145 Ga. App. 309 | Ga. Ct. App. | 1978
The prior holding of this court in this case, 142 Ga. App. 434 (236 SE2d 98), was reversed on certiorari by the Supreme Court (240 Ga. 376), and "the judgment of the trial court [was] affirmed.” However, the remittitur to this court required "such further action be taken by the Court of Appeals as may be necessary to give effect to the opinion filed in this case.” Thus, we will consider the remaining enumerations of error.
O’Neal Construction Company filed its complaint against the defendant, Lexington Developers, on June 25, 1976. Because the defendant had moved and had not changed its address, service was made through the office of the Secretary of State. The action went into default. Thereafter, defendant filed a motion to open default which was denied on November 5,1976. Defendant filed a motion for continuance, dated December 6,1976, to obtain the presence of Mr. Colodny, president of defendant corporation, who was outside the United States. That' motion was denied by an order dated December 3, 1976. Jury trial was held without the defendant’s principal witness and verdict was for the plaintiff for $130,000,
1. The defendant enumerated as error, service of process upon him through the office of the Secretary of State. The Supreme Court reversed our holding in this case and held that the defendant was properly served.
2. We need consider only one further enumeration. It is alleged the trial court erred in denying defendant’s right to introduce impeaching testimony by use of prior inconsistent statements of the plaintiffs principal witness. We agree.
Defendant suffered a default judgment to be obtained against them. Their motion to open default was denied. A jury trial was held to determine the amount of damages. Plaintiff’s principal witness to establish the amount of damages, was its president, Mr. O’Neal. Mr. O’Neal admitted that he had been ordered to produce "certain documents in court today as evidence of what [he] lost.”
He was asked: "Q. Do you have any such checks... A. I don’t have any checks. The checks was [sic] turned over to Lester Colodny and Dick Feldman [Officers of defendant corporation] at the time the insurance claim was processed. They knew I didn’t have any checks. Q. Do you have any bills or other records that would indicate what you have paid out? A. Yes, I’ve got some bills here. They have the biggest part of them... The rest of the bills and the checks were turned over to them so they could process their fire insurance claim. They never was [sic] returned to me. . . Q. Do you have any other proof. . .? A. No. The rest of them was [sic] turned over to Dick Feldman and Lester Colodny. . . The invoices, the checks and the paid receipts was [sic] turned over to Lexington. Q. So, you have nothing else, then, in your possession except the one document you have identified for me here and that you say is labor, is that correct? A. Yes.”
Counsel for defendant then attempted to lay a foundation for impeachment. "Q. . . Do you recall a deposition that was taken of you in another action involving the same matter in federal court, or substantially the same matter, on July 29, 1975? A. I’ve gave [sic] you so many depositions. If you will let me look at it a minute, I can tell you... Q. So, you don’t specifically, then, remember that deposition? A. If you would let me
To place this legal issue in a proper perspective, we should recount the events leading up to this point in the trial. The Supreme Court held that through the fault of the defendant he was never served, but proper service was effective through the office of the Secretary of State. The certificate of the Secretary of State showed that it did not serve the defendant. The defendant, a corporation, is a legal but fictional entity. It exists only through its officers and employees. The corporation was not served and its principal officer, the president, Mr. Colodny was in Iran. The motion to open default was denied November 5,1976. Defendant’s motion for a continuance to secure the return of Mr. Colodny, "the only representative of the Defendant
We find that the deposition tendered for use in impeachment of the plaintiffs president comes within the grounds of Code § 38-1803, which provides, in part, that "[a] witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. . .” The same parties are involved in this case as in the deposition. The subject matter of that part of the deposition attempted to be used was the same as that in the instant action — supporting evidence for the amount claimed due from the defendant. The subject matter of the impeaching question was relevant and material to the only issue being tried — the amount of damages. It concerned impeachment of the principal witness for the plaintiff. And, as the defendant had been denied its only witness concerning the amount of the damages, the adverse ruling was crucial to its defense.
Our Supreme Court has held that "[a] witness testifying ore terms, may be contradicted and thus discredited, by his depositions previously taken in the same case, or in a different case involving the same issues.” Molyneaux v. Collier, 30 Ga. 731 (2); cf. Krasner v. Lester, 130 Ga. App. 234, 235 (1) (202 SE2d 693); accord, cf. IIIA Wigmore on Evidence 1040, § 1035; 98 CJS 531, Witnesses, §§ 573, 482, 594 (9); 81 AmJur2d 612, Witnesses, §§ 603, 611; 74 ALR 1052.
It is evident from the cross examination of the plaintiff that the evidence sought to be elicited dealt with whether he had records supporting his claim for damages or whether he had turned them over to the defendant.
Accordingly, as the purported impeaching evidence was admissible and was excluded, and its effect was for the jury, we cannot say as a matter of law that the error was harmless. Nor can we assume that this was the only point upon which the defendant may have desired to use the prior deposition as impeaching testimony of the plaintiff. The error was prejudicial to a substantial right of the defendant and requires reversal.
3. On December 3,1976, prior to the trial date of this action, Dover Developers filed a "Motion for Intervention .. .’’Dover contends they were never accorded a hearing or obtained a ruling on their motion. In view of the decision reached in the main action, this issue is moot.
Judgment reversed.
