Hawkins v. Kermode , 85 Ga. 116 ( 1890 )

Bleckley, Chief Justice.

1. The dispute between these two parties is one of fact altogether. The evidence at the trial was conflicting, and the jury thought proper to settle the conflict in favor of the plaintiff below and against the plaintiff in error here. The presiding judge was satisfied with their finding, and we can see nothing in the record to warrant us in overruling his decision. Taking the evidence most strongly for the prevailing party, as we have to do, the verdict was neither contrary to evidence nor contrary to law.

2. The court’s charge to the jury is set -out in full, and it shows that, although the request to charge on the subject of looking at the notes in connection with the other evidence was not given in the language of the request, yet the matter was covered substantially and sufficiently by the charge as given, the court saying: “You, gentlemen, will look at all the evidence submitted to you, including, of course, the promissory notes themselves.”

3. There was no request to charge upon the subject of admissions, and .the omission to allude to them in the charge was not error in the absence of such request. The admissions were simply apart of the evidence, and the jury would know that they ought to be considered for what they were -worth, without being told so by the court. Why should this class of evidence have been singl ed out in the charge as the subject-matter of special mention and instruction? We can see no reason for so dealing with it, and doubtless none occurred to the mind of the court. There certainly is no rule of law which requires that any particular part of the evidence shall be taken up and charged upon, without request to treat it in that special way. If the party introducing the admissions could complain of the court’s silence in regard to them, so, it would seem, could the opposite party. And thus it would follow that there must be a general rule of law that admissions when introduced in evidence must always be the subject-matter of special notice by the court. We have never heard of any such rule, and unless there be such a rule, the court was not bound to give any charge on the subject in the present case. ■ The general instruction to consider all the. evidence was doubtless understood by the jury as a direction to consider the admissions along with the rest. Moreover, it is very unlikely that a jury would understand that admissions or anything else had been received in evidence except for the purpose of being considered by them in their deliberations upon the case. No doubt the trouble is, not that the admissions were not properly considered, but either that the jury believed they were never made, or if made, that they had a sense and meaning other than that attached to them by the witnesses who heard them.

4. The newly discovered evidence consists simply of more admissions of the same sort heard by another witness. This evidence is cumulative in its nature, and there is no reason to think that it would produce a different result if a new trial were had. At least we are willing to abide by the opinion of the presiding judge upon that question, as well as upon all the others embraced in this motion for a new trial.' If injustice has been done the losing party, it could only be attributed to the perjury of his adversary, in connection with his own imprudence in giving her several promissory notes for a considerable sum of money at a time when, according to his theory, he owed her, if anything, a much less amount. If the jury attached their faith to the wrong party, or the wrong side of the case, what remedy for their mistake can we afford? We are aware of none.

Judgment affirmed.