Sumter County v. Pritchett

• Decision Date: 10 November 1971
• Docket Number: No. 3,No. 46465,46465,3
• Citation: 186 S.E.2d 798,125 Ga.App. 222
• Parties: SUMTER COUNTY v. Ulmont PRITCHETT et al
• Court: Georgia Court of Appeals

Page 798

186 S.E.2d 798

125 Ga.App. 222

SUMTER COUNTY v. Ulmont PRITCHETT et al.

No. 46465.

Court of Appeals of Georgia, Division No. 3.

Nov. 10, 1971.

Rehearing Denied Dec. 17, 1971.

Smith & Hargrove, William E. Smith, Americus, for appellant.

Myers & Parks, John R. Parks, Americus, George W. Busbee, Albany, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Ulmont Pritchett and his wife, Nadine, brought suit against Sumter County and against the administrator of the estate of Ben H. Strickland, Jr., seeking to recover damages for the alleged wrongful death of their son, Johnny Pritchett. It is alleged that the death resulted from a collision between a car of which Johnny Pritchett was an occupant and a car driven by Ben H. Strickland, Jr., a principal of Union High School which was operated by the Sumter County Board of Education as an agency of Sumter County; that Strickland was within the esope of his authority when driving the car; and that the collision resulted from his negligence.

Sumter County moved to dismiss and for summary judgment on the grounds that Strickland, the principal of the school, was not, at the time of the collision, engaged in the driver education program, was not acting as a driver education instructor, and was not using the automobile with the permission of the school board. Several other grounds were urged, but are not referred to in the enumerations of error or in the brief and are deemed to have been abandoned.

Relative to the grounds urged on appeal, the evidence submitted by the county included a contract between Oxford Motor Company and the county, by its school superintendent, whereby Oxford loaned a 1968 Pontiac automobile to be used at Union High School in the driver education program and in which the county schools agreed to '2. Accept responsibility for custody of automobile furnished and restrict its use to Driver Education Program. 3. Keep automobile adequately garaged when not in use to prevent the possibility of theft or unauthorized use.' The contract was on a form prepared and supplied by the State Department of Education. Also in evidence was a copy of a letter from the county school superintendent addressed to Mr. Ben Strickland, Leslie, Georgia (where Union High School was located) dated August 16, 1967 informing him that Oxford Motor Company had complained of misuse of the driver education car assigned to that school the previous year, and that while Oxford was willing to supply an automobile for the coming school year, it would have to be understood that it would be used for driver education purposes only, and that 'if we are to continue the driver education program, we must adhere strictly to Mr. Oxford's wishes and to board policy concerning the use of these vehicles.'

Also submitted was a copy of a general letter addressed to all school principals of the county schools relative to board policy on the use of driver education vehicles, dated December 9, 1966, in which it was asserted that 'Driver Education cars are to be used for driver education purposes only and during school hours.'

A deposition of Mr. Ed Bailey, the county school superintendent, was tendered, in which he testified, identifying the contract with Oxford Motor Company, the letter written to Strickland, the letter addressed to all school principals, and asserting that in addition to this he had personally talked with Strickland, admonishing him that the provisions of the contract and of the board policy must be adhered to strictly, and that the car was not to be driven at any time for any purpose other than instruction to students in driver education.

The collision occurred December 10, 1967, in Worth County. Strickland had gone from Leslie to Albany to participate in a drawing of pairings for a Christmas basketball tournament. It was a Sunday afternoon. Strickland was not the driver education instructor at Union High School, but the principal. The driving instructor was Claude Frazier.

The car was to be used only during class periods of the school day when students could take the instruction and when Frazier could give it. At other times it was housed in a canning plant that had been converted into a garage by the school board, or at the home of principal Strickland, who lived in a house on the school grounds. Bailey testified that he knew of no other uses made of the vehicle until the occasion of this collision.

It is stipulated by counsel for all parties that objection was made on behalf of the plaintiffs to the admission of the two letters and the testimony of Mr. Bailey concerning conversations with Mr. Strickland on the ground that these had been communications by a party at interest with one since deceased, and that under Code § 38-1603(1, 3, 4) these should be excluded. There was no objection by or on behalf of the co-defendant administrator. The court sustained the objection to the evidence, ruled it out, and denied the motion to dismiss and for summary judgment. Obtaining a certificate for review, Sumter County appeals. Held:

1. The 'dead man's statute,' found in the several numbered exceptions to the general rule of Code § 38-1603 as to competency of witnesses, must be strictly construed. "Statutes making exceptions to general rules must be strictly construed,' Williams v. Seaboard A.L.R. Co., 33 Ga.App. 164, 165, 125 S.E. 769, and should be given a narrow construction. Dalton Brick & Tile Co. v. Huiet, 102 Ga.App. 221, 224, 115 S.E.2d 748.' Faust v. Buchanan, 123 Ga.App. 15, 18, 179 S.E.2d 294, 297. The exceptions are not to be extended beyond their explicit terms. Indeed, the statute provides at the end thereof that 'There shall be no other exceptions allowed under the foregoing paragraphs.' '(T)he statute itself, in plain and positive terms, forbids any construction which would extend it beyond its letter.' Woodson v. Jones, 92 Ga. 662, 664, 19 S.E. 60, 61. 'That this statute is not to be extended by construction so as to embrace cases not strictly within its letter, is made clear by the Act itself . . .' Ullman v. Brunswick Title Guarantee & Loan Co., 96 Ga. 625, 628, 24 S.E. 409. 'This court is thoroughly committed to the proposition that the Act of 1889 and the subsequent Acts amendatory thereof, the provisions of which have been embodied in Civil Code § 5269 (now § 38-1603), are to be literally construed, and nothing will be added to or taken from them by judicial construction.' Hendrick v. Daniel, 119 Ga. 358, 360, 46 S.E. 438, followed in Hawes v. Glover, 126 Ga. 305, 315, 55 S.E. 62. '(T)his court has held that it is safer to adhere to the plain letter of its terms, and thus avoid the confusion which arose from the attempted liberal construction of the Evidence Act of 1866.' McLendon v. Baldwin, 166 Ga. 794, 796, 144 S.E. 271, 272. To a like effect, Eley v. Reese, 171 Ga. 212(2a), 155 S.E. 24.

2. Code § 38-1603 'deals with the competency of a witness to testify against a deceased, and not with the question as to whether or not such evidence was admissible.' Prothro v. Walker, 202 Ga. 71(2), 42 S.E.2d 114.

Appellant cites Dye v. Richards, 210 Ga. 601, 604, 81 S.E.2d 820 and Massachusetts Bonding & Ins. Co. v. Bins & Equipment Co., Inc., 100 Ga.App. 847, 841, 112 S.E.2d 626 in which language is found indicating that the Code section does deal with the question of admissibility of evidence. We recognize that each of the appellate courts has, at times, incorrectly made assertions that by reason of the 'dead man's statute' the evidence of a witness concerning transactions or communications with a deceased party was 'inadmissible,' when the correct holding was, or should have been, that the witness was incompetent to testify concerning them. It is obvious that if a third party having knowledge of the transaction or communication may testify concerning it, as has been held in Campbell v. Sims, 161 Ga. 517(5, 6), 131 S.E. 483; Logan v. Logan, 108 Ga. 760, 33 S.E. 30; Ginn v. Carithers, 14 Ga.App. 298(3), 80 S.E. 698; Atlanta Northern Ry. Co. v. Brown, 20 Ga.App. 247(1), 92 S.E. 975, and many others, the statute does not make the evidence inadmissible, for if it did it would be inadmissible no matter from whence it came; it simply makes certain witnesses incompetent to testify in prescribed situations. Cf. Crozier v. Goldman, 153 Ga. 162, 163, 111 S.E. 666. It is not a rule of evidence, prescribing what may or may not be admitted; it is a rule as to the competency of witnesses to testify. Consequently, such inept assertions found in some of the decisions must yield to the older decisions, and to the terms of the statute itself.

3. In lieu of a transcript of the proceedings there is in the record a stipulation between counsel for the parties that at the hearing on the motion for summary judgment 'objection was made by John R. Parks, as attorney for Ulmont Pritchett and Hazel Nadine Pritchett, to the introduction in evidence of the conversations which took place between Ed Bailey, School Superintendent, and Ben H. Strickland, Jr., and further objected to the introduction in evidence of the directive of December 9, 1966, signed by Ed H. Bailey, Superintendent, addressed to principals (Sumter High, Plains, Union) and the letter of August 16, 1967 addressed to Mr. Ben H. Strickland, Leslie, Georgia, signed by Ed H. Bailey, Superintendent, Sumter County Schools, and that the trial judge sustained the objection to the evidence.'

It is not stated what the form of the objection was or upon what ground it was made. If it was as to the admissibility of the evidence, the ruling of the trial judge was clearly error, for the evidence specified was pertinent, was not hearsay, and was relevant to the issues. An objection on the ground of admissibility of the evidence does not raise the issue as to the competency of the witness. Crozier v. Goldman, 153 Ga. 162, 163, 111 S.E. 666. Nor is an objection that the evidence 'seeks to go into transactions with a...