2020 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 1 - General Provisions
§ 9-10-7. Expression by Judge of Opinion in Case Reversible Error

It is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error, the decision in the case shall be reversed, and a new trial shall be granted in the court below with such directions as the Supreme Court or the Court of Appeals may lawfully give.

(Laws 1850, Cobb's 1851 Digest, p. 462; Code 1863, § 3172; Code 1868, § 3183; Code 1873, § 3248; Code 1882, § 3248; Civil Code 1895, § 4334; Penal Code 1895, § 1032; Civil Code 1910, § 4863; Penal Code 1910, § 1058; Code 1933, § 81-1104.)

- Effect of prejudicial statements to jury by counsel, § 9-10-185.

Corresponding provision relating to criminal procedure, § 17-8-57.

ANALYSIS

• General Consideration
• Objections
• New Trial Required
• Application

This section is not applicable in federal courts. Hathaway v. East Tenn. V. & G.R.R., 29 F. 489 (S.D. Ga. 1886) (see O.C.G.A. § 9-10-7).

If a case is tried without a jury, this section is not applicable. Harris v. Massey, 241 Ga. 580, 247 S.E.2d 55 (1978) (see O.C.G.A. § 9-10-7).

This section, known as the "dumb act," prevents the court from expressing an opinion on a fact in issue. Humphries v. Miller, 66 Ga. App. 871, 19 S.E.2d 321 (1942) (see O.C.G.A. § 9-10-7).

- O.C.G.A. § 9-10-7 has no application to trial judge's discretion in private conversation with counsel concerning conduct of case. Ray v. Marietta Marine, Inc., 163 Ga. App. 690, 294 S.E.2d 698 (1982).

This section was not intended to prohibit the court from summing up the evidence. Shiels v. Stark, 14 Ga. 429 (1854) (see O.C.G.A. § 9-10-7).

Court may decline to exercise the privilege to sum up the evidence. Wright v. Central R.R. & Banking, 16 Ga. 38 (1854); City & Sub. Ry. v. Findley, 76 Ga. 311 (1886).

If the court attempts to do so, both sides must be treated fairly, although all material facts are not stated. Larzenby v. Citizen's Bank, 20 Ga. App. 53, 92 S.E. 391 (1917).

It is error for court to select one piece of evidence and express a strong and decided opinion respecting it. Johnson v. Kinsey, 7 Ga. 428 (1849); City & Sub. Ry. v. Findley, 76 Ga. 311 (1886).

Court should not state the effect of the evidence in the case, although opinion is correct. Acme Brewing Co. v. Central R.R. & Banking Co., 115 Ga. 494, 42 S.E. 8 (1902).

Court should not state what a witness has testified. McVicker v. Conkle, 96 Ga. 584, 24 S.E. 23 (1895).

A synopsis of the contentions contained in the petition may be given. American Trust & Banking Co. v. Harris, 18 Ga. App. 610, 89 S.E. 1059 (1916); Hathaway v. Bishop, 214 Ga. App. 870, 449 S.E.2d 318 (1994).

Use of the phrase, "it is contended" will not protect a charge detailing the evidence of a particular witness. Smith v. Hazlehurst, 122 Ga. 786, 50 S.E. 917 (1905).

It cannot be said that court may not express opinion as to sufficiency of pleadings in a case, or it may not adjudge sufficiency of the pleadings by declaring that pleadings are sufficient without amendment. Green v. Green, 176 Ga. 421, 168 S.E. 266 (1933).

- In discussing the reasons for the admission or rejection of evidence, the judge may refer to the evidence but must not state that a relevant fact has or has not been proved. Florida, Cent. & P.R.R. v. Lucas, 110 Ga. 121, 35 S.E. 283 (1900); Brooks v. Griffin, 10 Ga. App. 497, 73 S.E. 752 (1912); Redwine Bros. v. Street, 18 Ga. App. 77, 89 S.E. 163 (1916).

The statute forbids a judge to express or intimate the judge's opinion as to what has been proved. But when an objection is made to evidence offered, the judge has a right if the judge deems proper to give the reasons for the judge's decision on the objections, and such reasons so given if pertinent to the objection made, do not constitute such an expression of opinion as to violate the statute. Central of Ga. Ry. v. Harper, 124 Ga. 836, 53 S.E. 391 (1906).

- This section refers to opinions of the court as to what has or has not been proved by the evidence and not to a ruling on the materiality of evidence. Norton v. Norton, 213 Ga. 384, 99 S.E.2d 139 (1957) (see O.C.G.A. § 9-10-7).

This section applies to cases of conflicting evidence. Hooks v. Frick & Co., 75 Ga. 715 (1885) (see O.C.G.A. § 9-10-7).

Section is not confined to the charge by the court, but includes improper remarks made during the progress of the trial. Florida, Cent. & P.R.R. v. Lucas, 110 Ga. 121, 35 S.E. 283 (1900).

Judge can refuse to give written request of charge containing an expression of opinion. Flanagan v. Scott, 102 Ga. 399, 31 S.E. 23 (1897); Georgia, Fla. & Ala. Ry. v. Lasseter, 122 Ga. 679, 51 S.E. 15 (1905).

Trial judge can state the judge's reasons for admitting or refusing to admit evidence, if such reasons are pertinent to the objections to evidence and the ruling made thereon. Jones v. Pope, 7 Ga. App. 538, 67 S.E. 280 (1910); Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958).

Pertinent remarks made by a trial court in discussing the admissibility of evidence or explaining the court's rulings do not constitute prohibited expressions of opinion. Morrison v. Morrison, 282 Ga. 866, 655 S.E.2d 571 (2008).

- Whether the language used amounts to an expression of opinion depends altogether upon the accentuation of the words at the time they were used, and the tone of voice in giving a charge cannot be transmitted in the written record which comes to the Supreme Court. Sikes v. Seckinger, 170 Ga. 1, 152 S.E. 65 (1930).

- Where the evidence is in conflict as to what has been proved on the trial of a case, it is error for the trial court to express an opinion as to what has been proved. Rogers v. Swinks, 102 Ga. App. 444, 116 S.E.2d 638 (1960).

- In determining whether an excerpt from a charge is subject to the criticism that it contains an expression or intimation of opinion as to what has or has not been proved, the excerpt should be considered in the light of the entire charge. Camilla Cotton Oil Co. v. Cawley, 52 Ga. App. 268, 183 S.E. 134 (1935).

- Where it is contended as a special ground of a motion for new trial that an excerpt from the charge of the court is error as containing an expression of opinion on what has been proved, the excerpt will be considered in its context and with the charge as a whole, including a statement of the court that nothing the court has said should be construed as an expression of opinion on the court's part. Imperial Inv. Co. v. Modernization Constr. Co., 96 Ga. App. 385, 100 S.E.2d 107 (1957).

If fact is established by undisputed evidence, charge may intimate that the fact is proved. Marshall v. Morris, 16 Ga. 368 (1854); Georgia Fla. & Ala. Ry. v. Jernigan, 128 Ga. 501, 57 S.E. 791 (1907); Dexter Banking Co. v. McCook, 7 Ga. App. 436, 67 S.E. 113 (1910); Jones v. Wall, 22 Ga. App. 513, 96 S.E. 344 (1918); Watkins v. Stulb & Vorhauer, 23 Ga. App. 181, 98 S.E. 94 (1919); Hall v. Wingate, 159 Ga. 630, 126 S.E. 796 (1924).

If no evidence of any kind is introduced in support of a given plea, the court may state to the jury that such is the fact. Underwood v. American Mtg. Co., 97 Ga. 238, 24 S.E. 847 (1895).

Judge may properly refuse to charge that an undisputed issuable fact is true. New Ware Furn. Co. v. Reynolds, 16 Ga. App. 19, 84 S.E. 491 (1915).

- Where in a civil case the undisputed evidence clearly establishes a particular fact, the judge may in the jury charge assume or indicate that the fact has been proved, and to do so is not a violation of this section. McLendon v. City of La Grange, 47 Ga. App. 690, 171 S.E. 307 (1933) (see O.C.G.A. § 9-10-7).

It is no violation of section for court to state fact which is uncontested and undisputed under the evidence in the case. Imperial Inv. Co. v. Modernization Constr. Co., 96 Ga. App. 385, 100 S.E.2d 107 (1957) (see O.C.G.A. § 9-10-7).

- Assuming that the excerpt of the charge complained of did express an opinion by the trial court as to what had been proved, yet, unless it instructed the jury that such fact or facts were proven when actually such fact or facts were disputed, no error is shown. That the court intimates an opinion upon an uncontested and undisputed fact is not cause for a new trial. Valdosta Coca Cola Bottling Works, Inc. v. Montgomery, 102 Ga. App. 440, 116 S.E.2d 675 (1960).

It is not cause for new trial when trial court expresses opinion as to uncontested and undisputed fact. Columbus Transp. Co. v. Curry, 104 Ga. App. 700, 122 S.E.2d 584 (1961).

Reference in charge to facts which are in evidence and undisputed does not constitute expression of an opinion under the proscription of this section. Miller v. Dean, 113 Ga. App. 869, 150 S.E.2d 191 (1966) (see O.C.G.A. § 9-10-7).

- While this section prohibits a trial judge from intimating or expressing any opinion as to what has or has not been proved, yet where the evidence demands a finding as to the opinion expressed, there is no cause for reversal. Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 209 S.E.2d 66 (1974); Cadden v. State, 176 Ga. App. 377, 336 S.E.2d 266 (1985); Pierce County Sch. Dist. v. Greene, 185 Ga. App. 269, 363 S.E.2d 825, cert. denied, 185 Ga. App. 910, 363 S.E.2d 825 (1987) (see O.C.G.A. § 9-10-7).

- Expression of opinion as to the weight of evidence may or may not be error, according to the circumstances under which the opinion is expressed; but even where error, it need not be a violation of this section. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958) (see O.C.G.A. § 9-10-7).

To declare law applicable to given state of facts is not violation of this section. Gilstrap v. Leith, 24 Ga. App. 720, 102 S.E. 169 (1920) (see O.C.G.A. § 9-10-7).

Intimation of an opinion in a jury charge, or its expression on an immaterial fact, will not require a new trial. Elder v. Cozart, 59 Ga. 199 (1877); Seaboard Air-Line Ry. v. Hunt, 10 Ga. App. 273, 73 S.E. 588 (1912).

Wording of decision may, when given out of context in instructions to jury, be misleading even though it represents a correct statement of the law. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696 (1954).

It is not error to give charges delivered at former trial, as corrected by appellate court. Tanner v. Hinson, 155 Ga. 838, 118 S.E. 680 (1923).

It is not error to state the contentions of the parties. Brewer v. Barnett Nat'l Bank, 16 Ga. App. 593, 85 S.E. 928 (1915); John Deere Plow Co. v. Anderson, 29 Ga. App. 497, 116 S.E. 38 (1923).

It is not error to state what the positions of plaintiff are as to the defenses made. Chambers & Co. v. Walker, 80 Ga. 642, 6 S.E. 165 (1888).

Amount to be recovered cannot be commented upon. Jarrett v. Arnold, 30 Ga. 323 (1860); Savannah, Fla. & W. Ry. v. Hardin, 110 Ga. 433, 35 S.E. 681 (1900).

Instructing jury as to what court understands to be contentions of the parties is not an expression of opinion. McArthur v. Ryals, 162 Ga. 413, 134 S.E. 76 (1926).

For court to state to jury allegations of petition and claims of parties is not violative of this section. Napier v. Du Bose, 45 Ga. App. 661, 165 S.E. 773 (1932) (see O.C.G.A. § 9-10-7).

This section does not prohibit court from directing attention of jury to any particular portion of the evidence and instructing them on the contentions of the parties in regard to it. Continental Cas. Co. v. Rucker, 50 Ga. App. 694, 179 S.E. 269 (1935) (see O.C.G.A. § 9-10-7).

Court may state contentions of parties, and may summarize evidence in regard thereto, without violating the inhibition of this section, providing it does not intimate an opinion as to what has or has not been proved. General Whsle. Co. v. Hertz Corp., 120 Ga. App. 319, 170 S.E.2d 310 (1969) (see O.C.G.A. § 9-10-7).

Trial court's synopsis of the landowners' contentions, in the context of a contested jury charge, did not constitute an improper opinion by the trial court upon the evidence, and thus, did not constitute reversible error pursuant to O.C.G.A. § 9-10-7. City of Columbus v. Barngrover, 250 Ga. App. 589, 552 S.E.2d 536 (2001).

Any preliminary instructions given by trial judge must avoid misstating contentions of parties and issues in the case. Akin v. Patton, 235 Ga. 51, 218 S.E.2d 802 (1975).

An instruction is erroneous which includes an inference from given facts to other facts. Standard Cotton Mills v. Cheatham, 125 Ga. 649, 54 S.E. 650 (1906).

An instruction is erroneous if it assumes the existence of a disputed fact. Central of Ga. Ry. v. Woodall, 13 Ga. App. 50, 78 S.E. 781 (1913).

A violation on the part of the trial court of this section makes reversal mandatory. Imperial Inv. Co. v. Modernization Constr. Co., 96 Ga. App. 385, 100 S.E.2d 107 (1957) (see O.C.G.A. § 9-10-7).

An intimation of opinion in jury instructions on a matter conceded, or even the statement of facts admitted to be such, is not improper. Western Union Tel. Co. v. Harris, 6 Ga. App. 260, 64 S.E. 1123 (1909).

- A jury's principal function is to ascertain facts, and where facts are in dispute the court must of necessity leave the application of the law to the jury to be based on the facts found; this is not intended to be prohibited by this section. Gulf Life Ins. Co. v. Belch, 108 Ga. App. 480, 133 S.E.2d 622 (1963), rev'd on other grounds, 219 Ga. 823, 136 S.E.2d 351 (1964) (see O.C.G.A. § 9-10-7).

- In an action arising out of an automobile accident, the trial court did not express an opinion to the jury, but carefully avoided, by paraphrasing the right-of-way statute, answering the question posed by a juror which called on the judge to express an opinion as to who had the right-of-way in the center turn lane where the accident occurred. Latargia v. Toole, 196 Ga. App. 692, 396 S.E.2d 607 (1990).

Questions propounded to witnesses by the court must not violate this section. Guggenheimer & Co. v. Gilmore, 29 Ga. App. 540, 116 S.E. 67 (1923) (see O.C.G.A. § 9-10-7).

- The judge, in discussing with counsel the admissibility of testimony or similar matters in the progress of the trial, or in explaining rulings thereon, may refer to the evidence or to statements of the witnesses. Realty Co. v. Ellis, 4 Ga. App. 402, 61 S.E. 832 (1908); Moore v. McAfee, 151 Ga. 270, 106 S.E. 274 (1921).

It is error for the judge to go beyond the limits of legitimate discussions and unnecessarily deal with the actual questions of fact involved in the case. Florida, Cent. & P.R.R. v. Lucas, 110 Ga. 121, 35 S.E. 283 (1900); Ficken v. City of Atlanta, 114 Ga. 970, 41 S.E. 58 (1902); Morrison v. Dickey, 119 Ga. 698, 46 S.E. 863 (1904); Georgia Ry. & Elec. Co. v. Baker, 1 Ga. App. 832, 58 S.E. 88 (1907).

- A judge may give counsel the benefit of the judge's views on the law, but it is error prejudicial to the opposite party for the court to make suggestions or remarks tending to fortify the positions of one party rather than the other. Franklin Life Ins. Co. v. Hill, 136 Ga. App. 128, 220 S.E.2d 707 (1975).

- Former Code 1933, § 113-205 (see O.C.G.A. § 53-2-25, Pre-1998 Probate Code), which stated a rule of evidence relating to the sufficiency of the mental state of a testator, constituted an exception to former Code 1933, § 81-1104 (see O.C.G.A. § 9-10-7). Holland v. Bell, 148 Ga. 277, 96 S.E. 419 (1918).

- The use by the court of the sentence "well go ahead and use him (the witness); you seem to be fishing anyhow," was, under the circumstances of the case, held not to be an intimation of opinion by the judge. Richardson v. State, 161 Ga. 640, 131 S.E. 682 (1926).

- Statement of the trial court in the presence of the jury that the testimony of a certain witness was immaterial, such statement having been made pursuant to an objection to the evidence and while the evidence was under discussion, was not reversible error, the court having immediately thereafter instructed the jury that a part of the testimony was relevant and material, and that its previous statement to the contrary was inadvertently made, and where most of the testimony of such witness in reality was either immaterial or constituted conclusions of the witness, which also formed a basis of the objection. Banks v. Kilday, 88 Ga. App. 307, 76 S.E.2d 642 (1953).

- A trial judge can state the judge's reasons for admitting or refusing to admit evidence, if such reasons are pertinent to the objections to the evidence and the ruling made thereon; and such statement does not constitute such an expression of opinion as is violative of this section. Parker v. Wellons, 43 Ga. App. 721, 160 S.E. 109 (1931); Sloan v. Glaze, 72 Ga. App. 415, 33 S.E.2d 846 (1945) (see O.C.G.A. § 9-10-7).

- Where counsel, in arguing to the jury, goes outside the testimony, it is the duty of the court, on objection made by opposing counsel, to settle the fact of what was said or sworn by the witness; and the statement by the court that the witness said a certain thing is proper, and is not, in a legal sense, the expression of an opinion as to the evidence. Royal Crown Bottling Co. v. Stiles, 82 Ga. App. 254, 60 S.E.2d 815 (1950).

- The only harm that can accrue to a party by the expression of an opinion on the evidence by the trial judge is that such expression might influence the jury in their verdict; the jury in the present case could have found no other verdict than that rendered, under the direction of the judge to find for the petitioner, and any error which might have been committed by the judge in expressing an opinion on the evidence, during the progress of the trial, was harmless error. Kinney v. Youngblood, 216 Ga. 354, 116 S.E.2d 608 (1960).

It is not harmful error for trial judge to express opinion in accordance with what is demanded by the evidence and about which there is no controversy. Rauch v. Shanahan, 125 Ga. App. 782, 189 S.E.2d 111 (1972); International Indem. Co. v. Coachman, 181 Ga. App. 82, 351 S.E.2d 224 (1986).

- Where the context removes all probability of an erroneous impression which might be created by an excerpt from a judge's statement as an isolated fragment, a new trial will not be granted. Bennett v. Haley, 132 Ga. App. 512, 208 S.E.2d 302 (1974).

- There being nothing in the evidence or in the defendant's statement to dispute the fact that the alleged crime was committed, and the defendant's defense resting solely upon the contention that the defendant did not participate in the offense, the court, in charging the jury, did not violate this section in assuming that a crime had been committed. Pruitt v. State, 36 Ga. App. 736, 138 S.E. 251 (1927); Victorine v. State, 264 Ga. 580, 449 S.E.2d 91 (1994) (see O.C.G.A. § 9-10-7).

- Where a fact is conceded to be true, and the parties are not at issue with reference thereto, it is not reversible error for the judge, while instructing the jury, to intimate or express an opinion that such fact has been proved. Richards v. Smith, 173 Ga. 424, 160 S.E. 608 (1931).

- It is not a violation of this section where a fact stated by the trial judge as having been proved is established by uncontradicted testimony. Rentz v. Collins, 51 Ga. App. 782, 181 S.E. 678 (1935) (see O.C.G.A. § 9-10-7).

- Where ordinances of the city are established by evidence which is uncontradicted and undisputed, it is not error as being an expression of an opinion on the facts and in violation of this section for the trial judge to state in the charge to the jury the existence of the ordinances as a fact. Rentz v. Collins, 51 Ga. App. 782, 181 S.E. 678 (1935) (see O.C.G.A. § 9-10-7).

- A statement by the court in the charge that a certain fact has been proved is not harmful error, and is not cause for a new trial, under this section, where the fact stated as having been proved is not in controversy, but is established by uncontradicted and undisputed evidence. Pate v. Carrollton Clinic, 52 Ga. App. 774, 184 S.E. 780 (1936) (see O.C.G.A. § 9-10-7).

- Where there was an absence of objection or motion for mistrial and defendant had expressly stipulated to the fact at trial, the court's opinion as to what had been proved at trial when it instructed the jury that "defendant has admitted to signing the contract" was permissible. Dover v. Master Lease Corp., 203 Ga. App. 526, 417 S.E.2d 368 (1992).

- A charge of a correct principle of law applicable to the case on trial does not constitute error requiring the reversal of the case as an expression of an opinion of what has been proved, where the whole charge construed together shows that the matters assumed to be proved in the charge complained of were left to the jury on the question of whether or not such facts had been established by the evidence. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696 (1954); First Fed. Sav. & Loan Ass'n. v. Commercial Union Ins. Co., 115 Ga. App. 756, 156 S.E.2d 101 (1967).

- Where a trial court charges that the evidence shows a particular fact, and complaint is made that that charge is an expression of opinion by the trial judge prohibited by this section, but does not refer to any portion of the record or transcript from which it can be determined there is an issue as to this in the case, the charge is not reversible error. Robinson v. McClain, 123 Ga. App. 664, 182 S.E.2d 157 (1971) (see O.C.G.A. § 9-10-7).

- An expression by the court, although no doubt unintentional, that the plaintiff's case was a meritorious one, would require the grant of a new trial. Humphries v. Miller, 66 Ga. App. 871, 19 S.E.2d 321 (1942).

- It is error for the court to express or intimate an opinion upon a material question of fact as to which the evidence is conflicting. City of Decatur v. Robertson, 85 Ga. App. 747, 70 S.E.2d 135 (1952).

- It is error for the judge to express an opinion as to what has been proved to be the consideration of a contract, when such consideration does not appear upon the face of the contract itself. Hudson v. Best, 104 Ga. 131, 30 S.E. 688 (1898).

- On the trial of an action for damages alleged to have been occasioned by the negligence of the defendant, it is always error, requiring the grant of a new trial, for the court to charge the jury that given acts constitute negligence when such acts are not declared by statute to be negligent. Alabama Great S.R.R. v. McBryar, 67 Ga. App. 509, 21 S.E.2d 173 (1942).

- In an action for breach of realty contract, plaintiff's contention that charge commented on the evidence was without merit, as the charge was phrased in terms of what the jury would be authorized to conclude if it found certain facts. Separk v. Caswell Bldrs., Inc., 209 Ga. App. 713, 434 S.E.2d 502 (1993).

Cited in Continental Ins. Co. v. Wickham, 110 Ga. 129, 35 S.E. 287 (1900); DeMent v. Rogers, 24 Ga. App. 438, 101 S.E. 197 (1919); Western & Atl. R.R. v. White Provision Co., 24 Ga. App. 562, 101 S.E. 711 (1919); Pierce v. Barton & Son, 28 Ga. App. 792, 113 S.E. 590 (1922); Southern Ry. v. Ray, 28 Ga. App. 792, 113 S.E. 590 (1922); Atlanta Cadillac Co. v. Manley, 29 Ga. App. 522, 116 S.E. 35 (1923); Millsaps v. Strange Co., 37 Ga. App. 716, 141 S.E. 513 (1928); Spivey v. State, 38 Ga. App. 213, 143 S.E. 450 (1928); Southern Ry. v. Groover, 41 Ga. App. 746, 154 S.E. 706 (1930); Georgia Power Co. v. Bell, 43 Ga. App. 559, 159 S.E. 589 (1931); Rounsaville v. Albin, 44 Ga. App. 534, 162 S.E. 289 (1932); Bunce v. Executive Comm., 46 Ga. App. 695, 169 S.E. 51 (1933); Bentley v. Southern Ry., 52 Ga. App. 188, 182 S.E. 815 (1935); Jones v. Hogans, 197 Ga. 404, 29 S.E.2d 568 (1944); Veal v. Barber, 197 Ga. 555, 30 S.E.2d 252 (1944); Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471, 31 S.E.2d 59 (1944); Weathers Bros. Transf. Co. v. Jarrell, 72 Ga. App. 317, 33 S.E.2d 805 (1945); Milwaukee Mechanics Ins. Co. v. Davis, 79 Ga. App. 70, 52 S.E.2d 643 (1949); Kirkland v. Wheeler, 84 Ga. App. 352, 66 S.E.2d 348 (1951); Sykes v. Collins, 208 Ga. 333, 66 S.E.2d 717 (1951); Cone v. Atlantic Coast Line R.R., 89 Ga. App. 74, 78 S.E.2d 836 (1953); Sheetz v. Welch, 89 Ga. App. 749, 81 S.E.2d 319 (1954); Evans v. Bredow, 95 Ga. App. 488, 98 S.E.2d 115 (1957); Thomas v. Carroll, 97 Ga. App. 181, 102 S.E.2d 617 (1958); Garner v. Young, 214 Ga. 109, 103 S.E.2d 302 (1958); Yellow Cab Co. v. McCullers, 98 Ga. App. 601, 106 S.E.2d 535 (1958); Barrow v. Georgia Lightweight Aggregate Co., 103 Ga. App. 704, 120 S.E.2d 636 (1961); Smith v. A.A. Wood & Son Co., 103 Ga. App. 802, 120 S.E.2d 800 (1961); Durand v. Reeves, 217 Ga. 492, 123 S.E.2d 552 (1962); Graham v. Malone, 105 Ga. App. 863, 126 S.E.2d 272 (1962); Ray v. Dixon, 106 Ga. App. 470, 127 S.E.2d 309 (1962); Davis-Pickett Chevrolet, Inc. v. Collier, 106 Ga. App. 660, 127 S.E.2d 923 (1962); Allen's Lithographing Trade Plant, Inc. v. Rapid Roller Co., 107 Ga. App. 557, 130 S.E.2d 805 (1963); Foster v. Kelly, 107 Ga. App. 801, 131 S.E.2d 587 (1963); Slater v. Dodd, 108 Ga. App. 879, 134 S.E.2d 848 (1964); Cotton States Mut. Ins. Co. v. Davis, 110 Ga. App. 601, 139 S.E.2d 427 (1964); Sears v. Smith, 221 Ga. 47, 142 S.E.2d 792 (1965); State Hwy. Dep't v. Edmunds, 113 Ga. App. 550, 149 S.E.2d 182 (1966); Myers v. Johnson, 113 Ga. App. 648, 149 S.E.2d 378 (1966); Brissette v. Munday, 115 Ga. App. 131, 153 S.E.2d 606 (1967); Lawhorn v. Lawhorn, 115 Ga. App. 197, 154 S.E.2d 284 (1967); Benefield v. Benefield, 224 Ga. 208, 160 S.E.2d 895 (1968); Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968); Gates v. Southern Ry., 118 Ga. App. 201, 162 S.E.2d 893 (1968); McLarty v. Emhart Corp., 227 Ga. 104, 179 S.E.2d 46 (1970); Southern Ry. v. Martin, 125 Ga. App. 653, 188 S.E.2d 819 (1972); Ford Motor Co. v. Hanley, 128 Ga. App. 311, 196 S.E.2d 454 (1973); Kelley v. Kelley, 129 Ga. App. 257, 199 S.E.2d 399 (1973); Hutchinson v. Tillman, 133 Ga. App. 660, 211 S.E.2d 912 (1975); Banks v. Department of Human Resources, 141 Ga. App. 347, 233 S.E.2d 449 (1977); Jefferson v. Johnson, 143 Ga. App. 879, 240 S.E.2d 234 (1977); Phillips v. Phillips, 242 Ga. 577, 250 S.E.2d 418 (1978); Beneficial Std. Life Ins. Co. v. Bennett, 153 Ga. App. 768, 266 S.E.2d 548 (1980); Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981); Pappas Contracting, Inc. v. Harrison, 163 Ga. App. 606, 295 S.E.2d 868 (1982); In re Crane, 171 Ga. App. 31, 318 S.E.2d 709 (1984); Reid v. Harbin Lumber Co., 172 Ga. App. 615, 323 S.E.2d 845 (1984); Pound v. Medney, 176 Ga. App. 756, 337 S.E.2d 772 (1985); Loper v. Drury, 211 Ga. App. 478, 440 S.E.2d 32 (1994); Davison v. Hines, 291 Ga. 434, 729 S.E.2d 330 (2012).

Objections

Objection to court's remarks prior to and unconnected to charge must be timely.

- Where the court expresses an opinion in ascertaining the position or opinion of counsel as to what has or has not been proved, or the effect of certain evidence, and does so before beginning the charge to the jury, and where the remarks made are entirely disconnected from the charge, a party will not be permitted to allow the remarks to pass unchallenged until after the case has been submitted to the jury and a verdict adverse to the party returned, and then seek to utilize them in a reviewing court. Royal Crown Bottling Co. v. Stiles, 82 Ga. App. 254, 60 S.E.2d 815 (1950).

- Statements by the court not made during the charge to the jury must be the subject of timely exception in order to be reviewable, as the complaining party cannot remain silent and take chances on a verdict in the complaining party's favor without waiving the complaining party's right to complain in the event the verdict is adverse. Head v. Pollard Lumber Sales, Inc., 88 Ga. App. 757, 77 S.E.2d 827 (1953).

- Statements made by the court in colloquy with counsel, which are prejudicial or intimate an opinion which would not be permissible in a charge to the jury, are not good ground for a new trial unless a motion for mistrial was made. Chandler v. Alabama Power Co., 104 Ga. App. 521, 122 S.E.2d 317 (1961), rev'd on other grounds, 217 Ga. 550, 123 S.E.2d 767 (1962).

- Where during the trial of an action the court comments on evidence in a manner which counsel feels contains or intimates an expression of opinion as to what has been proved, it is incumbent upon counsel to object or move for a mistrial at that time. Freedman v. Housing Auth., 108 Ga. App. 418, 136 S.E.2d 544 (1963).

Because a landlord did not waive a tenant's obligation to obtain casualty insurance, the tenant did not move for a mistrial based on the trial court's alleged objectionable remarks under O.C.G.A. §§ 9-10-7 and15-6-6, and the trial court's jury instructions were proper; the trial court did not err in denying the tenant's motions for a JNOV or a new trial. Mahsa, Inc. v. Al-Madinah Petroleum, Inc., 276 Ga. App. 890, 625 S.E.2d 37 (2005).

- Where the remark which allegedly expresses or intimates the court's opinion occurs in the course of trial elsewhere than in the charge to the jury a proper objection or a motion for mistrial should be made at the occurrence as it cannot be assigned as error for the first time in a motion for a new trial. Mitchell v. Gay, 111 Ga. App. 867, 143 S.E.2d 568 (1965).

Absent objection or motion for mistrial, appellant cannot complain of any alleged expression of opinion by the trial court. Myrick v. State, 155 Ga. App. 496, 271 S.E.2d 637 (1980).

In the absence of an objection or motion for mistrial, an appellant cannot complain on appeal that the appellant was prejudiced by the trial court expressing or intimating opinions concerning the evidence adduced at trial. Walker v. Bishop, 169 Ga. App. 236, 312 S.E.2d 349 (1983); Southeastern Ambulance Corp. v. Freeman, 185 Ga. App. 119, 363 S.E.2d 571, cert. denied, 185 Ga. App. 911, 363 S.E.2d 571 (1987).

Where defendant argued error in the trial court's asking questions of witnesses and making statements to the jury concerning the damages computation, but no objection or motion for mistrial was made with regard to any of these instances, the absence of an objection or motion for mistrial prevented defendant from complaining on appeal that the defendant was prejudiced by such conduct. Wehunt v. ITT Bus. Communications Corp., 183 Ga. App. 560, 359 S.E.2d 383 (1987).

The question of whether O.C.G.A. § 9-10-7 has been violated is not reached unless an objection or motion for mistrial is made. Provost v. Gwinnett County, 199 Ga. App. 713, 405 S.E.2d 754 (1991).

- The court has the right to explain its decision on objections to evidence and, if pertinent, such reasons do not constitute prohibited expressions of opinion. Starks v. Robinson, 189 Ga. App. 168, 375 S.E.2d 86, cert. denied, 189 Ga. App. 913, 375 S.E.2d 86 (1988).

- Where during the progress of a trial the judge by interrogation of a witness for the state violates this section by expressing or intimating an opinion as to what has been proved or as to the guilt of the accused, and the defendant passively sits by and takes the defendant's chances of acquittal without having made a motion for a mistrial or any other motion at the time of the commission of the error, the defendant may as a matter of procedure nevertheless complain of the error for the first time in a motion for a new trial. Allen v. State, 194 Ga. 178, 21 S.E.2d 73 (1942). But see Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943); Lumbermen's Underwriting Alliance v. Jessup, 100 Ga. App. 518, 112 S.E.2d 337 (1959).

- Where a judge, in a civil or criminal case, during the progress of the trial or in the charge to the jury, expresses or intimates the judge's opinion as to what has or has not been proved or as to the guilt of the accused in violation of this section, such error may be taken advantage of for the first time in a motion for new trial. Allen v. State, 67 Ga. App. 607, 21 S.E.2d 280 (1942). But see Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943); Lumbermen's Underwriting Alliance v. Jessup, 100 Ga. App. 518, 112 S.E.2d 337 (1959) (see O.C.G.A. § 9-10-7).

- It is not necessary for the aggrieved party to allege in the motion for new trial that any sort of motion was made at the time of the alleged error, or to allege injury resulting from a violation of this section, since the law conclusively presumes injury on account of the error, and the mandatory provisions of this section require reversal of the judgment of the trial court on proper assignment of error. Allen v. State, 67 Ga. App. 607, 21 S.E.2d 280 (1942). But see Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943); Lumbermen's Underwriting Alliance v. Jessup, 100 Ga. App. 518, 112 S.E.2d 337 (1959) (see O.C.G.A. § 9-10-7).

- If the expression or intimation of the court's opinion occurs during the charge to the jury, counsel may utilize the remarks made in the course of the charge in counsel's motion for a new trial by making it one of the grounds thereof, although no motion for a mistrial was made. Royal Crown Bottling Co. v. Stiles, 82 Ga. App. 254, 60 S.E.2d 815 (1950).

- Where the court, in colloquy with counsel, makes remarks which are prejudicial or intimate an opinion upon the merits of the case, proper objection, or a motion for a mistrial, should be made at the time of the occurrence; in the absence of such objection, error cannot be assigned thereon for the first time in a motion for new trial. Lumbermen's Underwriting Alliance v. Jessup, 100 Ga. App. 518, 112 S.E.2d 337 (1959). But see Allen v. State, 194 Ga. 178, 21 S.E.2d 73 (1942).

New Trial Required

New trial mandatory after expression of opinion by court as to unproved evidence.

- Under the mandatory provisions of this section, the expression or intimation of an opinion by court as to evidence or proof requires a new trial, unless statement relates to a point as to which there is no dispute or to a point which is absolutely uncontradicted. Green v. Green, 176 Ga. 421, 168 S.E. 266 (1933) (see O.C.G.A. § 9-10-7).

- A new trial must be awarded when there is an intimation of opinion in the instructions of the trial judge even though the verdict is right. Phillips v. Williams, 39 Ga. 597 (1869); Lellyett v. Markham, 57 Ga. 13 (1876); Sanders v. Nicolson, 101 Ga. 739, 28 S.E. 976 (1897); Georgia Ry. & Elec. Co. v. Cole, 1 Ga. App. 33, 57 S.E. 1026 (1907); Everett v. Jennings, 137 Ga. 253, 73 S.E. 375 (1911); Central of Ga. Ry. v. Woodall, 13 Ga. App. 50, 78 S.E. 781 (1913); Frost v. Smith, 148 Ga. 840, 98 S.E. 471 (1919).

- When the judge in the jury charge expresses the judge's opinion as to what has or has not been proved the judge violates this section, and it is mandatory for the Court of Appeals, in either a civil or a criminal case, to grant a new trial. Alabama Great S.R.R. v. McBryar, 67 Ga. App. 509, 21 S.E.2d 173 (1942) (see O.C.G.A. § 9-10-7).

Court's undertaking to decide question of fact is invasion of province of jury, and such error requires a new trial. Hilburn v. O'Barr, 19 Ga. 591 (1856); Garbutt Lumber Co. v. Prescott, 131 Ga. 326, 62 S.E. 228 (1908).

- Judgment in a divorce case was reversed and a new trial was ordered where the trial court, in comments made to the jury following the testimony of a witness, stated its high opinion of the witness and bolstered the witness's credibility, influencing an issue that was solely for the jury to determine. Hubbard v. Hubbard, 277 Ga. 729, 594 S.E.2d 653 (2004).

Application

Judge's questioning on merely tangential issue.

- In an action to probate a will, a judge did not ask improper questions, express an opinion, or conduct an argumentative examination after the judge questioned a witness on an issue that was, at best, tangentially related to the disputed fact issue of testamentary capacity and undue influence. Coggin v. Fitts, 268 Ga. 112, 485 S.E.2d 495 (1997).

- In a trial for undue influence and revocation of a will brought by one sibling against another, the trial judge's remarks in stopping the plaintiff's counsel from questioning a witness about a provision in a previous will of the testator's, which was not carried over into the will at issue in the case, were not directed to the evidence or to the credibility of witnesses, but to the conduct of the cross-examination by the plaintiff's counsel; they were merely rulings on objections or sua sponte efforts by the trial court to control the trial. Morrison v. Morrison, 282 Ga. 866, 655 S.E.2d 571 (2008).

- In a condemnation action, the trial court did not improperly comment on the evidence by stating that a witness was not qualified to answer a legal question. Pertinent remarks made by a trial court in discussing the admissibility of evidence or explaining the court's rulings did not constitute prohibited expressions of opinion. Bulgin v. Ga. DOT, 292 Ga. App. 1, 663 S.E.2d 730 (2008).

- Where the defendant testified: "I left this deed with Mr. John Camp Davis, my lawyer, for the purpose of borrowing money on it;" and further: "I executed this deed . . . and delivered it to Mr. Davis for him to deliver when he borrowed the money on it," this evidence is such an admission upon the fact in issue as authorized the judge to refer to the fact without violating this section. Richards v. Smith, 173 Ga. 424, 160 S.E. 608 (1931) (see O.C.G.A. § 9-10-7).

- In personal injury action, where the court properly charged the jury as to the items of damage consisting of medical and drug expenses and room and board furnished the plaintiff during convalescence, there was no expression of opinion by the court where the charge contained the instruction "you can arrive at the amount you believe right and proper, that being a question for your determination." Southeastern Greyhound Lines v. Fisher, 72 Ga. App. 717, 34 S.E.2d 906 (1945).

- Where the jury, during deliberations, posed a question as to the amount of damages and the court, in responding, stated, inter alia, ". . . before you get to the question of damages you must decide the issue of liability. There would be no damages if there is no liability,"; such a statement did not give undue prominence to the contentions of either party, and was not violative of O.C.G.A. § 9-10-7. Cox v. GMC, 187 Ga. App. 176, 369 S.E.2d 525 (1988).

- Trial court's statements to the jury did not give undue prominence to contentions of either party where the judge, in response to a question from the jury, told the jury that they had properly listed all the elements of fraud, as there was no evidence that the judge expressed an opinion as to whether those elements had been proved; further, there was no contention that either the original jury charge or the re-charge misstated the law, and the trial court made it clear that the re-charge was not intended to place added emphasis on the fraud claim. Cline v. Lee, 260 Ga. App. 164, 581 S.E.2d 558 (2003).

- The instruction that if the plaintiff had proved the plaintiff's case as laid (such case being in part founded on permanent pain and suffering) the jury would bring in such sum as their enlightened conscience determines as to the pain and suffering the plaintiff had endured and will probably endure is not an expression of opinion that the plaintiff's injuries are permanent. Redd v. Peters, 100 Ga. App. 316, 111 S.E.2d 132 (1959).

- The use, by the trial judge in charging the jury, of the words "if you should believe," instead of "if the jury should find from the evidence," is not an expression of an opinion by the trial judge. Steffner v. Cohen, 104 Ga. App. 634, 122 S.E.2d 530 (1961).

- Where the court instructed the jury that in the event they found for the plaintiffs the form of their verdict would be, "We, the jury, find for the plaintiffs in the sum of so many dollars, not to exceed the sum sued for," the latter portion of the charge is not an expression of opinion by the court as to the value of the life of the deceased in violation of this section. City of Macon v. Smith, 117 Ga. App. 363, 160 S.E.2d 622 (1968) (see O.C.G.A. § 9-10-7).

For court correctly to denominate case as action in tort is not equivalent to expression of opinion that the defendant had committed a tort, but, properly construed, only informed the jury that the plaintiff so contended. Pollard v. Phelps, 56 Ga. App. 408, 193 S.E. 102 (1937).

- In telling defense counsel that counsel could not make statements when cross- examining a state's witness, the trial court did not violate O.C.G.A. § 9-10-7. The remarks did not pertain to guilt or innocence and were not an expression of opinion as to what had been proven. Green v. State, 298 Ga. App. 17, 679 S.E.2d 348 (2009).

- Where the evidence warrants, it is not error as an expression of opinion for the court to state a particular hypothesis where the jury is left to establish the hypothesis from the evidence. Atlanta Laundries, Inc. v. Goldberg, 71 Ga. App. 130, 30 S.E.2d 349 (1944).

- Instruction to the effect that the jury must recognize the validity of an option in a contract as a valid and binding obligation, which was obviously the purpose for introduction of the option in evidence, was not an expression or intimation of an opinion as to the weight of such evidence. Arrington v. Thompson, 211 Ga. 734, 88 S.E.2d 402 (1955).

- Whether the remarks of the court went further than was necessary to inform the jury that the verdict returned on a former trial should not be considered by them and to eradicate the effects of its introduction, they did not amount to an expression of an opinion as to which of the parties should prevail in the case then in progress; the jury could not have failed to know from the very explicit instructions given them by the court that neither the judge's ruling in granting a new trial following the former trial, nor any thing connected therewith, carried with it any implication that the judge entertained an opinion as to who should prevail in the trial then in progress. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958).

- In action for wrongful death of a person killed at a place where a railroad sidetrack was crossed by a city street, by reason of being crushed between train which was backing over the crossing and an automobile which was proceeding along the street, charge that "if the engineer saw it, then of course he would be required to stop his train and save the life of the deceased, although the deceased had not signaled him to stop," was error in that it contained an expression of opinion by the court, as a matter of law, that under the circumstances the duty was on the engineer to stop the train, whereas under the evidence it was a question of fact whether in this respect the engineer failed to exercise ordinary care by failing to stop the train. Southern Ry. v. Blanton, 59 Ga. App. 252, 200 S.E. 471 (1938), later appeal, 63 Ga. App. 93, 10 S.E.2d 430 (1940).

- In a customer's slip and fall case against a dry cleaner establishment, the trial court did not err by denying the customer's motion for a new trial and did not improperly express or intimate an opinion as to what had or had not been proved by making an inquiry concerning the relevancy of certain evidence nor by making two comments during the customer's closing argument that were limited in scope and did not concern the merits of the case and were aimed at preventing misstatements and improper arguments from being made before the jury. Further, the trial judge charged the jury after the close of evidence that anything the court had said or done during the course of the trial was not intended to imply or suggest which of the parties should prevail in the case. Muskett v. Sketchley Cleaners, Inc., 297 Ga. App. 561, 677 S.E.2d 731 (2009), cert. denied, No. S09C1422, 2009 Ga. LEXIS 412 (Ga. 2009).

In a medical malpractice case arising out of gastric bypass surgery, a trial judge's comments regarding a medical study involving blood thinners while the judge ruled on whether the defending doctor could look at the study to refresh the doctor's memory did not violate O.C.G.A. § 9-10-7 because they did not imply approval of any witness's testimony. Sellers v. Burrowes, 302 Ga. App. 667, 691 S.E.2d 607 (2010).

Trial court's use of the phrase "a very simple document" when referring to a will did not express an opinion as to what had been proved or endorse the propounders' view of the case, but rather was directed to instructing the jury regarding the formalities of a valid will. Ayers v. Cook, 298 Ga. 501, 783 S.E.2d 99 (2016).

RESEARCH REFERENCES

Am. Jur. 2d.

- 75 Am. Jur. 2d, Trial, § 276 et seq.

- 89 C.J.S., Trial, § 520 et seq.

- Propriety and correctness of instructions regarding maxim "falsus in uno, falsus in omnibus," 90 A.L.R. 74.

Propriety and effect of instruction or requested instruction which either affirms or denies jury's right to draw unfavorable inference against a party because he invokes privilege against testimony of person offered as witness by the other party or because he fails to call such person as a witness, 131 A.L.R. 693.

Comments in judge's charge to jury disparaging expert testimony, 156 A.L.R. 530.

Instruction mentioning or suggesting specific sum as damages in action for personal injury or death, 2 A.L.R.2d 454.

Coercive effect of verdict - urging by judge in civil case, 19 A.L.R.2d 1257.

Prejudicial effect of judge's disclosure to jury of motions or proceedings in chambers in civil case, 77 A.L.R.2d 1253.

Propriety and prejudicial effect of instructions referring to the degree or percentage of contributory negligence necessary to bar recovery, 87 A.L.R.2d 1391.

Instructions in a personal injury action which, in effect, tell jurors that in assessing damages they should put themselves in injured person's place, 96 A.L.R.2d 760.

Propriety and prejudicial effect of instructions in civil case as affected by the manner in which they are written, 10 A.L.R.3d 501.

Propriety and prejudicial effect of comment or instruction by court with respect to party's refusal to permit introduction of privileged testimony, 34 A.L.R.3d 775.

Propriety and prejudicial effect of trial court's inquiry as to numerical division of jury, 77 A.L.R.3d 769.

Pendency of criminal prosecution as ground for continuance or postponement of civil action involving facts or transactions upon which prosecution is predicated - state cases, 37 A.L.R.6th 511.