93 Ga. 462 | Ga. | 1893
The plaintiff’s wife was permitted to testify to his complaints made in her hearing. She said he complained of his side a great deal; and being told to state all of his complaints, she said his head hurt him and his side and his leg, he suffered a great deal. Such evidence as this, by a witness other than the wife of a party, was 'competent and admissible, so long as the law excluded parties from being witnesses in their own behalf, but now that they are, by statute, competent to testify, and where, as in this case, the testimony is heard from the plaintiff himself, who knew the facts of pain and suffering, his wife, whose knowledge of them was derived from hearsay, was not competent to prove complaints which were no part of the res gestae of the injury. The ground on which such evidence was formerly deemed competent, was the ground of necessity. That necessity no longer exists. The higher and better evidence is that of the person who has actual knowledge of the truth of the pains and other feelings to which the complaints relate. This view is taken by the Court of Appeals of New York in the case of Roche v. Brooklyn &c. R. R. Co., 105 N. Y. 294. The reasoning of that case is entirely satisfactory, and applies as forcibly in Georgia as it does in New Yoi’k. Indeed, before parties wei’e made competent witnesses, the wife of the plaintiff could not be heard to testify at all in favor of her husband. The same statute which rendered her competent to testify for him, rendered him competent to testify for himself. Code, §3854.
From the two errors in admitting evidence which we have discovered and discussed, a new trial results.