Newton v. Cohen-Walker-Bailie, Inc.

• Decision Date: 04 May 1965
• Docket Number: INC,COHEN-WALKER-BAILI,No. 1,No. 41274,41274,1
• Citation: 143 S.E.2d 14,111 Ga.App. 753
• Parties: J. B. NEWTON v
• Court: Georgia Court of Appeals

Page 14

143 S.E.2d 14

111 Ga.App. 753

J. B. NEWTON v. COHEN-WALKER-BAILIE, INC.

No. 41274.

Court of Appeals of Georgia, Division No. 1.

May 4, 1965.

Rehearing Denied May 25, 1965.

William C. Calhoun, Augusta, for plaintiff in error.

Jay M. Sawilowsky, Augusta, for defendant in error.

Syllabus Opinion by the Court

JORDAN, Judge.

This was a suit on open account. Before the jury was impanelled, and in the presence of the entire jury panel, counsel for the defendant, requested a continuance on the grounds that he had a written medical certificate stating that the defendant was unable to appear in court. Counsel for the plaintiff, in the presence of the entire jury panel, resisted the motion for continuance on the ground that the case had been previously continued for this reason, and stated in his place in open court that he had called the defendant's office that morning and the defendant was there then, on the date of the trial. The court overruled the motion for continuance. The defendant was not present at the trial. During the closing argument counsel for the plaintiff commented on the fact that the defendant was at work on the date of the trial. The defense counsel thereupon made a motion for mistrial, which was denied.

The jury returned a verdict for the plaintiff and the defendant filed a motion for new trial which was amended by the addition of one special ground complaining of the denial of the motion for mistrial. The trial court denied the amended motion for new trial and the exception is to that judgment. Held:

1. 'Where in the course of a trial improper remarks are made, it is the duty of the judge, by proper instructions and admonishment, to endeavor to remove the improper impression from their minds, or, in his discretion, to declare a mistrial.' Malone Freight Lines, Inc. v. Pridmore, 86 Ga.App. 578(2), 71 S.E.2d 877; Rawlins v. State, 124 Ga. 31, 51, 52 S.E. 1. 'The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. Manchester v. State, 171 Ga. 121, 133, 155 S.E. 11; Smith v. State, 204 Ga. 184, 189, 48 S.E.2d 860; Royal Crown Bottling Co. of Macon v. Bell, 100 Ga.App. 438, 443, 111 S.E.2d 734; Central Container Corp. v. Westbrook, 105 Ga.App. 855, 859, 126 S.E.2d 264. Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.' Atlantic Coast Line R. Co. v. Smith, 107 Ga.App. 384, 387, 130 S.E.2d 355, 359.

Upon the motion for mistrial being made in this case, the trial court sent the jury out, and in the presence of opposite counsel admonished counsel for the plaintiff to confine his argument to the facts in the record and reasonable deductions therefrom. The trial judge further informed counsel that he would 'try to correct this in the minds of the jury'; and upon the jury being returned, the court instructed them as follows: 'Gentlemen of the jury, I instruct you at this time that you gentlemen in determining this case are restricted in your consideration of the case to the evidence as the record discloses and only from the evidence and instruction as given you by the court on the law in the case pertaining to the facts as introduced in evidence, and from these things you would determine and make up your verdict. Do not at any time let the consideration of this case be affected by any statement or statements that might have been made by reason of the absence of the defendant in this matter or in anything connected with the justice or the...