Ross v. Rich's, Inc., 48305

• Decision Date: 25 September 1973
• Docket Number: No. 3,No. 48305,48305,3
• Citation: 201 S.E.2d 159,129 Ga.App. 716
• Parties: Whitfield ROSS v. RICH'S, INC
• Court: Georgia Court of Appeals

Page 159

201 S.E.2d 159

129 Ga.App. 716

Whitfield ROSS v. RICH'S, INC.

No. 48305.

Court of Appeals of Georgia, Division No. 3.

Sept. 25, 1973.

Grace W. Thomas, Atlanta, for appellant.

Swift, Currie, McGhee & Hiers, Warner S. Currie, Atlanta, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Whitfield Ross brought an action against Rich's, Inc., in two counts. The first count sought the sum of $50,000 based upon a claim of false arrest and malicious prosecution. The second count sought recovery upon a claim that an assault was committed upon him while the defendant's agents were trying to secure a confession from plaintiff by means of a police dog. In this count plaintiff also sought to recover punitive damages. The jury returned a verdict for the defendant on the first count and rendered a verdict for the plaintiff on the second count for $800 damages, with no punitive damages. The plaintiff appealed. Held:

1. 'Where the plaintiff elected to call his witnesses before testifying himself, it was not error to exclude him from the courtroom during the testimony of two of the witnesses. The trial court has a wide discretion in administering the rule of sequestration of witnesses and no abuse is shown here even though the rule generally does not apply where the witness is a party. Tift v. Jones, 52 Ga. 538, 542; Davis v. Atlanta Coca-Cola Bottling Co., 119 Ga.App. 422, 167 S.E.2d 231.' King v. Faries, 120 Ga.App. 393(2), 170 S.E.2d 747. See also Boutelle v. White, 40 Ga.App. 415, 149 S.E. 805; Butler v. State, 43 Ga.App. 786, 160 S.E. 134; Georgia Railroad and Banking Co. v. Tice, 124 Ga. 459(3), 52 S.E. 916.

2. After plaintiff had testified that he intended to pay for a pair of earphones found in his possession at the time he was questioned in defendant's store, the trial judge refused to permit plaintiff to answer a subsequent question as to how much he intended to pay. The issue in this civil action was whether the defendant had probable cause to prosecute the defendant for larceny and questions bearing upon his guilt or innocence or his intent when he was found in possession of property belonging to the defendant were properly excluded.

3. Error is enumerated on the failure to give certain of plaintiff's requests to charge in grounds 3, 4, 8 and 9 of the amended motion for new trial, the overruling of which is enumerated as error here. An examination of the transcript shows that these requests were given Therefore, no error as to this appears. Another enumeration of error for failure to give another of plaintiff's requests to charge (request No. 7, ground 5 of the motion for new trial) is unsupported by the record, in that the record discloses that in a pre-charge conference the appellant withdrew this request. At the same conference appellant admitted that his request to charge No. 9 was defective. Error is enumerated on the giving of defendant's requests to charge Nos. 9 and 11. The record discloses that at the pre-charge conference appellant stated he had no objections to the giving of these requests. No error is shown by these enumerations of error.

4. There being no evidence of physical violence to the plaintiff in this case during his alleged...