Wallace v. Cates, 44447

• Decision Date: 02 September 1969
• Docket Number: No. 44447,No. 2,44447,2
• Citation: 120 Ga.App. 228,170 S.E.2d 40
• Parties: Edmond WALLACE v. J. C. CATES
• Court: Georgia Court of Appeals

Page 40

170 S.E.2d 40

120 Ga.App. 228

Edmond WALLACE v. J. C. CATES.

No. 44447.

Court of Appeals of Georgia, Division No. 2.

Sept. 2, 1969.

Norton, Cooper, Lang & Stowers, Edward Lang, Gainesville, for appellant.

No appearance for appellee.

Syllabus Opinion by the Court

BELL, Presiding Judge.

In this suit for damages arising out of an automobile collision, the plaintiff in testifying volunteered that the defendant had liability insurance. The defense counsel, out of the presence of the jury, moved for a mistrial. The court denied the motion and immediately, in the presence of the jury, firmly rebuked the plaintiff and his counsel and emphatically instructed the jury to disregard the statement and not to allow the matter to have any weight whatsoever in their decision in the case. Following completion of the trial, the defendant filed a motion for a new trial assigning as error the trial court's refusal to grant a mistrial. In this appeal error is enumerated on the denial of each of the motions. In Georgia the injection into a case of testimony pertaining to liability insurance does not automatically require a grant of a motion for a mistrial. It is only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court, that a mistrial should be granted. Steinmetz v. Chambley, 90 Ga.App. 519(5), 83 S.E.2d 318. Accord Sims v. Martin, 33 Ga.App. 486, 126 S.E. 872; Heinz v. Backus, 34 Ga.App. 203, 128 S.E. 915; A. G. Boone Company et al. v. Owens, 54 Ga.App. 379, 187 S.E. 899; Hudgins Contracting Co. v. Smith, 54 Ga.App. 687, 188 S.E. 732; Barbre Administrator v. Scott, 75 Ga.App. 524, 530, 43 S.E.2d 760; Wade v. Drinkard, 76 Ga.App. 159(5), 45 S.E.2d 231; Pruitt v. Pierce, 100 Ga.App. 808, 112 S.E.2d 327; Southern Poultry Company, Inc. v. Fletcher, 113 Ga.App. 374, 147 S.E.2d 870. The determination as to whether these harmful factors are present in a case necessarily rests in the discretion of the trial judge. Appellate courts should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse. This principle is historically respected in this jurisdiction. Williamson v. Lunsford, 119 Ga.App. 240, 166 S.E.2d 622. In this case the trial judge twice exercised discretion in determining that the volunteered testimony as to liability insurance was not harmful or prejudicial to defendant-once during the course of the trial when the motion was made and again following completion of the trial when he denied the motion for new trial based solely on the point. Under the facts of this case we cannot say the judge abused his discretion. In cases where reversals have occurred such as Decatur Chevrolet Co. v. White, 51 Ga.App. 362, 180 S.E. 377; Minnick v. Jackson, 64 Ga.App. 554, 13 S.E.2d 891; Burel v. Dempsey, 88 Ga.App. 864, 78 S.E.2d 58 and General Supply Company v. Toccoa Plumbing Company, 138 Ga. 219, 75 S.E. 135, the trial court merely ruled out volunteered testimony as to insurance or did not promptly and vigorously reprimand plaintiff or his counsel or instruct the jury to disabuse their minds of any prejudice which may have arisen because of the testimony. In Wood v. Venable, 83 Ga.App. 498, 64 S.E.2d 387, the reversal was predicated on the simple fact that the verdict was not authorized by the evidence.

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