Opinion
39799.
DECIDED NOVEMBER 20, 1962.
Action for damages. Glascock Superior Court. Before Judge Norman.
Jack D. Evans, for plaintiff in error.
Stevens Stevens, B. J. Stevens, contra.
Under the facts of this case, the trial court erred in failing to invoke the rule of sequestration of witnesses upon the timely request of counsel for plaintiff.
DECIDED NOVEMBER 20, 1962.
A. L. Hall, Sr. filed suit against the defendant Lester Hobbs for damages to his automobile. The case was in default, no defensive pleadings having been filed by the defendant, and the only question for determination was the amount of damages, if any, arising from the collision. Upon the call of the case and after both parties announced ready, plaintiff's counsel invoked the rule of sequestration of witnesses. In response to this request the court stated that the defendant would not be allowed to use any witnesses, the case being in default, and hence there were no witnesses upon whom to invoke the rule. Defendant's counsel then requested that he be allowed to preserve his rights by putting into the record the testimony of his witnesses. Plaintiff's counsel then made a motion that inasmuch as the witnesses might later be allowed to testify before the jury the rule be invoked while they were so testifying before the court. This motion was overruled and the defendant's witnesses were allowed to testify under oath before the trial judge in the presence and hearing of each other relating to the alleged damages to plaintiff's car. Thereafter, a jury was stricken and the case proceeded to trial. After the plaintiff testified and rested, the court announced that the defendant would be permitted to offer testimony from the three witnesses who had previously testified before the court. Whereupon, plaintiff moved for a mistrial when the first witness took the stand upon the ground that the witnesses had already heard each other testify under oath a few minutes previously and that the rule of sequestration had been defeated. The court denied the motion for mistrial, the witnesses were then placed under the rule, and their testimony received. The jury rendered a verdict in favor of the defendant and the plaintiff excepts to the order of the court overruling his amended motion for a new trial.
Special ground 1 of the amended motion for new trial complains that the ruling of the court in refusing to invoke the rule upon timely request prior to allowing the defendant's witnesses to testify in court under oath before the jury was stricken denied to the plaintiff a substantial and positive right. We must agree with this position. The fact that the witnesses were sequestered at a later stage of the trial did not cure the error. They had already heard each other testify under oath a few minutes previously on the question of damages to the plaintiff's car and each may have been "taught" by the testimony the others gave. "The practice of separating witnesses or, as generally called, `putting under the rule,' is of ancient origin and salutary in the proper administration of justice, the object being, of course, to prevent one witness from being taught by another as to the testimony he should give. . . The mandate of the law is that in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other, and, hence, the rule is applicable and mandatory in an interlocutory hearing for injunction. . . . It is no answer to the violation of the mandatory rule to say that the record does not show any harm to have resulted to the defendants because of this error, since it has been held in numerous cases that, whenever the rights of a party are withheld or violated, the presumption of law is that he has been injured unless the contrary plainly appears." Poultryland, Inc. v. Anderson, 200 Ga. 549, 561, 562 ( 37 S.E.2d 785), and cases therein cited; Montos v. State, 212 Ga. 764 ( 95 S.E.2d 792). Under this mandate, we think that the parties are entitled to the benefit of this rule at all stages of the proceedings in the trial of a case, regardless of the purpose of the testimony, and the error in depriving the plaintiff in this case of this substantial right rendered all subsequent proceedings nugatory, requiring the grant of a new trial.
Judgment reversed. Nichols, P. J., and Frankum, J., concur.