Holland v. Williams , 126 Ga. 617 ( 1906 )

Lumpkin, J.

Williams brought Ms action against Holland to Tecover damages for an alleged assault and battery. A verdict was rendered in Ms favor for $1,000. The defendant moved for a new trial, which was refused, and he excepted.

1. The- charge of the court on the subject of exemplary damages was erroneous. He instructed the jury that fines imposed in a mayor’s court and city court on the defendant because of the transaction furnishing the basis of the suit should be considered by them in mitigation of exemplary damages in the ease, and if the fines imposed were sufficient to offset exemplary damages, they need not consider such damages further. But he did not submit to them whether there should be any exemplary damages at all. The charge thus amounted to an intimation that such damages should be allowed, if the fines were not sufficient to offset them.

2. An exception to a fragment of a sentence in the charge, to the effect that if the jury should believe certain things, and “if the jury further believe, etc.,” is too incomplete to furnish ground for reversal.

3. Various exceptions to the charge in its entirety are made, on the ground that the presiding judge failed to charge certain propositions. An examination of the charge as a whole, however, shows that it was sufficient generally to cover the matters referred to; and if more specific instructions on those points were desired, they should have been requested.

4. Where a question propounded to a witness is objected to and. rejected, counsel should be allowed to place on record what evidence it is expected the question will elicit, in order that his exception may be perfected. Frequently this is done by a statement ’ of counsel in his place as to what he expects the witness will testify, But this is not an arbitrary right on the part of counsel or of Ms client. The court may exercise a sound discretion as to the mode of ascertaining what the witness will testify. Here he ruled that he would permit the witness himself to state, out of the hearing of the jury, what Ms testimony would be. This was not only not' error, but we think would often be good practice, where it is practicable, and where the court apprehends that the ends of justice require rather that a witness should state for himself what his testimony will be, than that the mere expectation of counsel as to it should be stated in the presence both of the witness and the jury.

5. None of the other grounds of the motion contain any error requiring a reversal.

Judgment reversed.

All the Justices concur.