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2018 Georgia Code 24-3-5 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 24-3-5 Case Law from Google Scholar Amendments to OCGA 24-3-5

TITLE 24 EVIDENCE

Section 3. Parol Evidence, 24-3-1 through 24-3-10.

ARTICLE 2 LEGISLATIVE FACTS; ORDINANCES OR RESOLUTIONS

24-3-5. Known usage.

Evidence of known and established usage shall be admissible to aid in the construction of contracts as well as to annex incidents.

(Code 1981, §24-3-5, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3728, former Code 1868, § 3752, former Code 1873, § 3805, former Code 1882, § 3805, former Civil Code 1895, § 5206, former Civil Code 1910, § 5793, former Code 1933, § 38-506, and former O.C.G.A. § 24-6-5 are included in the annotations for this Code section.

To make a proof of a custom as such proper testimony, it should appear by the proof itself that such custom is a general one, and that it is so well known and recognized within the sphere of the custom's operation, as to be usually considered a part of all contracts made in that particular locality in business transactions to which such custom relates. Hardeman v. English, 79 Ga. 387, 5 S.E. 70 (1887) (decided under former Code 1882, § 3805).

Custom can only be proved by word of mouth from the men engaged in the business. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955) (decided under former Code 1933, § 38-506).

Evidence thereof is necessarily in parol. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955) (decided under former Code 1933, § 38-506).

Testimony of custom as matter of fact.

- If a witness is shown to have knowledge of a custom, the witness can state what it is, not as a matter of opinion or law, but as a fact. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804 (1916) (decided under former Civil Code 1910, § 5793).

Custom is inadmissible when agreement is unambiguous.

- Custom or usage, while admissible to explain an ambiguous written agreement, is inadmissible if repugnant to or inconsistent with a clear, express agreement. Stamey v. Western Union Tel. Co., 92 Ga. 613, 18 S.E. 1008, 44 Am. St. R. 95 (1894) (decided under former Code 1882, § 3805).

When the intent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant and unavailing. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79 (1932) (decided under former Civil Code 1910, § 5793); TBS v. Europe Craft Imports, Inc., 186 Ga. App. 286, 367 S.E.2d 99 (1988);(decided under former O.C.G.A. § 24-6-5).

While proof of a custom is sometimes admissible to aid in the construction of a contract, such proof is not admissible when the contract is clear and unambiguous. Atlantic Fertilizer Co. v. Southern States Phosphate & Fertilizer Co., 53 Ga. App. 798, 187 S.E. 237 (1936) (decided under former Code 1933, § 38-506).

Law cannot be changed.

- Custom may sometimes be invoked as entering into a contract or supplying incidents, but not to change the law. Fidelity & Deposit Co. v. Butler, 130 Ga. 225, 60 S.E. 851, 16 L.R.A. (n.s.) 994 (1908) (decided under former Civil Code 1895, § 5206); Happ Bros. Co. v. Hunter Mfg. & Comm'n Co., 145 Ga. 836, 90 S.E. 61 (1916);(decided under former Civil Code 1910, § 5793).

Usage cannot make a contract when there is none nor prevent the effect of the settled rules of law. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79 (1932) (decided under former Civil Code 1910, § 5793).

In the absence of knowledge of the existence of the custom, it cannot be said that there was any meeting of the minds on this item. Franco v. Bank of Forest Park, 118 Ga. App. 700, 165 S.E.2d 593 (1968) (decided under former Code 1933, § 38-506).

If there was no evidence tending to show a contract by known and established usage, it was error to charge on known usage or custom. Craig v. Augusta Roofing & Metal Works, Inc., 78 Ga. App. 514, 51 S.E.2d 565 (1949) (decided under former Code 1933, § 38-506).

Signing other party's name to contract.

- It was not admissible to show that it was the custom in a particular business for one party making sales, or its agent representing it in such a transaction, to sign the name of the other party to a contract therefor, so as to bind the latter. Happ Bros. Co. v. Hunter Mfg. & Comm'n Co., 145 Ga. 836, 90 S.E. 61 (1916) (decided under former Civil Code 1910, § 5793).

Time of performance of contract.

- Usage in business as to time of performance of contract for services is admissible in suit for breach thereof. Beck v. Thompson & Taylor Spice Co., 108 Ga. 242, 33 S.E. 894 (1899) (decided under former Civil Code 1895, § 5206).

Customs of warehousemen.

- On the trial of a suit against warehousemen to recover the value of certain cotton which had been burned, and which plaintiff alleged the warehousemen had agreed to keep insured for plaintiff's benefit, but had failed to do so, proof, in their behalf, that it was their custom to insure cotton only to the extent of the advances the warehousemen had made thereon and for the warehousemen's own benefit, unless instructed by the customer to insure for full value, was primarily inadmissible; but after testimony had been allowed, without objection, in favor of plaintiff, tending to show it was the warehousemen's custom to insure cotton on which the warehousemen had made advances to its full value, such proof was properly admitted. Hardeman v. English, 79 Ga. 387, 5 S.E. 70 (1887) (decided under former Code 1882, § 3805).

If a general custom existed on the part of the warehouses in a certain municipality to insure to its full value the cotton of patrons stored with them with the necessary characteristics, patrons who stored cotton with one of such warehousemen, knowing of the custom, and relying upon the custom, can assert a duty on the part of such warehouseman to so insure one's cotton. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804 (1916) (decided under former Civil Code 1910, § 5793).

It was not necessary that a witness should be a warehouseman in order to have sufficient knowledge to render the witness competent to testify as to the existence of such usage or custom among the warehouses of a particular town or city. If a person has been accustomed to deal with such warehouses, and to deposit cotton with those warehouses, so as to know those warehouses usage or custom on that subject, the witness was competent to testify as to that usage or custom. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804 (1916) (decided under former Civil Code 1910, § 5793).

Customs of insurance companies.

- It was well settled that insurers were bound to know the customs of a place where insurers transact business; and were assumed to have made contracts in reference to such customs. Todd v. German-American Ins. Co., 2 Ga. App. 789, 59 S.E. 94 (1907) (decided under former Civil Code 1895, § 5206).

In this state, when life insurance companies deal with the assured for a time sufficient to make it their usage and custom to give notice to the assured of the date when the premiums fall due, and fail to give notice thereof, the policy will not be forfeited if, within a period so reasonably short as to show an intent to continue one's policy, the assured take steps to inquire and pay the premium. Grant v. Alabama Gold Life Ins. Co., 76 Ga. 575 (1886) (decided under former Code 1882, § 3805).

Cited in Dulcio v. State, 292 Ga. 645, 740 S.E.2d 574 (2013); Garcia-Carrillo v. State, 322 Ga. App. 439, 746 S.E.2d 137 (2013); Hernandez-Garcia v. State, 322 Ga. App. 455, 745 S.E.2d 706 (2013); Folston v. State, 294 Ga. 778, 755 S.E.2d 803 (2014); Lawrence v. State, 342 Ga. App. 396, 802 S.E.2d 859 (2017).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, §§ 1112, 1151, 1154 et seq.

C.J.S.

- 32A C.J.S., Evidence, § 1207.

ALR.

- "Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Validity and construction of "zoning with compensation" regulation, 41 A.L.R.3d 636.

Cases Citing O.C.G.A. § 24-3-5

Total Results: 20  |  Sort by: Relevance  |  Newest First

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Favors v. State, 296 Ga. 842 (Ga. 2015).

Cited 72 times | Published | Supreme Court of Georgia | Mar 27, 2015 | 770 S.E.2d 855

...123 (88 SCt 1620, 20 LE2d 476) (1968), because they were statements by a non-testifying co-defendant implicating Favors in the “lick.” As an initial matter, the statements in question were both properly admitted under the co-conspirator exception to the hearsay rule. See former OCGA § 24-3-52 (once a conspiracy is shown, statements by one co-conspirator during the pendency of the criminal project are admissible against all)....
...now codified at OCGA § 24-8-801 (d) (2) (E), effective for proceedings on and after January 1, 2013. 5 defendants, any statements made by McCoy “during the pendency of the criminal project,” former OCGA § 24-3-5, were admissible against Favors....
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McClendon v. State, 299 Ga. 611 (Ga. 2016).

Cited 53 times | Published | Supreme Court of Georgia | Sep 12, 2016 | 791 S.E.2d 69

...existence of a conspiracy and because the State failed to establish the required indicia of reliability in violation of the Confrontation Clause. We disagree. A) Conspiracy Claim In his pre-trial motion, Burks relied upon former OCGA § 24-3-522 to 2 Former OCGA § 24-3-52 states, in relevant part, as follows: “The confession of one joint offender or conspirator made after the enterprise is ended shall 11 argue that McClendon’s jailhouse statements were inadmissible because they were made after the criminal enterprise had ended....
...a conspiracy did not exist at the time they were made, nor did Burks cite to any legal authority to support this position. Now, on appeal, Burks argues that the statements were inadmissible because the State failed to prove the existence of a conspiracy pursuant to former OCGA § 24-3-53. Because Burks raises an issue on appeal that was not presented or ruled upon by the trial court, his argument is not preserved for review by this Court. See Higuera-Hernandez v....
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Esprit v. State, 826 S.E.2d 7 (Ga. 2019).

Cited 33 times | Published | Supreme Court of Georgia | Mar 11, 2019 | 305 Ga. 429

...as impeachment evidence after Robateau testified at trial. Robateau's hearsay testimony about Jones's statements to him shortly after the shooting was admissible against Esprit under the co-conspirator exception to the hearsay rule. See former OCGA § 24-3-5 ("After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the **435criminal project shall be admissible against all.")....
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Allen v. State, 300 Ga. 500 (Ga. 2017).

Cited 19 times | Published | Supreme Court of Georgia | Feb 6, 2017 | 796 S.E.2d 708

...imarily governed by OCGA § 24-8-801 (d) (1). In terms of the rules of evidence, Norwood’s out-of-court statement to Lucas’s uncle was admissible against Appellant under the co-conspirator exception to the rule against hearsay. See former OCGA § 24-3-5; Billings, 293 Ga....
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State v. Wilkins, 302 Ga. 156 (Ga. 2017).

Cited 18 times | Published | Supreme Court of Georgia | Oct 2, 2017 | 805 S.E.2d 868

...rance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph. This provision differs substantially from former OCGA § 24-3-5, which stated: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” Under Georgia decisions construing the former Code se...
...As the trial court correctly noted, most of the decisions cited by the State predate the enactment of the new Evidence Code, and therefore address whether the statements were made during the “concealment phase” of the conspiracy under former OCGA § 24-3-5, not whether they were “in furtherance of the conspiracy” under OCGA § 24-8-801 (d) (2) (E), a requirement which did not exist at the *161time....
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Franklin v. State, 298 Ga. 636 (Ga. 2016).

Cited 17 times | Published | Supreme Court of Georgia | Mar 21, 2016 | 784 S.E.2d 359

...held to have performed deficiently in failing to make a meritless objection. See Wesley, 286 Ga. at 356. McClendon’s statement was admitted under the hearsay exception for statements of co-conspirators, codified as of the time of trial at OCGA § 24-3-5 (2010) (“the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all”).2 “The co-conspirator hearsay exception permits admission of the hearsay statement of a co-consp...
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Morris v. State, 842 S.E.2d 45 (Ga. 2020).

Cited 16 times | Published | Supreme Court of Georgia | Apr 20, 2020 | 308 Ga. 520

...of the hearsay statement of a co-conspirator, made in the course of the conspiracy, so long as a prima facie case of conspiracy was established apart from the hearsay statement itself.” (citation and punctuation omitted)). See also former OCGA § 24-3-5 (“After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”)....
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Lord v. State, 820 S.E.2d 16 (Ga. 2018).

Cited 16 times | Published | Supreme Court of Georgia | Oct 9, 2018 | 304 Ga. 532

...United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ; (b) the prosecution failed to make a prima facie showing of a conspiracy in order to render Braithwaite's statements through Miller's testimony admissible, thereby violating former OCGA § 24-3-5 ;10 and (c) Miller's testimony about Braithwaite's statements violated Lord's confrontation rights under the Sixth Amendment....
...842 (2), 770 S.E.2d 855 (2015). Bruton is not applicable here. (b) Lord contends that the State failed to make out a prima facie case of conspiracy to qualify Braithwaite's statements for the co-conspirator hearsay exception. At the time of Lord's trial, former OCGA § 24-3-5 provided that "the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all." "The co-conspirator hearsay exception permit[ted] admission of the hearsay statement of a co-conspi...
...Accordingly, the State made a prima facie showing of conspiracy, and the evidence showed that the conspiracy was ongoing at the time Braithwaite divulged details of the crime scene to Miller. Braithwaite's statements were admissible under former OCGA § 24-3-5. (c) Lord argues that the statement made by Braithwaite violated Lord's Sixth Amendment right to confront him....
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Terrell v. State, 300 Ga. 81 (Ga. 2016).

Cited 16 times | Published | Supreme Court of Georgia | Nov 7, 2016 | 793 S.E.2d 411

...ing co-indictee, Moxtious Cain, through the testimony of Cain’s girlfriend, Karimah Tarver. Specifically, he argues that the trial court erred in admitting Karimah’s statements under the co-conspirator hearsay exception formerly codified at OCGA § 24-3-5,4 asserting that the State failed to establish his involvement in the conspiracy exclusive of Cain’s declarations. In effect at the time of appellant’s trial, former OCGA § 24-3-5 states that “[ajfter the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” However, in order for co-conspirator hearsay testimony...
...A conspiracy may be proven by any direct or circumstantial evidence which discloses a common design to act in concert for the accomplishment of an unlawful purpose. See Williams, 293 Ga. at 753. And, to obtain the admission of an inculpatory out-of-court statement under former OCGA § 24-3-5, the prosecution need only show that it was made by a co-conspirator during and in furtherance of an ongoing conspiracy with the defendant....
...ablish a prima facie case of a conspiracy between appellant and Cain independent of Cain’s statements, and no error in the trial court’s admission of Karimah’s statement pursuant to the co-conspirator hearsay exception set forth in former OCGA § 24-3-5. Even assuming the admission of this statement was improper, we conclude any such error was harmless given that Cain’s statements to Karimah were merely cumulative of appellant’s statements to Marcadia which were properly admitted....
...ry person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” Because appellant’s trial occurred prior to the effective date of the new Georgia Evidence Code, former OCGA § 24-3-5 applies. Appellant has filed a separate Motion to Remand in this case in which he makes the same argument as that contained in this enumeration of error....
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Marchman v. State, 299 Ga. 534 (Ga. 2016).

Cited 11 times | Published | Supreme Court of Georgia | Jun 20, 2016 | 787 S.E.2d 734

...Pursuant to the rules of evidence applicable at the time of this trial, once the fact of a conspiracy is proved, the declarations of a conspirator during the pendency of the conspiracy are admissible against all the conspirators. See former OCGA § 24-3-5 (now codified at OCGA § 24-8-801 (d) (2) (E)); Hassel v....
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Tuggle v. State, 305 Ga. 624 (Ga. 2019).

Cited 8 times | Published | Supreme Court of Georgia | Mar 4, 2019

...Based on the foregoing, we conclude it is highly probable that any error did not contribute to the jury’s guilty verdict. See Timmons v. State, 302 Ga. 464 (2) (b) (807 SE2d 363) (2017); Boothe v. State, 293 Ga. 285 (2) (b) (745 SE2d 594) (2013). 2 See former OCGA § 24-3-5 (“After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”)....
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Tuggle v. State, 825 S.E.2d 221 (Ga. 2019).

Cited 8 times | Published | Supreme Court of Georgia | Mar 4, 2019

...Following a hearing, the trial court denied the motion as amended on January 12, 2018. Tuggle timely filed a notice of appeal to this Court, and the case was docketed to the term of this Court beginning in December 2018 and submitted for a decision on the briefs. See former OCGA § 24-3-5 (2010) ("After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.")....
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Wilson v. State, 301 Ga. 689 (Ga. 2017).

Cited 6 times | Published | Supreme Court of Georgia | Aug 14, 2017 | 804 S.E.2d 54

...(a) Nonetheless, Wilson contends that hearsay statements of his co-conspirators were improperly admitted against him. Specifically, Wilson contends that the State failed to make a prima facie showing of conspiracy. We disagree with this contention. Former OCGA § 24-3-5, applicable to this case,3 states: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” To trigger this exception to the h...
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Cross v. State, 848 S.E.2d 455 (Ga. 2020).

Cited 3 times | Published | Supreme Court of Georgia | Sep 8, 2020 | 309 Ga. 705

...tements that she later made to an investigator and with the plea bargain that she later made with the State. At trial, Appellant argued that Cates’s statements to the investigator were admissible as co- conspirator statements under former OCGA § 24-3-5,5 and he asked 4 We remind litigants that this Court will end its practice of considering the sufficiency of the evidence sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020....
...See Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020). This Court began assigning cases to the December Term on August 3, 2020. 5 Appellant’s trial was held in 2003, long before the current Evidence Code took effect in 2013. Former OCGA § 24-3-5 said, “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” the court if her plea bargain could be used to impeach her if she testified. The trial court ruled that the statements were not admissible under OCGA § 24-3-5, and Cates invoked her right against self-incrimination, so she did not testify....
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Jones v. State, 827 S.E.2d 887 (Ga. 2019).

Cited 3 times | Published | Supreme Court of Georgia | May 6, 2019 | 305 Ga. 744

...lds. He claims that the statements were improperly admitted before a conspiracy between the four men had been shown at trial in order to make their statements admissible under the co-conspirator exception to the rule against hearsay. See former OCGA § 24-3-5 ("After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.").2 We disagree. Co-conspirator "hearsay statements are admissible when...
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Davis v. State, 820 S.E.2d 10 (Ga. 2018).

Cited 3 times | Published | Supreme Court of Georgia | Oct 9, 2018 | 304 Ga. 547

...sibility of this evidence. The trial court reserved ruling on the motion but denied it after the State rested, stating, "I find the State has established a prima facie case of conspiracy and will let that question go to the jury." Under former OCGA § 24-3-5,6 the rule was that "the State must make a prima facie showing of the existence of the conspiracy, without **551regard to the declarations of the co-conspirator, in order to admit his out-of-court declarations." (Citation and punctuation omitted.) Livingston v....
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Jones v. State, 305 Ga. 744 (Ga. 2019).

Published | Supreme Court of Georgia | May 6, 2019

...He claims that the statements were improperly admitted before a conspiracy between the four men had been shown at trial in order to make their statements admissible under the co-conspirator exception to the rule against hearsay. See former OCGA § 24-3-5 (“After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”).2 We disagree. Co-conspirator “hearsay statements are ad...
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Esprit v. The State (two Cases), 305 Ga. 429 (Ga. 2019).

Published | Supreme Court of Georgia | Mar 11, 2019

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Davis v. State, 304 Ga. 547 (Ga. 2018).

Published | Supreme Court of Georgia | Oct 9, 2018

...admissibility of this evidence. The trial court reserved ruling on the motion but denied it after the State rested, stating, “I find the State has established a prima facie case of conspiracy and will let that question go to the jury.” Under former OCGA § 24-3-5,6 the rule was that “the State must make a prima facie showing of the existence of the conspiracy, without regard to the declarations of the co-conspirator, in order to admit his out-of-court declarations.” (Citations and punctuation omitted.) Livingston v....
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Lord v. State, 304 Ga. 532 (Ga. 2018).

Published | Supreme Court of Georgia | Oct 9, 2018

...United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968); (b) the prosecution failed to make a prima facie showing of a conspiracy in order to render Braithwaite’s statements through Miller’s testimony admissible, thereby violating former OCGA § 24-3-5;10 and (c) Miller’s testimony about Braithwaite’s statements violated Lord’s confrontation rights under the Sixth Amendment....
...842 (2) (770 SE2d 855) (2015). Bruton is not applicable here. (b) Lord contends that the State failed to make out a prima facie case of conspiracy to qualify Braithwaite’s statements for the co-conspirator hearsay exception. At the time of Lord’s trial, former OCGA§ 24-3-5 provided that “the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” “The co-conspirator hearsay exception permit[ted] admission of the hearsay statement of a...
...Accordingly, the State made a prima facie showing of conspiracy, and the evidence showed that the conspiracy was ongoing at the time Braithwaite divulged details of the crime scene to Miller. Braithwaite’s statements were admissible under former OCGA § 24-3-5. 13 (c) Lord argues that the statement made by Braithwaite violated Lord’s Sixth Amendment right to confront him....