Ficklen v. Watkins, 23545.

• Citation: 176 S.E. 542,49 Ga.App. 779
• Decision Date: 21 September 1934
• Docket Number: No. 23545.,23545.
• Parties: FICKLEN. v. WATKINS.
• Court: Georgia Court of Appeals

49 Ga.App. 779

176 S.E. 542

FICKLEN.

v.WATKINS.

No. 23545.

Court of Appeals of Georgia, Division No. 2.

Sept. 21, 1934.

Rehearing Denied Sept. 29, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Wilkes County; C. J. Perryman, Judge.

Suit by Mrs. J. E. Watkins against Mrs. L. R. D. Ficklen. Judgment for plaintiff, de-fendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

See, also, 176 S. E. 541.

Haas, Gambrell & Gardner and Charles D. Hurt, all of Atlanta, and Clement E. Sutton and W. A. Slaton, both of Washington, Ga., for plaintiff in error.

Earle Norman, of Washington, Ga., for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, Judge.

1. Upon the trial of an action to recover damages for personal injuries alleged to have been received by the plaintiff as a result of a collision between an automobile in which the plaintiff was riding, and an automobile which was at the time being operated by the minor son of the defendant, where one of the grounds of negligence was that the minor, while under the influence of intoxicating liquor, with the knowledge of the defendant, was operating the automobile with the defendant's permission, the trial judge did not err in overruling a motion for a mistrial, made by the defendant upon the ground that counsel for the plaintiff stated in the presence of the jury, after he had asked a witness if the witness had found any whisky at the scene of the accident, and the court, on objection of counsel for defendant, refused to permit the witness to answer, that he expected to prove by the witness that several jars of liquor had been seen there and one was wrapped in a raincoat with the initials "B. F." on it, where the judge, in overruling the motion for a mistrial, stated to the jury that he had ruled out the evidence sought and that the jury should not consider it in any way, "shape, form, or fashion, " and that it would be improper for them to "consider any testimony on the question of whisky on that occasion." The evidence offered, irrespective of whether it was relevant and admissible, related to an allegation in the petition, and it therefore cannot be said as a matter of law that it was improper for counsel to state in the presence of the jury what he expected to prove as laying the foundation for exceptions to the rejection of the testimony, and that counsel in offering to make proof of the facts alleged injected into the case irrelevant matter calculated only to...