Corvair Furniture Mfg. Co. v. Bull

• Decision Date: 16 November 1971
• Docket Number: 46430,Nos. 46429,s. 46429
• Citation: 125 Ga.App. 141,186 S.E.2d 559
• Parties: CORVAIR FURNITURE MANUFACTURING COMPANY, Inc., et al. v. Mereldine BULL. Lester S. WELCH v. Alice M. DUNHAM
• Court: Georgia Court of Appeals

Page 559

186 S.E.2d 559

125 Ga.App. 141

CORVAIR FURNITURE MANUFACTURING COMPANY, Inc., et al. v. Mereldine BULL.

Lester S. WELCH v. Alice M. DUNHAM.

Nos. 46429, 46430.

Court of Appeals of Georgia, Division

Nov. 16, 1971.

Rehearing Denied Dec. 7, 1971.

Syllabus by the Court

1. The general grounds of the motions for new trial are without merit.

2. An attack on the jury panel, amounting to a challenge to the array, is not timely made and raises no issue for determination in this court when first made in the motion for new trial or in the enumeration of errors on appeal.

3. A ruling of a Federal District Court is not binding on this court, and, though persuasive, will not be followed where to do so would run counter to the rules of procedure provided for this court by statutory or constitutional provisions, or by binding court decisions.

4. Where there was no motion before the trial court to disqualify counsel because of a conflict of interest, and a ruling thereon, the issue is not properly before this court.

5. Error in refusing to declare a mistrial because of remarks by the judge in reprimanding counsel does not appear.

6. Failure by a juror to disclose on voir dire that he was an honorary deputy sheriff or a part time policeman, without pay, when asked concerning his occupation is not shown to have been harmful.

7. It is error to introduce in a civil action for damages evidence as to whether a criminal charge was made against one of the parties, but where the court ruled the evidence out and admonished the jury to banish it from their minds and to give it no consideration in arriving at their verdict, the error was harmless.

8. Where the owner of an automobile has testified as to the time of its purchase, its purchase price, its use since purchase and its condition, he may give his opinion as to its market value.

These separate suits were tried by separate juries at the September term, 1969, of Long Superior Court. The plaintiff in each of them sought recovery for personal injury, and in one the owner of the car also sought damages for its alleged destruction, because of negligence charged against the defendant's driver in operating a truck on the highway and bringing about a collision with the car in which plaintiffs were riding. There were verdicts for the plaintiffs. Motions for new trial were filed, amended and overruled, and defendants appeal.

Sharpe, Sharpe, Hartley & Newton, W. Ward Newton, Lyons, for appellants.

Richard D. Phillips, Ludowici, for appellees.

EBERHARDT, Judge.

1. In each of these personal injury suits, tried separately in Long County during September, 1969, there was evidence which, if believed by the jury, authorized the return of verdicts for the plaintiffs. The general grounds of the motions for new trial are without merit.

2. Error is enumerated upon the method employed in selecting the jurors, urging that a special Act under which the jury commissioners of Long County were chosen and who, in turn, selected the names of citizens to be placed in the jury box (See Ga.L.1962, p. 6) ¹ was unconstitutional, was contrary to and in conflict with the general law obtaining throughout the state on that subject; that counsel for the plaintiffs was the clerk of the county commissioners and exerted his influence upon them in the selection of names for submission to the judge of the superior courts and from which he was bound to appoint the jury commissioners; and that all of this resulted in a biased jury, as was reflected in the verdicts which were for the full amount of damages claimed by the plaintiffs.

No attack upon the constitutionality of the Act of 1962 or challenge to the array of jurors selected under its provisions was made prior to the striking of the jury or even prior to the return of the verdicts. Counsel now urges that he was unfamiliar with the provisions of the Act of 1962, amending Code § 59-101, and which, because of its population limitations, applied only in Long County, and that he discovered it after the trial had ended. He was not a resident of Long County and engaged in the practice of law there only occasionally.

We do not doubt the sincerity of counsel's assertions in this respect, and it must be agreed that the Act of 1962 provided a very irregular method of securing jury commissioners and thus of securing jurors to serve in the courts of that county. The position of the attorney for the plaintiffs as clerk to the county commissioners may, as appellants contend, have enabled him to exert influence in the naming of jury commissioners, and thus in the controlling of the selection of names for the jury box.

If timely made, a challenge to the whole panel in civil cases will lie. Reynolds v. Reynolds, 217 Ga. 234, 262(13), 123 S.E.2d 115. But failure to enter the challenge at the proper time-at least prior to verdict-amounts to a waiver of the ground. Derryberry v. Higdon, 116 Ga.App. 381(1), 157 S.E.2d 559. And in Derryberry it was asserted in this connection that 'Ignorance of the new law which became effective four days before the trial began provides no legal excuse to preclude the application and effective operation of the waiver.'

Since no constitutional attack on the Act was timely made in the trial court, any claim of unconstitutionality urged for the first time in the motion for new trial or in the appellate court raises no issue for consideration. Woods v. State, 22 Ga. 321, 149 S.E.2d 674. Even though the statute may be palpably unconstitutional, it will not be so declared unless a proper and timely attack is made. Robinson v. McLennan, 224 Ga. 415(2), 162 S.E.2d 314. If a proper and timely attack on the Act of 1962 had been made, this appeal would have fallen within the jurisdiction of the Supreme Court; but since it was not, it is properly in this court, where constitutionality of the Act is presumed.

The enumerations of error concerning this matter are without merit.

3. Appellant urges that a jury list prepared by commissioners appointed under the Act of 1962 has been held violative of due process to civil litigants as well as criminal defendants by Judge Alexander A. Lawrence of the United States District Court for the Southern District of Georgia, in the case of Simmons v. Jones, 317 F.Supp. 397, ² and that we should recognize his ruling. We have the greatest respect and admiration for Judge Lawrence and we know of his unusual ability as a judge. His judgment may very well be a correct one, but we are bound by the provisions of the Constitution of Georgia relative to our own jurisdiction, by the precedents found in decisions of the Supreme Court of this State and by the rules of practice applicable to appeals. Even though we should conclude that Judge Lawrence's ruling is a correct one, we could not give it effect since there was here no timely challenge to the array as there was in Simmons v. Jones, supra.

4. In special ground 6 of the motions for new trial appellants urged that a new trial be granted because counsel for Mrs. Bull, in her action as plaintiff, had named Mrs. Dunham as a defendant, along with others; that counsel had then filed a separate suit against the other defendants for Mrs. Dunham as plaintiff, and that this afforded him access to both sides of the case. ³ Overruling of this ground is enumerated as error.

There is and can be no question that it is highly improper for an attorney to represent both sides of an issue. Canons 6 and 37 of the Canons of Professional Ethics promulgated by the American Bar Association in 1908, Canon 5 of its recent Code of Professional Responsibility, both of which the State Bar of Georgia has officially endorsed, and Rule 3-106 of the Rules of the State Bar of Georgia, 219 Ga. 887, promulgated by the Supreme Court at the request of the Bar, make it clear that a lawyer should not represent clients in a matter where their interests are in any wise conflicting or diverse. He may not take advantage of his superior knowledge of a matter, obtained from one client, and by it impose upon another. And 'nothing is better settled than that an attorney who acquires knowledge of the affairs of another pending the relationship of attorney and client between them can not use such knowledge afterwards to the detriment of his former client. An attorney who has been on one side of litigation will not be allowed to take a position in subsequent cases where the knowledge derived from his former client might be used to the prejudice of such client. See Burnside v. Perry, 51 Ga. 186(2); Brown v. Matthews, 79 Ga. 1(3), 4 S.E. 13; Conley v. Arnold, 93 Ga. 823(1), 20 S.E. 762; Stone v. Minter, 111 Ga. 45(1), 36 S.E. 321.' Tucker v. Murphey, 114 Ga. 662, 665, 40 S.E. 836, 837. And see Clifton v. State, 187 Ga. 502, 505, 2 S.E.2d 102; Tilley v. King, 190 Ga. 421(2), 9 S.E.2d 670; Bugg v. Chevron Chemical Co., 224 Ga. 809, 165 S.E.2d 135; 7 Am.Jur.2d 63, Attorneys at Law, § 34; 7 C.J.S. Attorney and Client, § 48, p. 827. However, there was no motion to disqualify counsel, cf. Tucker v. Murphey, 114 Ga. 662, 665, 40 S.E. 836, supra; Clifton v. State, 187 Ga. 502(1), 2 S.E.2d 102, supra, Bugg v. Chevron Chemical Co., 224 Ga. 809, 165 S.E.2d 135, supra, and these matters address themselves to the Bar and its appropriate committees if there have been violations.

5. Appellants urge that their defenses were prejudiced before the jury by remarks of the judge in two instances, and that denial of their motions for mistrial on those grounds was error.

(a) While plaintiff's counsel was examining one of his witnesses, defense counsel made inquiry as to whether 'there has been a set-up of memorized answers to specific questions.' Plaintiffs' counsel objected, asserting that the inquiry was 'highly improper.' The court agreed, and admonished counsel, 'Sir, I don't appreciate you mentioning that in this courtroom, and if you do it again I'll rule you for contempt.' Defendant's counsel promptly apologized,...