133 Ga. App. 675 | Ga. Ct. App. | 1975
J. R. Potts and Mrs. J. R. Potts brought separate actions in tort against Steven B. Seifert, the son, and
The evidence in support of the motion for summary judgment shows without dispute that title to the automobile driven by Steven B. Seifert was in the father and was insured under the father’s family combination automobile policy. The father’s explanation of this state of affairs in answer to interrogatories was that he took title in his name "as a matter of convenience” and at a later time by deposition, that he took title in his name so as to insure the automobile in question under his policy to get a cheaper rate. The evidence, by testimony of the father and the son disclosed that the son was allowed to work on a distributive education program while in high school and that he deposited the proceeds of this work in a bank in his own name over a period of several years, and that this was the money he used to pay for the automobile in question; that the father, although he attended the purchase of the automobile, did not remember whether the purchase price was paid by check or cash, nor from whom the car was purchased, although prior thereto in answer to interrogatories, had given the name and address of the purchaser. The son testified to substantially the same facts as the father regarding the purchase of the automobile. The evidence further showed that the son was allowed to keep all of his earnings and that while he was off at school, after the occasion under investigation, the family paid his tuition and board and other funds as were recommended by the school and no more; but did pay for
The trial judge granted the motions and the appeals to this court followed. Held:
Prior to the Evidence Act of December 15, 1866 (Ga. L. 1866, p. 138) parties to a case and persons interested financially in the outcome were incompetent as witnesses. Graves v. Harris, 117 Ga. 817, 818 (45 SE 239). The preamble to that Act reads: "Whereas, the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in civil and
In Gabbett v. Sparks, 60 Ga. 582, 585, it was said: "Ordinarily, either party, when sworn, goes to the jury not as pure as a disinterested witness; but the credibility of such party-witness is a question for the jury.” In Detwiler v. Cox, 120 Ga. 638 (1) (48 SE 142), it was held that "The interest of a witness in the result of the suit may always be considered in passing upon his credibility; and where there are circumstances inconsistent with the truth of his testimony, the jury are not obliged to believe him, even though he is not contradicted by any other witness.” (Emphasis supplied.)
In Armstrong v. Ballew, 118 Ga. 168, 170 (44 SE 996) the Supreme Court, after quoting with approval the above statement from Laramore v. Minish, 43 Ga. 282, supra, said: "Only two judges presided in that case, but in Penny v. Vincent, 49 Ga. 473, which was decided by a full bench, what was said by Chief Justice Lochrane in Laramore v. Minish was approvingly quoted, and it was held that under the Act of 1866 juries have a larger discretion as to the credit which they will give parties testifying than in the case of witnesses testifying who are not parties. Trippe, J., delivering the opinion, said: 'With all this power, a jury should not capriciously discredit a witness or reject his testimony; but if there be in evidence any circumstances or facts in conflict with the testimony of a party to the suit,... and the point be directly made to the jury as to what credit shall be given to his testimony, and they deliberately decided to reject it, and the judge trying
The testimony of the father and the son in the present case that title to the automobile was in the father, which
The appellee relies upon the case of Calhoun v. Eaves, 114 Ga. App. 756 (152 SE2d 805). In that case it appeared the title to the automobile was not in the father, but only that the automobile was insured under the father’s family automobile policy and the opinion in that case discloses: "Defendant did not request this coverage and who did is unknown. A representative of the automobile agency where the vehicle was purchased testified that it was customary to give the insurance firm the motor and serial number of a newly purchased vehicle, and that he possibly did so in this case.” So far as appears in that case, the policy covered the son’s automobile as the son’s automobile rather than as one belonging to the father. In the present case, the title was in the father, and it may be inferred, had to so be in order to be insured under the father’s family policy here. This, in our opinion, is sufficient to prevent the Calhoun case from controlling in the present case where the credibility of the testimony of the father and son was obviously a matter to be determined by a jury.
We, accordingly, hold that the trial court erred in granting summary judgment in the three cases based on the testimony of the father and son which was all that was offered on the question by movant on whom lay the burden of disproving this element of the plaintiffs case by evidence demanding a finding. Ray v. Webster, 128 Ga. App. 217 (196 SE2d 175). ,
Judgments reversed.