It was not error to deny the motion for new trial.
See Jackson v. Jackson, 206 Ga. 470
(57 S. E. 2d (102), and Jackson. v. Jackson, 209 Ga. 85
(70 S. E. 2d 592), for the former decisions in this case. On the first appearance of the case here, it was held that the evidence was not sufficient to support the verdict for the plaintiffs. On its second appearance, it was held that there was no substantial difference in the evidence adduced upon the second trial, and that "the previous decision has become the law of the case." The parties entered into a stipulation in the trial court that the cause should be tried the third time by the judge without the intervention of a jury, and the sole issue submitted to the trial judge was the same as that on the former trials.
At the conclusion of the evidence for the plaintiffs, the trial judge entered a written order in which it was stated that the law of the case, based upon the rulings of this court, supra, demanded a finding in favor of the defendants on the sole issue submitted. The trial judge in his order finding for the defendants stated in part: "In support of their contentions that there is additional and substantial evidence in the present record sufficient to disprove any gift inter vivos, plaintiffs so earnestly urge certain points that I will briefly state them and then set forth my views thereon as follows:
"(1) That the testimony of Mary Ella Kendrick, the alleged donee, and a defendant in this case, now discloses for the first time that she was not with Sam Jackson, the alleged donor, when the money was deposited in her name. Though some of her testimony upon the former trials, and that of Nettie Bennett Archer, assistant cashier of the Citizens Trust Company of Atlanta, upon all trials, is that Mary Ella Kendrick was present when the deposit was made, the records of the former trial contain explicit statements by Mary Ella Kendrick that she did not accompany him. One such statement is as follows: 'I never went to Atlanta with Sam to a bank there, I never met Sam there. He told me that he had put money in a bank there in my name but I wasn't there.' This is identical with a statement appearing in the record of the first trial and is not a statement impeaching a party's own witness but is an admission by an opposite party. Furthermore, this appears to be immaterial under the decision of the Supreme Court.
"(2) That the additional testimony now establishes for the first time that Mary Ella Kendrick considered that the money belonged not to her but to Sam Jackson until his death. This contention is refuted generally by the whole testimony of Mary Ella Kendrick upon the former trials and specifically by her statement in the very last paragraph of her testimony upon both of said trials: '. . . I said I didn't have any claim on that money long as Sam lived;' also by other similar statements therein to the effect that she 'understood' the money belonged not to her but to Sam Jackson as long as he lived.
"(3) That the additional testimony shows that the alleged donee retained control of the money until his death, and that this fact did not appear upon the first two trials. Perfectly logical inferences from much of the testimony upon the former trials supplied this evidence; nothing in the record of either of such trials demanded a finding that Mary Ella Kendrick withdrew by her check all monies withdrawn from the bank account or that Sam Jackson did not himself accomplish this end on occasions but the evidence is positive that withdrawals were made, the money going to Sam. Though the evidence as to withdrawals is unclear and most unsatisfactory, Mary Ella Kendrick's general testimony upon the former trials, leads to this conclusion. Specifically, she testified: 'Sam didn't even come to me to get the money, I didn't sign no check with Big Sam . . . I do not remember giving Sam a check for $2,500 for Fate Williams. I do not remember giving a check for $2,500 for anybody. I do not remember giving him a check for $1,500 for anybody.' She also testified (see par. 1 above) that she never went to the bank with the alleged donor. The witness Archer, witness for the plaintiff, did testify positively upon all trials that Mary Ella Kendrick was in the bank on more than one occasion with Sam Jackson and made all withdrawals from the account but it is to be noted that she said at one point in her testimony that Mary Ella Kendrick was not present on the occasion of one withdrawal and later that Mary Ella Kendrick signed her name by her mark. She did not testify that any check so signed was presented by Sam Jackson and no checks were produced by the witness. The question whether a bank would accept a check signed by the drawer's mark and not executed in the presence of the officials of the bank immediately arises. It is noted further that this witness' testimony on the deposits and withdrawals and all surrounding facts is at best confusing and the jury upon consideration of her testimony and that of the other witnesses, Mary Ella Kendrick's in particular, that she did not execute any such check to Sam Jackson, may have determined that her testimony was calculated to serve and protect the interests of her employer, the bank, and was thus colored; or they may have accepted the admission to the contrary of this defendant who was the only defendant having any real knowledge of the alleged transactions. Therefore, there were both positive testimony and legitimate inferences upon the former trials that Sam Jackson did control the money until his death. Nor is testimony that the deposit was in a savings account and that Sam Jackson never relinquished the deposit book or control of the money to Mary Ella Kendrick or anyone for her novel to this trial. These facts were affirmed and re-affirmed upon the former trials. Thus, nothing new and material appears in this new testimony. The comments upon contention (2) showing that she understood she had no claim on the money as long as Sam lived are also most pertinent here to establish that there is nothing new and substantial in this latest testimony of Mary Ella Kendrick.
"(4) That since the testimony of Handy Jackson, a defendant called for cross-examination, upon the two former trials, was not introduced upon the last trial, there is not satisfactory evidence that Sam Jackson ever made any declaration that he had given the money to Mary Ella Kendrick. Though all of this evidence given by the defendants, including Handy Jackson, to this effect upon the former trials was apparently of very doubtful credibility, and may very properly have been entirely discredited by the jury in considering the witness' whole testimony, the record here in this respect is not so substantially different as to prevent the law of this case from being applicable hereto. It must be observed, too, that plaintiff's case in many material respects was necessarily dependent upon evidence brought forth on cross-examination of the defendants, and that the burden of disproving the gift was upon plaintiffs and they can gain nothing by merely discrediting the defendant. In any event, this is not a controlling factor in the case."
The plaintiffs in due course filed their motion for new trial which was subsequently amended by adding two additional grounds. In ground 1 it is contended that "the court erred in determining that the judgment rendered by it was demanded by the law of the case," because (a) there is no evidence in the present record to the effect that Sam Jackson told anyone that the money on deposit had been given to his sister, and (b) the evidence of Mary Ella Kendrick on the last trial differs materially from her testimony on the former trials. In ground 2 it is contended that the court erred in determining that the evidence adduced on the last trial was substantially the same as that produced at the previous trials. The motion for new trial as amended was denied, and the exception is to that judgment.
The amended grounds of the motion for new trial amount to no more than an attempt to elaborate upon the general grounds. Therefore, the sole question before this court is whether there is any new and material evidence offered by the plaintiffs of so substantial a nature as to support a finding for them.
The opinion of the trial judge clearly shows that at the last trial there was no new evidence of a substantial and material character, nor any substantial variation from the evidence produced on the former trials. The judge did not elaborate upon the testimony of the witness W. A. Williams. This witness testified in regard to a conversation had by him with Mary Ella Kendrick, one of the defendants, the substance of his testimony being: "She [Mary Ella Kendrick] said that all she got out of the estate was $300 and didn't know anything about the rest of this money. She said some of the relatives offered her $300 to sign a check for some money in Atlanta. She said some of Sam's boys offered her $300 to sign the check. She said they gave her $300. She said she didn't know what the amount of money was in the bank but that if the white people had told her about this money she never would have signed that check." This evidence was not offered for the purpose of impeaching the witness, Mary Ella Kendrick. If it was admissible for any purpose (and no ruling is made as to its admissibility, since this question is not before us), and if the evidence should be accepted as true, it is not at substantial variance with the testimony of Mary Ella Kendrick.
The trial judge correctly ruled that, under the law of the case, he was required to find for the defendants.
HEAD, Justice, concurring specially. On the second review of this case (Jackson v. Jackson, 209 Ga. 85
, 70 S. E. 2d 592), I was of the opinion that there was a substantial variation in the evidence favorable to the plaintiff, and that the former decision ( Jackson v. Jackson, 206 Ga. 470
, 57 S. E. 2d 602), was not, therefore, controlling. The majority of this court ruled to the contrary. I now feel that I am bound not only by the first opinion, which was a full-bench decision, but by the majority opinion on the second appearance of the case. I have carefully examined the evidence of all three cases insofar as it is material to a judgment in the present case, and I am convinced that the trial judge arrived at the correct conclusion under the former rulings of this court.