McCluskey v. American Oil Co.
McCluskey v. American Oil Co.
Opinion of the Court
The Court of Appeals (one judge dissenting) reversed the judgment of the trial court because of the overruling of the motion for a mistrial of the defendant American Oil Company. The ground upon which the motion was made and enumerated as error was that counsel for the plaintiff during the course of his argument to the jury said: “The third element that you have to decide is, if there was an injury and if there is liability, then is there ability to pay, and, if so, how much should this mother be compensated for the death of this child? • Now there is no doubt in your mind and there is no doubt in my mind that there is ability to pay. In a lot of cases you have to worry about that. You have to consider where the man works that has been sued, and, if he can pay, the judgment that you think will be fair. In this case you don’t because American Oil Company has assets untold, and whatever you decide this twelve-year-old child . . .” Upon overruling the motion the trial judge said to counsel, “I caution you not to go into the matter before the jury, and I specifically instruct the jury to disregard that.” Upon renewal of the motion by counsel for the defendants the trial judge adhered to his previous ruling, saying, “I admonish counsel not to touch upon that matter again in his argument.” The Court of Appeals held that “This argument of plaintiff’s counsel concerning the financial condition of the defendant went entirely beyond any possibility of correction by a mere admonition to the jury to disregard it or to counsel to refrain from further touching upon it. It was patently and grossly harmful. Nothing short of a declaration of a mistrial could erase the harm. What the court did was not enough.” American Oil Co. v. McCluskey, 118 Ga. App. 123, 125 (162 SE2d 853). We granted certiorari.
When this case was previously before this court, McCluskey v.
Notwithstanding the testimony above referred to we agree that the argument of counsel for the plaintiff went beyond the bounds of proper and legitimate argument, but in ruling on such matters the trial judge is vested with a broad discretion and his ruling will not be disturbed unless it appears that his discretion was manifestly abused. Code § 81-1009; Georgia Power Co. v. Puckett, 181 Ga. 386 (5) (182 SE 384); Smith v. State, 204 Ga. 184, 188 (48 SE2d 860), and see Chattanooga &c. R. Co. v. Huggins, 89 Ga. 494 (15 SE 848), where this court said in Division 11 of its opinion as shown on page 506: “Another ground of error is, that counsel for the plaintiff, in his opening argument, made the following appeal to the prejudices of the jury: 'Gentlemen of the Jury, we are asking you for $20,000 and we want it. That is a heap of money. I never saw that much money and I know the plaintiff never did, and I don’t suppose any member of the jury ever did; but this defendant did. It’s got plenty of it, and we want it. This is lots of money to us, but a mighty little to this defendant. It could give us $20,000 and never miss it.’ These remarks were grossly improper, and it was the duty of the court to rebuke counsel and require him to desist, and to warn the jury to disregard them. But it does not appear from the record that the court failed to do this; and in the absence of any such showing, this court cannot assume that there was any omission in this respect. The presumption is that the court did its duty.” We quote the above, not because of any presumption as to the action taken by the trial judge in the instant case with respect to the motion for a
Under all the facts of this case we are of the opinion that it cannot be properly held that the trial judge abused his discretion in overruling the motion for a mistrial, and that prejudice, if any, created by the argument upon which the motion was based was not completely erased by the actions taken by the trial judge. Therefore, the judgment of the Court of Appeals is
Reversed.
Dissenting Opinion
dissenting. I am of the opinion that the certiorari in this case should be dismissed upon the principles announced in Central of Ga. R. Co. v. Yesbik, 146 Ga. 620 (91 SE 873), and reasserted in L. & N. R. Co. v. Tomlin, 161 Ga. 749, 759 (1) (132 SE 90) and Hicks v. L. & N. R. Co., 182 Ga. 595, 602 (186 SE 662) and the numerous other cases following them. The question decided by this court to my mind is merely a question of fact, that is: whether or not under the
I am authorized to state that Justice Mobley concurs in this dissent. ,
Reference
- Full Case Name
- McCLUSKEY v. AMERICAN OIL COMPANY Et Al.
- Cited By
- 33 cases
- Status
- Published