Davis v. Central Railroad
60 Ga. 329
Ga.
1878
Check Treatment
Bleckley, Judge.

1. So far as appears, there was no obstacle to a further examination of the witness. The direct, not the cross, interrogatories were answered short. The plaintiff, when this was discovered, should have taken steps to have the witness re-examined. It was not the fault of the defendant that the answers were deficient in fullness. Under the consent, the plaintiff was in a situation where the reading of the answers could have been forced upon the defendant. The cross-interrogatories were all answered, and that being so, the defendant could not have hindered the reading. Was it, then, at the option of the plaintiff whether the reading should take place or not ? The parties had, by consent, cut loose from the general law. They had made a conventional law of their own; consequently, §3892 of the Code was without application. That section touches exceptions to the execution and return of commissions. Here there was no com. mission; and notice of objection, if delayed as long as that section allows — that is, until just before the case is submitted to the jury — would be unreasonably late. Where the evidence is taken by consent, there should, before announce, ment of readiness for trial, be notice that the consent has not been duly executed, if its due execution is to be denied. When the parties have agreed that legal formalities shall be dispensed with, and the evidence is in under that agreement, they should each be entitled to depend on the right to introduce it, unless some notice reaches them (before announcing ready) that the right is controverted. Not only commission but commissioners were waived. The witness *333was trusted to write out the answers, seal them up, and deliver them to the clerk; and the consent was positive that they should be read as if regularly taken. The plaintiff should have re-examined the witness as to the matters on which the answers were deficient, unless some obstacle to a further examination had intervened.

2. The burden of making out a case was upon the plaintiff. A material part of the case contended for, was the ability of the child to hear before the injury complained of was received. There may be a general presumption that the ordinary human faculties are possessed by every individual. But here there was evidence that the parents of the individual were both deaf and dumb. The presumption e f erred to, thus became entangled with something like another presumption, that like produces like. The charge of the court, “ if the evidence be equally balanced for plaintiff and defendant, on any contested point, the jury should find that part of the case in favor of defendant,” was not erroneous, the great pressure of the case being on the question whether the child was deprived by the injury of the sense of hearing. There was an adequate recovery for the effects of the injury in other respects.

3. Strictly speaking, the court should not instruct the jury that the interest of a witness affects his credit. The better instruction is, that it may affect his credit. Interest and truth may go together. Is there, in the world, an honest man who does not know that he can tell the truth against his interest ? Interest is felt as a temptation; but corruption reaches to an excess if, yielding to temptation, it succumbs on every occasion? We suppose it does not. Where there is possible doubt as to the effect of villainy upon veracity, the jury ought to be left to decide it. As coming from the average of society, they know best what to think on such a question. Interest is a great rascal; but is not an absolute reprobate. Its doom is not perdition at all events. It has a chance of salvation. It is not obliged to commit perjury. Doubtless the court meant nothing to *334the contrary of this, the inaccuracy being merely verbal. The jury were not mislead.

4. The love of justice! What a great love it is ?

5. The verdict was warranted. It is satisfactory to this court, as it was to the court below.

Cited for plaintiff: 46 Ga., 602; 1 Kelly, 554; 19 Ga., 404; Valentine’s Dig., 314; 2 Swan, 472; Code, §3889; 14 Ga., 697; 6 Ib., 365; 20 Ib., 593; 1 Cranch C. C., 491; 45 Ga., 89; 41 Ib., 117; 49 Ib., 31; 55 Ib.,205; Code, §3714; 8 Ga., 207; 25 Ib., 184; 44 Ib., 229; 55 Ib., 453; 39 Ib., 603; 42 Ib., 62, 82; 43 Ib., 287; 30 Ib., 241 et seq., 476.

Cited for defendant: 49 Ga., 35; 55 Ib., 208; 33 Ib., 11; 41 Ib., 426; 46 Ib., 456, 637; 47 Ib., 229; 48 Ib., 210; 46 Ib., 218; Code, §3749.

Judgment affirmed.