43 Ga. App. 417 | Ga. Ct. App. | 1931
T. F. T. McEae brought suit in the city court of Greenville against Gulf Eeffning Company and J. W. Chunn Jr., alleging: that J. W. Chunn Jr. was agent of Gulf Eeffning Company ; that while the latter was transferring gasoline from its truck into a storage tank of McEae, at Warm Springs, Georgia, the gasoline became ignited and set fire to and burned plaintiff’s storehouse; that the fire was caused by the negligence of Chunn, either by reason of his failure to equip his truck with a static chain, with the result that static electricity generated a spark which ignited the gasoline, or that, in withdrawing the metal nozzle of the hose attached to the truck from the stand or fill-pipe on the underground gasoline tank, a spark was produced from friction and ignited the gasoline. Upon the trial of the case, after all the evidence was in, the court, upon motion of counsel for Gulf Eeffning Company, directed a verdict in its favor, and permitted the case to proceed against the other defendant, against whom a verdict was returned for $1200. Chunn excepts to the judgment overruling his motion for a new trial.
We quote from special ground 1 of the motion for a new trial the following: The court erred in refusing to grant a mistrial upon the motion of movant. What happened is as follows: At the close of the case the court directed a verdict in favor of Gulf Refining Company, and allowed the case to proceed to trial, or to the jury, against the defendant J. W. Chunn Jr. During the course of the argument by 'Judge J. E. Terrell, of counsel of plaintiff, he stated to the jury: “Gentlemen, I infer from the pleadings and
It was held in the early decision in the case of Mitchum v. State, 11 Ga. 615 (7), 630 that “it is contrary to law for counsel to comment upon facts not proven.” This principle has been followed by our courts, and is embodied in the Civil Code (1910), § 4957, which section reads: “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the same, and, by all needful and proper instructions to the jury, endeavor to remove the im-. proper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff’s attorney is the offender.” Our Supreme Court said in Wallace v. State, 126 Ga. 749 (2) (55 S. E. 1042): “Allusion to matter extrinsic to the record by counsel in the argument of the case will not constrain the court to declare a mistrial in every instance. It is only when the foreign matter injected in the ease by the argument is of such a prejudicial nature that a rebuke of the statement by counsel, and an instruction to the jury, in the discretion of the court, will be incommensurate to remove any improper impression from the minds of the jury, that a mistrial should be declared.” In the case at bar the remarks of counsel were not supported by the evidence, and were improper, and counsel for movant promptly moved for a mistrial. Can it reasonably be concluded that the steps taken by the court were ineffectual to remove from the minds of the jury any improper impression inculcated therein by counsel’s statement; or was a mistrial the only cure?
In the case at bar the trial judge promptly told the jury that “the argument of counsel was highly improper, and that they should not consider it at all;” and again, after the jury had returned to the box after counsel had argued the question before the court, the trial judge substantially instructed the jury as he had previously done. We are satisfied that the course pursued by the trial judge adequately met the situation and the requirements of code section 4957, supra; and hold that the court’s refusal to grant a mistrial is not reversible error. We are strengthened in the correctness of this conclusion for the reason that, in our opinion, the jury would not so easily be led to believe that a corporation which had been let out of the case as a joint defendant by a nonsuit would pay a judgment rendered against the remaining defendant who was merely the agent and truck-driver of the corporation.
Special ground 2 is similar to the ground already considered. We hold that it discloses no satisfactory reason for reversing the judgment.
Special ground 3 complains that an excerpt from the charge of the court made an erroneous statement as to the plaintiff’s contentions. This excerpt is only a small portion of the court’s charge upon the subject in question. When the charge is considered as a whole, there is no merit in the ground.
An examination of the brief of evidence satisfies us that, though the case is close, the verdict should not be reversed upon the general grounds; and, in conclusion, we hold that the trial judge did not err in overruling the motion for a new trial.
Judgment affirmed.