Opinion
15097.
MAY 8, 1945. REHEARING DENIED JUNE 7, 1945.
Divorce, etc. Before Judge A. L. Etheridge. Fulton superior court. November 14, 1944.
O. C. Hancock, Thomas G. Lewis, and C. E. Moore, for plaintiff in error.
Herbert Johnson and Swift Tyler, contra.
1. In this suit by a wife against her husband for divorce for alleged cruel treatment, including physical violence, the testimony of the wife that "he would threaten and choke me," was not, in view of other testimony given by her in the same connection, subject to objection upon the ground that the word "threaten" was a conclusion of the witness.
2. Under the pleadings and the evidence, the judge did not err in charging the jury, that "I charge you that where a party has evidence in his power and within his reach, by which he might repel a claim or a charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior mature, a presumption arises that the charge or claim is well founded; but that presumption may be rebutted."
3. The court did not err in admitting for the plaintiff testimony of an unmarried woman as to attentions shown to her by the defendant, including a proposal of marriage, over objection that such evidence was irrelevant; nor, as against the same objection, was it error to admit letters written by the husband to the witness, containing terms of endearment and the like.
4. The questions propounded to the defendant on cross-examination and his answers thereto, relating to his possession of 1085 gallons of gasoline, and the kind of coupons, if any, that were used by him in acquiring the same, tended in some degree to illustrate his financial worth, and the amount of alimony, if any, that he should pay, and were not subject to objection as being irrelevant and immaterial.
( a) Even if the questions as to gasoline coupons tended to reflect upon his character, they were not cause for a new trial under the facts of the case.
( b) The evidence authorized the verdict.
( c) The court did not err in refusing a new trial.
No. 15097. MAY 8, 1945. REHEARING DENIED JUNE 7, 1945.
Mrs. Zula West sued her husband, A. N. West Sr., for divorce, and for permanent and temporary alimony. She also prayed for the custody of their minor son, Jack West, and for certain equitable relief. She alleged as ground for divorce cruel treatment by the husband, including physical violence. She also alleged that he had carried on illicit love affairs with other women, his latest affair being with a girl about eighteen years of age, who resided with her parents in East Point, Georgia, whose name she alleged she would divulge at the proper time, and that she was in possession of correspondence between her husband and the young woman, who she believed was ignorant of the fact that he was a married man. The petition further alleged that the defendant was in possession of $20,000 in cash, derived from the recent sale of a business in which he was engaged. In an amendment, she prayed that his interest in specified realty be awarded to her as part of her permanent alimony. The defendant filed an answer, to which two amendments were offered and allowed. In his answer as thus amended, he put in issue substantially all of the material allegations of the petition and prayed that each and every prayer be denied.
Two separate verdicts for a total divorce were returned in the plaintiff's favor. As a part of the second verdict, the jury also awarded, as permanent alimony, the real estate described in the amendment to the petition, $50 per month until her remarriage, and $25 per month additional for the minor son, to be paid during his minority or until he became a member of the armed forces. As against this second verdict, the defendant filed a motion for a new trial based upon the usual general grounds, to which the several special grounds hereafter stated were added by amendment. The court overruled the motion, and the defendant excepted.
In ground 1, as numbered in the amendment, the defendant complained of the following charge to the jury: "I charge you that where a party has evidence in his power and within his reach by which he might repel a claim or a charge made against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded, but that presumption may be rebutted;" contending that this charge was erroneous, because (a) it was intended to apply solely to the movant, and must have been so understood by the jury; (b) it does not appear that the movant held back any evidence in his power to produce; (c) it amounted to an expression of opinion by the judge, and must have been so understood by the jury, that the movant had been guilty of suppressing material evidence.
In ground 2, it was contended that the court erred in permitting the plaintiff to testify, "He would threaten and choke me," upon the ground that the word "threaten" would be a conclusion of the witness.
In ground 3, the movant complained that the court erred in admitting certain testimony of Miss Lilly Rutledge, a witness for the plaintiff, and several letters which had been written to her by the defendant. The witness testified that she lived with her parents at East Point; that she went with the defendant "several times;" went with him to the show one time and to the cafe; that he proposed marriage to her; that this was a short while before he left for Brunswick, where he was engaged in business for several months; that various letters, identified by her, were received from him; that finally Mrs. West came out to East Point and asked why she was writing to Mr. West, and she turned the correspondence over to Mrs. West at that time. She further testified that the defendant tried to get her to go to places with him, but she would not go; that he never tried to take any advantage of her; that she voluntarily agreed to testify for Mrs. West; and that she herself later filed a suit for damages against the defendant, which was after the filing of Mrs. West's suit.
Some of the letters contained terms of endearment, and all were introduced over the objection that they were irrelevant. The oral testimony was objected to upon the same ground, and immediately preceding the formal objections, the following statement was made by counsel for the defendant: "This is the evidence of a witness who now has a suit pending in this court against Mr. West, and who testified on the former hearing in this case about these letters. There is not anything in these letters that would indicate cruel treatment, and certainly not from this evidence as testified by her. Counsel will want to ask her about these letters, and they will want to offer these letters. I don't want this case hurt by her evidence, and I respectfully submit that the evidence . . is absolutely inadmissible." There was no objection to the letters on the ground that they were not shown to have been written by the defendant.
In ground 4, the movant contended that the court erred in the following point and particular: While the defendant, sworn in behalf of himself, was upon the stand being cross-examined by counsel for the plaintiff with reference to certain gasoline coupons given to the Wofford Oil Company for 1085 gallons of gasoline, he testified, and a colloquy occurred, as follows:
"Q. Well, was there any gasoline coupons given to the Wofford Oil Company for that 1085 gallons delivered at your home?
"Mr. Hancock: I object to that question and answer on the ground that it is wholly immaterial and would not illustrate any assets. The question is, what are his assets now?
"The court: I overrule the objection.
"Q. What kind of coupons did you deliver to the Wofford Oil Company for that 1085 gallons of gasoline that they put into your tank out there?
"Mr. Hancock: I object to the question on the ground it is wholly immaterial and does not illustrate any issue in this case.
"The court: I overrule the objection.
"Q. What kind of tickets? A. I don't remember.
"Q. Now, Mr. West, have you gotten any tickets from the OPA or any ration board to go in business this year at all?
"Mr. Hancock: I object to that question and answer on the ground it would not illustrate any issue in this case either directly or indirectly.
"The court: Objection overruled.
"The witness: I did not do any business this year and did not go into any business, and consequently I did not get any tickets to go in business with.
"Q. How did you come to the courthouse to-day?
"Mr. Hancock: I object to that as immaterial.
"The court: Objection overruled.
"The witness: In a borrowed automobile.
"Q. From whom? A. Mrs. Heatherington.
"Mr. Hancock: I object to that question as illustrating no issue in this case.
"The court: Objection overruled.
"Q. Where did you get the gasoline that went into the tank of the car that you drove to the courthouse to-day?
"Mr. Hancock: I object to that question and answer on the ground that it illustrates no issue in this case and is highly prejudicial and hurtful to this case.
"The court: Objection overruled.
"The witness: I did not get it anywhere. I don't know where she bought it. She has her own gasoline ration and [is] privileged to buy wherever she pleases.
"Q. Mr. West, you have not done a thing the entire year except to live in that automobile, have you?
"Mr. Hancock: I object to that question as highly prejudicial and hurtful and certainly could not suggest an answer that will illustrate any issue in this case.
"The court: The objection is overruled.
"The witness: I have been in that automobile very few times.
"Q. What did you buy the gas for that you had put in your tank out there?
"Mr. Hancock: I object to that as wholly immaterial and irrelevant and does not illustrate any issue in the case.
"The court: Objection overruled.
"The witness: For the usual purposes that gasoline is bought for.
"Q. To ride on? A. To use in a gasoline truck or motor or tractor — the usual things I used gasoline for.
"Mr. Hancock. With Your Honor's consent and for the record's sake. I make a general objection to all of these questions about gasoline tickets and the purchase of gas here in the last few months. I just don't think it should be injected into this case.
"The court: I will deal with the objections as they are made.
"Q. You have not had an A gasoline-ration book since you disposed of that 1942 Dodge sedan?
"Mr. Hancock: I object to that question and answer or the started answer on the ground that it would not illustrate any assets that Mr. West has or could have and is wholly immaterial to this case.
"The court: The objection is overruled.
"The witness: I probably, somewhere around the house, had an A book that was issued to me. When the Dodge car was sold, I was in the hospital, and I don't know what happened to the book or the car either."
In ground 5, the movant complained that the court erred in the following point and particular: The witness, E. S. Worthington, sworn in behalf of the plaintiff, was upon the stand, being examined in rebuttal on direct examination by counsel for the plaintiff with reference to the gasoline and gasoline coupons used for the purchase thereof by movant in 1944, when said witness testified as follows:
"Q. Will you state whether or not the Wofford Oil Company made any deliveries of gasoline to 1199 Holley Street, the home of Mr. Norman West, in June, 1944?
"Mr. Hancock: I object to that as wholly immaterial, and unless he knows of his own knowledge, he could not testify, and the record would be the highest and best evidence.
"The court: I overrule the objection.
"The witness: Yes.
"Q. How much gasoline was delivered on June 2, 1944? A. 620 gallons.
"Mr. Hancock: I object to that on the same ground, if Your Honor please.
"The court: Same ruling.
"Q. Have you had a subsequent delivery out there?
"A. Yes, sir.
"Q. When was that?
"Mr. Hancock: Same objections on the same ground.
"The court: Same ruling. Go ahead.
"The witness: August 2, 1944.
"Q. Were you paid cash for the gasoline? A. According to the records, yes.
"Mr. Hancock: I object to that on the same grounds.
"The court: I overrule the objection.
"Q. Now, Mr. Worthington, upon delivery of that gasoline, does your company require gasoline-ration coupons? A. Yes, sir.
"Mr. Hancock: I object to that question and that answer on the same grounds, if Your Honor please.
"The court: I will overrule the objection.
"Q. What kind of gasoline-ration coupons were delivered to your company, if the records show it, for that 1085 gallons of gasoline?
"Mr. Hancock: I object to that, if Your Honor please, on the same grounds.
"The court: The same ruling.
"The witness: The records I have do not state the kind of gasoline coupons delivered, other than the fact that we require gasoline coupons regardless of what kind they are. They could be A, B, C, T, or any other kind."
1. The grounds of the motion for a new trial will be dealt with in a slightly different order from that in which they appear in the statement.
In ground 2 of the amendment to the motion, it was contended that the court erred in permitting the plaintiff to testify that the defendant "would threaten and choke me," over objection that the word "threaten" was a conclusion. The testimony was given near the beginning of her evidence. The plaintiff later testified: "He has beaten me with a strap. He beat me to where I did not have a place on my back that was not black. I never made a case against him for that; he always told me he would kill me. . . He choked me the night before the one we have been talking about. He choked me until I could not even get my breath." Considering the nature of the ground upon which the suit for divorce was predicated, and the subject-matter of the testimony, the statement that "he would threaten me" was not subject to objection as being a conclusion of the witness. Shiver v. Tift, 143 Ga. 791 (3) ( 85 S.E. 1031, L.R.A. 1918A, 622); Davie v. Tanner, 150 Ga. 770 (5) ( 105 S.E. 355); Atlantic Coast Line R. Co. v. Register, 37 Ga. App. 219 (2) ( 139 S.E. 735). This ruling is not in conflict with those in Mayor c. of Milledgeville v. Wood, 114 Ga. 370 ( 40 S.E. 239); Sumner v. Sumner, 118 Ga. 590 (2) ( 45 S.E. 509).
2. In special ground 1, the movant complained because the court charged the rule of law stated in the Code, §§ 38-119, as to presumption arising from failure to produce evidence.
Under the pleadings and the evidence there was no error in giving this charge. One of the issues in the case was the financial worth of the defendant. It appeared from the evidence that the defendant was engaged in business at Brunswick, Georgia, for three or four months during the year 1942. The plaintiff introduced documentary evidence showing that the defendant received about $24,000 in cash from that venture. The defendant testified: "The gross intake on that job was somewhere around $24,000. I think it is safe to say that 3 to 5 per cent. was the net, if you did not figure in the wear and tear on your equipment." He did not offer any written evidence to substantiate his contention that only a small portion of the sum received was profit, although from the evidence as a whole it could have been reasonably inferred that, if his contention was true, it could have been sustained by the introduction of canceled checks, receipts, or other documentary evidence. In these circumstances, it can not be held that the charge was unwarranted. Code, § 2 38-203; Fountain v. Fuller E. Callaway Co., 144 Ga. 550 ( 87 S.E. 651); Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 ( 174 S.E. 708); Shiver v. Firemens Insurance Co., 60 Ga. App. 57 ( 2 S.E.2d 760); Laney v. Barr, 61 Ga. App. 145, 147 (10) ( 6 S.E.2d 99). The principle may be charged only in exceptional cases, and so, on facts different from those which appear in the instant case, it was held inapplicable in Anderson v. Southern Railway Co., 107 Ga. 500 (2) ( 33 S.E. 644), Central of Georgia Ry. Co. v. Bernstein, 113 Ga. 175 (5) ( 38 S.E. 394), and Brothers v. Horne, 140 Ga. 617 (3) ( 79 S.E. 468).
3. The court did not err in permitting the witness, Miss Lilly Rutledge, to testify as to attentions shown to her by the defendant, including a proposal of marriage; nor in allowing in evidence certain letters admittedly written by the defendant to the witness, containing terms of endearment and the like. This evidence was admissible to corroborate the testimony of the plaintiff as to cruel treatment. Kight v. Kight, 152 Ga. 821 ( 111 S.E. 193); Smith v. Smith, 168 Ga. 725 (4) ( 149 S.E. 39).
4. In ground 4, the movant contended that the court erred in permitting certain questions to be propounded to the defendant on cross-examination with respect to a quantity of gasoline, mentioned in the record as 1085 gallons, which had been purchased by him from Wofford Oil Company in 1944, and placed by that company in a storage tank at the defendant's home. Some of the questions inquired as to the kind of coupons, if any, he had used to obtain this gasoline, and as to how he came to the courthouse on the day of the trial. It was objected that the questions were immaterial and irrelevant, and illustrated no issue in the case; and in two instances it was stated further that the questions were prejudicial and hurtful. This ground of the motion showed numerous questions, objections, and rulings, with an occasional answer by the defendant. Reduced to narrative form, the entire evidence thus elicited would read substantially as follows: "I don't remember what kind of tickets [coupons]. I did not do any business this year, and consequently I did not get any tickets to go in business with. I came to the courthouse in an automobile borrowed from Mrs. Heatherington. I did not get the gasoline that was in the car anywhere. I don't know where she bought it. She has her own gasoline ration and [is] privileged to buy wherever she pleases. I have been in that automobile very few times. I bought the gas that was put in my tank out there for the usual purposes that gasoline is bought for — to use in a gasoline truck or motor or tractor — the usual things I used gasoline for. I probably, somewhere around the house, had an A book that was issued to me. When the Dodge car was sold. I was in the hospital, and I don't know what happened to the book or the car either."
The defendant had already testified at length on direct examination. The questions to which the objections were made were propounded to him on cross-examination. One issue related to his financial worth, as illustrating the amount of alimony that he should pay, if any. On direct examination, he had testified to the effect that he had not been in business for the past year or so; that he did not own a truck or automobile; that for one reason or another he had been stripped of practically all of his property; that he had not been able to pay some of his taxes; that certain hospital bills which he had been forced to incur on account of illness had not been paid; and that he had even come to the point of having to pawn some of his wearing apparel. In these circumstances, it was permissible to interrogate him on cross-examination as to his purchase of such a large quantity of gasoline and as to the purpose for which he purchased the same. It takes money to buy gasoline, and it commonly requires money to use it, to say nothing of the machinery or vehicles in which it is consumed. There was no error in overruling the objections.
As to the source and kind of coupons that had been used in obtaining the gasoline, the questions may have tended in some measure to reflect upon the defendant's character, provided he was not in business, as contended. But in asking what kind of coupons he used, counsel might have elicited that coupons for business purposes had been issued, thus showing that the defendant was engaged in business, contrary to his contention and previous testimony. As shown above, the defendant did, in response to some of the questions, testify that he bought the gasoline "for the usual purposes that gasoline is bought for," "to use in a gasoline truck or motor or tractor — the usual things I used gasoline for." So far as appears, this might have been the only purpose of the interrogation, and it can not be said from the record that there was any improper effort to reflect upon the defendant's character. The fact that the questions and answers may incidentally have done this would not necessarily, without more, have made them objectionable. Even in a criminal case, if evidence is otherwise material and relevant to the issue on trial, it is not inadmissible merely because it may tend to establish the defendant's guilt of another and different crime. Goodman v. State, 184 Ga. 315 ( 191 S.E. 117). "If evidence is admissible for any purpose, its admission will not cause a new trial." Purvis v. Atlanta Northern Ry. Co., 145 Ga. 517, 519 ( 89 S.E. 571). Again, the defendant had voluntarily testified, on direct examination, that while residing in California several years ago he got into trouble, pleaded guilty, and was sentenced to "14 years on 3 individual charges, [and] served 28 months at San Quentin Prison."
In view of this testimony as voluntarily given by the defendant on direct examination, the cross-examination in reference to gasoline coupons, even if tending to reflect upon his character, would hardly be cause for a new trial, whether or not in other circumstances it might have constituted reversible error. See, in this connection, Travelers Insurance Co. v. Thornton, 119 Ga. 455 (9) ( 46 S.E. 678); Davis v. State, 153 Ga. 669, 676 (12) ( 113 S.E. 11).
It follows from what has been said that there was no merit in ground 4. Ground 5 was similar in nature, and the same ruling will apply to that ground. The evidence authorized the verdict.
Judgment affirmed. All the Justices concur.