Christian v. Macon Railway & Light Co.

120 Ga. 314 | Ga. | 1904

Simmons, C. J.

The first headnote is sufficient without elaboration. The second gave us more trouble. It seemed to some of us, when the question was argued, that, where the plaintiff put in evidence the admissions and declarations of the defendant, by introducing a paragraph of the answer, and these declarations fully exonerated the defendant from all blame, the plaintiff was es-topped to deny or contradict them. It was on this theory, we suppose, that the learned judge below granted the nonsuit. After a thorough and careful examination of the authorities, we find that this is not the rule as to such declarations. The rule seems to be well settled, not only in this State but elsewhere, as evidenced by decisions and text-books, that where a party introduces statements of his adversary which are partly in his favor and partly against him, he is not concluded by the self-serving portions of such statements nor estopped to contradict them. It is also well settled in this State that a party may contradict his own witness by showing the truth to be different from what the witness testified. Shipper v. State, 59 Ga. 63; Cronan v. Roberts, 65 Ga. 678; McElinurray v. Turner, 86 Ga. 217. Some of the plaintiff’s evidence did in terms contradict the self-serving declarations of the defendant, set out in the paragraph of the answer introduced in evidence by the plaintiff. These cases show that a party who introduces a witness is not absolutely bound by his testimony, but may contradict him and show the real facts of the case. Nor are the jury bound to believe that part of the declarations which is in favor of the party making them. They may believe or reject the whole, or, for sufficient reasons, 'they may believe part and reject the remainder. The whole paragraph introduced was made the evidence of the plaintiff, to be used or relied upon by either party as evidence, but it was for the jury at last to determine under all the evidence what part of the paragraph they would believe. Upon this subject see Sims v. Ferrill, 45 Ga. 585 (3). In Mixon v. Brown, 75 Ga. 397, Hall, J., said: “Though an answer was waived, this did not deprive the complainant of the privilege of availing herself of admissions made in it; and although the whole answer is before the jury, and the admissions are qualified by other parts of it, they are not bound to believe such qualifications.” Going outside of this State, we find the same doctrine announced. In Chamberlayne's Best on Evid. (Inter, ed.), § 520, it is said: “ Where part of a document or statement is used as self-harming evidence against a party, he has a right to have the whole of it laid before the jury, who may then consider, and attach what weight they see fit to any self-serving statements it contains. . . While the whole statement must be received, the credit due to each part must be determined by the jury, who may believe the self-serving and disbelieve the self-harming portion of it, or vice versa.” In 1 Greenl. Evid. (16th ed.) §201, the same principle is announced. In Mott v. Consumers Ice Co., 73 N. Y. 543, similar to the present case in that the answer of the defendant was “put in evidence for some unexplained and incomprehensible purpose by the plaintiff,” it was said by the New York Court of Appeals:' “ Ordinarily a party is not bound by the admission of his adversary, of which he gives evidence, but is at liberty to use it so far as it makes in his favor, and to disprove the residue— that is, he is not estopped by it. The fact that an admission is in a pleading does not change its character or create an estoppel.” In-another case decided by the same court it was said: “The referee was also right in denying the motion for a nonsuit. The plaintiff had given evidence tending to establish his employment ,and the length of time that he had labored for the defendant. He then showed, by the declarations of the defendant, his dismissal and the amount of his salary. In the course of the same conversation the defendant said that the plaintiff got drunk, was absent, and neglected his business. The defendant insists that the admission must be taken together, and in this he is correct; but as there was other evidence, the referee was not obliged to give equal credit to every part of the declaration. He might, and it seems he did, believe the discharge of the plaintiff established by the admission, as a fact peculiarly wqthin the knowledge of the defendant, and reject the excuse offered at the same time, not only as inconsistent with the other evidence, but as probably suggested upon information obtained from others.” Bearss v. Copley, 10 N. Y. 93. See also Algase v. Indemnity Assn., 84 Hun, 474—5; Schmidt v. Pfau, 114 Ill. 494 (5), 504; Wilson v. Calvert, 8 Ala. 757; Pearson v. Sabin, 10 N. H. 205. Eor these reasons we think that the court below erred in granting a nonsuit.

Judgment reversed.

All the Justices concur.