Opinion
35791.
DECIDED JANUARY 19, 1956. REHEARING DENIED FEBRUARY 8, 1956.
Damages. Before Judge Jones. Albany City Court. May 14, 1955.
Smith, Gardner Kelley, for plaintiff in error.
Edwin L. Sterne, contra.
The court erred in admitting in evidence testimony as to the general character of the plaintiff when under the pleadings and evidence the plaintiff's general character was not in issue.
DECIDED JANUARY 19, 1956 — REHEARING DENIED FEBRUARY 8, 1956.
J. P. Willingham sued A. Stanley to recover damages for personal injuries allegedly sustained by him when he attempted to defend himself from an assault by the defendant. The jury found for the plaintiff and the defendant excepts to the overruling of his amended motion for a new trial.
1. Each party testified that the other assaulted him. In such circumstances the characters of both parties for peaceableness and violence were in issue and the court did not err in admitting testimony on the subject. Swinney v. Wright, 35 Ga. App. 45, 48 ( 132 S.E. 228).
2. The question of the plaintiff's general good character was not involved in the case and there was no effort to impeach him; therefore, the court erred in admitting in evidence over proper objection the testimony of witnesses concerning the plaintiff's general good character. Code § 38-202; Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 752 (5) ( 12 S.E. 18); Gunnin v. Bankers Shippers Ins. Co. of N. Y., 66 Ga. App. 574 (4) ( 18 S.E.2d 563).
3. It is not necessary to pass on the assignment of error in ground 6 of the amended motion for a new trial as the alleged error is not likely to occur on another trial.
4. Ground 7 complains of the plaintiff's counsel's reading facts from cited cases. Upon objection the court ruled that facts in another case should not be read in the presence of the jury unless it was necessary to illustrate the law. Since the case is being reversed, it is not necessary to determine whether the defendant's counsel made such an additional motion after the court had properly ruled on the objection made, as would raise a question for decision by this court. It is not likely that the harm complained of will occur on another trial. The same is true as to the complaint in ground 8 of the amended motion for a new trial.
The court erred in denying the motion for a new trial for the reason stated in division two of the opinion.
Judgment reversed. Quillian and Nichols, JJ., concur.