Jones v. Chambers
| Decision Date | 25 September 1956 |
| Docket Number | No. 36312,No. 2,36312,2 |
| Citation | 95 S.E.2d 335,94 Ga.App. 433 |
| Parties | Jack JONES v. Annette CHAMBERS |
| Court | Georgia Court of Appeals |
Stone & Stone, Blakely, for plaintiff in error.
Phillip Sheffield, Blakely, Julian Webb, Donalsonville, for defendant in error.
Syllabus Opinion by the Court.
1. An exception to the general rule that a party may not impeach a witness voluntarily called by him where entrapment is not shown is that either party may make the opposite party a witness 'with the privilege of subjecting such witness to a thorough and sifting examination, and with the further privilege of impeachment, as if the witness had testified in his own behalf and were being cross-examined.' Code, § 38-1801. Where the witness is called to the stand 'for cross-examination' it is to be understood that the opposite party is to be examined under this Code section, although a plaintiff who merely calls a defendant as 'a witness against himself' in order to prove a prima facie case is not proceeding under the provisions thereof. Rainey v. Moon, 187 Ga. 712, 718, 2 S.E.2d 405, 409; National Land & Coal Co. v. Zugar, 171 Ga. 228, 155 S.E. 7. Applying this rule, where counsel for the plaintiff here called the defendant to the stand 'for cross-examination under the rule' it is obvious that he was not seeking to make the defendant his own witness, but was proceeding under the provisions of Code, § 38-1801, and is entitled to the privileges and bound by the restrictions therein contained.
2. Where the defendant in a civil action introduces no evidence, he is entitled to make the opening and concluding arguments before the jury. Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559(5), 89 S.E. 486, and citations; Williamson v. Williamson, 176 Ga. 510(2), 168 S.E. 256. A denial of this right is error requiring reversal of the case. Milligan v. Milligan, 209 Ga. 14(3), 70 S.E.2d 459.
3. Where the opposite party has been called as a witness for cross-examination it is within the discretion of the court as to whether to allow such witness to be questioned by his own attorney at the conclusion of such examination by the opposite party. Akridge v. Atlanta Journal Co., 56 Ga.App. 812, 818, 194 S.E. 590. Where, as here, the plaintiff's counsel calls the defendant as a witness for cross-examination, and the court subsequently permits the defendant's counsel to interrogate him as to the same subject matter dealt with in his examination by plaintiff's counsel, this does not constitute introduction of evidence by the defendant so as to deprive his counsel of the opening and concluding arguments to the jury, he not having otherwise offered any evidence upon the trial of the case. Martin v. Martin, 180 Ga. 782(5), 180 S.E. 851; Auto Mutual Indemnity Co. v. Campbell, 56 Ga.App. 400(1), 192 S.E. 640; Phillips v. Smith, 76 Ga.App. 705(1), 47 S.E.2d 156. The contention of the defendant in error that these cases have no application because it does not appear that the opposite party was called as a witness for cross-examination under the provisions of Code, § 38-1801...
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...112 Ga.App. 56, 57-58, 143 S.E.2d 785 (1965); Auto Mut. Indem. Co. v. Campbell, 56 Ga.App. 400, 192 S.E. 640 (1937); Jones v. Chambers, 94 Ga.App. 433, 95 S.E.2d 335 (1956). The right to open [the closing argument] is important. It enables the party to give direction to the case, very often......
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...or to require the noncalling party to recall the witness during the noncalling party's portion of the case. See Jones v. Chambers, 94 Ga.App. 433(3), 95 S.E.2d 335 (1956).6 In Cotton States Mutual Ins. Co. v. McFather, supra we held that Flewellen was "final" when the motion for rehearing w......
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