Counts v. Moorehead

206 S.E.2d 40, 232 Ga. 220, 1974 Ga. LEXIS 913

• Court: Supreme Court of Georgia
• Decided: May 7, 1974
• Docket: 28672
• Status: Published

Opinions

Undercofler, Justice.

We granted certiorari to review the ruling of the Court of Appeals in Moorehead v. Counts, 130 Ga. App. 453 (203 SE2d 553). Held:

1. The Court of Appeals held that under Code § 81-1009 an improper remark of counsel required the trial court upon motion for mistrial to rebuke counsel and endeavor to remove the improper impression from their minds. These are not necessarily independent actions. This court has held that where the instruction by the court to the jury to disregard the remarks was full, it in effect amounted to a rebuke of counsel. Wells v. State, 194 Ga. 70, 75 (20 SE2d 580); Spell v. State, 225 Ga. 705 (171 SE2d 285). But the improper statements may be so prejudicial that no instruction of the trial court can eradicate from the minds of the jurors their effect and the case must be retried. Ga. Power Co. v. Puckett, 181 Ga. 386 (182 SE 384); Hicks v. State, 196 Ga. 671 (2) 673 (27 SE2d 307). The improper remarks in the instant case were so prejudicial that no corrective action by the trial court could eradicate their effect upon the jury. Therefore, we affirm the Court of Appeals judgment of reversal.

Argued April 8, 1974 Decided May 7, 1974. Kelly, Champion, Denney & Pease, Edward W. Szczepanski, Jr., for appellants.

2. Code § 81-1009 referring to improper conduct by counsel and the duty of the court on objection to rebuke counsel and endeavor to remove the improper impression from the jurors’ minds by proper instructions also states: "or, in his discretion, he may order a mistrial if the plaintiff’s attorney is the offender.” After a careful review we have concluded that this provision of Code § 81-1009 regarding civil cases has been modified by Section 46 of the Civil Practice Act (Ga. L. 1966, p. 609) which provides: "Where motion for mistrial or other like relief is made, the question is thereby presented as to whether the moving party is entitled to the relief therein sought or to any lesser relief, and where such motion is denied in whole or in part, it shall not be necessary that the moving party thereafter renew his motion or otherwise seek further ruling by the court.” Ga. L. 1966, pp. 609, 655; Code Ann. § 81A-146 (b). In our opinion the trial court in a civil case may, upon the motion of either party, grant a mistrial for improper remarks of counsel.

3. It follows that the Court of Appeals properly reversed the judgment of the trial court.

Judgment affirmed.

All the Justices concur, except Gunter and Ingram, JJ., who dissent from the ruling made in Division 1 and from the judgment of affirmance. Hall, J, disqualified. Roberts, Moore, Worthington & Hawkins, Samuel W. Worthington, III, for appellee.