Bean v. Barron

• Decision Date: 13 January 1933
• Docket Number: No. 8949.,8949.
• Citation: 176 Ga. 285,168 S.E. 259
• Court: Georgia Supreme Court
• Parties: BEAN et al. v. BARRON.

176 Ga. 285

168 S.E. 259

BEAN et al.

v.BARRON.

No. 8949.

Supreme Court of Georgia.

Jan. 13, 1933.

On Rehearing March 4, 1933.

Syllabus by Editorial Staff.

RUSSELL, C. J., dissenting.

Error from Superior Court, Jefferson County; R. N. Hardeman, Judge.

Suit by Mrs. L. O. Barron against E. C. Bean and others. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

The order overruling the motion for a new trial was as follows: "While there are various grounds of a motion for new trial presented by way of amendment, in my opinion the grant or refusal of a motion turns upon the alleged relationship of jurors. Surely it is not necessary nor would the court undertake, to pass upon the credibility of the witnesses, pro and con, touching this ground of the motion. The court gives full credence, both to counsel and to the other witnesses making affidavits with reference to relationship and knowledge of relationship. The court can readily understand that a man may know a thing, and for the time being overlook it altogether, and it did not occur to him that a certain party is related. The court has often had this personal experience. After a careful review of all the record in the case, I can find nothing harmful to the movant; and the evidence, though conflicting, authorizes the verdict. For the above reasons the motion is overruled and a new trial refused."

The other essential facts sufficiently appear in the syllabus.

N. J. Smith, of Louisville, Roy V. Harris, of Augusta, and G. M. Nottingham, of Macon, for plaintiffs in error.

R. G. Price, Phillips & Abbot, and M. C. Barwick, all of Louisville, and Geo. C. Evans, and Evans & Evans, all of Sandersville, for defendant in error.

Syllabus Opinion by the Court.

BELL, Justice.

1. "When parties are furnished with a list of the jury, it is their duty, if they knowthat any of the jurors are disqualified, to call attention to the same, or the disqualification will be held to have been waived. If they have reasonable grounds to suspect that any of the jurors are disqualified, it is their duty to call attention to the fact, so that due inquiry may be made of the panel." Moore v. Farmers' Mutual Ins. Ass'n, 107 Ga. 199 (2), 209, 33 S. E. 65, 69.

[21 2. "The law imputes to the principal, and charges him with, all notice or knowledge relating to the subject-matter of the agency which the agent acquires or obtains while acting as such agent and within the scope of his authority, or which he may previously have acquired, and which he then had in mind, or which he had acquired so recently as to reasonably warrant the assumption that he still retained it; provided, however, that such notice or knowledge will not be imputed (1) where it is such as it is the agent's duty not to disclose, and (2) where the agent's relations to the subject-matter, or his previous conduct, render it uncertain that he will not disclose it, and (3) where the person claiming the benefit of the notice, or those whom he represents, colluded with the agent to cheat or defraud the principal." German-American Life Ass'n v. Farley, 102 Ga. 720, 738, 29 S. E. 615, 622. This rule is applicable to the relation of attorney and client. Faircloth v. Taylor, 147 Ga. 787 (4), 95 S. E. 689; 6 C. J. 640.

8. In the motion for a new trial filed by the defendant in this case, it appeared that two of the jurors who participated in the verdict for the plaintiff were disqualified by relationship to the plaintiff's attorneys, who were employed on the basis of a contingent fee; but, in view of the affidavits submitted by the plaintiff in rebuttal of the grounds based upon such relationship, it was a question of fact to be determined by the trial judge as to whether the attorneys for the defendant had knowledge of such relationship, and also as to whether such knowledge, though previously and independently acquired, was still in the minds of the...