In each of these personal injury suits, tried separately, there was evidence which, if believed by the jury, authorized the return of verdicts for the plaintiffs. The general grounds of the motions for new trial are without merit.
Error is enumerated upon the method employed in selecting the jurors, urging that a special Act under which the jury commissioners of Long County were chosen and who, in turn, selected the names of citizens to be placed in the jury box (See Ga. L. 1962, p. 6) 1 was unconstitutional, was contrary to and in conflict with the general law obtaining throughout the state on that subject; that counsel for the plaintiffs was the clerk of the county commissioners and exerted his influence upon them in the selection of names for submission to the judge of the superior courts *143 and from which he was bound to appoint the jury commissioners; and that all of this resulted in a biased jury, as was reflected in the verdicts which were for the full amount of damages claimed by the plaintiffs.
No attack upon the constitutionality of the Act of 1962 or challenge to the array of jurors selected under its provisions was made prior to the striking of the jury or even prior to the return of the verdicts. Counsel now urges that he was unfamiliar with the provisions of the Act of 1962, amending Code § 59-101, and which, because of its population limitations, applied only in Long County, and that he discovered it after the trial had ended. He was not a resident of Long County and engaged in the practice of law there only occasionally.
We do not doubt the sincerity of counsel’s assertions in this respect, and it must be agreed that the Act of 1962 provided a very irregular method of securing jury commissioners and thus of securing jurors to serve in the courts of that county. The position of the attorney for the plaintiffs as clerk to the county commissioners may, as appellants contend, have enabled him to exert influence in the naming of jury commissioners, and thus in the controlling of the selection of names for the jury box.
If timely made, a challenge to the whole panel in civil cases will lie.
Reynolds v. Reynolds,
Since no constitutional attack on the Act was timely made in the trial court, any claim of unconstitutionality urged for the first time in the motion for new trial or in the appellate court raises no issue for consideration.
Woods v. State,
The enumerations of error concerning this matter are without merit.
Appellant urges that a jury list prepared by commissioners appointed under the Act of 1962 has been held violative of due process to civil litigants as well as criminal defendants by Judge Alexander A. Lawrence of the United States District Court for the Southern District of Georgia, in the case of Simmons v. Jones, 317 FSupp. 397, 2 and that we should recognize his ruling. We have the greatest respect and admiration for Judge Lawrence and we know of his unusual ability as a judge. His judgment may very well be a correct one, but we are bound by the provisions of the Constitution of Georgia relative to our own jurisdiction, by the precedents found in decisions of the Supreme Court of this State and by the rules of practice applicable to appeals. Even though we should conclude that Judge Lawrence’s ruling is a correct one, we could not give it effect since there was here no timely challenge to the array as there was in Simmons v. Jones, supra.
In special ground 6 of the motions for new trial appellants urged that a new trial be granted because counsel for Mrs. Bull, in her action as plaintiff, had named Mrs. Dun-ham as a defendant, along with others; that counsel had then filed a separate suit against the other defendants for Mrs. Dunham as plaintiff, and that this afforded him access *145 to both sides of the case. 3 Overruling of this ground is enumerated as error.
There is and can be no question that it is highly improper for an attorney to represent both sides of an issue. Canons 6 and 37 of the Canons of Professional Ethics promulgated by the American Bar Association in 1908, Canon 5 of its recent Code of Professional Responsibility, both of which the State Bar of Georgia has officially endorsed, and Rule 3-106 of the Rules of the State Bar of Georgia,
Appellants urge that their defenses were prejudiced before the jury by remarks of the judge in two instances, and that denial of their motions for mistrial on those grounds was error.
(a) While plaintiffs’ counsel was examining one of his witnesses, defense counsel made inquiry as to whether "there has been a set-up of memorized answers to specific questions.” Plaintiffs’ counsel objected, asserting that the inquiry was "highly improper.” The court agreed, and admonished counsel, "Sir, I don’t appreciate you mentioning that in this courtroom, and if you do it again I’ll rule you for contempt.” Defendant’s counsel promptly apologized, saying that he had no intention of being disrespectful to the court.
After the direct examination had concluded and cross examination had proceeded for some time, plaintiff’s counsel objected to a question as being repetitious. The jury was sent out and counsel for defendants moved for a mistrial "because I believe my clients’ position has been prejudiced before the jury,” making it clear that the motion was directed to the judge’s remarks in rebuking him.
The motion was not made immediately after the admonition of the judge and his threat of contempt against counsel. We have held that it must be made at the time of the occurrence, and should particularize the ground.
Lumbermen’s Underwriting Alliance v. Jessup,
Appellant urges that the atmosphere of the courtroom was surcharged with tenseness and with obvious resentment against its counsel by the court at the time, making it highly inadvisable that the motion for mistrial be made until there had been time for a cooling off, and that this was well demonstrated by the tone or inflections of the voice of the judge in the admonishing of counsel. If that were the case we are unable to discern it from a reading of the record, for, as was asserted in
Herrington v. State,
We are, therefore, unable to find reversible error in this respect.
(b) After the objection of repetitiousness by plaintiff’s counsel and defense counsel’s explanation of what he sought to obtain from the witness, the court remarked, "All right, I’ll let you ask him one more time.”
We do not find this remark of the judge to have been such as to require the grant of a mistrial. If counsel had been repetitious in his questioning, the court had a right to restrict it, and in doing so the defense is not belittled or disparaged. See
Cheek v. State,
On voir dire defendants’ counsel inquired of the jurors, including Andrew J. Edwards, as to their occupations. He answered that he was "on disability. I was on a construction job.” It was later discovered (after the evidence had closed) that this juror was a part-time city policeman and an honorary deputy sheriff (for which he received no pay). A motion for mistrial was made on the ground that this misstatement of Edwards as to his occupational status had deceived counsel and that had the true facts been known Mr. Edwards would have been stricken. The motion was overruled.
Appellant does not demonstrate in what manner harm resulted from the concealment by the juror of the facts as to his connection with the city and county law enforcement agencies. Though he was
exempt
from jury service by
Code Ann.
§ 59-112 he was not
disqualified.
Compare
Baskin v. State,
*148 A deputy sheriff, testifying for plaintiff Dunham on the trial of her case concerning the investigation he made of the collision, was on cross examination and counsel asked of him: "Did you tell them (defendants) that it was not their fault and that it was plain that it wasn’t their fault?” to which he answered: "No, sir.” On re-direct examination plaintiff’s attorney asked: "Uh, Mr. McGowan, Mr. Newton earlier asked you didn’t you tell Mr. Welch, uh, that he didn’t have anything to worry about or something to that effect, that it wasn’t his fault. Didn’t you, in fact, make a criminal charge against Mr. Welch?” to which the witness replied: "Yes, sir, I did.”
Defendant’s counsel moved immediately for a mistrial, and the motion was overruled. A few minutes later, when the court recessed for lunch and the jury was allowed to disperse, the motion for mistrial was renewed, particularizing the ground and asserting: ". . . any criminal charge made, in the absence of a showing that Mr. Welch entered a plea of guilty to the charge, would be inadmissible, prejudicial and harmful to the defendant, and it is upon that gound that I move for a mistrial.” Appellee’s contention that this area had been opened up by counsel for appellant when he asked the witness whether he had remarked to the defendant that there was nothing to worry about, that it was not his fault, is untenable. The issue on trial and on which the interrogation was made was whether there had been fault on the part of the defendant — culpable negligence — and not one of criminal responsibility.
When the jury returned after lunch the court admonished them: "Gentlemen of the Jury, in response to questioning of Judge Phillips just prior to the noon recess of Mr. E. S. McGowan, it was brought out that a case was made against the defendant in this case. I now instruct you that you will disregard that question and that answer, dismiss it entirely from your mind. Just forget the testimony entirely, and do not consider it when you go into your jury room. I will give you further instructions on that in my charge.”
Defendant’s counsel renewed the motion, and it was *149 again overruled. When the court omitted to refer to the matter in the charge counsel again urged that he was entitled to a mistrial because of the injection of the matter of a criminal charge made against the defendant Welch, and that "I do not waive that. I stand upon that ground, in that a mistrial should have been declared.”
It is beyond question that it was not competent to prove in this civil action that a criminal charge, growing out of the incident which forms the basis of the action, was lodged against one of the defendants.
Smith v. Goodwin,
Again, we find our own view to be consistent with that of Justice Felton, as above mentioned, and with that of Judge Evans in his dissent to
Gore v. State,
On the matter of damages for her automobile, plaintiff Dunham testified that she had purchased it some two months prior to the date of the collision, had paid $3,400 for it and that it was in good condition up to the time of the collision, that its market value immediately before the collision had been $3,400, or depreciating it for the two months she had owned it, $3,100. (There was proof by another witness of its value after the collision). The owner is competent to testify as to value.
National Ben Franklin Fire Ins. Co. v. Darby, 48
Ga. App. 394 (3) (
Objection was made to her testimony on the ground that no sufficient basis had been given by the witness to enable her to express an opinion as to the market value of the car. While the basis may be somewhat "skimpy” it was sufficient for submission to the jury on this factual issue, the jury not being bound by her testimony.
Hay v. Carter,
Judgments affirmed.
Notes
Repealed by Ga. L. 1970, p. 10.
Constitutionality of the Act of 1962 was challenged in
Simmons v. Gordon,
Mrs. Dunham was voluntarily stricken as a party defendant to the suit brought by Mrs. Bull prior to the time of trial.