Thе first question presented by the writ of error is whether the trial court committed reversible error in overruling a motion to purge the plaintiff’s petition of certain allegations which the dеfendant contends were prejudicial. Closely related to such assignment of error is special ground 4 of the defendant’s motion for new trial which assigns error on an excerpt from the charge wherein the jury was instructed not to consider the allegations of the plaintiff’s petition which the defendant had sought to have physically removed from the record. Thеse assignments of error will be considered together.
While a motion to delete the surplusage is the proper motion to purge the immaterial portion of the petition
[Ray Clanton’s East Ga. Motors v. Conaway,
The charge of the court which specifically delеted from the consideration of the jury any alleged negligence of the defendant with reference to matters stricken on demurrer was not harmful to the defendant and was not cause for a new trial.
Special ground 1 of the amended motion for new trial complains that a new trial should be granted because the defendant was not furnished a panel of twenty-four qualified jurors from which to strike the jury. The affidavits furnished in support of this ground make it affirmatively appear that one of the jurors who heard the case was a first cousin of one of counsel for *629 the plaintiff and that counsel for the plaintiff had a contingent fee contract. Therefore the juror was disqualified.
The disqualification was undisputed and the question for decision is whether such disqualification was waived by the defendant. One of the counsel for the defendant, in testimony taken in connection with this ground of the motion for new trial, testified that аt the time the juror was being qualified he thought that the juror and counsel for the plaintiff were related but he did not know it, that that was the reason they had asked the jury to be purged, that he knew thаt they came from the same section of the county and that he only knew of the one family with the same surname in the county, that after the court asked the members of the prospective jury if any of them were related to any of named counsel and none stated that they were he dismissed the possibility from his mind and failed to pursue the matter any further. According tо the record the attorney who was kin to the juror did not participate in the trial of the case, and was not present in the courtroom. In
Glover v. Maddox,
Special ground 2 of the amended motion for new trial *630 complains that the trial court erred in refusing to permit counsel for the defendant to “cross-examine” the defendant after she had been called to the stand by the plaintiff and examined.
In
Lauchheimer & Sons v. Jacobs,
In the present case counsel for the plaintiff, at the time he called the defendant to the stand, did not state “I call the dеfendant for the purpose of cross-examination under authority of Code § 38-1801.” However, when the question was raised, when counsel for the defendant asked if he would be allowed to crоss-examine the defendant, the court based its judgment on the fact that the plaintiff obviously intended to call the defendant under the rights granted her by the above Code section. Assuming, arguendо, that the defendant was not called to the stand under Code Ann. § 38-1801, supra, still no harmful error appears as to the defendant by the court’s judgment since an examination of the evidence quoted in support of this special ground of the motion for new trial shows that the defendant was in fact asked, and answered, many leading questions by her counsel.
Special ground 3 of the аmended motion for new trial assigns error on the admission into evidence, over objection, of certain “surgical pins” of the type used in repair of the plaintiff’s fractured hips, which injury was one of the injuries allegedly suffered by the plaintiff in the fall which allegedly resulted from the incident complained of.
The pins were not introduced in evidence to show any defect in the pins used by the physician in attempting to repair the plaintiff’s hip, nor was there any contention made that there were any defects, either in the pins used by the physicians or the
*631
ones introduced into evidence. In
Mitchell v. Schofield’s Sons Co.,
The defendant introduced no evidence upon the trial of the сase and under the decision of the Supreme Court, in answer to a certified question from this court, in the case of
Heiman v. Wynn,
This case was tried on July 18, 1960, and the act approved Marсh 28, 1961 (Ga. L. 1961, Vol. 1, p. 216) which permits motions for a directed verdict to be made by a defendant even though he introduces no evidence is not applicable to the case sub judice.
The defendant, in support of the usual general grounds of her motion for new trial, makes substantially the same arguments that were made in support of her demurrers to the plaintiff’s petition when the case was previously before this court.
Norman v. Norman,
Judgment affirmed.