Thus, "[i]n the absence of any showing of actual bias or mistake, we cannot say that the verdict returned by the jury in this case, and approved by the trial judge, is so excessive as a matter of law as to justify the inference of gross mistake or undue bias...." Hill v. Rosser, 102 Ga. App. 776, 777 (4) ( 117 S.E.2d 889) (1960). See also Black White Cab Co. v. Clark, 67 Ga. App. 170, 174 (8) ( 19 S.E.2d 570) (1942). Judgment affirmed.
The charge as given was correct and adjusted to the evidence, and in the absence of a timely request by defendant's counsel for a charge on comparative negligence, he cannot complain of the failure to give plaintiffs' requested charge which had been withdrawn. Georgia Southern c. R. Co. v. Thornton, 144 Ga. 481 (5b) ( 87 S.E. 388); Western Atlantic R. Co. v. Smith, 145 Ga. 276 (5) ( 88 S.E. 983); Lanier v. Council, 179 Ga. 568 (12) ( 176 S.E. 614); Simon v. Simmons, 36 Ga. App. 518 (3) ( 137 S.E. 282); Black c. Cab Co. v. Clark, 67 Ga. App. 170 (7) ( 19 S.E.2d 570); Bagley v. Akins, 110 Ga. App. 338 (1) ( 138 S.E.2d 430); Jones v. Cloud, 119 Ga. App. 697, 703 ( 168 S.E.2d 598). 3.
We find no abuse of discretion here. See Ga. Power Co. v. Puckett, 181 Ga. 386 ( 182 S.E. 384); Smith v. State, 204 Ga. 184, 188 ( 48 S.E.2d 860); Black White Cab Co. v. Clark, 67 Ga. App. 170 (12), 175 ( 19 S.E.2d 570); United Motor Freight Terminal Co. v. Hixon, 78 Ga. App. 638 (2) ( 51 S.E.2d 679); Domingo v. State, 213 Ga. 24, 27 ( 96 S.E.2d 896); James v. State, 215 Ga. 213, 215 (4) ( 109 S.E.2d 735). 2.
'" 162 Ga. 847. 4. "The restraint and correction of improper argument by counsel is a discretionary matter for the trial court, which discretion will not be controlled except in cases of abuse..." Black White Cab Co. v. Clark, 67 Ga. App. 170 (12) ( 19 S.E.2d 570). We find no abuse of discretion in this case where, upon defendant's objection, the court instructed the jury to disregard the improper argument of plaintiffs' counsel.
In the cases applying this principle, however, the trial court before denying a mistrial had taken some action to prevent unfair prejudice to a party by admonition or rebuke to counsel and/or instructions to the jury with the purpose of eradicating the effect of prejudicial remarks. See Adkins v. Flagg, 147 Ga. 136 ( 93 S.E. 92); Brooks v. State, 183 Ga. 466 ( 188 S.E. 711, 108 ALR 752); Worthy v. State, 184 Ga. 402 ( 191 S.E. 457); Smith v. State, 204 Ga. 184, 188 ( 48 S.E.2d 860); Avery v. State, 209 Ga. 116, 125 ( 70 S.E.2d 716), reversed on other grounds, 345 U.S. 559 ( 73 SC 891, 97 LE 1244); City Council of Augusta v. Hamilton, 56 Ga. App. 859, 861 ( 194 S.E. 244); Grayhouse v. State, 65 Ga. App. 853, 854 ( 16 S.E.2d 787); Black White Cab Co. v. Clark, 67 Ga. App. 170, 175 ( 19 S.E.2d 570); Yellow Cab Co. v. Adams, 71 Ga. App. 404, 416 ( 31 S.E.2d 195); United Motor Freight Terminal Co. v. Hixon, 78 Ga. App. 638, 640 ( 51 S.E.2d 679); Osteen v. State, 83 Ga. App. 346, 349 ( 63 S.E.2d 416). And when it appears that the corrective action taken by the trial court to eradicate the effect of improper argument is not effective to remove harm, the denial of a mistrial has been reversed.
Spence v. Dasher, 63 Ga. 430; Southern R. Co. v. Wright, 6 Ga. App. 172, 174 ( 64 S.E. 703). The range of argument is within the discretion of the court. Adkins v. Flagg, 147 Ga. 136 ( 93 S.E. 92); Black White Cab Co. v. Clark, 67 Ga. App. 170 (12) ( 19 S.E.2d 570). The matter of loudness of voice is necessarily a matter of degree and largely subjective in nature depending upon the state of efficiency of the hearer's auditory system.
The court failed to declare a mistrial and also failed to rebuke counsel, but did clearly and immediately instruct the jury to ignore the statements of both attorneys. It has been frequently held that the restraint and correction of improper argument by counsel is a matter within the discretion of the court, and such discretion will not be controlled unless manifestly abused. Caldwell v. Brown, 80 Ga. App. 858 ( 57 S.E.2d 618); Black White Cab Co. v. Clark, 67 Ga. App. 170 ( 19 S.E.2d 570); West Lumber Co. v. Schnuck, 85 Ga. App. 385 ( 69 S.E.2d 577); Dictograph Products v. Cooper, 85 Ga. App. 421 ( 69 S.E.2d 821). Under the facts here, the discretion of the court does not appear to have been so manifestly abused as to require a new trial. 3. Code § 107-105 provides as follows: "The plaintiff in an action to recover personal property may elect whether to accept an alternative verdict for the property or its value, or whether to demand a verdict for the damages alone, or for the property alone and its hire, if any; and it shall be the duty of the court to instruct the jury to render the verdict as the plaintiff may thus elect."
The restraint and correction of improper argument, and the granting of mistrials thereon, are largely matters within the discretion of the court. Code, § 81-1009; Black White Cab Co. v. Clark, 67 Ga. App. 170 (12) ( 19 S.E.2d 570); Essig v. Cheves, 75 Ga. App. 870 (2) ( 44 S.E.2d 712). In 24 C.J.S., Criminal Law, § 1974, the following is stated: "When a court of justice awards punishment for a breach of the law the object is not vengeance; the purpose is to deter the person who has broken the law from a repetition of his act, to reform him, and also to deter other persons from committing similar breaches of the law."
'" Grayhouse v. State, 65 Ga. App. 853, 855 ( 16 S.E.2d 787) and citations. See also City of Council of Augusta v. Hamilton, 56 Ga. App. 859, 861 ( 194 S.E. 244); Black White Cab Co. v. Clark, 67 Ga. App. 170 (12) ( 19 S.E.2d 570). The discretion of the trial judge will not be controlled since no abuse is shown under the facts presented. 2.
In the absence of a timely written request, it is not error for the court to fail to so instruct the jury, and the trial court did not err in overruling this ground of the motion. Stewart v. Mynatt, 135 Ga. 637(4), 640 (70 S.E. 325); Southern Grocery Stores Inc. v. Cain, 50 Ga. App. 629(3) (179 S.E. 128); Black White Cab Co. v. Clark, 67 Ga. App. 170(11), 175 (19 S.E.2d 570); Southern Ry. Co. v. Florence, 81 Ga. App. 1(5), 9 (57 S.E.2d 856). 7. The general grounds of the motion are without merit.