46 Ga. App. 633 | Ga. Ct. App. | 1933
Mrs. Betty R. Cobb brought suit against Atlanta Coach' Company. The United States Fidelity and Guaranty Company had insured the defendant against liability. We quote from the bill of exceptions, “that upon the call of the case counsel
In Bibb Mfg. Co. v. Williams, 36 Ga. App. 605, 607 (137 S. E. 636), Judge Jenkins, speaking for this court, said: “Where it appears that the defendant is in fact insured against liability, the employees, stockholders, and relatives of' stockholders of the insurance carrier- are disqualified to serve as jurors in the case; and in such a case it is not error for the court, at the request of the plaintiff and over the objection of the defendant, to purge the jury by inquiring whether any juror is an employee or stockholder of, or related to a stockholder of, the insurance company.” In Farrar v. Farrar, 41 Ga. App. 120 (152 S. E. 278), Judge Jenkins said: “In a suit for personal injuries, where it was made to appear to the court, on private inquiry conducted out of the hearing of the jury, that the defendant was protected by liability insurance, a,nd that the insurance carrier was thus pecuniarily interested in the result of the suit, and no proof was submitted on behalf of either party to show whether an employee or a stockholder or relative of a stockholder of the insurance carrier was on the jury, it can not be said as a matter of law that a request of the plaintiff to purge the jury with reference to the insurance carrier was submitted in bad faith and solely for the purpose of informing the jury that the defendant was protected by liability insurance.” Applying the above authorities to the facts of this case, it seems to us that the court committed error in refusing to purge the jury upon proper motion made.
The next question is, was this reversible error ? Generally speaking, there may be a challenge to the array or a challenge to the poll.
In Bryan v. Moncrief Furnace Co., supra, Howell v. Howell, 59 Ga. 148, and Justices v. Griffin & West Point Plank Road Co., 15 Ga. 39, 41, there was a proper challenge made to the poll in such a way as to challenge all the jurors, and each particular one of the twenty-four jurors on the panel, just as if each juror had been challenged separately; and in those cases the court held that the denial of the right to have the list purged was such error as demanded the grant of a new trial.
There is another class of cases where the challenge to certain jurors was improperly overruled, and where the number of jurors challenged was not more than the challenging parties’ peremptory challenges (strikes), and where the challenged jurors were stricken by the challenging parties. In these, cases the Georgia courts have generally held that "the parties had got rid of the objectionable jurors, and therefore no harm was done in erroneously putting upon them a disqualified juror, unless it was shown that in striking such disqualified juror and others they had exhausted their peremptory challenges before the jury was selected.” Bryan v. Moncrief Furnace Co., supra. To this latter class of cases belong Ethridge v. State, 168 Ga. 186 (136 S. E. 72); Faulkner v. State, 166 Ga. 645 (144 S. E. 193); Ford v. State, 12 Ga. App. 228 (76 S. E. 1079).
It is obvious that if the plaintiff in the instant case used all of her six strikes, she would still be forced to try her case before twelve jurors, all of whom she had challenged for principal cause (a cause which, if found to be true, would disqualify the jurors trying her case as a matter of law), notwithstanding the fact that she liad taken the steps pointed out by the law to have the entire jury sworn to prove their incompetency by the jurors themselves. If the jurors had been sworn and had admitted their incompetency, they would have been disqualified as a matter of law, and there would be no issue of- fact. The plaintiff was not challenging for favor (which would
In McTier v. Crosby, 120 Ga. 878 (48 S. E. 355), cited by the defendant, the record of file shows that the suit was brought on a bastardy bond for the use of the bastard, and that the defendant “asked that the relatives of the ordinary be taken off the jury.” The trial court held that the relatives of the ordinary were not disqualified; and the judgment was affirmed by the Supreme Court. It seems to us that in this case the ordinary was acting solely as a public official, and within the scope of his official duty. Hence his relatives were not disqualified.
The cases cited by the defendant—Carter v. State, 106 Ga. 372 (6) (32 S. E. 345, 71 Am. St. R. 262), and Dees v. State, 41 Ga. App. 321 (152 S. E. 913) — may be out of line with Bryan v. Moncrief Furnace Co., Howell v. Howell, and Justices v. Griffin &c. Plank Road Co., supra. However, it will be noted that the last mentioned are the earliest and the latest decisions of the Supreme Court bearing upon the particular question under consideration. Hence we follow them. It is therefore our opinion that the denial of this plain right of the plaintiff to have the jury list purged as requested on her principal challenge to the poll (in contradistinction to challenge for favor) of the employees, stockholders of the corporation, and their relatives, entitles the plaintiff to a new trial; and that the burden did not rest upon the plaintiff to show that some of the members of the jury actually trying the case were so disqualified. Having reached the conclusion that the trial judge committed error in the respect indicated, further proceedings in the case after the error pointed out were nugatory.
Judgment reversed.