Opinion
43831.
SUBMITTED SEPTEMBER 5, 1968.
DECIDED APRIL 4, 1969.
Action on insurance policy. Fulton Civil Court. Before Judge Wright.
Gilbert Carter, Fred A. Gilbert, Warren S. Gritzmacher, for appellant.
Morton P. Levine, for appellee.
While it was error to admit in evidence for defendant a previous contradictory statement of one of defendant's witnesses, it is presumed that the judge, who tried the case without a jury, based the judgment on the legal evidence only, where the legal evidence was sufficient to authorize a finding for defendant. The error was therefore harmless.
SUBMITTED SEPTEMBER 5, 1968 — DECIDED APRIL 4, 1969.
James Lewis brought this suit against American Road Insurance Company to recover on a policy of automobile insurance for the loss by theft of his 1966 Mustang. The car was taken from its parking place one evening by third persons and was later found stripped and burned. Defendant contended that plaintiff procured the destruction of the insured automobile. The evidence on trial of the case showed that Robert Curtis and James Garrett had pleaded guilty to indictments charging them with arson of the automobile. Neither of these men had been charged with larceny. Both testified as defendant's witnesses in the trial of this case. In his sworn testimony Curtis invoked the Fifth Amendment of the United States Constitution in response to numerous questions concerning the transaction. In response to some questions he contradicted or repudiated certain details of a written confession which he had given to the Sheriff of Henry County. Defendant's counsel, contending that he had been entrapped by his witness, then introduced over objection Curtis' written statement to impeach the witness. The trial court, sitting without a jury rendered judgment for the defendant.
1. The record is not clear as to whether Curtis' confession was introduced and considered specially for impeachment purposes or generally as an admission against interest.
A party may not impeach his own witness except where he can show to the court that he has been entrapped by the witness by a previous contradictory statement. Code Ann. § 38-1801. We do not think defendant's counsel here made a sufficient showing of entrapment because: (1) The witness' statement given the Sheriff of Henry County did not come directly to counsel from the witness ( Jeens v. Wrightsville c. R. Co., 144 Ga. 48, 52 ( 85 S.E. 1055); and (2) apparently the witness' deposition taken prior to the trial did not contain statements contradictory to the witness' testimony on trial but showed merely a refusal to respond to certain questions which the witness answered on the trial. The refusal to respond to questions in discovery proceedings is not tantamount to making a statement or giving testimony contradictory to testimony on trial. Moreover, even if the statement was admissible solely for impeachment purposes, it could not be considered as proof of the facts contained in the statement. Central R. Bkg. Co. v. Maltsby, 90 Ga. 630, 632 ( 16 S.E. 953); Loomis v. State, 78 Ga. App. 336 (7) ( 51 S.E.2d 33).
The rule that a party may not impeach his own witness ( Code Ann. § 38-1801) does not prevent the party from proving the facts to be otherwise than as the witness has stated them in evidence. Tanner v. State, 161 Ga. 193 (5) ( 130 S.E. 64). "Contradiction is allowed, though direct impeachment be not." Skipper v. State, 59 Ga. 63, 66; Hollingsworth v. State, 79 Ga. 605, 607 ( 4 S.E. 560). Thus we must determine whether Curtis' statement was generally admissible as an exception to the hearsay rule.
The rule, as to parties to a suit, is that while convictions for criminal offenses are inadmissible in a civil action, a plea of guilty or a confession may be shown as an admission against interest. Roper v. Scott, 77 Ga. App. 120 (2) ( 48 S.E.2d 118); Henderson v. Henderson, 94 Ga. App. 64, 71 ( 93 S.E.2d 822); Malcom v. Malcolm, 112 Ga. App. 151, 156 ( 144 S.E.2d 188). An admission by a person not a party to an action however is admissible in evidence only where the party making the admission is the real party in interest, although not a party to the record, or where a party to the record refers another to the third person for information, or where there is an admission by a third person against his interest as to a fact collateral to the main issue between the litigants but essential to the adjudication of the cause. Code §§ 38-404, 38-405. Akin v. Randolph Motors, 95 Ga. App. 841, 848 ( 99 S.E.2d 358). Whatever may be meant by the language "collateral to the main issue . . . but essential to the adjudication" ( Code § 38-405 (2)), it is certainly not applicable if the statement bears directly upon the main issue in the case. Churchman v. Robinson, 93 Ga. App. 731, 733 ( 20 S.E. 215); Glens Falls c. Co. v. Gottlieb, 80 Ga. App. 634, 637 ( 56 S.E.2d 799). As to the distinction between collateral facts and facts directly involved in the main issue in the case, see Summerour v. Felker, 102 Ga. 254, 257 ( 29 S.E. 448); Jones v. State, 70 Ga. App. 431, 449 ( 28 S.E.2d 373).
The main issue in this action was whether the loss occurred by the design or procurement of plaintiff rather than by theft. Obviously the extra-judicial admission of a third person showing that plaintiff procured him to take and destroy the automobile bore directly upon the main issue and therefore was not admissible under Code § 38-405 (2).
The court erred in allowing the statement to be introduced as it was not admissible either specially for impeachment purposes or generally as an admission against interest of a stranger to the suit or as a part of the res gestae.
2. (a) When a judge has tried a case without a jury, it must be presumed that he has "sifted the wheat from the chaff" and has based the judgment on the legal evidence only; this presumption prevails unless it appears from the judgment itself that consideration has been given to evidence which should have been excluded. Bailey v. Holmes, 163 Ga. 272, 275 ( 136 S.E. 60); Rowell v. Rowell, 211 Ga. 127, 130 ( 84 S.E.2d 23). The judgment will be reversed only if the legal evidence is not sufficient to support the finding; otherwise error in admitting evidence will be considered harmless. McElroy v. Williams Bros. Motors, 104 Ga. App. 435, 437 ( 121 S.E.2d 917) and citations.
Plaintiff testified that he had left the car parked in a certain place, that it was taken by someone unknown to him, and that when he saw it later it had been burned. His testimony was sufficient to make a prima facie case of loss by theft within the policy terms. On cross examination he stated positively that he had not made arrangements with anyone for the purpose of destroying the car or otherwise disposing of it. Raymond Leach, plaintiff's son-in-law, testified as a witness for defendant that plaintiff had asked him, Leach, if he knew anyone who could get rid of the car. In response to this inquiry, Leach suggested Bobby Curtis and took plaintiff to see Curtis. However, Leach testified he did not know what plaintiff and Curtis said to each other in the meeting. Bobby Curtis testified that he had a conversation with plaintiff about a Mustang but plaintiff did not ask him specifically if he could get rid of plaintiff's Mustang; that plaintiff had asked him if he could get rid of a car and had told him "there would be money involved in it"; that he subsequently burned plaintiff's Mustang, was indicted for arson and pleaded guilty to the charge.
Defendant's case relies entirely upon the inference based on the testimony of Leach and Curtis, that the negotiations with Curtis related to disposal of the automobile for the purpose of making a fraudulent insurance claim. However, that testimony does not entirely rule out the possibility that plaintiff negotiated with Curtis to dispose of the automobile by conventional and legal means and Curtis independently conceived the unlawful design.
Circumstantial evidence may outweigh positive testimony in probative value. Bowie Co. v. Maddox Goldsmith, 29 Ga. 285, 287; Minter v. Kent, 62 Ga. App. 265, 272 ( 8 S.E.2d 109). A finding of fact which may be inferred but is not demanded by circumstantial evidence is not authorized when positive and uncontradicted testimony of an unimpeached witness which is perfectly consistent with the circumstantial evidence shows that no such fact exists. Frazier v. Ga. R. Bkg. Co., 108 Ga. 807 (1) ( 33 S.E. 996); Taggart v. Savannah Gas Co., 179 Ga. 181 (1) ( 175 S.E. 491); Higgins v. D F Electric Co., 117 Ga. App. 687, 692 ( 161 S.E.2d 331). However, by its own terms the latter rule is not applicable where there are facts in evidence tending to discredit the positive testimony. Travelers Ins. Co. v. Miller, 104 Ga. App. 554, 566 ( 122 S.E.2d 268).
Plaintiff submitted to defendant a proof of loss stating the amount of the loss as $2,750. Yet on the trial he swore that in his opinion the car was worth $3,150 after he had driven it 9,000 miles, approximately $8 more than he had paid for it when it was new. He testified at one point that he had left his car keys under the floor mat of the car on the evening it was taken; at another point he positively contradicted this testimony. The inconsistency and the unreasonableness of some of plaintiff's own testimony and his interest as a party in the case were all factors affecting the credit of his testimony. Evans v. Lipscomb, 31 Ga. 71, 107; Armstrong v. Ballew, 118 Ga. 168, 170 ( 44 S.E. 996); Smith v. Davis, 203 Ga. 175, 182 ( 45 S.E.2d 609); Daniels v. State, 13 Ga. App. 66 ( 78 S.E. 777). "While the statute prescribes but three methods of impeachment, it clearly does not mean thereby that for no other reason can a witness be discredited." Chapman v. State, 109 Ga. 157, 163 ( 34 S.E. 369).
Plaintiff's credibility was a question for determination by the trial judge, as finder of the facts of the case. Code § 38-1805. Under the circumstances it cannot be said that plaintiff's testimony was unimpeached, and thus the rule stated in Frazier v. Ga. R. Bkg. Co., 108 Ga. 807 (1), supra, is not applicable. The court was authorized to reject plaintiff's testimony on cross examination denying that he had procured the destruction of his car and to adopt a contrary inference permitted by other evidence. While the evidence relied on by defendant clearly did not demand that contrary inference, nevertheless we think it was sufficient as a whole to establish the hypothesis claimed.
The standard for testing the sufficiency of circumstantial evidence is explained in McCarty v. National Life c. Ins. Co., 107 Ga. App. 178, 181-185 ( 129 S.E.2d 408), approved by the Supreme Court in Old Colony Ins. Co. v. Dressel, 220 Ga. 354, 358 ( 138 S.E.2d 886). It was not necessary that the proved circumstances show consistency with the hypothesis claimed and inconsistency with all other reasonable theories to the point of logical demonstration. Radcliffe v. Maddox, 45 Ga. App. 676, 682 ( 165 S.E. 841); Sixth Street Corp. v. Daniel, 80 Ga. App. 680, 684 ( 57 S.E.2d 210). As the evidence reasonably established defendant's theory, it was a question of fact whether it preponderated to that theory or some other; thus, a finding for defendant based on the outlined circumstantial evidence was authorized even though the evidence might have reasonably supported a finding for plaintiff. McCarty v. National Life c. Ins. Co., 107 Ga. App. 178, 183, supra; Old Colony Ins. Co. v. Dressel, 109 Ga. App. 465, 468 ( 136 S.E.2d 525); U.S. Fire Ins. Co. v. Tuck, 115 Ga. App. 562, 571 ( 155 S.E.2d 431).
It follows that the admission of the evidence discussed in Division 1 of this opinion, though error, was harmless to plaintiff.
(b) The general grounds of enumerated error are without merit.
3. While it seems clear from Division 1, supra, that testimony concerning the indictments of Curtis and Garrett for arson, copies of the indictments, and the documentary evidence of the witnesses' guilty pleas were inadmissible, there is no reversible error in the admission of any part of that evidence because of the failure of plaintiff's counsel to make sufficient objection.
4. "When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege [against selfincrimination] which is secured to him by the law." Bass v. Bass, 222 Ga. 378, 385 ( 149 S.E.2d 818); Empire Life Ins. Co. v. Einstein, 12 Ga. App. 380, 384 ( 77 S.E. 209). Where it was plain that the claim of privilege was not well taken the court did not err in requiring the witness to answer a certain question. See Warnell v. U.S., 291 F.2d 687, 688.
5. It was not error to exclude evidence of reasonable attorney's fees where the evidence on the trial showed reasonable and probable cause for refusal to pay plaintiff's claim. See U.S. Fidel. c. Co. v. Biddy Lumber Co., 114 Ga. App. 358, 359 ( 151 S.E.2d 466).
Judgment affirmed. Hall and Quillian, JJ., concur.