Georgia Power Co. v. Puckett

• Decision Date: 23 October 1935
• Docket Number: 10765.
• Citation: 182 S.E. 384,181 Ga. 386
• Parties: GEORGIA POWER CO. v. PUCKETT.
• Court: Georgia Supreme Court

182 S.E. 384

181 Ga. 386

GEORGIA POWER CO. v. PUCKETT.

No. 10765.

Supreme Court of Georgia

October 23, 1935

Syllabus by the Court.

1. The trial of cases is more than a mere contest between the parties. In all trials the state is interested that a fair trial may be had, in order that justice may be done. To such end the benefit of counsel is allowed, and the right of argument is considered of prime importance.

2. In providing for an orderly trial, the law declares who may open and conclude the argument; and while much latitude is permitted in the argument, it is not permissible by way of argument to introduce new matter in evidence for the consideration of the jury. It is not proper for counsel to state his personal belief or to answer improper argument with improper argument, but he is confined in his argument to the facts and circumstances of the case.

3. It is the duty of the court, with or without objection, to interpose, prevent, and rebuke improper argument, and to endeavor by proper instructions to remove from the minds of the jury improper impressions made by unfair argument.

4. A new trial will not be required on account of improper argument, unless the attention of the court be called thereto by timely objection, motion, or request to charge, and will not then be required unless the court fails to rebuke counsel and to instruct or charge the jury to not consider the argument, or unless the circumstances of the case are such that the rebuke and instruction or charge of the court is insufficient to remove the improper impression from the minds of the jury.

5. In passing upon objections or motions on account of improper argument, the judge is vested with a sound discretion, and his ruling thereon will not work a new trial unless it manifestly appears that his discretion was abused. Nor will a new trial be granted where the verdict was demanded.

6. Since the judgment of the Court of Appeals must be reversed on another ground, this court will not determine whether the evidence was sufficient to authorize the verdict.

Certiorari from Court of Appeals.

Suit by J. R. Puckett against the Georgia Power Company. Judgment for plaintiff was affirmed by the Court of Appeals (50 Ga.App 720, 179 S.E. 284), and defendant brings certiorari.

Reversed.

Foley & Chappell, of Columbus, and Colquitt, Parker, Troutman & Arkwright, of Atlanta, for plaintiff in error.

A. L Hardy and J. B. Peavy, both of Hamilton, for defendant in error.

GRAHAM Judge.

The case came to this court on certiorari from the Court of Appeals, the defendant complaining that the Court of Appeals erred in affirming the overruling of the motion for new trial on the grounds that the verdict was contrary to the evidence and that the trial judge failed, on timely objection, to rebuke and sufficiently instruct the jury to not consider alleged improper argument for the plaintiff; and also on the refusal to grant a mistrial in the case. The argument complained of was as follows:

In the opening argument the plaintiff's attorney said to the jury: "The case at bar is one in which a large and powerful corporation, the Georgia Power Company, shows that it is undertaking to squeeze a small corporation, the Hamilton Telephone Company, out of business, and that it is for the jury of Harris County to determine whether they will let a large and powerful corporation, the Georgia Power Company, squeeze out of existence a small corporation, the Hamilton Telephone Company, which has been in existence and furnishing service to the citizens of Hamilton County and Harris Counties for twenty-five years." Also, in the opening argument to the jury, the plaintiff's attorney said: "The attorney from Atlanta came down to defend the case in Harris County, knowing the plaintiff was entitled to recover. Addressing the jury of Harris County, whom I know and who know me, I am aware that the plaintiff is entitled to recover, and that the attorneys for the defendant also believe that the plaintiff is entitled to recover. The defendants realized they were due Mr. Puckett something."

In his concluding argument to the jury the plaintiff's attorney said: "Gentlemen of the jury, do you believe that this lawyer from Atlanta didn't know that that was a cable made of lead, and that lead is one of the best conductors known to the electrical power; do you believe, gentlemen of the jury, that with his long association with this company that he didn't know that lead conducts electricity and is used in telephone service and everywhere else for that purpose? Gentlemen, it is an impossibility; it is preposterous." Also, in his concluding argument to the jury, the attorney for plaintiff said: "Doctors, God pity them. I don't want to intrude my own history on you, but I was compelled almost from the time I was born until manhood to tip-toe about the house that I might not disturb a sick person. I married a short time afterwards * * * for twenty-five years one of the most intelligent, loving characters. * * * I have seen doctor after doctor, from Baltimore south, make diagnosis, and one would say one thing and another another."

Upon objection by counsel for the Georgia Power Company, the plaintiff's attorney, continuing, said: "Yes, sir, he cries out who is in pain. I say to you, gentlemen, from my experience and from common knowledge, doctors are the darndest bunch of guessers that God Almighty has put on the earth * * * guessers." Continuing, the attorney for the plaintiff, in his concluding argument, said: "Gentlemen of the jury, I don't believe that there is a man anywhere on the earth, without looking into the breast of a man, can count his pulse or listen to his heart-beat and say absolutely that there is no disease there. They say, 'Why don't you bring a doctor?' Why keep contending, gentlemen, why we didn't bring a doctor? As a result of this accident we had finally to lay off from work in April of 1933. We had no earning capacity at all, a simple boy, helpless so far as finances were concerned; and my experience-and I think it is a matter of common experience-that doctors do not work without pay. That is why we haven't got a doctor."

Again, in the concluding argument of the plaintiff's attorney to the jury, with reference to the Georgia Power Company, he said: "The voice of reason and humanity, doesn't it call to every civilized being on earth? It bears out the idea, gentlemen of the jury, that they want the current that killed him paid for. Talk about the Power Company doing so much for Mr. Puckett, great God!" And further, in his concluding argument the plaintiff's attorney said: "Gentlemen of the jury, from what I know of headaches, there is not enough money in the world-there is not enough wealth in all the stars that God has flung out into space-to pay me for one year's headache."

Petitioner further assigns error, for that in the concluding argument to the jury counsel for the plaintiff said: "They [the Georgia Power Company] have used their own with an utter and absolute disregard of the rights of others. What does humanity mean to them? What does the heart-beat of a child, what does a life, with all that is fair and promising in it, mean to them? Nothing! There is nothing in this world that means anything to them, judging from the evidence in this case, except dollars and cents. I have this emotion, gentlemen of the jury, not one of fear but one of pity, pity that a man through these long years of practice in the courts seeks not justice but victory. Justice! how many crimes have been committed in Thy name! And of all the people on the face of the earth the last man that should lend his influence and power to injustice is a lawyer at the bar, and the very confusion in America today-and I say it openly and boldly-may be charged to the fact that we go through the hocus-pocus of a trial and we undertake to do all kinds of things, not for justice, but for victory. This lawyer wants to carry back to Atlanta justice? No; victory! He wants to go back to his client and say, 'I went down to a little country town, come in contact with those lawyers-with those little country lawyers-and I wiped them up, wiped up the face of the earth with them."

Counsel for the defendant objected to this argument, and moved for a mistrial on account of it. The court overruled the motion for a mistrial, and instructed the jury with reference to the argument as follows: "Gentlemen, I instructed the jury several times-the lawyers are here on either side; they have the right to appear here, reputable attorneys, all of them; and the jury is instructed by the court, the lawyers' arguments are not evidence, and counsel will please confine their arguments to the facts as developed from the trial of this case. Proceed."

The Court of Appeals, 50 Ga.App. 720, 725, 179 S.E. 284, 287, held that the evidence authorized the verdict, and: "While the arguments of counsel for the plaintiff excepted to by the defendant in the special ground of its motion for new trial may have been improper in not being based entirely on the evidence, still the trial judge exercised his discretion in this respect and instructed the jury with reference to the same, and we are of the opinion that such argument was not so improper or injurious as to require a reversal of the judgment."

1, 2. Argument of counsel on the trial of causes before the jury is considered by our courts as a prime and important right. Ordinarily, the attorney for the party upon whom the burden of proof rests is entitled to open and conclude. Where this right is denied, it will afford, unless the evidence demanded the verdict, ground for new trial; the presumption being that the party to whom it has been improperly denied has been injured. Phelps v. Thurman, 74...