Boutelle v. White

• Decision Date: 24 August 1929
• Docket Number: 19393.
• Parties: BOUTELLE v. WHITE et al.
• Court: Georgia Court of Appeals

149 S.E. 805

40 Ga.App. 415

BOUTELLE v. WHITE et al.

No. 19393.

Court of Appeals of Georgia, Second Division

August 24, 1929

Rehearing Granted Sept. 2, 1929.

Judgment Adhered to Oct. 4, 1929.

Syllabus by Editorial Staff.

Trial judge has no right to exclude from courtroom during taking of testimony a party to case on trial.

Whether judge will require that testimony of party to case be taken before taking of testimony of party's witnesses is entirely within the discretion of trial judge.

In suit to recover damages from negligent operation of automobile request to charge that party must exercise such diligence as is necessary to avoid injury to others, and that question of negligence was question of fact for jury, considering character of instrumentality and danger attached to its operation and character of highway, was equivalent to instructing jury that it was duty of defendant to avoid injury to plaintiff at all events, and imposed on defendant the duty of observing diligence required of insurer, and was properly refused.

Error from Superior Court, Bartow County; C. C. Pittman, Judge.

Suit by J. F. Boutelle, by next friend, against A. G. White and others. Judgment for defendants, and plaintiff brings error. Affirmed.

G. H Aubrey, of Cartersville, and H. R. Lee and Geo. & John L. Westmoreland, all of Atlanta, for plaintiff in error.

Neel & Neel, of Cartersville, for defendants in error.

Syllabus OPINION.

STEPHENS J.

1. The trial judge has no right to exclude from the courtroom during the taking of testimony, a party to the case on trial. St. Paul Fire & Marine Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786 (1), 39 S.E. 483; Georgia Railroad, etc., Co. v. Tice, 124 Ga. 459 (3), 52 S.E. 916, 4 Ann.Cas. 200; Knox v. Harrell, 26 Ga.App. 772(1), 107 S.E. 594, 108 S.E. 117. It is a matter entirely within the discretion of the trial judge as to whether he will require that the testimony of a party to the case be taken before the taking of the testimony of the party's witnesses. Tift v. Jones, 52 Ga. 538(4). If the trial judge could abuse this discretion by refusing to require that the testimony of a party to the case be taken before the testimony of his witnesses is taken, it does not appear that this discretion was abused in this case.

2. In a suit for the recovery of damages resulting from the alleged negligent operation by the defendant of an automobile along a highway, a request made by the plaintiff to...