Jackson v. Jackson

70 S.E.2d 592, 209 Ga. 85, 1952 Ga. LEXIS 397

Opinions

Per Curiam.

When this case was previously before this court (Jackson v. Jackson, 206 Ga. 470, 57 S. E. 2d, 602), it was there held that the evidence was insufficient to support the verdict. Upon another trial the jury again returned a verdict for the plaintiff. In the record of the second trial we can find no substantial difference in the evidence from that adduced upon the former trial, and' accordingly, whether the ruling upon the evidence when previously before this court was right or wrong, it has become the law of the case. Langston & Crane v. Anderson, 69 Ga. 65; Cannon v. Central of Georgia Ry. Co., 111 Ga. 837 (36 S. E. 99); Citizens & Southern Nat. Bank v. Clark, 172 Ga. 625 (158 S. E. 297).

It is insisted that in the second trial the evidence given by H. Huckabee was additional and substantial evidence, sufficient to prevent the law of the case from being applicable, and to authorize the verdict; his evidence being that, in the course of conversation with Sam Jackson, Sam showed him a savings passbook issued by the Citizens Trust Company in the name of Mary Ella Kendrick, who, Sam said, was his sister. Mr. Huckabee testified that it was the custom in the banking business that, in order to withdraw funds from a savings account, the passbook must be presented. He further testified that he said, “Sam, that is somebody’s else’s passbook.” Sam said, “Yes, sir, but that is my money.”

We cannot see that the possession of the savings passbook by Sam Jackson, or the fact of the custom in the banking business not to permit withdrawals except upon presentation of the passbook, is the addition of any substantial fact to the record previously before this court.

Neither do we think that his declaration, “Yes, sir, but that is my money,” is anything but pure hearsay evidence and could have any probative value. “Declarations of the donor made after the time of the alleged gift, and while the donee was in possession, are not admissible to disprove the gift, although other declarations admitting the gift are in evidence for the donee.” Paris v. Paris, 207 Ga. 341 (61 S. E. 2d, 491), and citations. “Declarations of a person since deceased, wholly in favor of the interest of the declarant, and which are not a part of the res gestae, are mere hearsay and not admissible in evidence.” Drawdy v. Hesters, 130 Ga. 161 (2) (60 S. E. 451, 15 L. R. A. (N.S.) 190). Nor does such evidence have any probative value. Higgins v. Trentham, 186 Ga. 264 (197 S. E. 862).

Judgment reversed.

All the Justices concur, except Atkinson, P.J., Head and Almand, JJ., who dissent.