Decatur Chevrolet Co. v. White

Broyles, C. J. 1. It is an inherent right of all courts where jury trials obtain, including justices of the peace, to declare a mistrial when justice demands it. Chapman v. Conwell, 1 Ga. App. 212, 214 (58 S. E. 137). 2. O. L. White brought suit against the Decatur Chevrolet Company for damage to an automobile, and a verdict in favor of the plaintiff was returned. Upon the trial before the justice of the peace and a jury, and while the plaintiff was testifying as a witness, he was asked this question: “What, if anything, did Mr. Costley [the alleged agent of the defendant company] tell you [363] about whether or not Mr. Flournoy White [the driver of the defendant’s truck] had the company’s permission or consent to use the truck?” The plaintiff made the following answer: “Mr. Costley said that he would talk to Flournoy White when he came in, and that he would then report it to the insurance company.” (Italics ours.) It is then recited as follows in the petition for certiorari: “At this point counsel for D.ecatur Chevrolet Company objected to this evidence and moved to rule it out, and made a motion for mistrial upon the ground that the reference to insurance was irrelevant, immaterial, and prejudicial, and calculated by the plaintiff himself to influence the jurors in their verdict. Counsel for the defendant insisted upon a mistrial being granted, because the mere instruction of the court to the jury that the same should not be considered could not disabuse the prejudicial impression created upon the jurors by such evidence. The court overruled the defendant’s motion for a mistrial, and ruled merely that the evidence was inadmissible. The justice of the peace did not promptly and vigorously reprimand 0. L. White for his misconduct, and did not give the jury any instruction about disabusing their minds of any prejudice, which may have arisen on account of the introduction of this testimony. The voluntary introduction by the plaintiff of “the insurance company” into the evidence was calculated to suggest to the jury that any damages found in favor of the plaintiff would be paid by the insurance company and not by the defendant, and was highly prejudicial to the defendant’s cause; and the mere ruling out of the evidence, without a rebuke to the witness and without instructions to the jury to disregard it, was not sufficient to erase the prejudicial statement from the minds of the jury; and the justice erred in overruling the timely motion to grant a mistrial. See, in this connection, O’Neill v. Pruitt, 110 Ga. 577 (36 S. E. 59); General Supply Co. v. Toccoa Plumbing Co., 138 Ga. 219 (75 S. E. 135); Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549 (174 S. E. 131). 3. Under the foregoing rulings the judge of the superior court erred in overruling the certiorari. Judgment reversed. MacIntyre, J., concurs. Guerry, J., dissents.