Tracy's Auto Parts, Inc. v. Turner, 39327

• Citation: 105 Ga.App. 418,124 S.E.2d 687
• Decision Date: 23 February 1962
• Docket Number: No. 2,No. 39327,39327,2
• Parties: TRACY'S AUTO PARTS, INC. v. Frances TURNER
• Court: United States Court of Appeals (Georgia)

Page 687

124 S.E.2d 687

105 Ga.App. 418

TRACY'S AUTO PARTS, INC. v. Frances TURNER.

No. 39327.

Court of Appeals of Georgia, Division No. 2.

Feb. 23, 1962.

Syllabus by the Court.

Where testimony is elicited by a party by cross examining a witness whose deposition is taken the party eliciting such testimony may decline to offer such testimony on the trial of the case, and the opposite party may introduce such parts of such cross examination as are relevant.

(a) where testimony is offered in evidence in whole, it is not error to disallow the same where a portion thereof is inadmissible.

Mrs. Frances Turner sued Tracy's Auto Parts, Inc. to recover for injuries allegedly sustained in a collision wherein the rear of the plaintiff's automobile was struck by a truck owned by the defendant and being operated by its agent and employee. On the trial of the case the defendant read into the record testimony adduced by it on direct examination of a witness examined before the trial by taking his deposition. When the defendant completed the reading of such direct examination the plaintiff withdrew the cross examination adduced while taking such deposition, and thereafter, after the cross examination was read in the absence of the jury, the defendant withdrew all objections made and noted during such examination and sought to have the remainder of the deposition read into the evidence. Thereafter, after the jury returned a verdict for the plaintiff, the defendant's motion for new trial as amended was overruled and the defendant now assigns error on such judgment adverse to it.

Gowne, Conyers, Fendig & Dickey, Chris B. Conyers, Brunswick, for plaintiff in error.

Anthony A. Alaimo, Brunswick, for defendant in error.

NICHOLS, Presiding Judge.

The usual general grounds of the defendant's motion for new trial having been abandoned, the sole question presented is whether the trial court erred in permitting the plaintiff to withdraw his cross examination adduced while taking the deposition of a witness and not allowing the defendant to read all of such deposition to the jury.

In support of such position the defendant relies on the following excerpt of the Act of 1959, (Ga.L.1959, pp. 425, 428; Code Ann. § 38-2101(d)(5)): 'If only a part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.' No cases have been cited by counsel for either party construing the last portion of such sentence, and this court has located none, yet in the case of Williams v. Kelsey &...