The opinion of the court was delivered by: Moss, Justice.
The appellant instituted this action to recover damages for an alleged assault and battery committed upon him by the respondent. In the original complaint it was alleged, concerning the respondent, that "he having already killed one man with his bare fists". Upon motion duly made the quoted allegation of the complaint was stricken therefrom pursuant to Section 10-606 of the 1952 Code of Laws of South Carolina, which provides "if irrelevant or redundant matter be inserted in a pleading it may be stricken out on motion of any person aggrieved thereby." Thereafter an amended complaint was filed omitting the above quoted portion of the original complaint.
"Q. How many men ever spit in your face and lived to tell it, Mr. Skipper? A. There is a few —
Q. You killed a man for less —
Mr. Dinkins: I object to that.
The Court: Mr. Foreman and Gentlemen of the Jury, disregard that question. That has nothing to do with the issues in this case.
Mr. McFaddin: How many men ever spit —
Mr. Dinkins: Just a minute, Senator. If Your Honor pleases, it seems to me that the defendant would be entitled to an order of mistrial, would Your Honor excuse the jury a moment?
The Court: You have that in the record, I wouldn't grant it.
Mr. McFaddin: Did anybody else spit in your face —
The Court: No, sir, that is out.
Mr. McFaddin: I am sorry, I didn't catch Your Honor's ruling on that. I didn't mean to ask it."
It will be observed from the above quotation from the record that the Trial Judge refused to grant an order of mistrial and instructed the jury to disregard the questions propounded. A verdict was had for the appellant, and upon motion of the respondent the Trial Judge decided that he should have granted the motion for a mistrial when made for the reason that the foregoing questions brought to the attention of the jury matters that had been excluded upon motion made prior to trial and by objections made during the trial. He found that the question with ...