Moorehead sued Mr. and Mrs. Counts for personal injuries and property damage because of an automobile collision. An automobile driven by Mrs. Counts and owned by her husband, struck Moorehead’s vehicle in the rear.
The defendants answered, denied any negligence, and alleged that if defendant was negligent, plaintiff’s negligence was equal to or greater than defendant’s negligence.
During the opening argument of counsel for defendant, plaintiff moved for a mistrial because of improper argument made by defendants’ counsel to the jury, which motion was overruled. The case proceeded to trial, and verdict and judgment were rendered for plaintiff for $600. Plaintiff was dissatisfied with the amount of the verdict and moved for new trial which motion was heard and denied. Plaintiff appeals from the judgment.
During the opening statement by counsel for defendant to the jury, he argues that plaintiff had made many, many claims before, and that his present claim was premised upon an intentional injury that plaintiff himself precipitated in the course of a pattern of conduct. Thereupon, counsel for plaintiff moved for a mistrial, stating that such statements were highly prejudicial and inflammatory; that the suggestion by counsel for defendant to the effect that plaintiff had perpetrated a fraud and had done *454this before and is doing it here at this time, is prejudicial, and that there is nothing set forth in the pre-trial order to indicate or intimate such as a defense.
Counsel for defendant then stated: "The pre-trial doesn’t purport to set forth evidence. We expect this to be a pattern of his many, many claims and conduct and that this was an intentional injury that he himself precipitated in the course of a pattern of conduct.” Counsel for plaintiff then stated that such argument again ". . . constitutes grounds for a mistrial in that he has now interjected into the lawsuit that he has made other claims. Whether he has had other claims or not is not germane and is not pertinent to this lawsuit. Whether he has been injured before in any traumatic experience or not is, of course, germane, material and relevant, but whether or not he has had a claim before is prejudicial and cannot be interjected into it any more than we could interject other aspects of the case.” The court stated, "I don’t believe he mentioned a claim,” and counsel for defendant thereupon stated, "I think I might have in addressing the Court, not the jury,” to which counsel for plaintiff replied, "But the jury is sitting right here listening and I believe the Court Reporter has it.” The court then stated, "I am going to overrule the motion for a mistrial in view of the apparent defense to the action here.”
It will be seen that counsel for defendant thus corrected the court as to his failure to remember that the word "claim” had been used. There was nothing in the pleadings of defendant nor in the pre-trial order which gave any notice or intimation of such a defense.
The trial court did not at any time reprimand or rebuke counsel for defendant so the jury might know that the court disapproved and looked with disfavor on such statements in the presence of the jury — he did not grant the motion for mistrial — and the only thing he said to the jury on this question was: "I would like to instruct the jury in connection with the motion just made to disregard any mention of any prior claim. That would have no bearing on the issues to be here determined today. I did want to add that to my overruling of the motion for mistrial.” This statement, of course, contradicted an earlier statement by the trial judge to the effect that he was allowing the argument and overruling the motion for mistrial, "in view of the apparent defense to the action here,” (emphasis supplied) which earlier statement by the court to the jury as to the apparent defense *455of defendant was never withdrawn.
l.Here the trial court did not grant the motion for mistrial, but simply told the jury to "disregard any mention of prior claim. That would have no bearing on the issues to be here determined today.”
There was not the faintest suggestion by the court that he regarded counsel’s argument to the jury as improper, or that he criticized, reprimanded or rebuked counsel in any fashion whatever for having stated matters that were completely outside the record, and were of a prejudicial nature.
What is the mandate of the statute? Code § 81-1009 makes it the duty of the court to "interpose and prevent” counsel from making statements of "prejudicial matters which are not in evidence.” But all too often the statements are made without advance notice — as was done here — and the trial judge has no opportunity to "interpose and prevent” the making of said prejudicial statements. Then what is required of the trial court? The mandate of the statute is very plain and unambiguous on this point, in this language: "... and, on objection made, he shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds. ” (Emphasis supplied.) When did the trial court here rebuke counsel? He never did! When did the trial court endeavor to remove the improper impression from their minds? He never did! He did not even tell them the argument was improper, but merely said they should disregard it because it has "no bearing on the issues to be here determined today.”
It must be noted that the statute does not require one corrective action or the other — it requires two corrective actions by the court. First, the court shall rebuke counsel, and, in addition thereto, the court shall by all needful and proper instructions to the jury endeavor to remove the improper impressions from the jury’s mind. These two clauses are connected by the conjunction "and,” so that it is beyond peradventure that both (two) corrective actions by the court are required after improper argument to the jury by counsel. Here we do not have one corrective action by the court.
Code § 81-1009 has not been repealed by the new Civil Practice Act. Code Ann. § 81A-146 (b), deals with and enlarges these rights, and provides that motions for mistrial need not be renewed. But Code § 81-1009 is unrepealed and is the law of this state.
In Berry v. State, 10 Ga. 511 (6) the Supreme Court of Georgia held: *456"For counsel to attempt surreptitiously to get before the jury, facts by way of supposition, which have not been proven, is highly reprehensible and the practice should be instantly repressed by the court without waiting to be called upon by the opposite party. ” (Emphasis supplied.)
In Mitchum v. State, 11 Ga. 615 (7), and at page 635, a somewhat similar proposition as that now under consideration was before the court, for that one of the attorneys in argument sought to attack the credibility of a witness without evidence in support, and Judge Nisbet, speaking for the Supreme Court, holds: "Í know of no rule of law which authorizes the credibility of a witness to be impeached or fortified thus... He, as well as parties and counsel, has rights which it is the duty of the Court to protect. It were a cruel injustice to permit his character to be driven to and fro like the shuttlecock, by the outside statements of counsel. . . All these objections apply alike to criminal trials and civil actions — to the prosecuting officer and to counsel. . . Let the judgment be reversed.” (Emphasis supplied.)
This court, in DeFreese v. Beasley, 114 Ga. App. 832 (3) (152 SE2d 772), holds: "Under the circumstances disclosed by this case the trial court erred, upon timely objection of defendant’s counsel, in failing to rebuke plaintiff’s counsel for his improper and prejudicial remarks about the use of drugs and poisonous moonshine whiskey, and in not endeavoring, by needful and proper instructions, to remove the improper impression such remarks may have created in the minds of the jurors, or, if the ill effect of the improper argument could not have been erased by this procedure, a mistrial should have been granted.” Other cases which support this view in strong and clear language are: Heard v. State, 210 Ga. 108 (1) (78 SE2d 38) and Georgia Power Co. v. Puckett, 181 Ga. 386, 392 (182 SE 384). The trial court here should have granted a mistrial, or in the alternative, he should have both rebuked counsel and used such instructions as were needful to remove from the jury’s mind any and all impressions created by the improper argument of counsel for defendant.
Both the Supreme Court and the Court of Appeals have repeatedly construed Code § 81-1009 to mean that when counsel makes prejudicial statements in the presence of the jury, the trial court may take one action only, and thus obviate the necessity of granting a mistrial. It has been held time and again that if the trial court instructs the jury to disregard the improper statements, this will suffice. But this is a clear misinterpretation *457of the statute which requires two actions, to wit, 1. He shall rebuke counsel, and 2. By all needful and proper instructions to the jury (he shall) endeavor to remove the improper impression from their minds. And, of course, in his discretion, he may order a mistrial. The statute does not state or imply that the trial judge shall rebuke counsel, or by all needful and proper instructions to the jury endeavor to remove the improper impressions from their minds. There is nothing in the statute to suggest that one of the above actions will suffice. On the contrary, both must be applied. But the Supreme Court and Court of Appeals have repeatedly held that a rebuke to counsel, or a statement to the jury to disregard the improper remarks, will cure the error and make it unnecessary to grant a mistrial. A reading of the statute will show this construction and interpretation of the statute to be clearly erroneous.
Argued July 9, 1973 Decided December 4, 1973 Rehearing denied December 18, 1973 Roberts, Moore, Worthington & Hawkins, Owen G. Roberts, Jr., Samuel W. Worthington, III, for appellant. Kelly, Champion, Denney & Pease, Edward W. Szczepanski, Jr., for appellees.2. Defendant urges that this point should not be considered because of plaintiffs failure to renew his motion for mistrial. Before the Civil Practice Act (Code Ann. § 81A-146 (b); § 46, CPA; Ga. L. 1966, pp. 609,655) a motion for mistrial had to be renewed before it could be considered on review, but this is no longer the rule. State Hwy. Dept. v. Cantrell, 119 Ga. App. 241 (1a) (166 SE2d 604). Thus, where, as here, the court did not grant a mistrial, or rebuke counsel, and endeavor to remove the improper impression from the jury’s minds, and only as an afterthought, later advised the jury to disregard the statement, this is altogether insufficient to remedy the damage.
Judgment reversed.
Bell, C. J., Pannell, Quillian and Clark, JJ., concur. Deen, J., concurs specially. Hall, P. J., Eberhardt, P. J., and Stolz, J., dissent.