Fievet v. Curl, 36829

• Decision Date: 27 September 1957
• Docket Number: No. 1,No. 36829,36829,1
• Citation: 101 S.E.2d 181,96 Ga.App. 535
• Court: Georgia Court of Appeals
• Parties: Gerald FIEVET v. Milldred CURL

Page 181

101 S.E.2d 181

96 Ga.App. 535

Gerald FIEVET v. Milldred CURL.

No. 36829.

Court of Appeals of Georgia, Division No. 1.

Sept. 27, 1957.

Rehearing Denied Oct. 21, 1957.

Syllabus by the Court

1. Where improper remarks are made by counsel before a jury has been stricken but within the hearing of prospective jurors, a motion for a postponement until other panels can be drawn is proper, but not a motion for a continuance.

2. Where exception is taken to the refusal to grant a mistrial it must affirmatively appear, in order for this court to reverse such judgment, that a mistrial was essential to preserve the right of a fiar trial.

3-5. The special grounds of the motion for new trial which assign error on the court's charge are without merit.

6. The evidence authorized the verdict for the plaintiff.

Mrs. Mildred Curl brought the present action against Gerald Fievet to recover for injuries and damages sustained in a collision between the plaintiff's automobile and the defendant's. The jury returned a verdict for the plaintiff. The defendant's amended motion for new trial was denied and it is to this judgment and to the judgment denying him a continuance that he aexcepts.

H. Dale Thompson, Dublin, Homer S. Durden, Jr., Swainsboro, for plaintiff in error.

Williams & Smith, Geo. L. Smith, II, Swainsboro, for defendant in error.

NICHOLS, Judge.

After the call of the case for trial and after counsel for both parties had announced ready, but before a jury had been strikcen, counsel for the plaintiff made certain remarks within the hearing of the prospective jurors which, according to counsel for the defendant, if made during the progress of the trial, would have been grounds for a mistrial. Counsel for the defendant made a motion for continuance for the term which was denied.

'Improper remarks by counsel, made before a jury has been stricken but in the hearing of those who have been summoned to serve as jurors, cannot be cause for a continuance. At most, there should merely have been a postponement of the trial until other panels could be drawn from which to select a jury. Thompson v. O'Connor, 115 Ga. 120(2), 41 S.E. 242.' Bowling v. Hathcock, 27 Ga.App. 67(1), 107 S.E. 384. Accordingly, the trial court did not err in denying the defendant's motion for a continuance.

2. The defendant contends that the court erred in failing to grant his motion for a mistrial based on the alleged improper argument of the plaintiff's counsel. The record shows, with reference to this assignment of error, what counsel for the defendant contends that counsel for the plaintiff argued to the jury, and also what counsel for the plaintiff contends he argued to the jury. However, the record does not show the actual argument made to the jury by counsel for the plaintiff.

It is well setttled that in dealing with motions for mistrial the discretion of the trial court will not be disturbed unless it is abused to the extent that the grant of a mistrial is essential to the preservation of the right to a fair trial. United Motor Freight Terminal Co. v. Hixon, 78 Ga.App. 638(2), 51 S.E.2d 679; Osteen v. State, 83 Ga.App. 346, 349, 63 S.E.2d 416. Accordingly, where the record does not make it affirmatively appear that the trial court abused its discretion in fefusing to grant the motion for mistrial, this court will not disturb such judgment.

3. Error is assigned on an excerpt of the charge wherein the jury was instructed that the defendant could not escape liability for his negligence, if any, because the plaintiff was violating traffic laws and regulations, since it is incumbent on one who violates traffic laws and regulations to anticipate that others, like himself, may also disobey the same law.

The excerpt complained of was correct as an abstract principle of law, and was applicable to the issues involved inasmuch as there was evidence that the defendant was driving in excess of the speed limit at the time of the collision between his automobile and the plaintiff's. See in this connection Associated Cab Co. v. Byars, 92 Ga.App. 73, 88 S.E.2d 329, and Williams v. Grier, 196 Ga. 327(2b), 26 S.E.2d 698. The complete charge on this subject was not confusing or misleading; therefore, there is no merit in this special ground of the motion for new trial.

4. Special ground 4 complains of an excerpt from the charge, which, the defedant contends, charged that the plaintiff could recover from the defendant under the 'last clear chance' doctrine even if the plaintiff was aware that she was in a place of danger and was able to avoid the defendant's negligence. In the very next paragraph after the one to which exception is taken the court charged: 'As previously instructed the plaintiff must exercise ordinary care for her own safety before she would be entitled to recover any amount.' The jury was not instructed, as the defendant contends, that the plaintiff could place herself in a position of peril, sit idly by and wait to be injured, and then recover for such injuries. For a thorough discussion of this doctrine see Lovett v. Sandersville R. Co., 72 Ga.App. 692, 34 S.E.2d 664. When the excerpt of the charge complained of is considered in connection with the remainder of the charge on this subject, no reversible error is shown.

However, even if the excerpt of the charge complained of was error it was at...