Griffin v. Henderson

• Court: Georgia Supreme Court
• Writing for the Court: LAMAR, J
• Citation: Griffin v. Henderson, 117 Ga. 382, 43 S.E. 712 (Ga. 1903)
• Decision Date: 13 March 1903
• Parties: GRIFFIN. v. HENDERSON.

43 S.E. 712

117 Ga. 382

GRIFFIN.

v.HENDERSON.

Supreme Court of Georgia.

March 13, 1903.

INSTRUCTIONS—NEW TRIAL—EXCLUSION OF EVIDENCE—EVIDENCE.

1. Where no evidence has been introduced to sustain a particular plea, the judge should not charge the jury with reference to such defense.

2. In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party.

3. An exception to the foregoing rule may in some cases be made as to answers excluded on cross-examination, where the opposite party is entitled to sift and test the witness, or may not know what the answer would be.

4. There was no complaint of the charge of the court, and the evidence, while conflicting, was amply sufficient to sustain the verdict.

(Syllabus by the Court.)

Error from Superior Court, Newton County; J. S. Candler, Judge.

Action between L. D. Griffin and J. F. Henderson. From the judgment, Griffin brings error. Affirmed.

T. J. Ripley, for plaintiff In error.

Jos. B. & Bryan dimming and Milton A. Candler, for defendant in error.

LAMAR, J. The caveatrix, among other grounds, objected to the probate of her mother's will, for the reason that the testatrix had made the will under a mistake of fact as to the conduct of the daughter, who was her sole heir at law. Civ. Code 1895, § 3202. No demurrer or exception was filed to this ground of the caveat. On the trial the court held that the caveatrix was not competent as a witness to any communications made to her by her mother, or conversations between them. "The court so ruling, no questions were propounded to the witness caveatrix, who would have testified that Mrs. Brown treated her after her marriage to her husband different from what she had done prior thereto, " and other facts which relate to the question of a mistake of fact. Error is further assigned upon the failure of the judge to charge the jury on the effect of a mistake of fact; but, as no evidence was introduced on that subject, we think that the court was correct in failing to say anything to the jury relating to what was then a mere matter of pleading. It was wholly immaterial what was in the caveat if there was no evidence to sustain the contention. It is expressly stated that no questions were propounded to the witness; and, while the motion says what she would have testified, it does not appear that the court was informed thereof at the time he excluded her, and therefore we are not permitted to consider this assignment of error. No matter how competent a witness might be, a court will not grant a new trial merely because he was not allowed to testify. It must appear that the excluded testimony was material, and the almost universal rule of practice is that what that material testimony was must be expressly called to the attention of the trial court at the time of its exclusion. Bigby v. Warnock, 115 Ga. 386, 41 S. E. 622, 57 L. R. A. 754 (Syl., point 4); Southern Mutual Ins. Co. v. Hudson, 113 (la. 438, 38 S. E. 964; News Co. v. Mencken, 115 Ga. 1018, 42 S. E. 369. In a few instances there may be an exception, as in cross-examinations, where the examining counsel may not know what the answer would be, or is exercising a right to test the witness; but ordinarily the exclusion of oral testimony can be made available as error only by asking some pertinent question, and, if an objection is sustained, informing the court at the time what the answer would be, so that he can then determine whether the fact is or is not...