Clay v. City Council of Montgomery

• Decision Date: 31 January 1894
• Parties: CLAY v. CITY COUNCIL OF MONTGOMERY.
• Court: Alabama Supreme Court

14 So. 646

102 Ala. 297

CLAY v. CITY COUNCIL OF MONTGOMERY.

Supreme Court of Alabama

January 31, 1894

Appeal from circuit court, Montgomery county; J. R. Tyson, Judge.

Action by J. O. Clay, administrator of the estate of Kate Clay deceased, against the city council of Montgomery for the death of his intestate. From a judgment for defendant plaintiff appeals. Affirmed.

Chas Wilkinson, for appellant.

Edward A. Graham, for appellee.

STONE C.J.

The transcript falls to show any exceptions reserved pending the trial. In fact, it fails to show any of the testimony that was adduced on the trial, nor does it set forth any of the rulings of the court that were made pending the introduction of the testimony or in charging the jury. Hence there is no complaint of any action of the court, save the order overruling the motion to set aside the verdict and to grant a new trial. The testimony bearing on the merits of the suit and the court's charge being omitted from the record, our labors are limited to the inquiry, did the circuit court err in refusing plaintiff's motion for a new trial? The jury had been permitted to disperse pending their deliberations. Five separate grounds were stated in the motion why it should be granted, but no attempt was made to prove or maintain either of the first four. The fifth ground is in the following words: "5. That said jurors in said cause were unduly influenced, in rendering their verdict, in this: That after said case had been submitted to them for their consideration, and while the same was in their hands for decision, some of the jurors were approached by parties other than their fellow jurors, and statements were made to said jurors, and conversations held with members of said jury, in reference to the points in said cause; that an attempt was made to bribe or unduly influence members of said jury, to the injury of plaintiff in said cause."

Affidavits were submitted for and against the motion. Two of the jurors made separate, sworn statements. One made oath that two strangers approached him,-did not know their names. One talked with him, and inquired if he, affiant, was not on the jury. Answered he was. Stranger replied, "'Yes, I know that you are on the wrong side, and you must get right. You can make some money if you will come over to the city. The city is being badly treated.' That it might not make any difference to me, [affiant,] and wanted to know why I did not do like some of the other jurors,-make some money out of the case by giving a verdict for the city. That it would be easy for me [affiant] to make a stake, and that I [affiant] ought to do so. That no one need know about the matter, and that they had made it all right with some of the jury. That affiant could make some money also. *** That, immediately upon the discovery of the intention of said party, affiant stated to said party that he could not be bought, and resented the insult offered to affiant. *** That affiant was approach by several parties while said jury had said case under consideration, and they urged affiant not to find any verdict against the city. That the parties were strangers to affiant, but persisted in talking with affiant whenever he appeared upon the streets." Another juror made oath that "a party approached one of said jurors,-my recollection was [is] that said juror was named Crittenden, and that said party was named Spivey. That affiant is not certain as to the initials of said Spivey, but that his name is Henry Spivey but said Spivey stated to said juror that the city had done nothing wrong, and that he could not see how the city had made itself liable for any damages. That the city, he thought, could not be held responsible. That the city had done nothing wrong, and words to the effect of like character. That the statement was made in presence and hearing of affiant, and within the hearing of the other jurors." The remaining 10 of the jurors-Booth, Calloway, Carmichael, Crittenden, Norman, Neal, Spear, Perdue, Owen, and Phillips-each made oath "that they were jurors in said cause; that no one had approached them during the pendency of said cause, and attempted to influence them in their verdict; that no one had bribed them, or attempted to bribe them, to render a verdict in favor of the city council of Montgomery." This is substantially all the testimony introduced bearing on the question of tampering with the jury.

In Thornton on Juries, (§ 437,) the law is thus stated: "If the facts produced cast upon the prevailing party suspicion that he has tampered with a juror, a motion for a new trial upon that ground should be sustained, without inquiring as to what effect the misconduct had upon the verdict." The same author, in section 430, had employed this language "Where a juror,...