*1 entries which showed Etheridge corporations These Etheridge. charged for and made payments as hearsay rule exceptions qualify items also records. entries of business without heard evidence having
6. The court presumption there is a a jury, intervention legal and evidence competent supported by was judgment 769(4) (20 13)), Co., G. v. U.S.F. & (Pope the chaff’ wheat from "sifted the Bailey evidence. hearsay regards to inadmissible Holmes, 272, account, a mutual which to show
There evidence was The and conclusions law. finding of fact supports the the motion dismiss denying err court did not against defendant. for rendering judgment Pannell, Eberhardt, J.,P. Judgment affirmed. J., concur.
Argued February Decided March Rehearing 14, 1974 denied March Hambrick, E.
Claude appellant. for Groton, Sutherland, Brennan, P. James Asbill & Jr., Farber, Lester, N. Charles T. Steven appellees. RAILROAD 48434. SEABOARD COAST LINE COMPANY v. SMITH. Judge.
Stolz, Line Railroad appeal by This is an Seaboard Coast trial as amended overruling from of a motion new in his damage a Smith which followed verdict obtained crossing railroad personal injuries suit for sustained in a a in his passenger type collision. Plaintiff below was van employees, five one in which there were of his automobile driving whom Smith’s car under control. plaintiffs engine between the and the vehicle occurred collision at 3:30 at a when approximately a.m. time engaged switching operation public highway crossing. fog heavy misty There was a at the location impaired visibility. which Further relevant facts will be opinion. stated in the (a)
1. The first enumeration of error reads: "The *2 failing parties panel court erred in to furnish the a of twenty-four competent qualified jurors and from which jury, failing qualify jurors to strike a the court to as any employees company, to whether thereby were of the railroad furnishing panel twenty-four jurors, of six of employees whom were Railroad of the Seaboard Coast Line Company, having and the defendant railroad employees, having stricken three of the six of its exhausted all employees strikes, two of the railroad were left incompetent disqualified.” on the who were The relating qualifications record shows:"Matters to the of the jurors try beginning to this case arose at the of the trial. employees The arose as to whether of the Company qualified jurors. Railroad plaintiff were Counsel for employees party
contended that of a were not disqualified. Counsel for defendant contended that employees party always of a had been held to be disqualified. court, The after discussion of the matter employees counsel, with ruled that of the Railroad Company disqualified jurors were not to sit as and some employees placed panel jurors six or seven were on the of parties required from which were to strike.” Following hearing upon motion, this following transcript directed the to be added to the of panel jurors record: "When the names of the of were qualified jurors Clerk, called respect the Court these relationship plaintiff
to to counsel, and to his any jurors also as to directors, stockholders, of officers, were
agents employees of the Company. Whereupon, Seaboard Coast Line Railroad Mr. plaintiff, argued Neville, of counsel for the to the Court employees party, that the courts had held that mere of a distinguished agents, disqualified. as from were not bench, then called Pedrick, counsel to the Mr. defendant, of counsel for the stated that he contended employees disqualified. that the court were After some discussion
qualified relationship as to of the counsel; any as to whether also and to his directors, officers, agents stockholders or jurors were and omitted Company, Line Railroad Coast the Seaboard being employees jurors qualifying railroad. was furnished jurors panel twenty-four
"A were striking. panel Six of this purpose for the counsel M. Virgil to wit: company, of the railroad employees (Beale) Stevens, Jacobs, Tim Bill L. J. Hanchey, Billy Plaintiffs Hickox, Edward Sowell. Lynn Cecil strikes, being Edward his six one used all of counsel of the railroad. Defendant Sowell, an employee being strikes, three of such strikes six used all of its Jacobs, Billy to wit: company, the railroad employees Hanchey. employees M. Two Virgil J. L. Stevens and on the and sat as were left company the railroad verdict, in the participated trial and jurors during the (Beale) (T. 1, Bill Hickox.” wit: and Tim Lynn Cecil legal investigation discovery is the object "The of all to obtain this attempting 38-101. In of truth.” Code § to have a *3 ideal, panel to the case are entitled parties the a Certainly, being from. of to select impartial jurors having of counsel party or an of a or employee relative tried, materially litigation a financial interest the be juror’s impartiality. a Once prospective detracts from he should judge, such facts become known to them replace prospective jurors excuse such a require juror afflicted. It is not fair to others so can no employer. sit in on his relative or One judgment sitting employee that a relative or judicially more assume litigant toward a relative or partial as a will be juror assume that nations which have employer, than we can Perhaps such. past always been our allies in the will be relatives or one fact that can be assumed is that the or the other. "Let there way will be biased one employees weighs when the the be no thumb on the scale Cloud, evidence.” Jones v. 5 at excellent discussion Division Also see attain a fair trial fair
page consistently by 705. To more should be impartial employees relatives and jurors, there is a waiver except excluded from service where parties. counsel for both by of such rule is substantiated when one
The wisdom during of voir dire. plight any employee considers "The for voir dire is the ascertainment of single purpose their to treat the cause impartiality jurors, ability of on the merits with and freedom from bias and objectivity State, 700, 706 prior inclination.” Whitlock v. 865). An service in subpoenaed individual performance public duty of his should not be called or with its upon affirmatively negatively to answer him impact way upon resultant either personally question: prevent "Would from your employment you fulfillment of sworn as a to act your duty juror fairly parties and without bias as between the impartially any in this case?” In order to insure that each obtains party a it is essential to rule that panel impartial jurors should be held regardless any presumption employees incompetent juror to serve as a a case which the is a employer party.
(b) However, long it has been held that be waived. See Brindle v. disqualification juror may 310) State, 298, 299 Thus, and cit. disqualification appears relationship, where reason of by bias, any expressed prejudice or the court employment, should remove the prospective juror panel from the an A objection by any where there is counsel party. review of the record in the case sub does not reveal judice an to the trial objection qualify court’s failure to prospective as to their jurors employment defendant railroad. The contention made by defense counsel, record, as shown in the supplemental prior to the judge’s trial qualifying prospective jurors, insufficient. A prior ruling contention to a can never be equivalent objection ruling. of an to a We construe the record disqualification to show waiver no merit in the first enumeration of error. consequently 2. The second enumeration attacks that portion *4 charge in which the court said is not necessarily "[I]t such a ordinary lack of care on the automobile driver’s part as will defeat a for the of a recovery operator automobile to it in properly equipped night drive at speed stop such a rate of that he cannot within the limit of his vision This is true whether the night ahead. was 292 words, or clear. In other find that
foggy you operator plaintiffs operating of the vehicle was the same speed stop such a rate of that he could not within the ahead, limit this of his vision fact alone would not care, constitute a lack of it necessarily ordinary but be your responsibility would to take into consideration from the evidence all facts circumstances as you 259-260). (T. find them to be.” There is no error in this instruction it placed upon to make duty the final determination of whether or not the plaintiff was the exercise of care under all ordinary of the &c., (3) (186 evidence. Bach Bragg v. Bros. 53 App. Ga. 574 Johnson, (96 v. 711); SE Rogers 285); 94 Ga. 666 App. SE2d Brower, (127 Central R. Co. 340, 347 106 App. Ga. of Ga. 33). SE2d 3. Enumeration of error number 3 attacks this portion charge: "I you that there are circumstances where due care for the safety others require would a railroad obstructing a crossing place a guard, light, or some warning other at a proper point give notice for the time that crossing obstructed. An illustration such misty circumstances is a and foggy morning. Except cases, clear and indisputable particular circumstances require such action on the part of the railroad is exclusively (T. 260). This determine.” (Emphasis supplied.) instruction excepted to on the ground that amounted to "an expression opinion as to what required would be to do on a misty foggy morning which emphasizing the facts this case” and that it was "further error because it was argumentative in view of the evidence of mist fog.”
This instruction was quoted from the cases of Newsome, Savannah & A. R. Co. v. 390, App. Ga. (83 Studdard, Atlantic C. L. R. Co. v. 80); SE2d 523) (109 609, Grantham, and Jones v. 668). Ga. Language used in one case by appellate an court may not appropriate be another case when used in totidem verbis. Atlanta W.& Hudson, P. R. Co. v. 108, 109 Atlantic 29); Clements, C. L. R. Co. v. 92 Pollard, Hunt v. As was said this
293
71):
(190
423, 426
App.
repeat
"We must therefore
that
a
principle,
language employed by judge
oft-decided
case,
in
reviewing
discussing
giving
of a
in
or
decision,
appropriate
reasons for a
is not
for use
always
In accord are Atlanta
charging
a trial
by
judge
jury.”
Hudson,
& W. P. R. Co. v.
(2), supra;
Although language here used from an appellate including decision the sentence "an illustration of such circumstance is a and foggy misty morning,” expression opinion this on the facts as they existed here with application duty was an indeed opinion inappropriate argumentative. portion complained
This of was also erroneous it principle because contravened the established that "a trial not tell a judge may jury what acts would or would negligence not constitute unless the acts have been Watson v. declared statute to Riggs, by negligent.” be 323). 784, Ga. Its effect was to inform the railroad negligent it failed to place a guard light or some other warning at crossing on "a misty morning,” and foggy which the evidence showed did exist.
4. The fourth error enumerated deals again with a portion of similar to what we considered in Division of our opinion. before, As defendant contends the language with reference to care exercised in driving an night automobile speed at a with reference illumination available from headlight its was erroneous. The court again here left this for determination by the light of all the evidence. Additionally, it is observed that the language complained given of was charge immediately after the court instructed: "Whether is to be chargeable with negligence or not in operation of his vehicle on the night of the collision depends on what reasonable under all circumstances then existing, and question this is a of fact (T. 260). for you to determine.” This was not error. See &c. R. Co. Rutherford, 159) Co., Turkett v. Central Ga. R. presented of error remaining 5. The enumerations appropriate trial court took 81-1009 with Code curative action conformance § improper arguments to two instances regard being this case is jury. before the As plaintiffs attorney arguments improper for a new trial and as the remanded again necessary pass to occur is not likely are on these final two enumerations error. Bell, J., Eberhardt, J.,P. reversed. C.
Judgment J., Pannell, Deen, Clark, J., Hall, Quillian, concur. P. *6 JJ, Evans, J., concur dissents. specially. September
Argued 1974. 1973 Decided March Bennett, Bennett, Pedrick, E. Larry Pedrick & Gibson, Blount, Gibson, McGee & Lamar appellant. for
Oliver, Donaldson, III, & P. Gray, George Maner Neville, Neville, for appellee. Neville & W. J. Judge, concurring specially.
Pannell,
I concur
in the
of reversal
judgment
but cannot
1(b)
concur in the
in Division
ruling
opinion.
the
When
the
up
judge during
issue came
before the trial
the
qualification of the
as to whether
should be
jurors
they
qualified
the
the
by eliminating
employees of
defendant
railroad
and counsel for the
company,
parties were called
and counsel for
bench
contended that
employees
qualified jurors
were
and counsel
for the
do,
defendant
company,
right
as he had a
to
insisted that
were
employees
disqualified, and the trial
being
court did not
as to
qualify
jurors
any
employees
of the railroad company, counsel
for the railroad had
done all the law
him to
It
required
up
do. was not
to him
to object
qualification procedure
completed
after the
nor
by
judge,
that he use the
necessary
word "object” during the
between the trial
colloquy
and the
attorneys
parties.
Counsel
action,
abiding
defendant
railroad’s
the decision of
by
court,
does not
objections
constitute a waiver of the
he
ruling.
made before such
I know of no law in this state
circumstances,
requires
that
this to
done under
be
these
opinion.
nor
been cited
any
by
majority
has
Hall,
Iam
Judge
authorized to
that Presiding
state
Clark,
Judges
Deen and
concur in this concurrence.
Judge, dissenting.
Evans,
against
Plaintiff obtained a verdict and
judgment
crossing
railroad because of a collision at a
on a foggy
morning before
the railroad’s motion for
daylight;
new
appeal
trial was overruled
and on
to this court
majority
following
take the
action: 1. Affirms as to
enumerations
of error
2. I
numbers
concur.
holds that defendant
majority opinion
waived
right
its
of the service
were
complain
jurors
who
railroad;
employees
expresses
opinion
but
that
said
were in
employees
disqualified
jurors,
fact
as
had the
point
agree
been
raised. I
the conduct of
properly
I
right
complain,
disagree
defendant waived his
but
the majority
qualification
as to the
of these jurors
railroad,
defendant,
to serve. The
right
had no
complain
serving
about
its own
on the
employees
jury.
Only
opposite party
complained.
could have
It has
juror
been held
that a
who is a relative of a
repeatedly
but that
party
disqualified,
disqualification may
his
be
complained
opposite
It is
only by
party.
presumed
party
serving
is benefited
his relatives
on the
Highway
Patterson v. State
See
Dept.,
jury.
Ga. 860
*7
(3) (41
(1) (39
State,
v.
260);
Downing
3. pass Refuses to on Enumerations of error number 6, 5 and because it is felt these in matters will not arise I the next trial. do not believe there should be another trial; and I affirm to enumerations would as these two error.
4. Reverses on the third enumeration of error. Here defendant complains charge court’s on jury grounds, charge two to wit: a. The instructed the jury as required what a railroad is to do in the exercise of It ordinary foggy misty morning, care on a b. was in argumentative suggesting fog there was mist and present on this occasion.
There was no error in the trial judge’s charge to the all, First of jury. language the entire paragraph Grantham, law, Jones v. good is as is held in 668), many other cases. But the majority correctly states that all law that is set forth in decisions of appellate courts may necessarily be appropriate course, in a to a jury. Of is true. But good some reason must be shown as to why the language is not appropriate.
As to the contention that this charge improperly instructed as to what precautions the railroad should have taken at crossing, pointed let it be out that court specifically instructed the that whether any particular action "was required of the railroad ” exclusively to determine. The majority opinion cites Watson v. Riggs, 323), wherein the court detailed the acts of negligence alleged against defendant, and then "All added: of these allegations are of simple negligence. proven your they satisfaction, If may just constitute as much a duty breach form just as well a recovery as would a violation foundation for particular some law. ’’(Emphasis supplied.) The vice in the above charge is obvious and patent. The trial did not leave it to jury’s determination as to whether the alleged acts but, effect, authorized a recovery, told proven facts were alleged, they se, to negligence per and did amounted indeed authorize a recovery.
But in the case sub judice, charging as to whether the railroad should have light maintained a or some kind warning, the trial judge concluded with the following language: "Except cases, clear and indisputable whether particular circumstances require such action on the part of the railroad a question exclusively ” jury to determine. (Emphasis supplied.)
This concluding sentence makes all the difference in world; the it charge proper legal renders a which would otherwise be erroneous. Brothers, Royal Garrett v.
In 294), Supreme Georgia Court of holds: "The conduct of a defendant cannot be declared to be negligent, as a law, matter of unless it has been so declared aby law- and, in making body, the absence of such a declaration the jury is the arbiter the question whether a conduct on a given occasion is negligent, and, defendant’s so, if negligence whether such is the degree negligence required for a plaintiff.” recovery by (Emphasis supplied.) the case sub judice followed the above pronouncement he precisely; made the the arbiter of whether defendant’s conduct on that occasion was negligent; when he charged question of whether action, railroad should have taken question such "is a exclusively for the jury to determine.”
A charge quite similar to in question, the one wherein the duties which might upon devolve a railroad under certain circumstances were charged, and held to be proper, has been upheld In Pollard v. again. time and Savage, 423), it is held: specific "While duties imposed are frequently statute upon railroad companies regard to the care which must are, be exercised at public crossings, they even specific absence of statutory requirements, bound care, exercise reasonable ordinary dependent upon the situation and surroundings crossing and the extent of user and commensurate with the danger involved.” p. And at 476 concludes thus: "Consequently, the court did not err instructing them to determine jury that whether, in the care, exercise of ordinary defendant was required to blow the whistle of engine.” (Emphasis supplied.)
This is in line exactly with the given in the wit, case sub judice, leaving it for the determine, circumstances, under situation the railroad should have light had a or some kind of warning at the crossing. It is to determine always
to whether a
watchman,
railroad should have had a
warning lights,
so,
etc. at a
crossing; and
what kind of
*9
there to
have
maintained
lights
or
should
been
guard
trial
invades
judge
of a train. If the
presence
disclose
that the failure
charges
them
of the
province
negligence,
is
this is reversible
lights,
to have such
etc.
that
are to
they
instructs the
judge
error. But
been
etc.
should
have
lights,
determine
law,
maintained,
with the
an exact compliance
this is
Gay,
R. Co.v.
82
Central
App.
Ga.
Sylvania
is never error.
Barnett,
(53
Ga. R. Co. v.
Central of
713);
488
(134
Ga.
Central
(1a),
126);
35
528
at 531
SE
App.
Ga.
(4) (176
Leonard,
Atlanta
137);
R.
689
SE
v.
App.
49 Ga.
(29
Twedell,
812, 816,
& W. P. R. Co. v.
App.
70 Ga.
Hudson,
P. R.
Atlanta & W.
Co. v.
I witness for repeat that not it was clear, that that it was or defendant testified "fog” Black’s Law defines foggy. (Incidentally, Dictionary "mist.”) including fact, So, undisputed uncontradicted this was an intimating no error whatever and there could be courts have prevailed. repeatedly such condition Our for a trial to state to a it is never error held dispute when there is no proven, that a fact has been of such fact. See Goldstein v. as to the establishment 40): Karr, "When a fact evidence, error it is never proved by undisputed *10 proved. Fitzgerald or intimate that the fact is assume Co., 3 Farmers Supply Cotton Oil Co. v. App. (3) (59 713).” Charping, See also: Daniel v. 151 216-217 SE (3) (105 Inv. v. Modernization Imperial 465); Ga. 34 SE State, (2) (100 Const., 107); Abbott v. 96 Ga. App. McClellan, (3) (85 Roberts v. 615); 91 Ga. App. State, (4) Davis v. 736); Cole, (5) (198 Ga. R. & Electric Co. v. 800); SE (1) (57 charge. no in the court’s The court There was error precautions did not instruct as to what crossing; he protect railroad should have taken to that this carefully instructed them to for the determine. exclusively fog And as to and mist was argumentative no fact; proven This was a no witness contested delivered. before, and mist. As stated it has been presence fog the existence of a fact repeatedly held that to assume and uncontradicted in the record is not proven which is erroneous. five, number to defendant’s enumeration error
As in that when is recited said enumeration of error jury, counsel made certain remarks plaintiffs which motion mistrial, counsel moved for defendant’s was sustained. It of defendant beyond power is failure the court to take further corrective complain in his recitation that his motion for action view of Further, mistrial was sustained. counsel in the of the presence jury, for the remarks apologized disregard said and the instructed remarks; counsel to refrain in the future and admonished (Tr. commenting pp. from on matters not evidence. 246-247.) There was no error here. six,
As to defendant’s enumeration of error number mistrial, requested defendant’s counsel moved for a for allegedly improper the court to rebuke counsel argument grant if he did the mistrial. The court not matter, only jury properly respecting instructed presence but also rebuked counsel jury, Neville, language: stern "Mr. this very is the second time . . . I’m as sure as I can be that so far I just as know you good are a I am I lawyer. just as sure as can be that you circuit, can’t argument your make home you’ve years experience, had and I am going to tell you argue for the last time to the evidence and the reasonable it. I you keep deductions from want in mind. All (Tr. 248-249). right.” p. There was no error in this enumeration. above,
For all the reasons stated I dissent. et al. 48555. STRICKLAND v. MILES. Presiding Judge. Eberhardt, This appeal by the executrix and remaindermen *11 under the will of Earl Miles from a judgment superior rendered upon a directed verdict up- holding an award of a year’s support to the widow for the remainder interest in a tract fifty-two acre on which there existed an uncanceled loan deed subsequently transferred to the widow after the husband’s death.
After the 2, 1968, husband’s death on April his will probated in common form in the court of ordinary 5, 1968, on August Strickland, by Mrs. Waunell de- sister, cedent’s as executrix. The terms of the Will provided for the widow to all personal receive monies and in fee property simple and an estate for widowhood in all