Southern Ry. Co. v. Brown

• Decision Date: 27 July 1906
• Parties: SOUTHERN RY. CO. v. BROWN.
• Court: Georgia Supreme Court

54 S.E. 911

126 Ga. 1

SOUTHERN RY. CO. v. BROWN.

Supreme Court of Georgia

July 27, 1906

Syllabus by the Court.

A marriage may be proved by the testimony of one of the parties thereto.

There was no error in admitting the evidence offered as constituting a part of the res gestae.

The presence in the jury box of a person not a member of the jury, and of such person in the jury room when they are retired during the argument of a motion for a nonsuit, is not a ground for a mistrial, when it affirmatively appears by the evidence of this person that his presence with the jury was due to a mistake on his part, and that no communication passed between him and any member of the jury.

When an improper argument is made by counsel, and the same is objected to by counsel for the opposite party and the objection is sustained, and such argument is stopped, the failure of the court of its own motion to instruct the jury to disregard the improper argument, or to reprimand counsel or to declare a mistrial, is not generally a sufficient reason for setting aside the verdict when no request for such instructions or for a reprimand is made, and there is no motion for a mistrial.

Whether statements claimed to be a part of the res gestae are really such is a question of law to be determined by the court. Even if the question whether statements are a part of the res gestae can in any case ever become a mixed question of law and fact to be submitted to the jury, the statements in the present case were not of a character to require their submission to the jury.

Under the charge of the court when considered as a whole, it was impossible for the jury to have received the impression that there could be a recovery if the homicide of the plaintiff's husband was the result of an accident; and if more elaborate instructions on this subject were desired they should have been made the subject of an appropriate and timely written request.

The charge of the judge was brief but pointed. It covered the substantial issues in the case. When the instructions upon which errors are assigned are read in connection with the entire charge, they are free from any error calculated to prejudice the losing party. The evidence authorized the verdict, and no sufficient reason appears for reversing the judgment.

Error from Superior Court, Wayne County; P. E. Seabrook, Judge.

Action by Ida Brown against the Southern Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Kay Bennit & Conyers and Littlefield & Soppell, for plaintiff in error.

Glawson & Fowler and W. D. Nottingham, for defendant in error.

COBB P.J. (After stating the foregoing facts.)

1. The plaintiff was permitted to testify: "My husband's name was Henry Brown. I am the wife of Henry Brown." This evidence was objected to on the ground that the original or a certified copy of the marriage license with the entries thereon was the highest and best evidence of the marriage. This objection was wholly without merit. Under the law of this state a license is not essential to the validity of a marriage. Askew v. Dupree, 30 Ga. 173. The existence of a marriage may be proved by the testimony of any witness who is acquainted with the facts that under the law are sufficient to constitute a valid marriage. These facts are peculiarly within the knowledge of the parties to the marriage contract. The evidence was properly admitted.

2. A witness was permitted to testify that the deceased said the spout had knocked him down; that he was knocked off by the waterspout; that "they left it down and it struck me and knocked me off"; that he fell in between the cars and the wheels ran over his arm; that he was on top looking back for signals when he was struck by the water spout; that he was standing on top of the car; that he said he was struck by the pipe which they must have left down. This evidence was objected to on the ground that it was hearsay and no part of the res gestae. The last time the deceased was seen by any of the witnesses, before he fell or was thrown from the car, he was on top of a car about midway of a train of 27 cars. The train was moving out from a station, being pulled by its own engine and pushed by a yard engine. The train apparently was moving slowly, and this statement made by the deceased was made in the presence of employés on the yard engine, who reached him just as the train had been cut loose from the yard engine, and had proceeded on its way. What time elapsed from the moment the deceased fell from the top of the car until he was approached by these employés cannot be definitely determined, but, from all of the circumstances appearing in the record, it must have been necessarily a lapse of only a very short time. When first seen by these employés he was on the side of the track, without his hat, staggering, falling down and getting up, and, upon being approached by them and asked what was the matter, made the statements above referred to. The Code declares: "Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of res gestae." Civ. Code 1895, § 5179. As was said by Judge Nisbet in Mitchum's Case, 11 Ga. 615, "No definition can be found so comprehensive as to embrace all cases. Hence it is left to the sound discretion of the courts what they shall admit to the jury along with the main facts as part of the res gestae." In Bush v. State, 109 Ga. 124, 34 S.E. 299, Mr. Justice Lewis said: "If the declarations spring out of the transaction, if they elucidate it, if they are made at a time so near to it as to preclude reasonably the idea of deliberate design, they will be regarded as contemporaneous." The whole law is summed up by Mr Chief Justice Bleckley, in one sentence, in the case of Traveler's Ins. Co. v. Sheppard, 85 Ga. 775, 12 S.E. 26, when he says, "What the law altogether distrusts is not afterspeech but afterthought." See, also, the remarks of Mr. Justice Blanford, in Augusta Ry. Co. v. Randall, 79 Ga. 310, 4 S.E. 674; 1 Greenleaf on Evidence (16th Ed.), 162f et seq. In determining whether a statement is a part of the res gestae it must, therefore, be determined whether it is subject to the objection of afterthought. In ascertaining this the time between the occurrence and the statement, the circumstances under which the statement, was made, and the character of the statement itself are all matters to be considered. No arbitrary time can be fixed which will settle the question. No general rule can be laid down as to the circumstances. And while, as a general rule, that which is mere narrative is apt to carry with it the impression of afterthought, there may be a narrative which is entirely free from afterthought. Murray v. Railroad, 72 N.H. 32, 54 A. 289, 61 L.R.A. 495, 101 Am.St.Rep. 660. Therefore, where the statement is narrative in its nature and not exclamatory, the character of the statement may or may not determine the question according to the circumstances of the particular case. In the present case the statement was narrative in its nature; and therefore the circumstances must be closely scrutinized, because narrative is generally the result of afterthought. Where the circumstances are such that it can be clearly seen that the statement was made after a full realization of the casualty, and brought about by some ulterior motive, and that it was not merely a spontaneous expression as to the circumstances of the transaction made before such time had elapsed, and before there could have entered...