Atl. Coast Line R. Co v. Bunn

• Decision Date: 10 July 1907
• Docket Number: (No. 441.)
• Citation: 2 Ga. App. 305,58 S.E. 538
• Court: Georgia Court of Appeals
• Parties: ATLANTIC COAST LINE R. CO. v. BUNN et al.

58 S.E. 538

(2 Ga. App. 305)

ATLANTIC COAST LINE R. CO.

v.BUNN et al.

(No. 441.)

Court of Appeals of Georgia.

July 10, 1907.

1. Jury—Competency.

Each party in a civil cause has the right to a panel of 24 impartial men from which to select the jury. To be entitled to sit on a case, a juror must be omni exceptione major, and where it appears, before beginning to strike the jury, that any juror is, for any reason, disqualified, such juror should be excused for cause.

2. New Trial—Incompetent Jurors.

An employe is not a competent juror to try a case in which his employer is a party.

Failure to remove jurors thus disqualified and to fill the panel as provided by Act 1878, p. 145, is ground for new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Jury, § 420; vol. 37, New Trial, § 77.]

3. Railroads—Road Crossings.

A road crossing, such as is referred to in section 2222, Civ. Code 1895, is the crossing by a railroad of a public highway, not only used, but maintained as such by the proper authorities having the same in charge. The evidence must show the road to be a public highway or street, and that such crosses the railroad, before there is proof of a road crossing. See Johnson v. State, 58 S. E. 265, Court of Appeals.

4. Appeal—Review.

No other error appears. (Syllabus by the Court.)

Error from City Court of Waycross; J. T. Myers, Judge.

Action by J. R. and T. Bunn against the Atlantic Coast Line Railroad Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Bennet & Conyers and Jno. C. McDonald, for plaintiff in error.

Wilson, Bennet & Lambdin, for defendants in error.

RUSSELL, J. This case comes to this court on exceptions taken to the refusal to grant a new trial. Several assignments of errors are presented, but in our view of the case it is only necessary to discuss one of them. The fourth ground of the amended motion for a new trial alleges that "the court erred in refusing the motion made by counsel of movant to excuse from service on the jury from the panel of jurors called to try said case W. A. Sweat, J. P. Lide, and Will Youmans, who were employes of the plaintiffs, and by reason thereof disqualified to serve as jurors in said case, said motion having been made before commencing to strike or select the jury in said case; the same being error because: (a) The employes of parties litigant are presumed to be prejudiced, (b) The jury trying a cause should be perfectly impartial between the parties, (c) Any cause which would prompt a juror to lean in favor of one side or the other should be excuse or cause for such juror from serving on the jury, and thereby not force the side against which he would lean to strike him therefrom, and thereby lose any right as to strikes." The employes of the plaintiff were disquali-fied as jurors. It would not be questioned that under the express rule in the case of Central Kailroad v. Mitchell, 03 Ga. 173, the employes of the defendant corporation should be held to be disqualified; and no reason appears to us why the employes of one party would be more likely to have a leaning or to have prejudged the case than the employes of another party to the cause. An employe, whether of an individual, a partnership, or a corporation, may be, in rare instances, an impartial juror in passing upon the rights of his employer. It is possible for a judge or juror to be so absolutely fair that he could try his own cause. But there must be a rule upon the subject, and the only rule that can be adopted with safety is one which recognizes the influence to which humanity is generally susceptible, and not a rule based upon rare exceptions. As said by Justice Jackson, in Central Kailroad v. Mitchell, supra: "It is almost impossible, however incorruptible one may be, not to bend before the weight of interest; and the power of employer over employes is that of him who clothes and feeds over him who is fed and clothed. Hence the common law excluded all servants, and our statutes have nowhere altered the rule, and it should not be altered. A close relative is a less dangerous juror, if not a dependent kinsman, than one who is dependent on his employer. See 3 Chit. Black, side p. 363; Bacon's Abridg. "Juries, " 2, 347, 5, 353; Tidd's Prac. 852, 3." The employes of a plaintiff should be disqualified as jurors for the same reason that they would be if they were the employes of the defendant; and employes of a person or partnership should be disqualified for the reason that would disqualify them if they were the employes of a corporation. A juror must be omni excep-tione major. If, then, these three jurors were in fact employes of the plaintiffs, they should have been excused for cause, if proper objection was made at the proper time. A jury trial is a travesty unless the jurors are impartial.

But it is insisted by learned counsel for the defendants in error that the assignment of error is...