45 S.E.2d 237 | Ga. Ct. App. | 1947
1. Conduct not amounting to a justification for an assault and battery may be pleaded and proved by the defendant in extenuation or mitigation of damages; and, where the injured party claims punitive damages, all the surrounding circumstances accompanying the breach of duty may be given to the jury; and an amendment alleging a number of acts closely connected and related to the assault should have been allowed in mitigation of damages.
2. The exclusion of certain questions propounded to the plaintiff upon cross-examination by defendant's counsel tended to abridge or deny the right of cross-examination and was erroneous.
3. The exclusion of certain questions and the anticipated answers propounded to the defendant was not harmful error where substantially the same evidence was admitted without objection.
4. The general grounds of the motion for new trial are not considered.
Upon objections by the plaintiff that the matters set out in the proffered amendment were too remotely connected with the assault and battery to constitute a defense to the action the amendment was disallowed. Exceptions pendente lite were filed to that ruling and are now before this court. The defendant then amended his original answer by pleading justification. The jury returned a verdict for the plaintiff in the sum of $800 without specifying any particular amount for actual damages or for punitive damages. Defendant's motion for a new trial was overruled and he excepted.
1. In considering the ruling of the court disallowing the amendment we are mindful of the rule of law that conduct not amounting to a justification for an assault and battery may nevertheless be pleaded and proved in extenuation or mitigation of damages. Code, § 105-1802; Robinson v.DeVaughn,
Applying the principles of law stated to the facts of this case we think the court erred in refusing the amendment. The acts and conduct charged to the plaintiff in the amendment tended to show that he was quite unsatisfactory as a tenant, and was more or less obstreperous, stubborn and contentious, and that he had boasted repeatedly of his viciousness and fighting ability. The amendment set out and charged several acts and a course of conduct to the plaintiff, some of which acts were so closely connected *157
with and related to the assault as to be pleadable in mitigation of damages if not in justification, and the amendment should have been allowed by the court. Furthermore, paragraph two clearly set up a defense, and the motion to strike or disallow the amendment was in the nature of a general demurrer and should not have been sustained to the whole pleading where parts of it were good. "General demurrer to a plea of which some parts are sufficient, should be overruled." Baer v. Christian,
2. Ground four of the amended motion for new trial complains of the refusal of the court to allow counsel for the defendant to propound two questions to the plaintiff on cross-examination. It appeared that the altercation, which culminated in the assault and battery complained of, arose over a dispute between the plaintiff and defendant as to whether the hogs belonging to the plaintiff and being kept in the defendant's pasture should be turned out. Defendant contended that they should and took steps to turn them out notwithstanding plaintiff's objections. On cross-examination defendant's counsel asked the plaintiff: "Why did you object to Mr. Smith turning your hogs out?" and "Did you have any reason to object to Mr. Smith turning your hogs out?" Both of these questions were excluded upon objection of counsel for the plaintiff. Counsel for the defendant stated to the court, "That goes to his good faith, . . and also goes to the question of whether or not his attitude and conduct at the time he claims this attack occurred was such as to provoke an attack." Even if the answers sought by the questions excluded were of doubtful relevancy, still we think the questions should have been allowed. "It has long been the rule in this State, when the admissibility of evidence is doubtful, to admit it and leave its weight and effect to be determined by the jury." Coart v. State,
"The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him." Code, § 38-1705. The right of either party to a suit to subject to a thorough and sifting cross-examination the witnesses against him "is a substantial right, the preservation of which is essential to a proper administration of justice, and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. . . The manner and extent of a cross-examination are, to a certain extent, within the control and subject to the discretion of the presiding judge, but the substantial right should neither be abridged nor denied."News Publishing Co. v. Butler,
Counsel for the plaintiff argue that at the time the questions were asked the defensive pleadings consisted only of a general denial of the plaintiff's petition; but the record does not sustain this contention. It appears from the bill of exceptions, and the portions of the record specified therein, that the trial began on April 17, 1947, and on that same day an amendment pleading *159 justification was filed and allowed. The bill of exceptions, after reciting that the first amendment offered was disallowed, says that "thereafter the defendant presented another amendment which was allowed and filed." We cannot assume as a fact something which does not appear from the record and base a ruling thereon.
3. The exclusion of certain questions and the anticipated answers propounded to the defendant, as complained of in ground five, was not erroneous because substantially the same evidence sought by the questions was admitted without objection in other parts of the defendant's testimony. Goodwyn v. Roop,
4. The general grounds are not considered.
Judgment reversed. Sutton, C. J., and Felton, J., concur.