Glynn Plymouth, Inc. v. Davis

Eberhardt, Judge. Certiorari to our judgments rendered in these cases (120 Ga. App. 475 (170 SE2d 848)) having been granted by the Supreme Court, and that court, while affirming our judgment, having made holdings which require material change in the supporting opinion, and it becomes necessary that we make the necessary adjustment in our opinion so that there will be conformity with that of the Supreme Court in Chrysler Motors Corp. v. Davis, 226 Ga. 221 (173 SE2d 691), we now withdraw so much of our opinion as held that the declarations of the decedent, other than res gestae statements, relative to the manner in which the accident occurred are admissible, under the rule of necessity, as proof thereof and, as directed by the Supreme Court, now hold these to have been hearsay and inadmissible. It is to be noted that our former case of Moore v. Atlanta Transit System, 105 Ga. App. 70 (2) (123 SE2d 693) was expressly overruled insofar as we made a like holding in it, preserving, however, the rule of necessity which admits the hearsay if there is a circumstantial guaranty of its trustworthiness. That these declarations of the deceased were admitted without objection did not, as the Supreme Court has held, give probative value to them. In all other respects our former opinion and judgments stand. Judgments affirmed. Bell, C. J., and Deen, J., concur. [718] Decided April 30, 1970. Bouhan, Williams & Levy, Walter C. Hartridge, II, Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, for Glynn Plymouth. Neely, Freeman >& Hawkins, Joe C. Freeman, Thomas J. Harper, Jr., Conyers, Fmdig, Dickey, Fendig & Whelchel, J. Thomas Whelchel, for Chrysler. Alaimo, Taylor & Bishop, Anthony A. Alaimo, James A. Bishop, for Davis.