United Motor Freight Terminal Co. Inc v. Hixon, 32322.

• Decision Date: 03 February 1949
• Docket Number: No. 32322.,32322.
• Citation: 51 S.E.2d. 679
• Court: Georgia Court of Appeals
• Parties: UNITED MOTOR FREIGHT TERMINAL CO., Inc. v. HIXON et al.

51 S.E.2d. 679

UNITED MOTOR FREIGHT TERMINAL CO., Inc.

v.HIXON et al.

No. 32322.

Court of Appeals of Georgia,

Division No. 2.

Feb. 3, 1949.

Rehearing Denied Feb. 24, 1949.

Syllabus by the Court.

1. Grounds of a motion for a new trial which are not insisted upon in briefwill be treated as abandoned. See Code, § 6-1308 and many cases annotated under catchword "abandoned".

2. Improper remarks of counsel are subject to correction either by proper instructions to the jury or mistrial according to the nature of the remarks and circumstances under which they are made. See Rawlins v. State, 124 Ga. 31 et seq., 52 S.E. 1. Upon the question as to whether a declaration of mistrial is required, unless it is apparent that a mistrial was essential to preservation of the right of a fair trial, this Court will not interfere with the discretion of the trial judge. See Trammell v. Atlanta Coach Co., 51 Ga.App. 705 et seq., 181 S. E. 315; Manchester v. State, 171 Ga. 121 (7), 155 S.E. 11.

3. In order for an assignment of error to be sufficient for consideration, the plaintiff in error must not only show error but also injury. See Chapman v. Walden, 183 Ga. 395 et seq., 188 S.E. 885; Southern R. v. Ansley, 8 Ga.App. 325(1), 68 S.E. 1086; Dees v. State, 41 Ga.App. 321(1), 152 S.E. 913.

4. The alleged improper argument in the instant case was not such as to demand a mistrial in view of the instructions of the trial court.

5. Written requests to charge may be refused where they are not wholly correct in stating the law. See Loeb v. State, 6 Ga. App. 23(3), 64 S.E. 338.

6. When a trial court gives to the jury as an essential part of his charge a Code section, he may explain the meaning thereof provided he does so correctly.

7. Where evidence is introduced as to conflicting testimony on the part of a party to a law suit on a former trial this merely goes to the credibility of such party on the last trial, and is a matter for determination by the jury. See Code, § 38-1803; Georgia Power Co. v. Jones, 54 Ga.App. 578 et seq., 18S S.E. 566.

Error from City Court of Carrollton; Robert D. Tisinger, Judge.

Suit by Mrs. Vassie Hixon against United Motor Freight Terminal Co., Inc., to recover for injuries sustained by plaintiff and for damage to her automobile as result of a collision with a truck of the defendant. To review an adverse judgment, the defendant brings error.

Judgment affirmed.

See also, 76 Ga.App. 653, 47 S.E.2d 171.

One of the defendants in error, Mrs. Vassie Hixon, hereinafter called the plaintiff, brought a suit in the City Court of Carrollton against the plaintiff in error, United Motor Freight Terminal Co., Inc., hereinafter called the defendant and the other defendant in error, Cecil Lyle.

The suit was based on personal injuries sustained by the plaintiff and damages to her automobile growing out of a collision between plaintiff's automobile and a truck of the defendant which was being operated at the time and place of the collision by the truck driver of said corporation, Cecil Lyle.

The jury trying the case returned a verdict in favor of plaintiff in the sum of $7,500. The defendant filed a motion for a new trial on the general grounds which was later amended by adding 6 special grounds numbered 5 to 10 inclusive.

The trial court entered judgment overruling the motion for a new trial as amended and this judgment is assigned as error.

Andrews & Nall and Stanley P. Myerson, all of Atlanta, for plaintiff in error.

Boykin & Boykin, of Carrollton, for defendants in error.

TOWNSEND, Judge (after stating the foregoing facts.)

1. Special ground 5 of the amended motion for a new trial appears to have been abandoned because the brief of counsel for the plaintiff in error under "Questions involved" sets forth all other grounds, both general and special, of the motion for a new trial as issues of law upon which they insist, except special ground 5. to which no reference is made. Grounds of a motion for a new trial which are not insisted upon in brief will be treated as abandoned. See Code, § 6-1308 and many cases annotated under catchword "abandoned."

2. Special ground 6 of the amended motion for a new trial contends that the trial court erred in failing to grant a mistrial on motion of counsel for the defendant on account of an alleged improper question propounded by one of counsel for the plaintiff in the presence of the jury during the cross examination of a witness for the defendant, R. L. Holt.

The witness, who was employed by Markel Service, a service and investigating agency which had investigated the case being tried on behalf of the defendant, was being cross examined about the testimony of the plaintiff on a former trial of the instant case. Counsel for the plaintiff, referring to the original transcript of the record, asked questions as follows:

"Q. Is this the original record? A. Yes sir.

"Q. And you made a motion for a new trial on that record? A. I don't know about that, I did not have anything to do about that." Counsel for the defendant thereupon moved for a mistrial on the ground that the question indicated to the jury that since the witness, who was an employee of the Markel Service which was employed by the defendant to investigate the case, found it necessary to move for a new trial that the former trial of the same case resulted unfavorable to the defendant, and that to thus inform the jury as to the outcome of the former case was so improper and prejudicial that the harm could not be corrected by instructions to the jury to disregard it. The trial court overruled the motion for a mistrial and instructed the jury to disregard the question, that it had no bearing whatever on the case, that this case is a completely new. investigation, that what happened on the former trial of the case and who made a motion for a new trial was of no concern to the jury, and further instructed the jury as follows: "And as seriously and emphatically as I can tell you to disregard that statement, and eliminate it from your consideration of the case totally."

In Rawlins v. State, 124 Ga. 31 et seq., 52 S.E. 1, 10, it is held that "Improper remarks of counsel are subject to correction either by proper instructions to the jury or mistrial according to the nature of the remarks and circumstances under which they were made."

In Trammell v. Atlanta Coach Co., 51 Ga.App. 705 et seq., 181 S.E. 315, 318, it is said that "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.'" See also Manchester v. State, 171 Ga. 121(7), 155 S.E. 11..

In the instant case counsel for the plaintiff did not state how the former case terminated but asked a witness for the defendant if he did not make a motion for a new trial. The witness was not a party to the case but was only an employee of the investigating service which operated in behalf of the defendant in the preparation of the case for trial. From the foreging decisions it appears that the trial court has some discretion as to whether the harm can be corrected by instructions, or if a mistrial must be granted. Where that discretion is not abused this Court will not reverse the case. Counsel for the defendant rely on Louisville & Nashville R. Co. v. Patterson, Ga.App., 49 S.E.2d 218, for their position that the harm done by the improper remarks in the instant case cannot be corrected by appropriate instructions to the jury to disregard the same. Reference to the original record in that case on file in the office of the clerk of this Court reveals on the motion being made by counsel for the defendant for a mistrial, the court ruled as follows: "I presume Mr. Mitchell is drawing conclusions as a matter of argument as to those issues, but the jury will be instructed by the court on all the issues involved. I will overrule the motion." Thus it appears that the trial court made no effort to remedy the harm but rather approved the argument of counsel for the plaintiff in his ruling. Also in that case counsel for the plaintiff was not only telling the jury of the outcome of the trial of the companion case, but was insisting that the finding of the jury on the facts in the companion case was conclusive as to the case he was then arguing leaving for the jury only the question of the amount ofthe damages. Even in that case it was not held that the error could not have been corrected by proper instructions since in that case no instructions were given.

In the instant case if counsel informed the jury as to the outcome of the former trial at all, he did so indirectly, and made no insistence that the jury consider it, and the trial court promptly instructed the jury as seriously and emphatically as he could to eliminate the question from their consideration of the case.

In determining that the harm done by the asking of this improper question could be corrected by appropriate instructions, the trial court did not abuse his discretion and this assignment of error is accordingly without merit.

3. Special ground 7 contends that the trial court erred in excluding evidence of a witness for the defendant to the effect that a doctor who had examined the plaintiff and was familiar with her physical qondition had been subpoenaed as a witness for the defendant and that he was not present to testify because, according to the information of the witness obtained from the secretary of the doctor, the latter had suffered 3 heart attacks and was unable to come to court. It is contended that the exclusion of the testimony was harmful and prejudicial to the defendant because it permitted counsel for plaintiff to argue that the evidence of the doctor would have been in favor of the plaintiff had he testified. It is contended that the testimony was admissible under § 38-302 of the Code as original evidence as the same was offered in explanation of the conduct,...