Opinion
41724.
ARGUED JANUARY 4, 1966.
DECIDED MARCH 10, 1966. REHEARING DENIED MARCH 23, 1966.
Action for damages. Walton Superior Court. Before Judge Barrow.
William L. Preston, Terrell W. Benton, Jr., Stewart, Sartain Carey, Joe B. Sartain, Jr., for appellant.
Davis Davidson, Jack S. Davidson, Thomas W. Ridgway, for appellee.
The trial judge did not abuse his discretion in overruling the motion and renewed motion for a mistrial under the circumstances of this case.
ARGUED JANUARY 4, 1966 — DECIDED MARCH 10, 1966 — REHEARING DENIED MARCH 23, 1966 — CERT. APPLIED FOR.
The only questions for consideration in this case are whether the court erred in overruling an original and a renewed motion for a mistrial because of remarks made in the jury argument by an attorney representing the plaintiff in a damage action against the defendant to recover damages for injury to property and for personal injuries arising out of the alleged negligent operation of a truck. The motions for a mistrial, as stated in the sole enumeration of error, were based on a statement of an attorney for the plaintiff in his argument to the jury, as follows: "Mr. Sartain over there, an excellent lawyer and insurance investigator, he knows his business, he would have brought down these State Patrol, he lives in Gainesville." When the first motion was made, the court, out of the presence of the jury, after a statement that he did reprimand counsel for this statement, stated further: "I think that is an improper line of argument. Insurance, of course, is a factor in this case and the jury was qualified with respect to an insurance company in such a way as to indicate, or attempt to prevent the matter of who was represented by an insurance company from being made apparent to the jury, and I think that has been improperly injected in the argument of the case, and I do reprimand you for so doing. The question is whether I must grant a mistrial or whether the matter can be corrected by instructions to the jury that won't further complicate the issue." After this statement by the court, an attorney for the appellee stated that he had no alternative other than to ask that the motion for a mistrial be granted. Upon the return of the jury to the courtroom the court stated: "Gentlemen of the jury, during the course of Mr. Ridgway's argument, and immediately prior to your being excused from the courtroom, he referred to Mr. Sartain as an excellent lawyer and an insurance investigator. I want to call to your attention that Mr. Sartain's presence in this courtroom is as an attorney representing a client. The record is absolutely silent as to any connection that Mr. Sartain may have with insurance industry, and the court has no knowledge of any such relationship. Mr. Ridgway has no authorization in the evidence introduced in this case to make any such reference to Mr. Sartain, and I have and do reprimand him for so doing, and I instruct you to disregard that reference in your deliberations in this case. It is outside the record in the case, there is no basis to the knowledge of the court for the reference, and it should be disregarded entirely in your minds in the deliberation you take on this case." The jury was again excused and the attorney for appellant made his second motion for a mistrial, as follows: "I make a motion that the court grant a mistrial based on the fact that Mr. Ridgway, as attorney for the plaintiff, in his argument to the jury referred to one of the counsel for the defendant, Mr. Sartain, as an excellent lawyer and insurance investigator. It is our feeling, on behalf of the defendant, . . . the injection of the term `insurance investigator' before the jury and in the jury's presence prejudices our rights under the Georgia law to a fair consideration of the issue, in that an insurance company is not a named defendant in this case. Also due to the fact . . . that Mr. Sartain lives in Gainesville, he is not really locally known by the Walton County jurors in Monroe, and we feel, in spite of . . . the court's ruling and reprimand, and we feel in spite of the court's instructions to the jury, this matter will not be erased from their consideration." Thereupon the court ruled as follows: "I feel that in view of the incidental nature of the injection of this issue into the argument of the case, and in view of the action the court has taken, the harm has been eliminated and I will overrule the motion." The jury found for the plaintiff and the defendant appealed.
Appellant has waived all grounds of his appeal except that the statement of the attorney relative to insurance required the grant of a new trial and that no proper reprimand and instructions would remove the effect of the reference to insurance. The jury was qualified as to one insurance company. There was no cross action by the defendant. In the absence of some special circumstances showing the interest of one insurance company in the plaintiff's recovery it will be assumed that the court and jury understood that the defendant held a policy of insurance issued by the company with reference to which the jury was qualified. The trial judge was of the opinion that the reference to insurance by the attorney for the plaintiff was incidental. We concur in that view. What was foremost in the attorney's mind was that a lawyer who was also an insurance investigator should see to it that witnesses who knew facts which tended to disprove contentions by the other party to a case should see that they are present to testify. Whether a lawyer is an insurance investigator or not he should know he should present the best case he can to a jury. The court's statement to the jury was sufficient to remove from the case the fact that the defendant's lawyer was an insurance investigator. There simply was no evidence of it. Whether it hurt the defendant is extremely doubtful. The facts of this case put it in the class of cases exemplified by Steinmetz v. Chambley, 90 Ga. App. 519 (5) ( 83 S.E.2d 318), and Bramlett v. Hulsey, 98 Ga. App. 39, 42 ( 104 S.E.2d 614). See also Houston v. Taylor, 50 Ga. App. 811, 814 ( 179 S.E. 207). If the attorney in this case had emphasized the fact that the defendant was insured, by insidious intention and design, we would have a different case. The question of the grant of a mistrial is largely in the discretion of the trial judge and in this case we do not think that he abused the discretion by denying the motion for a mistrial.
The court did not err in overruling the motions for a mistrial.
Judgment affirmed. Frankum and Pannell, JJ., concur.