140 Ga. 792 | Ga. | 1913
Brbwn sued the Alabama Great Southern Bailroad Company for damages for. personal injuries to himself and to his team of horses and wagon in which he was riding, alleged to have been caused by the negligent running of its engine and cars. The defendant denied the material allegations of the petition, and averred that if the plaintiff sustained any personal injuries, or loss of any property at the time and place alleged in- his declaration, it was brought about by his own fault and carelessness and not by the fault of the defendant. The jury found a verdict in favor of the plaintiff. A new trial being denied, the defendant excepted.
1. After a jury was stricken and the plaintiff had introduced a part of his evidence, the court took a recess until the next morning. During the recess, and for the first time, the defendant’s counsel learned that one of the jurors “was and had been the guest of the local resident attorney for plaintiff at the home of said attorney in the town” where the trial was in progress. This fact was brought to the attention of defendant’s counsel by plaintiff’s leading counsel, who informed defendant’s counsel that the juror was the guest of associate counsel for plaintiff. The leading counsel for plaintiff stated to defendant’s counsel that he had just learned the fact by hearing the juror say to associate counsel that he was “ready to go home with him.” This being brought to the attention of the court by counsel with whom the juror was staying, the court had the juror informed not to go again to the home of counsel, and the juror then went elsewhere. Defendant’s counsel proposed to plaintiff’s counsel that the juror be withdrawn, and that the trial proceed with eleven jurors. This proposition was refused. On the next morning counsel for the defendant brought the foregoing facts to the attention of the court, stating that he was willing for the juror to be withdrawn and for the trial to proceed with eleven jurors. Plaintiff’s counsel refused to accede to this proposition; whereupon defendant’s counsel asked the court to declare a mistrial. To the refusal of the court so to do the defendant filed its exceptions pendente lite, and assigns such refusal as error. We think that a mistrial should have been declared under
In the case of Foster v. Brooks, 6 Ga. 287, 298, Judge Nisbet said: “But to warrant a new trial, it is not necessary to show that the juryman acted corruptly. The law will guard the trial by jury from the chances of being corrupted.” In Walker v. Walker, 11 Ga. 203, 206, Judge Warner said: “It is true the affidavit of the juror was produced, in which he states that his verdict was not influenced by the kindness and hospitality of the caveator. But we place our judgment on the principle of the common law, which we consider a safe and salutary rule. When a juror has been empaneled to try a cause, and during the trial, and before he has rendered his verdict, he shall be entertained, by either of the parties, at their expense, and the verdict be in favor of the party so entertaining the juror, the verdict will be set aside. . . This rule is indispensably necessary to preserve the purity and integrity of jury trials in our courts, and can not be too strictly enforced.” In Springer v. State, 34 Ga. 379, where one of the counsel for the prosecution kept free of charge the horses of some of the jurors for a night, Judge Harris said (p. 381): “The honor of the bar and the perfect purity of a jury alike demand their entire separation, in their personal and social intercourse, whilst trials are progressing. However harmless, in themselves, as was the conduct of our respected brethren in these cases, we feel ourselves called upon, in this and in every case where this separation is not preserved with the utmost care, to evince, in the most decisive manner, our purpose to shut up every avenue through which corruption, or the influence of friendship, could possibly make an approach to the jury box.” In Salter v. Duffield, 42 Ga. 64, 80, Chief Justice Lochrane said: “There is nothing in which courts will go farther than in their protection of the jury-box. Here every precaution is necessary for the proper and pure administration of justice. But in the jury-box, if purity and integrity are not preserved, every principle of right and virtue dies. This court has been vigilant in protecting the jury from even the suspicion of injustice.” In Walker v.
We can have no. means of knowing whether the entertainment of the juror influenced him in arriving at his verdict. But under the previous rulings of this court, it does not matter whether injury resulted to the plaintiff in error of not. The courts will see to it that the jury are kept free from influences which may tend to bias or prejudice their minds for or against the cause of either party they are empaneled to try. • The entertainment of jurors by parties
2. Error is assigned because the court received the verdict of the jury after the court had ordered a recess until the next morning, and in the absence of movant’s counsel, “thus denying movant the privilege of requesting that the jury be polled.” Counsel for the movant had left the court-room and was at a hotel a short distance from the court-house when the verdict was received by the court.
3. Error is assigned because the court permitted a witness for the plaintiff to testify, over objection of the defendant’s counsel, as follows: “I think the distance between those two marks would suit the distance between the' springs of that seat found there. The width of those springs between was about the right space. If the spring hit him I think that would be about right. What the facts are I don’t know. I hardly know how to intelligently answer the question, how the width of the springs compare with the distance of the different marks on his arm and the distance of the springs apart, but I only answer it in this way. I think it could have been made by the spring.” It is objected that this evidence should not have been admitted, because the witness should state the facts, and let - the jury determine the question as to what caused the injury to the plaintiff’s arm, whereas the answer of the witness is a mere conclusion. Undoubtedly the general rule is that a witness should state facts and not his opinion, and a non-expert witness can not give his opinion unless he also gives the fact or facts upon which he bases his opinion. Potts v. House, 6 Ga. 324 (50 Am. D. 329); Mayor &c. of Milledgeville v. Wood, 114 Ga. 370 (2), 372 (40 S. E. 239); Augusta R. Co. v. Dorsey, 68 Ga. 228 (11); and see 5 Mich. Dig. Ga. R. 520 et seq. The witness frankly states that he does not know what the facts are, and that he hardly .knows how to answer intelligently the question as to how the width of the springs compares with the different marks on the arm of the plaintiff, and the distance of the springs apart; and his conclusion is, “I think it could have been made by the spring.” This answer can be no more than the mere opinion of the witness, without giving any fact as a basis or as a reason therefor. He could state, if he knew, the distance of the springs apart, and also the distance apart of the marks on the arm of the plaintiff, and let the jury say whether the injury was caused by the springs. The jury would be as competent to draw the correct inference from the facts as the witness. The witness was not testifying as an expert. We think the court erred in not rejecting the answer of the witness.”
4. Complaint is made of the following charge of the court: “Eeplying to this, the defendant company says' that his injuries, if permanent, are slight, and he can do practically as much work
5. The 8th and 9th grounds of the amended motion complain of the failure of the court to charge the jury in substance as therein set out. It does not appear that any request was made that the court instruct the jury as the movant insists should have been done, and there is no merit in these assignments of error.
Judgment reversed.