Atlanta Coach Co. v. Cobb

• Docket Number: 9660.
• Decision Date: 20 February 1934
• Citation: 174 S.E. 131,178 Ga. 544
• Parties: ATLANTA COACH CO. v. COBB.
• Court: Georgia Supreme Court

174 S.E. 131

178 Ga. 544

ATLANTA COACH CO. v. COBB.

No. 9660.

Supreme Court of Georgia

February 20, 1934

Motions for Rehearing and to Vacate Judgment Denied March 3, 1934.

On Motions for Rehearing and to Vacate.

Syllabus by the Court.

1. Where an action was brought to recover damages for injuries alleged to have resulted from the negligence of the defendant, and it was admitted by counsel for the defendant that the defendant was protected by an indemnity policy issued by a named company, and where nothing else appeared, a timely motion and request by counsel for the plaintiff that the court purge the panel of jurors from which the trial jury was to be selected of any and all persons who were employees or stockholders of the indemnity company, or who were related to any such stockholder, should have been granted; and this is true notwithstanding the indemnity company was not a party to the suit.

2. After a verdict in favor of the defendant, the refusal of such a motion or request is prima facie harmful, and in assigning error thereon it is unnecessary to show that as a matter of fact any juror placed upon the trial jury was thus disqualified. On this point the decision in McTier v Crosby, 120 Ga. 878 (3), 48 S.E. 355, is reviewed and overruled. The rule as to selecting a jury in civil and misdemeanor cases distinguished from the rule in felony cases.

3. Such presumption of injury cannot be rebutted by affidavits submitted by the defendant in opposition to the plaintiff's motion for a new trial, and purporting to show merely that none of the jurors were disqualified. Nor was the presumption rebutted in any other proper manner in this case.

4. The Court of Appeals did not err in reversing the judgment refusing a new trial.

Certiorari from Court of Appeals.

Suit by Mrs. Betty R. Cobb against the Atlanta Coach Company. Judgment for defendant was reversed by the Court of Appeals (46 Ga.App. 633, 168 S.E. 126), and defendant brings certiorari.

Affirmed.

Bryan Middlebrooks & Carter, of Atlanta (Martin, Martin & Snow Harris, Russell, Popper & Weaver, Ryals, Anderson & Anderson and Jones, Johnston, Russell & Sparks, all of Macon, for parties at interest not parties to the record), for plaintiff in error.

J. Caleb Clarke and A. E. Wilson, both of Atlanta, Sid Holderness, of Carrollton, and Arnold, Gambrell & Arnold, of Atlanta, for defendant in error.

BELL Justice.

Mrs. Betty R. Cobb brought a suit against Atlanta Coach Company to recover damages for injuries alleged to have been caused by the negligence of the defendant. The defendant was protected by an indemnity insurance policy issued by United States Fidelity & Guaranty Company. The jury found a verdict in favor of the defendant, and Mrs. Cobb excepted to the overruling of her motion for a new trial. The judgment was reversed by the Court of Appeals in 46 Ga.App. 633, 168 S.E. 126, and a certiorari was granted on the petition of the Atlanta Coach Company.

The bill of exceptions recites: "Upon the call of the case, counsel for the plaintiff then and there moved the court that the jury be qualified by purging the panel of any and all persons who were employees of, stockholders in, or related to employees of, or stockholders in the United States Fidelity & Guaranty Company which said company carried the liability insurance on the said defendant, agreeing for a money consideration to be responsible for damages sustained in accordance with the provisions of the policy. Which motion to thus purge the jury and to qualify said jury the court overruled and denied counsel the right to purge the said jury, or to inquire into the question of the relation of any of the prospective jurors to employees of, or stockholders in the said United States Fidelity & Guaranty Company, as hereinabove set out, to which ruling plaintiff then and there excepted by exceptions pendente lite and assigned the same as error, and now excepts and assigns the same as error, and says that the court erred in failing and refusing to qualify said jury and to purge the same of any and all employees of, or stockholders in, or persons related to employees of, or stockholders in the said United States Fidelity & Guaranty Company."

The refusal of the trial court to purge the jury was also assigned as error in the plaintiff's motion for a new trial, one of the grounds of which was as follows: "The court refused to qualify the jurors touching their competency with reference to the United States Fidelity & Guaranty Company, it having been admitted to the court by counsel for the defendant that said United States Fidelity & Guaranty Company had issued a policy of insurance to the defendant in said case, to indemnify the defendant against loss that it might sustain by reason of a suit such as the plaintiff had brought in the instant case. Counsel for the defendant likewise admitting that said United States Fidelity & Guaranty Company employed them in the defense of said case, and admitted that the policy covered this particular claim for damages; movant insisting that any person interested in said insurance company would be disqualified as a juror. Movant insists that in failing to qualify said jury, or permitting counsel for the plaintiff to question said jurors touching their competency, and failing to allow the plaintiff to see whether or not said jurors were competent and qualified, denied to the plaintiff a substantive legal right, and she insists that the same was error. Movant further insists that such a ruling on the part of the court would permit, and possibly did allow, jurors who were interested in said insurance company to serve on said jury; movant being at sea, unable to determine except by proper questioning in the presence of, and by permission of, the trial judge, and movant insists that for said reason it was error. Movant further insists that the ruling of the court in denying her the right to place said jurors on their voir dire had a tendency to create in the minds of the plaintiff and her counsel an uncertainty as to the qualifications of the jurors trying said case, which rendered them less efficient in the management thereof and rendered them less able to intelligently and properly select or strike a jury, which she insists was to her injury, and, therefore, insists was error."

In opposition to the motion, the defendant filed affidavits from all of the twenty four jurors composing the panel from which the jury of twelve who tried the case were selected. Each of the jurors deposed that he was not an officer, employee, or stockholder, and was not related to a stockholder, of the United States Fidelity & Guaranty Company. The jurors who executed these affidavits included the twelve whose names were stricken, as well as the twelve who were chosen and who rendered the verdict in the case. The defendant also filed affidavits from officers of the indemnity company, from which it appeared that none of the jurors were stockholders of the company. These several affidavits were attached to a petition which was ordered by the trial judge to be filed "as a part of the record in said case so that the affidavits herein contained may be considered by the court in passing upon the plaintiff's motion for a new trial." It was further ordered that a copy of the petition and the affidavits be served upon counsel for the plaintiff "so that the plaintiff and her attorneys of record may have an opportunity to make a counter showing or file counter affidavits before the motion for a new trial is finally disposed of." Service was acknowledged by counsel for the plaintiff, but no counter showing was made. In the decision by the Court of Appeals it was stated that "the controlling question presented by the record is whether or not the trial judge committed reversible error in overruling the timely motion to purge the jury," and the ruling of the Court of Appeals upon this question is made the sole basis of the assignments of error in the petition for certiorari. It is not contended that the verdict for the defendant was demanded by the evidence.

Certiorari was granted mainly because the decisions of the appellate courts of this state, including certain decisions by the Supreme Court, appeared to be in conflict upon the question presented.

After a careful consideration of the authorities, it is the opinion of this court that the decision of the Court of Appeals as complained of in the petition for certiorari is correct and should be affirmed. The decision as rendered by that court is, in the main, such a thorough and logical presentation of the law that the question comes to us relieved of much of the difficulty that would otherwise have attended it.

The Penal Code, § 858, is as follows: "In civil cases and cases of misdemeanors in the superior court, each party may demand a full panel of twenty-four competent and impartial jurors from which to strike a jury, and when one or more of the regular panel of traverse jurors is absent, or for any reason disqualified, the presiding judge, at the request of counsel for either party, shall cause the panel to be filled by tales jurors to the number of twenty-four, before requiring the parties, or their counsel, to strike a jury." The following are some of the decisions relating to the manner of selecting a jury in civil and misdemeanor cases: Mayor, etc., of Columbus v Goetchius, 7 Ga. 139; Justices of Inferior Court v. Griffin & W. P. Plank Road Co., 15 Ga. 39; Howell v. Howell, 59 Ga. 145; Holton v. Hendley, 75 Ga. 847 (2); Haney School Furniture Co. v. Hightower Baptist Institute, 113 Ga. 289 (1), 38 S.E. 761; Sullivan v. Padrosa, 122 Ga. 338, 50 S.E. 142; Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696, 70 S.E. 234; Whitworth v. State, 155 Ga. 395, 117...