McGriff v. McGriff

Hines, J.

(After stating the foregoing facts.)

Plaintiff urges that the verdict is contrary to the evidence, and is decidely and strongly against the weight of the evidence. While the plaintiff sustained his case by the greater number of witnesses, this does not necessarily mean that the preponderance of the testimony was in his favor. Civil Code (1910), §5732. Sometimes, in the minds of jurors, the testimony of one witness is of more weight and credit than of three; nay, than a host of witnesses. The trial judge may exercise a sound discretion in granting or refusing a new trial in a case where the verdict maybe decidedly and strongly against the weight of the evidence. Civil Code (1910), § 6087. But where he exercises this discretion and declines to grant a new trial, this court, being one for the correction of errors, will not reverse his discretion unless it is manifestly abused.

The court admitted, over the objection of the defendant, a mortgage from George McGriff to Crawford Miller Company, for the purchase-money of a mare, dated Oct. 11, 1913, due Oct. 13, 1913, with a provision therein that if $25 were paid at its maturity, the balance might be extended to Sept. 15, 1914, without interest. The court likewise admitted in evidence a mortgage given by the plaintiff to Crawford Miller Company, for $42.90 for the purchase-money of a wagon, date.d Oct. 17, 1913, due Dec. 1, 1913, with a provision that if $10 should be paid at maturity, the balance might be extended to Sept. 15, 1914; and the court likewise admitted in evidence a mortgage given by plaintiff to L. 'Hall, dated Nov. 10, 1913, for $28.12, and due Oct. 15, 1914. The plaintiff objected to the admission of these documents, on the grounds, that they were irrelevant and immaterial; that they shed no light upon the issues involved in this case; and that the admission of the mortgage from George McGriff to Crawford Miller Company was prejudicial to plaintiff's case, in that it created in the minds of the jury the impression that the plaintiff, as well as George McGriff, was badly in debt, “ or worse in debt than the facts would show.”

In the second special ground of the motion it is recited that the plaintiff, on his cross-examination, testified to certain transactions between George McGriff and the defendant, and to transactions between Nelson McGriff and defendant; but what these transactions were is not set out in this ground. It is further stated in this ground, that the court allowed-Nelson McGriff on his cross-examination to testify to certain 1 transactions between him and defendant, in which plaintiff had absolutely no interest, and to similar transactions between George McGriff and the defendant. What these transactions were is not set out, unless they refer to what will now be stated. It is also recited in this ground that “the court allowed” George McGriff, a witness for the plaintiff, on his cross-examination to testify to a certain contract between him and the defendant, whereby the former purchased from the latter a certain tract of land, in which plaintiff had no interest, directly or remotely; and that each of the above-mentioned transactions was a certain contract for the purchase of land between George McGriff and defendant in one instance, and between Nelson McGriff and defendant in the other, in which plaintiff had no interest whatsoever. In this ground it is further alleged that “the court allowed” George McGriff, a witness for the plaintiff, to testify, on his cross-examination, that he made and executed a certain mortgage to Crawford Miller Company. The plaintiff objected to each piece of the above evidence,_ on the ground that the same was irrelevant, immaterial, and shed no light upon any issue involved in this case. The court overruled his objection and admitted the evidence. Error is assigned on this ruling. The defendant moved to rule out all of the above testimony, on the above grounds, and on the further ground that it was prejudicial to his case, as he had no interest in such transactions and could not be bound by them. The court overruled this motion, and error is assigned on this ruling.

Evidence must relate to the questions being tried by the jury, and bear upon them directly or indirectly. Irrelevant matters should be excluded. Civil Code (1910), § 5744. Generally acta inter alios are inadmissible. § 5745. One of the contentions of the defendant was, that the plaintiff, for some years before his alleged purchase or any payment for the land in controversy, had been his tenant and had failed to pay his rent; that he did not have, and did not pay him at any time, $150 in a lump sum for the purchase of these premises, or for any other purpose; and-that he did not make on this land valuable and permanent improvements at an expenditure of $1200. The fact that the plaintiff, about the time he claims to have bought and paid for this land, was giving mortgages to secure small credits, was admissible on the question whether he did in a lump sum pay the defendant in full for these premises. The testimony of plaintiff’s two witnesses, that they had kindred actions pending against the defendant, was admissible on cross-examination, to show their interest as witnesses in the result of the plaintiff’s action. People v. Peltz, 143 Ill. App. 181; Dodge v. Hedden, 42 Fed. 446; Henrietta Coal Co. v. Martin, 221 Ill. 460 (77 N. E. 902); Hanson v. Red Rock, 7 S. Dak. 38 (63 N. W. 156). A party may show anything which may, in the slightest degree, affect the credit of an opposing witness. 8 Enc. Pl. & Pr. 120; Wall v. State, 153 Ga. 309 (112 S. E. 142, 146); Cameron v. Montgomery, 13 S. & R. (Pa.) 128; Ott v. Houghton, 30 Pa. 451. The admission of proof that George McGriff, who had a similar case pending against the defendant, had given a chattel mortgage to a third person, at or about the times they claim to have orally purchased from the defendant separate tracts of land, approached the boundary line of error; but on the theory of the defendant, that this witness and the plaintiff were acting in collusion in the assertion and proof of their respective actions, both claiming to have paid cash for their several tracts, but the defendant denying such payments by them and their ability to pay, this proof tended to throw some light on this contention of the defendant, and to show the close family resemblance between the two suits. It was a sidelight which shed some illumination, though dim, on this contention of the defendant; and thus bore some relevancy to the main transaction. Eor this reason, it is not cause for the grant of a new trial.

The court permitted the defendant, over objection, of plaintiff, to testify that he had procured, in 1919, a long-term loan on the land in dispute from the Hurst-Long Loan Company. The plaintiff objected to the introduction of this evidence, on .the grounds, that the same was irrelevant and immaterial, that he was not bound by this transaction between the defendant and the loan company, and that this testimony was calculated and tended to prejudice his case in the eyes of the jury, inasmuch as they might think that a verdict in his favor would injure and cause loss to the person who had made said loan. We think the admission of this evidence was illegal. If it were wholly irrelevant and immaterial, its admission would not be a ground for the grant of a new trial. Lindsey v. Lindsey, 14 Ga. 657; Williams v. Hamilton, 30 Ga. 968; Thompson v. Thompson, 77 Ga. 692 (3 S. E. 261); Raleigh etc. R. Co. v. Bradshaw, 113 Ga. 862, 868 (39 S. E. 555). While, generally, the admission of illegal testimony which is wholly immaterial will not furnish a ground' for a new trial, it will do so, if it appeárs of sufficient consequence to injuriously affect the party making the complaint. Marshall v. Morris, 16 Ga. 368; Mayor etc. of Gainesville v. Caldwell, 81 Ga. 76 (7 S. E. 99); Hollingsworth v. Howard, 113 Ga. 1099 (39 S. E. 465). But it was a self-serving act of the defendant in favor of his own right and title. It might, and probably did, move the jury to find against the plaintiff: Where illegal testimony has been admitted, which not only might, but probably did, influence the mind of the jury, a new trial ought to be granted. Settle v. Alison, 8 Ga. 201 (52 Am. D. 393). Judgment reversed.

All the Justices concur.