Southern Stages Inc v. Brown

• Decision Date: 27 January 1948
• Docket Number: No. 31758.,31758.
• Citation: 46 S.E.2d 765
• Parties: SOUTHERN STAGES, Inc., et al. v. BROWN.
• Court: Georgia Court of Appeals

46 S.E.2d 765

SOUTHERN STAGES, Inc., et al.

v.BROWN.

No. 31758.

Court of Appeals of Georgia,

Division No. 2.

Jan. 27, 1948.

Rehearing Denied March 24, 1948.

Syllabus by the Court

1. The alleged negligence for which a recovery of damages to a truck was sought was the pushing of such truck off of the road by a bus. Counsel for the plaintiff in his opening argument to the jury stated: "The only way you can stop these big busses from pushing the little trucks of Jones County farmers off the road is to make them pay."

2. Before a person can be stopped from engaging in a certain practice, it must be shown that that person was engaged in that practice.

3. The right of the defendant was to have a fair and impartial trial and to have the verdict rendered alone on the evidence adduced at the trial.

4. Whether other busses of other companies or other busses of the defendant company had on previous occasions pushed little trucks of Jones County farmers off the road was a matter not in evidence. Nor should it have been in the minds of the jurors.

5. Such facts could not go in evidence and if they went into the verdict it would be a wrong and illegal verdict.

6. There was no evidence from which any deduction could have been made that busses had previously pushed little trucks of Jones County farmers off the road.

7. The jury must have understood that counsel was not making the statement that the evidence led him to this conclusion and that the jury should reach a like conclusion, but that counsel was making the statement as a substantive fact.

8. The only effect of the making of such a statement by the plaintiff's counsel would be to improperly prejudice the minds of the jurors against the defendants.

9. The remarks here were of a very prejudicial nature, and the case was a close one on its facts. We think the circumstances were such that the rebuke and instructions by the judge were insufficient to remove the improper impression and a mistrial ought to have been granted.

Error from Superior Court, Jones County; George S. Carpenter, Judge.

Suit by W. F. Brown against Southern Stages, Inc., and the American Casualty Company, an insurance carrier, to recoverfor the damage to plaintiff's truck as result of collision with bus of the Southern Stages, Inc., and for reasonable hire, wherein the Southern Stages, Inc., filed a counterclaim for recovery of damages to bus and reasonable hire. To review a judgment for the plaintiff, the defendants bring error.

Judgment reversed.

Martin, Martin & Snow, Millard Jackson and George Grant, all of Macon, for plaintiff in error.

Carlton Mobley, of Macon, and J. B. Jackson, of Gray, for defendant in error.

MacINTYRE, Presiding Judge.

1. W. F. Brown brought suit against Southern Stages, Inc., a common carrier, and the American Casualty Company, an insurance carrier, for the recovery of damages to his truck and reasonable hire. The defendant filed a counterclaim for the recovery of damages to its bus and reasonable hire. The jury returned a verdict in favor of the plaintiff. The defendants filed a motion for new trial based on the general and eight special grounds. This motion was overruled, and the defendants excepted.

In special ground five of his amended motion for new trial the defendant contends: "The court erred in failing to grant a mistrial on motion of movants on account of improper and inflammatory remarks made by the Honorable Joe Ben Jackson, attorney for respondent, in his opening argument. This attorney made the statement, in substance, to the jury: 'The only way you can stop these big busses from pushing the little trucks of Jones County farmers off the road is to make them pay.' Immediately after this statement was made, counsel for movants moved the court to direct a mistrial on the ground that said argument was highly improper, prejudicial, inflammatory, and not supported by the evidence. The presiding judge denied this motion and rebuked counsel for respondent for making this statement, and cautioned the jury to disregard said statement, and to disabuse their minds of it. Movants say the respondent is a resident of Jones County and both of movants are foreign corporations, one engaged in the operation of a bus business and the other in the insurance business. Movant contends that said statement referred to the bus industry as a whole and was not confined to any alleged acts of negligence on the part of the bus involved in this particular case, and that this statement was deliberately made for the purpose of inflaming their minds with prejudice and passion against the bus company. Movants contend that this statement necessarily influenced the jury in reaching a verdict in favor of respondent in the face of the fact that all of the evidence from disinterested witnesses clearly showed that respondent's truck...