97 Ga. App. 97 | Ga. Ct. App. | 1958
The first question to be determined is: Did the trial court err in permitting the plaintiff Davis to testify, from his income tax returns, that he had paid Federal income taxes, on an accrual basis, upon the sums he claimed Hewitt owed him, over the objection of Hewitt that such testimony was a “self-serving declaration”?
Counsel for the defendants, in support of this contention, call our attention to Denton v. Etheridge, 73 Ga. App. 221 (3) (36 S. E. 2d 365) and Rabun v. Wynn, 209 Ga. 80 (4) (70 S. E. 2d 745), but in our opinion these authorities do not sustain the contentions of the defendants, under this record.
The evidence to which objection is made by counsel for the defendants was limited to testimony of the plaintiff Davis as. to his Federal income tax returns for the year 1953. Evidence of a similar nature was admitted without objection. The plaintiff Davis testified that he made a return for 1953 showing an income of $13,434.61 and testified that this was the same amount he had reported to the Federal government and that this amount included a salary of $135 per week and ten percent net on the guarantee fund. No objection was made to this evidence. The evidence for the plaintiff Davis was further developed, without objections, regarding the purported income tax for the year 1954 to the State of Georgia and the items of that return were declared to be the same as shown in the Federal income tax return. Again we might call attention in this connection to the cross-examination of Mr. Ralph Finney who had been auditor for the defendants of the check and title guarantee fund involved during the two years in question. On cross-examination the following questions were
And the witness, Finney, a C. P. A. who was employed by Hewitt to do their auditing, testified on redirect examination, as follows: “Q. Did you say in response- to- a question by Mr. Edwards that you advised Mr. Davis to include in his tax return this ten percent of the net of the title and check guarantee fund that accrued to him at the end of each fiscal year? A. Yes, sir. Q. You said there were two- reasons for that, one for his. protection and one for Mr. Hewitt’s protection. Will you explain what you mean by that? A. If Mr. Davis had not reported it in his return,—you see the fiscal year of the partnership ended on September 30th and Mr. Davis’ calendar year as an individual on December 31, so by December 31st the bonus had been determined and -accrued as a liability on the books of the partnership, and if he had not reported on his return the government agents could have claimed that he should have reported it and that it
Copies of the Federal income tax returns for the years 1953 and 1954, to the same effect as the testimony, were admitted without objection. It further appears that the plaintiff Davis made returns for the years 1953 and 1954 according to figures supplied by the auditor for the defendants, the same auditor having made tax returns for the defendants.
We understand that the rule of law now under consideration does not apply where evidence of the same nature is allowed to be introduced without objection. See Savannah Electric Co. v. Crawford, 130 Ga. 421 (60 S. E. 1056); Waters v. Wells, 155 Ga. 439 (4) (117 S. E. 322); Smith v. State, 210 Ga. 713 (4) (82 S. E. 2d 507); Copeland v. Ruff, 20 Ga. App. 217 (1) (92 S. E. 955); Payne v. Simmons, 27 Ga. App. 506 (2) (109 S. E. 168); Trawick v. Chambliss, 42 Ga. App. 333 (1) (156 S. E. 268); L. & N. R. Co. v. McCamy, 72 Ga. App. 769, 772 (35 S. E. 2d 206); Holsenbeck v. Arnold, 75 Ga. App. 311 (2) (43 S. E. 2d 348); State Highway Board v. Coleman, 78 Ga. App. 54, 57 (50 S. E. 2d 262); and Kell v. Hunter, 84 Ga. App. 792 (67 S. E. 2d 597). See also Carmichael Tile Co. v. McClelland, 213 Ga. 656 (3) (100 S. E. 2d 902). This principle of law has been applied even in offers of settlement. See Parker & Co. v. Glenn, 90 Ga. App. 500, 505 (83 S. E. 2d 263). This contention of counsel for the defendants is without merit.
The third issue raised is that the trial court should have charged, without a request, that if the jury should find that the sum sued for was a mere gratuity, the plaintiff would not be entitled to recover. As to this question, there is nothing in the pleadings of either party to show that the word “bonus” meant a gratuity. Since the issue is not submitted by the pleadings, the court was not required to charge on this point, as discussed in division 2 hereinabove.
The court did not err in any of the rulings.
Judgment affirmed.