Leaptrot v. Robertson

Warner, Judge. This was an action brought by the plaintiff, as administratrix, against the defendant, to recover the value of twenty-one bales of cotton, alleged to have been converted by him to his own use. On the trial of the case, the jury found a verdict for the plaintiff for the proven value of the cotton. The defendant made a motion for a new trial on several grounds, which was overruled by the Court, and the defendant excepted. The defendant was offered as a witness to rebut and explain his declarations made to certain witnesses who were examined on the trial in regard to the loss of the cotton, but not as to any facts touching the contract for the sale of the cotton made between himself and the intestate. The rejection of the defendant as a witness by the Court, to prove the facts for which he was offered, is assigned as error. 1. This was a suit by the administratrix to recover the value of the cotton on a contract made by her intestate with the defendant, and it was under that contract that she derived her title to the cotton. Where an executor or administrator is a party in any suit on a contract of his testator or intestate, the other party shall not bo admitted to testify in his own favor: Code, 3798. The defendant was offered as a witness to testify in his own favor, in a suit in which the plaintiff, as administratrix, was a party, seeking to recover the value of the eotipn on a contract made with her intestate, and the statute excludes him in general terms, in all such cases, from being a witness in his own favor for any purpose. If the defendant could be admitted to testify in his own favor for the purpose, as claimed, why not be allowed to testify in his own favor for other purposes, and thus practically repeal the statute? Where shall the Courts stop in admitting the defendant to testify in his own favor in such cases ? The obvious reply is, to stop just where the statute commands them to stop. This question was practically decided in the case of McIntyre vs. Meldrim, 40th Georgia Reports, 490. There was no er [50] ror in rejecting the defendant as a witness to testify in his own favor against the plaintiff on the trial of this case. 2. The record discloses the fact that this is the third verdict found in favor of the plaintiff in this case, and we find no errors contained therein that will authorize this Court to set it aside under the evidence, which is quite sufficient to sustain the finding of the jury. The charge of the Court in relation to the admissions of the defendant, when considered as an entire charge, was not such an error as was calculated to mislead the jury, in view of the facts of the case. 3. As a matter of practice, when the counsel for either party reads written requests to charge in the presence and hearing of the jury, the Court should either give or refuse to give such requests in charge. If the request is a legal and pertinent charge which ought to be given to the jury, then the Court should give it in the language of the request, by reading the same to the jury, and not hold up the paper containing the requests to charge, after the same had been read and handed to the Court, and say: “Gentlemen, I give you all these in charge as requested.” The preponderance of the evidence in this case was in favor of the verdict, and we cannot say that it was not right under that evidence. The jury were the proper judges as to the credibility of the witnesses, and the weight to which their testimony was entitled in considering it. The losing party is rarely, if ever, satisfied with the decision of either a Court or jury, when that decision is against him; but the public interest requires that there should be an end of litigation. In view of the facts disclosed by the record in this case, we do not find any sufficient error to authorize this Court to interfere with the verdict, or to control the discretion of the Court below in overruling the motion for a new trial. Let the judgment of the Court below be affirmed.