that the statements therein made had not been written or made at the time witness signed the statement, or (b) if the jury should believe that the witness on account of drugs or pain or both lacked the capacity to give a correct account of the matters he had seen or heard at the time the statement was written and signed.

The plaintiff relies on Holsenbake v. State, 45 Ga. 43(2), and Phillips v. State, 206 Ga. 418, 57 S.E.2d 555. These cases have no application to this case for the reason that they deal with alleged incriminatory admissions or confessions, both of which relate to parties in criminal cases, have testimonial value, and are used as substantive evidence. Eberhardt v. State, 47 Ga. 598; Pressley v. State, 201 Ga. 267, 39 S.E.2d 478; Harris v. State, 207 Ga. 287, 61 S.E.2d 135; accord Dennis v. Weekes, 46 Ga. 514, Green, Ga.Law of Evidence 355, § 246. The hearsay rule prevents a prior inconsistent statement of a non-party witness from being used as substantive evidence; it has no testimonial value and can only be used for the purpose of impeaching a witness. Central R. R. & Banking Co. v. Maltsby, 90 Ga. 630(4), 632, 16 S.E. 953; Quinton v. Peck, 195 Ga. 299, 304, 24 S.E.2d 36; Luke v. Cannon, 4 Ga.App. 538(4), 62 S.E. 110. Such a statement 'shows, if nothing more, the frailty and unreliable character of his memory.' Bigham v. Coleman, 71 Ga. 176, 194. The testimony brought out by the plaintiff, as to the witness' physical condition on the date of the alleged previous statement and his lack of memory of signing it, was for the purpose of explaining away the inconsistency in the witness' previous statement and rebutting its discrediting effect. Cameron v. State, 66 Ga.App. 414(3), 18 S.E.2d 16; Wynes v. State, 182 Ga. 434(3), 185 S.E. 711; Bivins v. State, 200 Ga. 729, 741, 38 S.E.2d 273; Huff v. State, 104 Ga. 521(1), 30 S.E. 808; III Wigmore on Evidence, 737, § 1044.

The law is basic in this state that, in the absence of a timely written request to charge the jury the law upon the subject of impeaching a witness by proof of contradictory statements, it is not error for the judge in his charge to omit all reference to this subject. Martin & Sons v. Bank of Leesburg, 137 Ga. 285(2), 73 S.E. 387; Huff v. State, 104 Ga. 521(6), 30 S.E. 808; Smith v. State, 7 Ga.App. 710(2), 67 S.E. 1048; Hart v. State, 14 Ga.App. 714, 82 S.E. 164; Cole v. Byrd, 83 Ga. 207(3), 9 S.E. 613. In this case, the trial judge was not requested to make, and made no charge whatever on impeachment or with specific reference to the testimony of this witness. Ergo, he was under no duty in the absence of a request, to charge the jury with respect to their obligation or right to disregard the witness' previous written statement if they should believe the evidence offered to explain the statement and rebut its discrediting effect. Such a charge would be merely an elaboration on the law of impeachment, i. e., the privilege of...