1. Thе record is not clear as to whether Curtis’ confession was introduced and considered specially for impeachment purposes or generally as an admission аgainst interest.
A party may not impeach his own witness except where he can show to the court that he has been entrapped by the witness by a previous contradiсtory statement.
Code Ann.
§ 38-1801. We do not think defendant’s counsel here made a sufficient showing of entrapment because: (1) The witness’ statement given the Sheriff of Henry County did not come direсtly to counsel from the witness
(Jeens v. Wrightsville &c. R. Co.,
The rule that a party may not impeach his own witness (Code Ann. § 38-1801) does not prevent the party from proving the facts to be otherwise than as the witness has stated them in evidence.
Tanner v. State,
The rule, as to parties to a suit, is that while convictions for criminal offenses are inadmissible in a civil action, a plea of guilty or a confession may be shown as an admission against interest.
Roper v. Scott, 77
Ga. App. 120 (2) (
The main issue in this action was whether the loss occurred by the design or procurement of plaintiff rather than by theft. Obviously the extra-judicial admission of a third person showing that plaintiff procured him to take and destroy the automobile bore directly upon the main issue and therefore was not admissible under Code § 38-405 (2).
The court erred in allowing the statement to be introduced as it was not admissible either specially for impeachment purposes or generally as an admission against interest of a stranger to the suit or as a part of the res gestae.
2. (a) Whеn a judge has tried a case without a jury, it must be presumed that he has “sifted the wheat from the chaff” and has based the judgment on the legal evidence only; this presumption prevails unless it appears from the judgment itself that consideration has been given to evidence which should have been excluded.
Bailey v. Holmes,
Plaintiff testified that he had left the car parked in a certain placе, that it was taken by someone unknown to him, and that when he saw it later it had been burned. His testimony was sufficient to make a prima facie case of loss by theft within the policy terms. On сross examination he stated positively that he had not made arrangements with anyone for the purpose of destroying the car or otherwise disposing of it. Raymond Leаch, plaintiff’s son-in-law, testified as a witness for defendant that plaintiff had asked him, Leach, if he knew anyone who could get rid of the car. In response to this inquiry, Leach suggested Bоbby Curtis and took plaintiff to see Curtis. However, Leach testified he did not know what plaintiff and Curtis said to each other in the meeting. Bobby Curtis tes *511 tified that he had a conversation with plаintiff about a Mustang but plaintiff did not ask him specifically if he could get rid of plaintiff’s Mustang; that plaintiff had asked him if he could get rid of a car and had told him “there would be money involved in it”; that he subsequently burned plaintiff’s Mustang, was indicted for arson and pleaded guilty to the charge.
Defendant’s case relies entirely upon the inference based on the testimony of Leach and Curtis, that the negotiations with Curtis related to disposal of the automobile for the purpose of making a fraudulent insurance claim. However, that testimony does not entirely rule out the possibility that plaintiff negotiated with Curtis to dispose of the automobile by conventional and legal means and Curtis independently conceived the unlаwful design.
Circumstantial evidence may outweigh positive testimony in probative value.
Bowie & Co. v. Maddox & Goldsmith,
Plaintiff submitted to defendant a proof of loss stаting the amount of the loss as $2,750. Yet on the trial he swore that in his opinion the car was worth $3,150 after he had driven it 9,000 miles, approximately $8 more than he had paid for it when it was new. He testified at one point that he had left his car keys under the floor mat of the car on the evening it was taken; at another point he positively contradicted this testimоny. The inconsistency and the unreasonableness of some of plaintiff’s own testimony and his interest as a party in the case were all factors affecting the credit of his testimony.
*512
Evans v. Lipscomb,
Plaintiff’s credibility was a question for determination by the trial judge, as finder of the facts of the case.
Code
§ 38-1805. Under the circumstances it cannot be said that plaintiff’s testimony was unimpeachеd, and thus the rule stated in
Frazier v. Ga. R. & Bkg. Co.,
The standard for testing the sufficiency of circumstantial evidence is explained in
McCarty v. National Life &c. Ins. Co.,
It follows that the admission of the evidence discussed in *513 Division 1 of this opinion, though error, was harmless to plaintiff.
(b) The general grounds of enumerated error are without merit.
3. While it seems clear from Division 1, supra, that testimony concerning the indictments of Curtis and Garrett for arson, copies of the indictments, and the documentary evidence of the witnesses’ guilty pleas were inadmissible, there is no rеversible error in the admission of any part of. that evidence because of the failure of plaintiff’s counsel to make sufficient objection.
4. “When a question is proрounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it withоut violating the privilege [against self-incrimination] which is secured to him by the law.”
Bass v. Bass,
5. It was not error to exclude evidence of reasonable attorney’s fees where 'the evidence on the trial showed reasonable and probable cause for refusal to pay plaintiff’s claim. See
U. S. Fidel. &c. Co. v. Biddy Lumber Co.,
Judgment affirmed.