City Council of Augusta v. Hamilton

• Decision Date: 11 November 1937
• Docket Number: 26189.
• Citation: 194 S.E. 244,56 Ga.App. 859
• Parties: CITY COUNCIL OF AUGUSTA v. HAMILTON.
• Court: Georgia Court of Appeals

194 S.E. 244

56 Ga.App. 859

CITY COUNCIL OF AUGUSTA v. HAMILTON.

No. 26189.

Court of Appeals of Georgia, First Division

November 11, 1937

Rehearing Denied Dec. 15, 1937.

Syllabus by the Court.

There being evidence to support the verdict, and no reversible error of law being shown, the court did not err in overruling the motion for a new trial.

Error from City Court of Richmond; Gordon W. Chambers, Judge.

Suit by J. C. Hamilton, Jr., against the City Council of Augusta. There was a verdict for plaintiff, the defendant's motion for a new trial was overruled, and, to review a judgment for plaintiff, defendant brings error.

Affirmed.

Wm. T Gary, of Augusta, for plaintiff in error.

Pierce Bros., of Augusta, for defendant in error.

BROYLES Chief Judge.

J. C Hamilton, Jr., brought suit against the City Council of Augusta, alleging that on the evening of August 15, 1935 about 9:30 p. m., he was riding a motorcycle in a northerly direction on the Wheeless road toward the intersection of the Wheeless road with the Wrightsboro road, in the incorporate limits of the City of Augusta, approaching said intersection at a rate of speed of 6 to 8 miles per hour, intending to turn in an easterly direction down the Wrightsboro road at the point of intersection; and as he came into the Wrightsboro road his motorcycle came in contact with slick and slippery mud or silt from three-fourths to one and one-half inches thick which was smeared over and spread out upon the Wrightsboro road at the point of intersection, and the slippery condition of the mud and silt in said street skidded the motorcycle to the north side of the Wrightsboro road at the intersection with the Wheeless road, driving the motorcycle against the curbing, throwing petitioner off of the motorcycle against the curbing, fracturing and crushing the second spinal vertebra, wounding and bruising plaintiff's head, and seriously and permanently injuring him internally; that the silt and mud in the Wrightsboro road had been carelessly and negligently allowed to accumulate for a period of months preceding the injury, the same having fallen and sifted into the street from trucks being used by the defendant to convey silt and mud taken from the City of Augusta's waterworks' settling basins for use in the City Council of Augusta's Daniel Aviation Field, and for surfacing the approach from the Wrightsboro road and from the Wheeless road thereto, and the deposit of silt and mud had washed down the Wrightsboro road and down the Wheeless road and covered the entire roadbed of the Wrightsboro road where it is intersected by the Wheeless road; that the city failed to display lights and signs to give the public notice of the mud; and that the aforesaid negligent acts of the city were the cause of plaintiff's injury.

The defendant denied all allegations of negligence, and averred that "plaintiff was negligent in approaching the intersection of Wrightsboro Road and Wheeless Road on his motorcycle at a rapid and excessive rate of speed, and in not having his motorcycle equipped with proper brakes and lights and in operating said motorcycle without having it under control at the time and place alleged in his petition."

The jury rendered a verdict for the plaintiff, and the court overruled the defendant's motion for a new trial, on which error is assigned.

The first special ground of the motion for a new trial alleges that the court erred in overruling a motion for mistrial after the following occurred: Wallace B. Pierce, counsel for plaintiff, in his argument to the jury, said in substance: "The city's negligence caused the plaintiff's injury, and the city is keeping plaintiff out of his money. It refused to pay his claim when it was regularly presented to council, and now, through the city attorney, is going to appeal any verdict that this jury may render against it." It was undisputed that the city had refused, and was refusing, to pay the claim, and the jury necessarily knew this since the claim was being sued. This being true, no undue information was conveyed to the jury by counsel saying that the city would not pay the claim. The argument that the city would appeal any verdict rendered against it was unnecessary and inappropriate, but was not calculated to prejudice the defendant. Moreover, there was no motion for a mistrial made when counsel made this argument (Brooks v. State, 183 Ga. 466, 188 S.E. 711, 108 A.L.R. 752), but merely an objection, and, upon objection being made, the court "admonished Mr. Pierce to confine his argument to the evidence and the reasonable deductions therefrom." Mr. Pierce later "argued to the jury, in substance, that the City of Augusta was a rich municipal corporation, owning an aviation field, a golf course, polo grounds, tennis courts, waterworks system, and other vast and large public improvements, and besought the jury to render a verdict for the plaintiff for his damages in an amount in keeping with the dignity and vast wealth of the City Council of Augusta." Whereupon attorneys for the city moved the court to declare a mistrial. Thereupon the court admonished the jury that "the wealth of the city had no bearing on the case and is not an issue, and it was entirely a question whether or not plaintiff had been injured by the negligence alleged in the petition, and if injured, what damage had been done to him. The wealth of the city, I caution you and emphasize, has nothing to do with the administration of justice in this case." These remarks of the trial judge, rendered necessary by the argument of counsel for the plaintiff, constituted proper instructions to the jury and a rebuke to plaintiff's counsel, and they were calculated to favor the defendant in that they informed the jury, in effect, that plaintiff's counsel had attempted to inject into the case a matter that had "nothing to do with the administration of justice in this case," and cautioned and emphasized that "the wealth of the city had no bearing on the case." We think the circumstances as a whole, including the instructions which were evoked by the improper argument, tended to aid, rather than harm, the city. The error was not a grievous one. It is largely an arbitrary question as to whether a particular improper argument will justify the granting of a mistrial, and there are numerous decisions of the Supreme Court and of this court which hold that improper arguments, of more serious consequences than the instant one, would not justify the granting of a mistrial. Of course, counsel should confine his argument to the evidence and reasonable deductions therefrom, but the expense of another trial should not be incurred unless the administration of justice requires it, and counsel should not be so limited in his argument or so circumscribed by rules that he cannot properly and forcefully represent his client. "Counsel should have ample latitude to argue what has transpired in a case from its inception to its conclusion, * * * and the range of such comment is necessarily in the discretion of the trial judge." (Italics ours.) Adkins v. Flagg, 147 Ga. 136, 137, 93 S.E. 92.

In Trammell v. Atlanta Coach Co., 51 Ga.App. 705, 181 S.E 315, 318, it was said: "Upon the question as to whether the grant of a mistrial is required, 'unless it is apparent that a mistrial was essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.' Manchester v. State, 171 Ga. 121 (7), 132, 155 S.E. 11, 17. In the instant case, irrespective of whether or not the argument of counsel for the defendant concerning a matter disclosed by the evidence was within the strict language of the statute relative to the grant of a mistrial upon motion, the unauthorized remarks, taking into consideration their nature and character, were subject to correction, and even were the statute to be given application, it was substantially complied with by a proper instruction to the jury made in open court in the...