Ashley v. Standard Oil Co.

• Decision Date: 12 June 1969
• Docket Number: No. 44303,No. 3,44303,3
• Citation: 168 S.E.2d 656,119 Ga.App. 786
• Parties: James ASHLEY v. STANDARD OIL COMPANY et al
• Court: Georgia Court of Appeals

Page 656

168 S.E.2d 656

119 Ga.App. 786

James ASHLEY v. STANDARD OIL COMPANY et al.

No. 44303.

Court of Appeals of Georgia, Division No. 3.

June 12, 1969.

Syllabus by the Court

When the defendant's testimony was presented by deposition at the trial and counsel stated before the jury and evidence was admitted that the defendant was in a paralyzed and disabled condition and could not be present, the trial judge did not abuse his discretion in denying the plaintiff's motion for mistrial on the ground that the evidence and counsel's statement were irrelevant and prejudicial as arousing sympathy for the defendant.

The trial of this negligence action against Standard Oil Company and its truck driver resulted in a verdict for the defendants, and the trial court overruled the plaintiff's motion for new trial. The plaintiff appeals from this judgment and enumerates as error the overruling of the grounds of his motion for new trial.

Cook, Pleger & Boulogne, J. Vincent Cook, Athens, for appellant.

Neely, Freeman & Hawkins, Joe C. Freeman, Jr., Atlanta, for appellees.

HALL, Judge.

The individual defendant, upon whose alleged negligence the suit was based, was not present at the trial. The plaintiff contends that the court erroneously and prejudicially permitted a witness to testify concerning the defendant's paralyzed condition, erred in denying the plaintiff's motion for mistrial based on this testimony, and erred in denying an earlier motion for mistrial on the ground that the explanation of defendant's counsel in opening argument to the jury that the defendant had a stroke and was paralyzed and was unable to attend trial was irrelevant to the issues of the case and was prejudicial.

After the plaintiff presented evidence and rested, the defendant proposed to read parts of the deposition of the defendant. The defendant's counsel stated that the defendant had had a stroke and was not physically able to testify at the trial. The plaintiff moved for a mistrial on the ground 'he is trying to build up sympathy in the minds of the jurors. There is no medical evidence here as to that fact.' After colloquy between court and counsel parts of the defendant's deposition were read. Then the court permitted a witness to testify to the effect that the plaintiff had had a stroke since his deposition was taken, and the witness had seen the defendant since that time and he was in a paralyzed and disabled condition. The plaintiff objected to this testimony on the ground that the witness was not a medical expert and did not state sufficient facts that he had observed upon which he...