O.C.G.A. § 9-10-185 (2019)

Annotations

Cross references. Effect of judge’s expression to jury of opinion of factual issue or expression of approval or disapproval of jury verdict, §§ 9-10-7, 9-10-8. Similar provision pertaining to criminal actions, § 17-8-75. Law reviews. For note, “Argument of Counsel,” see 1 Ga. L. Rev. No. 1 p. 44 (1927).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION DISCRETION OBJECTIONS APPLICATION General Consideration Former Code 1933, § 81-1009 (see O.C.G.A. § 9-10-185) has not been repealed by Ga. L. 1966, p. 609, § 85 (see O.C.G.A. Ch. 11, T. 9); it is the law of this state. Moorehead v. Counts, 130 Ga. App. 453, 203 S.E.2d 553, 1973 Ga. App. LEXIS 1346 (1973), aff’d, 232 Ga. 220, 206 S.E.2d 40, 1974 Ga. LEXIS 913 (1974). Former Code 1933, § 81-1009 (see O.C.G.A. § 9-10-185) has been modified by Ga. L. 1966, p. 609, § 46 (see O.C.G.A. § 9-11-46(b)); the trial court

in a civil case may, upon the motion of either party, grant a mistrial for improper remarks of counsel. Counts v. Moorehead, 232 Ga. 220, 206 S.E.2d 40, 1974 Ga. LEXIS 913 (1974). It is duty of trial court to control trial of the case and to ensure fair trial to both sides on the disputed issues in the case, thus sometimes requiring interference by the court with the conduct of counsel or with a witness in the trial, and the trial court has broad discretion in the handling of such matters. Stephen W. Brown Radiology Assocs. v. Gowers, 157

Ga. App. 770, 278 S.E.2d 653, 1981 Ga. App. LEXIS 2011 (1981). This section makes it duty of trial judge to interpose and prevent making by counsel of statements of prejudicial matters not in evidence in the hearing of the jury; this rule likewise applies to the examination of witnesses by counsel. Johnson v. Cook, 123 Ga. App. 302, 180 S.E.2d 591, 1971 Ga. App. LEXIS 1203 (1971) (see O.C.G.A. § 9-10-185). This section imposes duty on judge to rebuke prejudicial statements, when timely objection is made. Southern Marble Co. v. Pinyon, 144 Ga. 259, 86 S.E. 1086, 1915 Ga. LEXIS 161 (1915) (see O.C.G.A. § 9-10-185). Improper conduct may be corrected by an open rebuke and instructions to the jury. Robinson & Co. v. Stevens, 93 Ga. 535, 21 S.E. 96, 1893 Ga. LEXIS 474 (1893). Judge may rebuke prejudicial statements to prevent argument on facts not in evidence. Bulloch v. Smith, 15 Ga. 395, 1854 Ga. LEXIS 52 (1854); Doster v. Brown, 25 Ga. 24, 1858 Ga. LEXIS 2 (1858); Forsyth v. Cothran, 61 Ga. 278, 1878 Ga. LEXIS 102 (1878). Flights of oratory and false logic do not call for mistrials or rebuke; it is the introduction of facts not in evidence that requires the application of such remedies. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935); Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313, 1957 Ga. LEXIS 319 (1957). Conduct of party or counsel subject to legitimate comment. - What has transpired in a case from its inception to its conclusion, and the conduct of the party or counsel with respect to the case, are the subject of legitimate comment. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313, 1957 Ga. LEXIS 319 (1957). Permissible to draw deductions from evidence regardless of their absurdity. - While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence, and the fact that the deductions may be illogical, unreasonable, or even absurd, is matter for reply by adverse counsel and not for rebuke by the court. Miller v. Coleman,

213 Ga. 125, 97 S.E.2d 313, 1957 Ga. LEXIS 319 (1957). Fact that deductions are illogical is a matter for reply by adverse counsel, and not for rebuke by the court. Gray v. Cole, 20 Ga. 203, 1856 Ga. LEXIS 38 (1856); Seaboard Air-Line Ry. v. Horning, 18 Ga. App. 396, 89 S.E. 493, 1916 Ga. App. LEXIS 371 (1916). Remarks not introducing facts undisclosed by the evidence not improper. - Remarks of counsel while addressing the jury which do not undertake to introduce any material fact not disclosed by the evidence do not constitute improper argument. Continental Cas. Co. v. Wilson-Avery, Inc., 115 Ga. App. 793, 156 S.E.2d 152, 1967 Ga. App. LEXIS 1260 (1967). There is nothing wrong in counsel’s reading the law of the case as adjudicated upon its previous appearance in the Court of Appeals. City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160, 1956 Ga. App. LEXIS 525 (1956). Inferences not warranted by evidence should not be indulged in by counsel in their arguments to the jury. McGhee v. Minor, 188 Ga. 635, 4 S.E.2d 565, 1939 Ga. LEXIS 590 (1939). This section forbids the introduction, by way of argument, of facts not in the record and calculated to prejudice the accused. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313, 1957 Ga. LEXIS 319 (1957) (see O.C.G.A. § 9-10-185). Comment on facts not in evidence improper. - For counsel, in arguing case, to comment upon facts not in evidence before the jury is highly improper. Georgia & A. Ry. v. Pound, 111 Ga. 6, 36 S.E. 312, 1900 Ga. LEXIS 471 (1900). See also Georgia M. and G.R.R. v. Evans, 87 Ga. 673, 13 S.E. 580, 1891 Ga. LEXIS 259 (1891). Improper argument not to be answered in kind. - Improper remark of counsel is no excuse for an improper reply thereto, where no objection was made against the latter. Higgins v. Cherokee R.R., 73 Ga. 149, 1884 Ga. LEXIS 94 (1884). The fact that counsel for one party has used improper argument to the jury will not justify or authorize counsel for the

General Consideration (Cont’d) opposing party to do likewise, under the principle of law that injuria non excusat injuriam. Banks v. Kilday, 88 Ga. App. 307, 76 S.E.2d 642, 1953 Ga. App. LEXIS 1071 (1953). Improper remarks of counsel are subject to correction either by proper instruction to jury or a mistrial, according to the nature of the remarks and the circumstances under which they were made. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 181 S.E. 315, 1935 Ga. App. LEXIS 446 (1935). Merely ruling out improper statements of counsel in argument to jury is insufficient to cure the injury; it is the duty of the court, on objection, to rebuke counsel. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Rebuke of counsel sufficient where misconduct not so gross as to require mistrial. - If the misconduct is not so gross, in the opinion of the court, as to require a mistrial, it is generally within the discretion of the court to rebuke counsel and to forbid counsel to persist therein; to instruct the jury not to allow the same to have any effect against the opposite party is an option of the court. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). This section does not require one corrective action or the other - it requires both corrective actions by the court; the court shall rebuke counsel, and, in addition, shall by all needful and proper instructions to the jury endeavor to remove the improper impressions from the jury’s mind. Moorehead v. Counts, 130 Ga. App. 453, 203 S.E.2d 553, 1973 Ga. App. LEXIS 1346 (1973), aff’d, 232 Ga. 220, 206 S.E.2d 40, 1974 Ga. LEXIS 913 (1974) (see O.C.G.A. § 9-10-185). Proper instruction may amount to rebuke. - To rebuke counsel and endeavor to remove the improper impression from jurors’ minds are not necessarily independent actions; where the instruction by the court to the jury to disregard the remarks was full, it in effect amounts to a rebuke of counsel. Counts v. Moorehead, 232 Ga. 220, 206 S.E.2d 40, 1974

Ga. LEXIS 913 (1974); A.W. Easter Constr. Co. v. White, 137 Ga. App. 465, 224 S.E.2d 112, 1976 Ga. App. LEXIS 2488 (1976). Presumption is that court properly rebuked counsel absent contrary evidence in record. - Where counsel’s remarks were grossly improper, it was the duty of the court to rebuke counsel and require counsel to desist and to warn the jury to disregard them, but if it does not appear from the record that the court failed to do this, the court cannot assume that there was any omission in this respect; the presumption is that the court did its duty. McCluskey v. AMOCO, 225 Ga. 63, 165 S.E.2d 830, 1969 Ga. LEXIS 381 (1969). Rebuking counsel and properly instructing jury not discretionary. - While, under this section, where counsel is guilty of improper conduct and a motion for mistrial is made, the court should take corrective measures, whether or not the motion should be granted is largely in its discretion, but its failure to “rebuke counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds” is error. Atlantic Coast Line R.R. v. Coxwell, 93 Ga. App. 159, 91 S.E.2d 135, 1955 Ga. App. LEXIS 501 (1955) (see O.C.G.A. § 910-185). Sufficiency of instructions to be determined under facts of each case. - No fixed rule may be laid down as to when conduct or improper remarks of counsel are or are not sufficiently corrected by instructions of the court to the jury to disregard them, as this must be determined under the particular facts and circumstances of each case. Interstate Life & Accident Co. v. Brewer, 56 Ga. App. 599, 193 S.E. 458, 1937 Ga. App. LEXIS 178 (1937). Whether court takes sufficient steps to remove improper matters from minds of jury is frequently a question of degree to be decided under the circumstances of the case. Howard v. Renfroe, 93 Ga. App. 59, 90 S.E.2d 598, 1955 Ga. App. LEXIS 475 (1955). While remark of counsel for plaintiff was improper, instructions of court to jury were sufficient to autho-

rize the holding, in the court’s discretion, that the improper impression had been removed from the minds of the jury, and the court’s denial of the motion for mistrial was not error. Banks v. Kilday, 88 Ga. App. 307, 76 S.E.2d 642, 1953 Ga. App. LEXIS 1071 (1953). Appellant received proper relief where judge instructed jury per appellant’s request. - Where the record shows that the appellant requested the court to instruct the jury to disregard a prejudicial remark, and the judge did so, the appellant is afforded the relief provided under this section. Wilhite v. Mays, 140 Ga. App. 816, 232 S.E.2d 141, 1976 Ga. App. LEXIS 1640 (1976), aff’d, 239 Ga. 31, 235 S.E.2d 532, 1977 Ga. LEXIS 800 (1977) (see O.C.G.A. § 9-10-185). New trial will not generally be granted where court warns counsel to confine counsel’s argument to the evidence and issues in the case, and instructs the jury to disregard the improper statements of counsel. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Some matter is so inflammatory that its effect cannot be removed, and mistrial must be granted. Howard v. Renfroe, 93 Ga. App. 59, 90 S.E.2d 598, 1955 Ga. App. LEXIS 475 (1955). Mistrial proper only where other remedies insufficient. - Allusions to a matter extrinsic to the record by counsel in the argument of a case will not constrain the court to declare a mistrial in every instance; it is only when the foreign matter injected into the case by the argument is of such a prejudicial nature that a rebuke of the statement by counsel and an instruction to the jury will be insufficient to remove any improper impressions from the minds of the jurors that a mistrial should be declared. Chunn v. McRae, 43 Ga. App. 417, 159 S.E. 130, 1931 Ga. App. LEXIS 397 (1931). Request for mistrial proper where remarks considered extremely prejudicial. - If the remarks are considered so prejudicial that their effect upon the jury cannot be counteracted, the party aggrieved may request that the case be withdrawn from the jury and a mistrial declared. Georgia Power Co. v. Puckett, 181

Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). New trial granted where court fails to apply corrective measures on request. - If statements of fact or comments unjustified by the evidence are made by counsel, and it is apparent that the impropriety may be prejudicial to the opposite party, and yet the court takes no action to apply any corrective measure though requested to do so, a new trial will be granted. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Circumstances considered in reversing overruling of motion for mistrial. - Where instructions regarding improper statements by counsel are given, the overruling of the motion for mistrial will not be reversed unless (a) the instructions were insufficient for the purpose, or (b) the violation was so flagrant and the error so prejudicial that no instructions whatever would have been sufficient, and the judgment overruling the motion therefore constitutes an abuse of discretion. Collins v. Porterfield, 102 Ga. App. 294, 116 S.E.2d 105, 1960 Ga. App. LEXIS 603 (1960). Party cannot during trial ignore what the party thinks to be an injustice, take the party’s chance on a favorable verdict, and complain later. Wright v. Wright, 222 Ga. 777, 152 S.E.2d 363, 1966 Ga. LEXIS 626 (1966). Discretion Restraint and correction of improper argument by counsel is within the discretion of the court, and such discretion will not be controlled unless manifestly abused. Banks v. Kilday, 88 Ga. App. 307, 76 S.E.2d 642, 1953 Ga. App. LEXIS 1071 (1953). In ruling on matters contemplated by this section, trial judge is vested with broad discretion and the judge’s ruling will not be disturbed unless it appears that the judge’s discretion was manifestly abused. McCluskey v. AMOCO, 225 Ga. 63, 165 S.E.2d 830, 1969 Ga. LEXIS 381 (1969). Because defense counsel had completed closing argument, it would not have made sense to instruct counsel to desist from

Discretion (Cont’d) further improper argument, but the court should have instructed the jury not to consider whether or how a damage award might affect the defendant. Dascombe v. Hanley, 270 Ga. App. 355, 606 S.E.2d 602, 2004 Ga. App. LEXIS 1438 (2004), overruled in part, Stolte v. Fagan, 291 Ga. 477, 731 S.E.2d 653, 2012 Ga. LEXIS 679 (2012). Judge has very wide discretion in preventing placement by counsel before jury of inadmissible matter. - It is the duty of the trial judge to take such steps as are, in the judge’s opinion, necessary to prevent the placing of inadmissible matter before the jury by plaintiff’s counsel, and in such action the law vests in the judge a very wide discretion. Johnson v. Cook, 123 Ga. App. 302, 180 S.E.2d 591, 1971 Ga. App. LEXIS 1203 (1971). Court has wide discretion in declaring or denying a mistrial. - Even where the conduct of counsel exceeds the bounds of propriety, the trial judge is vested with broad discretion in determining whether to grant a mistrial, and the judge’s ruling will not be disturbed unless it appears that the judge’s discretion was manifestly abused. Walker v. Bishop, 169 Ga. App. 236, 312 S.E.2d 349, 1983 Ga. App. LEXIS 3037 (1983). Trial court’s rulings on objections or motions concerning improper argument not disturbed absent abuse of discretion. - In passing upon objections or motions on account of improper argument, the judge is vested with broad discretion, and the judge’s ruling thereon will not be disturbed unless it manifestly appears that the judge abused the judge’s discretion. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935); Malone Freight Lines v. Pridmore, 86 Ga. App. 578, 71 S.E.2d 877, 1952 Ga. App. LEXIS 1012 (1952); Central Container Corp. v. Westbrook, 105 Ga. App. 855, 126 S.E.2d 264, 1962 Ga. App. LEXIS 1064 (1962); Atlantic Coast Line R.R. v. Smith, 107 Ga. App. 384, 130 S.E.2d 355, 1963 Ga. App. LEXIS 851 (1963); City of Macon v. Smith, 117 Ga. App. 363, 160 S.E.2d 622, 1968 Ga. App. LEXIS 1090 (1968); American Employers

Ins. Co. v. Johns, 122 Ga. App. 577, 178 S.E.2d 207, 1970 Ga. App. LEXIS 957 (1970); Intercompany Servs. Corp. v. Kleeb, 140 Ga. App. 512, 231 S.E.2d 505, 1976 Ga. App. LEXIS 1542 (1976). Denial of sanctions held not abuse of discretion. - Denial of sanctions for defense counsel’s improper remarks informing the jury that opposing counsel was representing plaintiffs on a contingent-fee basis was not an abuse of discretion, where issues as to the amount of damages, addressed by the improper remarks, were not reached by the jury, and therefore no harm resulted. Stoner v. Eden, 199 Ga. App. 135, 404 S.E.2d 283, 1991 Ga. App. LEXIS 386 (1991), cert. denied, No. S91C0904, 1991 Ga. LEXIS 703 (Ga. May 15, 1991). Discretion in declaring mistrial to be liberally exercised in proper cases. - The matter of declaring a mistrial for improper argument of counsel is very important, and the discretion of the trial judge should be liberally exercised in all cases where counsel abuse their privilege of argument by prejudicing the case of the opposite party. Brown v. Wilson, 55 Ga. App. 262, 189 S.E. 860, 1937 Ga. App. LEXIS 63 (1937). Objections Duty to correct prejudicial statements absent objection. - In certain instances, a correction is required, even if no objection was made. Metropolitan St. R.R. v. Powell, 89 Ga. 601, 16 S.E. 118, 1892 Ga. LEXIS 412 (1892). See also Bazemore v. Davis, 55 Ga. 504, 1875 Ga. LEXIS 457 (1875). It is, upon timely objection, error to decline to rebuke counsel and to give cautionary instructions to the jury; where the rebuke is not made or cautionary instructions given, the improper argument goes with the apparent sanction of the court. Howard v. Renfroe, 93 Ga. App. 59, 90 S.E.2d 598, 1955 Ga. App. LEXIS 475 (1955). Duty of court upon timely objection to caution jury against improper argument. - It is the duty of the trial judge upon a timely and appropriate request of the party likely to be prejudiced thereby, to direct the attention of the jury to the

impropriety of the argument and caution them against it. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Trial court’s obligation after objection made. - In a medical malpractice case, the appellate court erred by concluding that the plaintiff waived the plaintiff’s objection to one instance of allegedly improper closing argument and had acquiesced in the trial court’s response to the other, thereby foreclosing further review of those claims because once the trial court sustained plaintiff’s objection, the trial court assumed an independent duty to take some remedial action, a curative instruction, or rebuke of counsel, for example, without any additional request from plaintiff’s counsel. Stolte v. Fagan, 291 Ga. 477, 731 S.E.2d 653, 2012 Ga. LEXIS 679 (2012), overruled in part, Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018), overruled in part, Williams v. Harvey, 311 Ga. 439, 858 S.E.2d 479, 2021 Ga. LEXIS 256 (2021). As an objection was sustained to defense counsel’s improper comments about a dentist’s reputation during closing arguments in a dental malpractice action, but the trial court failed to take some remedial action and the comments could have affected the jury’s verdict, a new trial was warranted. Stolte v. Fagan, 322 Ga. App. 775, 746 S.E.2d 255, 2013 Ga. App. LEXIS 608 (2013), overruled in part, Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018). New trial will not be required on account of improper argument, unless there is timely objection, motion, or request to charge, and will not then be required unless the court fails to rebuke counsel and to instruct or charge the jury not to consider the argument, or unless the circumstances of the case are such that the rebuke and instruction or charge of the court is insufficient to remove the improper impression from the minds of the jury. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Failure to rebuke no ground for mistrial absent motion. - Where the trial court gave proper instructions to the jury and no request for a reprimand or

motion for a mistrial was made, the absence of a reprimand does not constitute grounds for a new trial. Shippen v. Thompson, 45 Ga. App. 736, 166 S.E. 41, 1932 Ga. App. LEXIS 679 (1932). Equal latitude allowed both counsel regarding objectionable matter which resulted in no harm to either. - Where counsel for defendant, at the very moment of repeating defendant’s objection, incorporated into defendant’s objection a repetition of the original objectionable matter to which counsel for plaintiff was, equally erroneously, attempting to reply, the latitude allowed to each side was such that no harmful effect resulted to either; accordingly, a reversal was not granted on this ground. Georgia N. Ry. v. Hathcock, 93 Ga. App. 72, 91 S.E.2d 145, 1955 Ga. App. LEXIS 480 (1955). Declaration of mistrial within court’s discretion where ruling on objection indicated to jury to disregard argument. - While if objection is made to improper argument, it is not necessary that a mistrial be moved, where there was no motion for mistrial, the objection interposed was mild, and the withdrawal of the offending argument prompt, and from the court’s ruling the jury must have understood that the matter objected to was not for their consideration, it would be within the discretion of the trial court whether it would declare a mistrial. City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160, 1956 Ga. App. LEXIS 525 (1956). Under this section, an objection and request for some form of corrective action are necessary to present reviewable error. Speagle v. Nationwide Mut. Fire Ins. Co., 138 Ga. App. 384, 226 S.E.2d 459, 1976 Ga. App. LEXIS 2172 (1976) (see O.C.G.A. § 9-10-185). Necessity for opposing counsel to object or invoke ruling or instruction by court. - When improper argument to the jury is made by an attorney for one of the parties, it is necessary, in order to make such argument a basis for review, that opposing counsel object to such argument or invoke some ruling or instruction with reference thereto by the court. Ehrlich v. Mills, 203 Ga. 600, 48 S.E.2d 107,

Objections (Cont’d) 1948 Ga. LEXIS 496 (1948); Wright v. Wright, 222 Ga. 777, 152 S.E.2d 363, 1966 Ga. LEXIS 626 (1966). Because an injured person failed to object when an improper argument was made by the defense counsel, failed to ask the trial court to further rebuke the defense counsel or give a curative instruction until after the jury retired for deliberations, and failed to object to the curative charge as given, that issue was waived on appeal. Booker v. Older Americans Council of Middle Ga., Inc., 278 Ga. App. 407, 629 S.E.2d 69, 2006 Ga. App. LEXIS 341 (2006). O.C.G.A. § 9-10-185, imposing a duty on the trial court to interpose and prevent counsel from making statements of prejudicial matters not in evidence, did not apply in a case in which, although counsel objected to opposing counsel’s improper argument regarding reaction times, counsel never obtained a ruling either sustaining or overruling counsel’s objection. It is the duty of counsel to obtain a ruling on counsel’s motions or objections. Young v. Griffin, 329 Ga. App. 413, 765 S.E.2d 625, 2014 Ga. App. LEXIS 697 (2014), overruled in part, Williams v. Harvey, 311 Ga. 439, 858 S.E.2d 479, 2021 Ga. LEXIS 256 (2021). Timely objection necessary to justify curative instructions. - Objections to counsel’s improper statements under O.C.G.A. § 9-10-185 are waived unless the objections are made contemporaneously; thus, a trial court did not err by failing to provide a curative instruction with regard to statements from plaintiff’s counsel because the defendant was required to make a timely objection to counsel’s statements that the defendant believed were improper. Pulte Home Corp. v. Simerly, 322 Ga. App. 699, 746 S.E.2d 173, 2013 Ga. App. LEXIS 597 (2013). Counsel cannot demand new trial absent timely objection to improper argument. - It is as much the opposing counsel’s duty to object to improper argument as it is to object to improper evidence, and, in the former case as well as in the latter, if opposing counsel permits it without objection, opposing counsel can-

not demand a new trial on the ground that the jury may have been affected by it. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Verdict not to be set aside for improper remarks absent timely objection. - Although it is the duty of the trial judge, whether so requested or not, to check improper remarks of counsel to the jury, and to seek, by proper instructions to the jury, to remove any prejudicial effect the remarks may be calculated to have against the opposite party, a verdict will not be set aside because of such remarks or because of any omission of the judge to perform the judge’s duty in the matter, unless objection be made at the trial. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Where there is objection to argument, the court may grant the following forms of relief: (1) an instruction or admonition to the jury to disregard the improper argument; or, if this is deemed inadequate to remove the harmful effect; (2) instruction or admonition to the jury plus a reprimand or rebuke of offending counsel; or, as a last resort, (3) mistrial. Averette v. Oliver, 128 Ga. App. 54, 195 S.E.2d 925, 1973 Ga. App. LEXIS 1383 (1973). Application Figurative speech has always been regarded as a legitimate weapon in forensic warfare, if there be evidence before the jury on which it may be founded. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Delay in filing a defense may be commented on. McBride & Co. v. Macon Tel. Publishing Co., 102 Ga. 422, 30 S.E. 999, 1897 Ga. LEXIS 513 (1897); Central of Ga. Ry. v. Hall, 124 Ga. 322, 52 S.E. 679, 1905 Ga. LEXIS 708 (1905). Defendant’s sworn plea may be compared with the defendant’s testimony to disparage it. McLendon v. Frost, 57 Ga. 448, 1876 Ga. LEXIS 145 (1876); Rucker v. Brown Bros., 6 Ga. App. 361, 65 S.E. 55, 1909 Ga. App. LEXIS 297 (1909). Method of conducting case may be commented upon by the other party.

Georgia, Fla. & Ala. Ry. v. Sasser, 4 Ga. App. 276, 61 S.E. 505, 1908 Ga. App. LEXIS 271 (1908). Counsel may comment on failure of party to civil case to produce witnesses. Southern Ry. v. Acree, 9 Ga. App. 104, 70 S.E. 352, 1911 Ga. App. LEXIS 427 (1911). Failure of employer to examine an employee may be commented upon. Western & A.R.R. v. Morrison, 102 Ga. 319, 29 S.E. 104, 1897 Ga. LEXIS 507 (1897). History of the trial may be commented upon, subject to control by the discretion of the judge. Adkins v. Flagg, 147 Ga. 136, 93 S.E. 92, 1917 Ga. LEXIS 87 (1917). Prosecutorial comment on defendant’s failure to testify constitutes reversible error if: (1) there was a manifest intent to comment on the failure to testify; and (2) the remark was of such a character that the jury would naturally and necessarily take it to be a comment on defendant’s failure to testify. Japhet v. State, 176 Ga. App. 189, 335 S.E.2d 425, 1985 Ga. App. LEXIS 2859 (1985). Comment on failure of defendant’s wife to testify not automatic reversible error. - Although the failure of a defendant’s wife to testify is not a legitimate subject matter of argument for counsel for the state, it does not follow automatically that such a comment constitutes reversible error. Where the trial court rebukes the prosecuting attorney immediately in the presence of the jury, instructs the jury that it is not necessary for any defendant or his wife ever to take the stand, and that the burden is always upon the state to prove a defendant’s guilt beyond a reasonable doubt, this corrective action is in compliance with this section and eliminates the possibility of prejudice to the defendant from such an improper remark. Casey v. State, 167 Ga. App. 437, 306 S.E.2d 683, 1983 Ga. App. LEXIS 3329 (1983). State’s cross-examination of the defendant’s spouse does not put defendant’s character in evidence. There is no prejudice to the defendant arising from such cross-examination; thus, no rebuke

of the district attorney, instruction of the jury, or mistrial is required. Beasley v. State, 168 Ga. App. 255, 308 S.E.2d 560, 1983 Ga. App. LEXIS 2740 (1983). Counsel may comment on erasures in account book. Robinson v. Woodmansee, 80 Ga. 249, 4 S.E. 497, 1887 Ga. LEXIS 372 (1887). Statement that one defendant chose not to deny answer by codefendant not improper. - Statement by counsel for plaintiffs that one defendant had an opportunity to get on the stand and deny any inference from question the counsel had asked codefendant, but that the defendant had chosen not to do so, and that the jury had the right to take this into consideration, was not a statement of prejudicial matters which were not in evidence, but a statement as to matters which had transpired in the case and thus proper subject matter for comment by counsel. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313, 1957 Ga. LEXIS 319 (1957). Counsel should not state prejudicial facts not appearing from the evidence or fairly deducible therefrom in their arguments. Pelham & H.R.R. v. Elliott, 11 Ga. App. 621, 75 S.E. 1062, 1912 Ga. App. LEXIS 118 (1912). Medical malpractice cases. - Curative instructions under O.C.G.A. § 9-10185 should have been issued in a medical malpractice action against a doctor and a doctor’s medical practice when the medical defendants’ counsel improperly stated that the patients’ expert had indicated that the fetus died within a few hours of the delivery, when in fact the expert had refused to specify a time of death. Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga. App. 622, 610 S.E.2d 546, 2005 Ga. App. LEXIS 51 (2005), cert. denied, No. S05C1009, 2005 Ga. LEXIS 486 (Ga. June 30, 2005), overruled, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147, 2009 Ga. LEXIS 395 (2009). It is not proper for counsel to state counsel’s personal belief or to answer improper argument with improper argument; counsel is confined in argument to the facts and circumstances of the case. Georgia Power Co. v. Puckett, 181 Ga.

Application (Cont’d) 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Reading from opinion in another case critical of insurance companies improper. - Where an insurer contested the amount of damages, it was improper for counsel for plaintiff to read to the jury from the decision of the Supreme Court in another case a part of a charge to the grand jury, in which the judge criticized and attacked the practice of fire insurance companies in their methods of avoiding the payment of losses. Firemen’s Ins. Co. v. Larsen, 52 Ga. App. 140, 182 S.E. 677, 1935 Ga. App. LEXIS 77 (1935). Reference to wealth of insurance companies improper. - Reference by counsel to the wealth of insurance companies who are party litigants has been uniformly held to be improper by the appellate courts considering the matter. Travelers Indem. Co. v. Wilkes County, 102 Ga. App. 362, 116 S.E.2d 314, 1960 Ga. App. LEXIS 623 (1960). Remark of plaintiff’s counsel that defendant was one of world’s richest insurance companies was grossly improper and comes within the purview of this section. Travelers Indem. Co. v. Wilkes County, 102 Ga. App. 362, 116 S.E.2d 314, 1960 Ga. App. LEXIS 623 (1960) (see O.C.G.A. § 9-10-185). Natural or business relationship to a party may be commented upon. Central R.R. v. Mitchell, 63 Ga. 173, 1879 Ga. LEXIS 163 (1879). Argument that jury may consider wealth of party’s father improper. - In argument to jury, use of language from which the jury could infer that it may consider the wealth of husband’s father is improper and could lead to a rather large alimony and child support verdict; a trial court should instruct the jury to disregard such arguments. Moore v. Moore, 240 Ga. 588, 242 S.E.2d 100, 1978 Ga. LEXIS 718 (1978). Curative actions deemed sufficient. - The trial court’s curative actions were sufficient so that a mistrial need not have been granted, where a statement concerning defendant’s involvement in other crimes was made but once and the wit-

ness, a police officer, was merely responding in narrative form to questions asking the officer to explain the officer’s actions regarding the fingerprints taken from the crime scene since it did not appear to be an attempt to interject evidence of other crimes to strengthen a weak case. Collins v. State, 180 Ga. App. 220, 348 S.E.2d 590, 1986 Ga. App. LEXIS 2114 (1986). Court’s instruction had same effect as rebuke. - It is not likely that, after the court told the jury in substance, “If I did not believe you would follow my instructions and forget this improper remark, I would grant a mistrial,” the effect was less than it would be if the court had said to counsel instead, “You know the remark was improper, and I reprimand you for it;” the statements were certainly, in each case, an implied rebuke. Malone Freight Lines v. Pridmore, 86 Ga. App. 578, 71 S.E.2d 877, 1952 Ga. App. LEXIS 1012 (1952). Counsel rebuked effectively by limiting instruction. - See Menningmann v. Independent Fire Ins. Co., 187 Ga. App. 118, 369 S.E.2d 295, 1988 Ga. App. LEXIS 529 (1988). In a personal injury action arising from an automobile accident, the trial court did not err in declining to grant a mistrial after defense counsel asked the following question of a witness on direct examination: “It’s not unusual for attorneys to send their clients to medical doctors to run up medical bills for a lawsuit, is it?”, in light of the curative instructions given by the trial court. Banks v. Lewis, 187 Ga. App. 218, 369 S.E.2d 537, 1988 Ga. App. LEXIS 668 (1988). Failure to charge jury did not contravene § 9-10-185. - Where at the beginning of trial, the court directed counsel that there would be no argument of fact on objections in the presence of the jury, and where after the jurors were seated, counsel for defendant stated that a statement was made by one of the jurors that if the juror got the chance, the juror was going to hang this doctor and asked that if that statement were made, the alternate juror be permitted to take the juror’s place, the trial court’s failure to affirmatively charge the jury, either when the incident occurred or in the final charge, that they

were not to hold the accusation against their fellow juror against the juror in their deliberations or in any way consider the juror predisposed against defendant, did not contravene O.C.G.A. § 9-10-185 or the cases applying it; the court’s election to leave well enough alone in the absence of a carefully and clearly worded request to charge was not deemed in the circumstances to be contrary to law. Clemons v. Atlanta Neurological Inst., 192 Ga. App. 399, 384 S.E.2d 881, 1989 Ga. App. LEXIS 1041 (1989). Failure to inquire whether comment heard by jury. - The trial court’s failure to make a nonintrusive inquiry as to whether defense counsel’s comment was heard by the jury constituted an abuse of discretion in granting a mistrial. Urban Medical Hosp. v. Seay, 179 Ga. App. 874, 348 S.E.2d 315, 1986 Ga. App. LEXIS 2045 (1986). Counsel believing client’s case damaged by court’s rebuke must move for mistrial. - If counsel for plaintiff feels that the court has been unnecessarily harsh in reprimanding counsel, and that the client’s case has been damaged thereby, it is incumbent upon plaintiff’s counsel to move for a mistrial. Johnson v. Cook, 123 Ga. App. 302, 180 S.E.2d 591, 1971 Ga. App. LEXIS 1203 (1971). Failure to charge jury reversible error. - Inasmuch as defense counsel’s argument introduced facts which were not in the record and which were clearly prejudicial, the trial court had a duty to instruct the jury that it was to disregard defense counsel’s argument, as soon as plaintiff interposed plaintiff’s objection, if not before, and the trial court’s breach of that duty required reversal. Williams v. Piggly Wiggly S., Inc., 209 Ga. App. 490, 433 S.E.2d 676, 1993 Ga. App. LEXIS 915 (1993), cert. denied, No. S93C1677, 1993 Ga. LEXIS 957 (Ga. Oct. 12, 1993). Failure to rebuke counsel held reversible error. - Where the harm resulting from the inclusion of a wilful and false swearing instruction was exacerbated by an improper attack by plaintiff’s counsel upon the character of defendant’s sole witness, the trial court’s failure to rebuke counsel or to endeavor to remove

the improper impression left in the minds of the jurors was reversible error. All Risk Ins. Agency, Inc. v. Southern Bell Tel. & Tel. Co., 182 Ga. App. 190, 355 S.E.2d 465, 1987 Ga. App. LEXIS 1649 (1987). Party denied right to open and conclude case entitled to new trial. - Ordinarily, the attorney for the party upon whom the burden of proof rests is entitled to open and conclude; where this right is denied, it will afford, unless the evidence demanded the verdict, ground for new trial, the presumption being that the party to whom it has been improperly denied has been injured. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, 1935 Ga. LEXIS 98 (1935). Mistrial required where other remedies insufficient to remove prejudicial effect. - Where remarks of counsel were totally without basis, so far as the record disclosed, and were highly damaging to the defendant in representing the defendant as a criminal and leaving the jury to speculate as to the nature of the defendant’s implied offense, despite the action taken by the court and the formal withdrawal of the remarks by counsel, it could not be said that the jury was not greatly prejudiced thereby; the court should have granted a mistrial and erred in overruling the ground of the defendant’s motion for new trial complaining of its failure to do so. Brown v. Wilson, 55 Ga. App. 262, 189 S.E. 860, 1937 Ga. App. LEXIS 63 (1937). Where the record showed a persistent violation of both O.C.G.A. § 9-10-185 and the trial court’s order limiting the evidence admissible at trial and barring introduction of specific instances of a perpetrator’s prior misconduct by the opposing counsel, when coupled with the trial court’s failure to give appropriate correction, a new trial was warranted, as such failure contaminated the jury’s deliberations and deprived the perpetrator a fair trial. Sangster v. Dujinski, 264 Ga. App. 213, 590 S.E.2d 202, 2003 Ga. App. LEXIS 1444 (2003). Incorrect statement of holding of reviewing court in same case requires rebuke or mistrial. - If counsel reads the facts of the previous trial and appeal of the case to the jury, or incor-

Application (Cont’d) rectly states the effect of the holding of the reviewing court, the impropriety of such conduct would be so grave as to require a reprimand or declaration of a mistrial. City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160, 1956 Ga. App. LEXIS 525 (1956). No error to deny mistrial for remark that codefendant would not have to pay judgment. - Upon the trial of action against two defendants, a statement by counsel for the plaintiff in the presence of the jury that one of the defendants would not be called upon to pay any judgment which might be rendered for the plaintiff, is not of such a prejudicial nature as would authorize court to hold that the trial judge abused the judge’s discretion in refusing to declare a mistrial upon motion of the defendants’ counsel, where it does not appear from the assignment of error that the court did not rebuke counsel for the remark and did not by proper instructions endeavor to remove any improper impression that it might have made upon the minds of the jury. Chunn v. McRae, 43 Ga. App. 417, 159 S.E. 130, 1931 Ga. App. LEXIS 397 (1931). Offer to submit evidence of prior conviction not ground for mistrial where court excluded it. - In action arising from automobile accident, the offer to submit as evidence a copy of the conviction of defendant’s driver for reckless driving does not properly come within this section, and was not ground for a mistrial where the court not only excluded such evidence but emphatically instructed the jury to disregard it. City of Atlanta v. Blackmon, 51 Ga. App. 165, 179 S.E. 842, 1935 Ga. App. LEXIS 614 (1935) (see O.C.G.A. § 9-10-185). Denial of mistrial not error where court properly rebuked counsel and instructed jury. - Where counsel for plaintiff, in counsel’s concluding argument to the jury, referred to the defendant as a “Negro stealing society,” and the court strongly rebuked the offending counsel and instructed the jury to disregard the incident and not be influenced thereby, the discretion of the court in refusing to

grant a mistrial would not be disturbed, it not appearing that a mistrial was essential to preservation of the right of fair trial. Interstate Life & Accident Co. v. Brewer, 56 Ga. App. 599, 193 S.E. 458, 1937 Ga. App. LEXIS 178 (1937). Mistrial properly denied where evidence supported counsel’s unflattering comments on defendant. - The judge did not abuse the judge’s discretion in denying a motion to declare a mistrial merely because counsel for the plaintiff in argument to the jury stated that the defendant was “educated in the underworld,” where there was evidence that the defendant was a woman of lewd character, who by false representations as to the defendant’s age and character induced the plaintiff, an elderly man, to become the defendant’s guardian and to spend large sums of money upon the defendant and to convey valuable property to the defendant. McGhee v. Minor, 188 Ga. 635, 4 S.E.2d 565, 1939 Ga. LEXIS 590 (1939). Mistrial properly refused where defendant objected to plaintiff’s reading cross-examination withdrawn by defendant. - Where counsel for plaintiff, having read from certain depositions testimony which the witness had given on direct examination at the instance of the plaintiff, stated in substance that counsel wished to read part of the cross-examination which counsel for the defendant had “withdrawn,” and counsel for the defendant thereupon moved that a mistrial be declared, the trial judge was not in error in refusing mistrial. Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 5 S.E.2d 214, 1939 Ga. LEXIS 647 (1939). Comment on party’s failure to call expert not cause for mistrial. - Two patrons sued a bar owner after the patrons were shot by another customer, alleging the owner negligently failed to provide adequate security inside the bar. Defense counsel’s comment in closing argument that in a long career, counsel had never defended a security negligence case where the plaintiff did not have a security expert was within the bounds of permissible argument, and neither a mistrial nor a curative instruction was required. Vega v. La Movida, Inc., 294 Ga. App. 311, 670

S.E.2d 116, 2008 Ga. App. LEXIS 1186 (2008). Counsel may not complain that mistrial was not granted after unsuccessful use of other proper remedy. - If counsel, without asking for a mistrial, seeks to have the ill effect corrected by disabusing the minds of the jurors of any

injurious impression received, counsel cannot by such procedure take counsel’s chances of obtaining a verdict in counsel’s favor, and, if unsuccessful, thereafter complain that a mistrial was not granted. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 181 S.E. 315, 1935 Ga. App. LEXIS 446 (1935).

RESEARCH REFERENCES Am. Jur. 2d. 75A Am. Jur. 2d, Trial, § 581 et seq. C.J.S. 88 C.J.S., Trial, § 320 et seq. ALR. Counsel’s appeal to racial, religious, social, or political prejudices or prejudice against corporations as ground for a new trial or reversal, 78 A.L.R. 1438. Motion for mistrial, or other similar motion, as condition of reviewing improper argument of counsel, 108 A.L.R. 756. Offering improper evidence, or asking improper question, as ground for new trial or reversal, 109 A.L.R. 1089. Reference by counsel in opening statement in civil case to matters which he does not attempt to prove as ground for new trial or reversal, 118 A.L.R. 543. Statements, comments, or conduct of court or counsel regarding perjury, as ground for new trial or reversal in civil action or criminal prosecution other than for perjury, 127 A.L.R. 1385. Prejudicial effect of argument or remark that adversary was attempting to suppress facts, 29 A.L.R.2d 996. Counsel’s appeal in civil case to wealth or poverty of litigants as ground for mistrial, new trial, or reversal, 32 A.L.R.2d 9. Prejudicial effect in civil trial of counsel’s misconduct in physically exhibiting to jury objects or items not introduced as evidence, 37 A.L.R.2d 662. Prejudicial effect of trial court’s denial, or equivalent, of counsel’s right to argue case, 38 A.L.R.2d 1396. Prejudicial effect of counsel’s addressing individually or by name particular juror during argument, 55 A.L.R.2d 1198. Counsel’s right in civil case to argue law or to read law books to the jury, 66 A.L.R.2d 9.

Prejudicial effect of counsel’s remarks, in opening statement in personal injury action, as to plaintiff’s family circumstances, number of children, or the like, 68 A.L.R.2d 990. Prejudicial effect in counsel’s opening statement in civil case, of remarks disparaging opposing counsel, opponent, or opponent’s case or witnesses, 68 A.L.R.2d 999. Comment, in argument of civil case, on adversary’s failure to call employee as witness, 68 A.L.R.2d 1072. Prejudicial effect of counsel’s argument, in civil case, urging jurors to place themselves in the position of litigant or to allow such recovery as they would wish if in the same position, 70 A.L.R.2d 935. Prejudicial effect in civil trial of counsel’s use during summation, of a litigant for a physical demonstration as to how the accident or incident happened, 74 A.L.R.2d 1094. Counsel’s use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270. Prejudicial effect of remarks of trial judge criticizing counsel in civil case, 94 A.L.R.2d 826. Prejudicial effect, in argument or summation in civil case, of attacks upon opposing counsel, 96 A.L.R.2d 9. Propriety and prejudicial effect of argument or comment by counsel as to settlement negotiations during trial of personal injury action, 99 A.L.R.2d 737. Statement by counsel relating to race, nationality, or religion in civil action as prejudicial, 99 A.L.R.2d 1249. Right to withdraw motion for mistrial, 100 A.L.R.2d 375. Propriety and prejudicial effect of counsel’s argument or comment as to trial

judge’s refusal to direct verdict against him, 10 A.L.R.3d 1330. Propriety and prejudicial effect of reference by plaintiff’s counsel, in jury trial of personal injuries or death action, to amount of damages claimed or expected by his client, 14 A.L.R.3d 541. Propriety and prejudicial effect of reference by counsel in civil case to result of former trial of same case, or amount of verdict therein, 15 A.L.R.3d 1101. Propriety and prejudicial effect of reference by counsel in civil case to amount of verdict in similar cases, 15 A.L.R.3d 1144. Propriety and effect, in eminent domain proceedings, of argument or evidence as to source of funds to pay for property, 19 A.L.R.3d 694. Admissibility of evidence of, or propriety of comment as to, plaintiff spouse’s remarriage, or possibility thereof, in action for damages for death of other spouse, 88 A.L.R.3d 926. Counsel’s appeal in civil case to selfinterest or prejudice of jurors as taxpayers, as ground for mistrial, new trial, or reversal, 93 A.L.R.3d 556.

Propriety and prejudicial effect of comments by counsel vouching for credibility of witness - state cases, 45 A.L.R.4th 602. Use of plea bargain or grant of immunity as improper vouching for credibility of witness - state cases, 58 A.L.R.4th 1229. Counsel’s argument or comment stating or implying that defendant is not insured and will have to pay verdict himself as prejudicial error, 68 A.L.R.4th 954. Prejudicial effect of bringing to jury’s attention fact that plaintiff in personal injury or death action is entitled to workers’ compensation benefits, 69 A.L.R.4th 131. Propriety and prejudicial effect of trial counsel’s reference or suggestion in medical malpractice case that defendant is insured, 71 A.L.R.4th 1025. Attorney’s argument as to evidence previously ruled inadmissible as contempt, 82 A.L.R.4th 886. Prejudicial effect, in civil case, of communications between judges and jurors, 33 A.L.R.5th 205.