Walden v. Metropolitan Atlanta Rapid Transit Authority

• Decision Date: 24 February 1982
• Docket Number: No. 63060,63060
• Citation: 161 Ga.App. 725,288 S.E.2d 671
• Parties: WALDEN v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
• Court: Georgia Court of Appeals

Page 671

288 S.E.2d 671

161 Ga.App. 725

WALDEN v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.

No. 63060.

Court of Appeals of Georgia.

Feb. 24, 1982.

Larry Cohran, Atlanta, for appellant.

Thomas G. Sampson, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This is a personal injury case in which the plaintiff contends he was struck by a bus in the City of Atlanta, the said bus being owned by the Metropolitan Atlanta Rapid Transit Authority. He alleges that the defendant's negligence by and through its authorized driver was the proximate cause of his injuries.

The defendant, inter alia, denied the complaint but admitted, for the purpose of this litigation, the jurisdiction of the court, otherwise denying the claim. Plaintiff later amended his complaint to enlarge upon the damages he suffered both as to medical bills, pain and suffering, nursing care and lost wages. The case proceeded to trial and resulted in a verdict and judgment for the defendant. The motion for new trial, as amended, was thereafter filed and denied after a hearing. Plaintiff appeals. Held :

The first enumeration of error is that the trial court erred in excluding the plaintiff from the courtroom over his objection while a defense witness, the driver in this instance, was called by the plaintiff for the purpose of cross-examination. At first blush it would appear from the cases cited by the plaintiff that the trial court was in error in excluding the party under the rule of sequestration during the progress of the trial. St. Paul Fire and Marine Insurance Company v. Brunswick Grocery Company, 113 Ga. 786(1), 789, 39 S.E. 483, states clearly that a party to the issue on trial has a right to be present and in that case it was, "manifestly erroneous to exclude her from the court-room." See also in this connection Georgia Railroad and Banking Co. v. Tice, 124 Ga. 459, 460(3), 465, 52 S.E. 916, where it is clearly stated that the rule of sequestration of witnesses does not apply where the witness is a party, although there may be several parties on the same side of a case who are to be witnesses. See also Knox v. Harrell, 26 Ga.App. 772(1), 108 S.E. 117. But counsel for defendant has cited Davis v. Atlanta Coca-Cola Bottling Company, 119 Ga.App. 422(2), 167 S.E.2d 231, that the trial court did not err "upon request for sequestration of witnesses, in giving the plaintiff the option of testifying first himself or leaving the courtroom while he first presented other witnesses. The action of the court was proper to preserve the defendant's right to sequestration of witnesses and the plaintiff's right to be present during the whole trial of the case," citing Tift v. Jones, 52 Ga. 538(4), 539, 542. The Tift case clearly states in headnote 4 that if a party intends to be a witness for himself and sequestration is called for, that "it is the proper rule, unless there be special reasons to the contrary, that such party should first be examined in the absence of his other witnesses, in order that he may thereby be present, as is his right, during the whole trial of his case." At page 542 the Supreme Court cites the sequestration rule (now Code § 38-1703) and that if the party "intends to be a witness for himself, it would be a proper rule that such party should be first examined, unless there be reasons to the contrary, in the absence of his other witnesses. This would preserve his right to be present in the court during the whole trial of his case." That court then cites situations wherein the trial court might not require that he be ordered to be examined first but the particular circumstances of each case must control, ...