Furney v. Tower

Jenkins, P. J.

The facts are set forth in the former report of this case ( 34 Ga. App. 739 , 131 S. E. 177 ), where a verdict in favor of the plaintiff for $5,000 was set aside.

During the argument of the instant case the following statement was made to the court, by counsel for the plaintiff^ in the presence of the jury: “If your honor please, this case has been to the Court of Appeals, and, by the decision, it is seen that the evidence "and findings of the jury were approved in all particulars and the decision reversed on technical grounds, and I am asking this jury to find another verdict for the plaintiff in this case.” Immediately upon this statement counsel for the defendant objected thereto and moved the court to declare a mistrial. The trial judge sent the jury to their room, and heard argument on the motion for a mistrial until late in the afternoon, and then stated that he would consider the matter over-night and would announce his decision the following morning. The jury were then permitted to disperse, and on the following morning the judge announced that he declined to grant the motion for a mistrial, and instructed the jury ,as follows: “Gentlemen of the jury, on yesterday afternoon, just before we recessed, the following language was used by counsel for the plaintiff in this case, or words to this effect: ‘ If your honor please, this ease has been to the Court of Appeals, and by the decision it is seen that the evidence and findings of the jury were *701 approved in all particulars, and tbe decision was reversed on technical grounds, and I am asking this jury to find another verdict for the plaintiff in this case.' Counsel for plaintiff have withdrawn those remarks as being improper remarks to be made in the presence of the jury, and the court now instructs you that they were improper remarks, and that you must not be prejudiced or biased in any way, shape, form, or fashion by those remarks, but should disregard them completely. In the trial of this case, whatever may have occurred in a former trial of it, you have nothing to do with that. You are trying the case now; the law of this case will be given you in charge by the judge, that you may apply it to the facts, and you are bound by that under your oaths, whether right or wrong. The evidence in this case might be entirely different, or different in material particulars, to the evidence on a former trial, and, as stated, what may have happened then, as to any former trial of this ease or the result of it, you are not concerned in any way.”

The trial proceeded, resulting in a verdict for the plaintiff in the sum of $2,500; and exception is now taken to the overruling of a motion for new trial filed by the defendants.

Judgment affirmed.

Stephens and Bell, JJ., concur.