Waits v. Hardy

• Decision Date: 10 October 1958
• Docket Number: No. 20144,20144
• Citation: 214 Ga. 495,105 S.E.2d 719
• Parties: Mrs. Henry WAITS et al. v. Luther C. HARDY.
• Court: Georgia Supreme Court

Page 719

105 S.E.2d 719

214 Ga. 495

Mrs. Henry WAITS et al. v. Luther C. HARDY.

No. 20144.

Supreme Court of Georgia.

Oct. 10, 1958.

Rehearing Denied Nov. 7, 1958.

A. Paul Cadenhead, Nall, Sterne, Miller, Cadenhead & Dennis, Atlanta, for plaintiff in error.

G. Seals Aiken, Arthur G. Withers, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

WYATT, Presiding Justice.

The instant case was decided by the Court of Appeals, the decision appearing as Hardy v. Waits, 96 Ga.App. 511, 100 S.E.2d 633. This court granted certiorari and reversed the judgment of the Court of Appeals. See Waits v. Hardy, 214 Ga. 41, 102 S.E.2d 590. When the case was returned to the Court of Appeals, another opinion was written, again reversing the judgment of the trial court because certain hearsay testimony was admitted. This court again granted certiorari, and the case is here for review upon this question. Held:

The hearsay evidence admitted by the trial court was in substance as follows: A doctor was testifying and was asked who referred the plaintiff to him. He answered that he did not know, and that his secretary made the appointments and kept the records. He was then requested by counsel for the defendant in the court below to telephone his secretary and obtain this information. After telephoning his office, he testified that counsel for the plaintiff in the court below had referred the plaintiff to him for examination. This testimony was objected to on the ground that it was hearsay. The testimony was admitted over this objection. The Court of Appeals held this to be error. The judgment of the trial court was reversed. This evidence was, of course, hearsay. The question presented is whether or not the admission of this hearsay testimony was such error as requires a new trial. 'Where * * * the petitioners allege that their husband and father fraudulently obtained a divorce in Tennessee from the principal petitioner on March 18, 1937, and that he married the defendant on December 12, 1944, the act of the trial court in permitting one of the petitioners while a witness on cross-examination to testify, over objection of the petitioners, that she had heard that her father got a divorce in Tennessee in 1937, and later married the defendant, was not, although the evidence was hearsay, such harmful error as would require a reversal.' Griffin v. Welch, 210 Ga. 300, 79 S.E.2d 527, 528. 'That certain testimony was admitted over the objection, duly urged, that the testimony was hearsay, will not require the granting of a new trial, it appearing that the evidence, though subject to the objection made, could not have affected the verdict rendered.' South Georgia Ry. Co. v. Niles, 131 Ga. 599, 62 S.E. 1042. 'When in the trial of an action against a...