Millholland v. Neal, 43945
| Decision Date | 08 October 1968 |
| Docket Number | No. 3,No. 43945,43945,3 |
| Citation | 118 Ga.App. 566,164 S.E.2d 451 |
| Parties | Doress MILLHOLLAND v. W. M. R. NEAL et al |
| Court | Georgia Court of Appeals |
Marson G. Dunaway, Jr., Rockmart, for appellant.
Glenn T. York, Jr., Cedartown, Matthews, Maddox, Walton & Smith, Oscar M. Smith, Harl C. Duffey, Jr., James A. Robbins, Jr., Rome, for appellees.
Syllabus Opinion by the Court
1. (a) When Rule 26(d), 28 U.S.C.A. of the Federal Rules of Civil Procedure was adapted to the Georgia Code of Civil Practice, Code Ann. § 81A-216(d), the language of the former indicating a regard for the 'importance of presenting the testimony of witnesses orally in open court' was dropped and the following subsection was added: Where, as here, a defendant in the case on appeal whose testimony was taken as a witness in another case growing out of the same transaction, was present in the courtroom, and the plaintiff, without calling the witness to testify, offered the deposition so taken in evidence in this case, the rule applicable in equivalent Federal situations is irrelevant and the sole question is whether the ruling of the trial judge was an abuse of discretion. In this Georgia follows the rule formerly in effect. See Southern Ry. Co. v. Dickson, 138 Ga. 371(2), 75 s.E. 462, and former Code Ann. § 38-2101. The court's ruling, on the plaintiff's tender of the depositions in evidence, was: The plaintiff did not, however, call the defendant as a witness. Was this ruling an abuse of discretion? 'The order in which a party is to introduce his evidence is to be regulated by the discretion of the trial court.' Seal v. Aldredge, 100 Ga.App. 458(1), 111 S.E.2d 769; White v. Wallen, 17 Ga. 106; Roberts v. Ga. Southern Supply Co., 92 Ga.App. 303, 88 S.E.2d 554; Morgan v. Mull, 101 Ga.App. 36(2), 112 S.E.2d 661; Canal Ins. Co. v. Tate, 111 Ga.App. 377, 381, 141 S.E.2d 851. It may be argued, however, that this put an unnecessary burden on the plaintiff in the event he did not wish to call the defendant to the stand at all. But the right to use the deposition in place of a witness or party who is present in court is not absolute, and there is no showing that the plaintiff's rights were in any way prejudiced, especially in view of the fact that she could have called the defendant for cross examination only and would not have been bound by his testimony. The ruling of the court was not an abuse of discretion.
(b) The fact that counsel for the remaining defendants had stipulated in the prior action in which the deposition was taken that the deposition might be used in any case growing out of the same transaction did not restrict the discretion of the trial court so as to demand a conclusion that it might be offered in evidence in lieu of, rather than in addition to, the oral testimony.
2. In addition to the defendant Neal, driver of the 60,000 pound tractor-trailer, there was...
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Union Carbide Corp. v. Holton
...an obvious danger. See Yankey v. Battle, 122 Ga.App. 275, 176 S.E.2d 714 (walking down darkened staircase); Millholland v. Neal, 118 Ga.App. 566(2), 164 S.E.2d 451 (not turning at a curve in the road); Miller v. Nichols Contracting Co., 116 Ga.App. 541(2), 158 S.E.2d 263 (walking on wet dir......
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Garrison v. Rich's
...in person and appellant stated to the court that the witness could be excused at the end of his testimony. Millholland v. Neal, 118 Ga.App. 566, 567, 164 S.E.2d 451 (1968). Appellant is not permitted to argue facts to the jury, including an explanation of markings on the x-ray, which have n......
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Watson v. Elberton-Elbert County Hospital Authority
...of depositions in a case like the one sub judice is a matter within the sound discretion of the trial court (compare Millholland v. Neal, 118 Ga.App. 566, 164 S.E.2d 451), and the decision of the Court of Appeals holding that the use of depositions under such circumstances is not permitted ......