Harrison v. Baker, 4 Div. 752

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM; The foregoing opinion was prepared by Foster; LIVINGSTON
Citation71 So.2d 284,260 Ala. 488
Docket Number4 Div. 752
Decision Date18 March 1954

Page 284

71 So.2d 284
260 Ala. 488

4 Div. 752.
Supreme Court of Alabama.
March 18, 1954.

[260 Ala. 489]

Page 285

Forest L. Adams, Abbeville, Rushton, Stakely & Johnston, Montgomery, for appellant.

G. D. Halstead, Headland, Crews Johnston, Clayton, for appellee.


The question in this case is whether there was reversible error in the action of the court in granting a new trial on motion of defendant. The plaintiff recovered a judgment for personal injuries and for damage to his car on a count in the complaint charging negligence by defendant in causing the collision.

The trial court in granting the motion for a new trial based it on what the judge considered an error which he made in overruling objection to the evidence of the witness Mrs. Maude Herring, given on cross-examination. She was a witness for defendant.

Page 286

She testified on direct examination that she lived two hundred or three hundred yards from where the collision occurred: that she heard the impact and went immediately to the scene and was there after the accident 'a minute, I would say, not over two'. That when she got there both parties were in their automobiles. She stated what she found as to the position of each car; that she assisted in getting plaintiff out of his car, and that she attempted to get defendant out of his car but could not do so as he was unconscious. Both cars were in the road on opposite sides. On cross examination she testified that she ran up there; that Mr. Harrison (plaintiff) made a statement to her, when the following occurred:

'Q. What did he say? A. He said, * * *

'Mr. Johnston: We object.

'Mr. Porter: Part of the res gestae, your honor.

'The court: Overrule the objection.

'Q. What did he say? A. He said, 'For God's sake, lady, get that man's name and tag number. He was sweeping from one side of the road so, until I couldn't miss him.'

'Mr. Porter: That is all.

'Mr. Johnston: We make a motion to exclude the answer to the last question.

'The court: Overrule the motion.

'Mr. Johnston: We except.

'(The witness was excused and withdrew from the court room.)

'Mr. Johnston: We would like to reserve an exception to both the ruling of the court on the objection and on the motion to exclude.

'The court: All right.'

(Mr. Porter represented plaintiff. Mr. Johnston represented defendant.)

After the verdict and judgment for plaintiff, defendant made a motion for a new trial on the usual grounds and also on the ground of error committed by the court in allowing the witness, over the objection of defendant, to testify that plaintiff, shortly after the accident, said: 'For God's sake, lady, get that man's name and tag number. He was sweeping from one side of the road so, until I couldn't miss him.' Another ground was in overruling defendant's motion to exclude the above recited testimony.

[260 Ala. 491] The judgment of the court recited the fact that defendant 'offered in evidence an ex parte affidavit pertaining to a statement made by a juror, after original trial, pertaining to the testimony that, as he understood it, was considered by the jury in its deliberations in reaching a verdict for the plaintiff', and that objection was made to the affidavit. The court, at the conclusion of the hearing, and having expressed the opinion that he had committed error in overruling the objection to the evidence of Mrs. Herring, mentioned above, announced its opinion that the ex parte affidavit would not violate the rule that transactions in the jury room cannot be given in evidence by a juror to break down a jury verdict, but 'that the admission of this ex parte affidavit would not violate that rule and would be helpful to the court in determining whether or not the error committed by the court in admitting the statement of the plaintiff, as hereinabove referred to was prejudicial to the defendant. The court has considered this ex parte affidavit in reaching its conclusion.' The essential features of the affidavit are as follows:

'That after the trial of said cause and in which the jury returned a verdict for the plaintiff of $5000. affiant was in the court house of said county in Abbeville, and at which time there were present O. B. Harrison, the plaintiff in said cause, Charles Porter, one of plaintiff's attorneys, one of the jurors who tried said cause, and affiant. That at said time and place Charles Porter asked the juror, whose name is unknown to affiant, in substance, 'What testimony they considered most in arriving at their verdict, or what testimony they accorded the greatest

Page 287

weight, or what testimony impressed them most.' Whereupon the juror named two or three bits of testimony, among which was the testimony of the witness Mrs. Maude Herring, and where she testified on cross examination to the declaration or statement that Mr. Harrison made to her after the accident.'

The judgment then recites that plaintiff insists that defendant did not interpose timely objection and exception to the questions and answers which brought out the questionable statement. The judgment then refers to the status of what occurred (as it has been set out above) and then stated: 'It was the purpose and intent of the court to give counsel for defendant, when the court said 'all right,' the full and complete benefit of all objections, exceptions and motions to any ruling the court might have made in connection with the admission in evidence of the statement made by plaintiff. The court cannot, without violating its conscience, do otherwise at this time and will not do otherwise.' It was then ordered that the verdict and judgment be set aside and defendant be granted a new trial, to which plaintiff excepted.

The appeal is authorized by section 764,

The appeal is authorized by section 764

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34 cases
  • Berard v. State, 3 Div. 585
    • United States
    • Alabama Court of Criminal Appeals
    • July 31, 1984
    ...833 (1969). A juror may not testify to impeach the verdict as to how certain testimony was considered in the jury room. Harrison v. Baker, 260 Ala. 488, 71 So.2d 284 (1954). A juror cannot testify that certain evidence was or was not influential. The rule is that evidence of what a juror th......
  • Kendrick v. State, 3 Div. 324
    • United States
    • Alabama Court of Criminal Appeals
    • April 22, 1975
    ...The observation of the court, 'Well, the objection is duly noted' is tantamount to the overruling of the objection. See Harrison v. Baker, 260 Ala. 488, 71 So.2d Four cases are cited in appellant's brief in support of his position presently under consideration. The opinions in Oliver v. Sta......
  • Palmer v. State, 5 Div. 262
    • United States
    • Alabama Court of Criminal Appeals
    • March 18, 1975
    ...We do not agree with this argument as it overlooks those cases such as McClellan v. State, 117 Ala. 140, 23 So. 653; Harrison v. Baker, 260 Ala. 488, 71 So.2d 284; Loyd v. State, 279 Ala. 447, 186 So.2d 731; Paul v. State, 47 Ala.App. 115, 251 So.2d 246, cert. denied 287 Ala. 739, 251 So.2d......
  • Lovett v. State, 8 Div. 317
    • United States
    • Alabama Court of Criminal Appeals
    • January 28, 1986
    ...of res gestae.' " Bessierre v. Alabama City, G. & A.R.R. Co., 179 Ala. 317, 330, 60 So. 82, 86 (1912). See also Harrison v. Baker, 260 Ala. 488, 493, 71 So.2d 284, 288-89 (1954). On res gestae and the hearsay rule see E. Clearly, McCormick on Evidence § 288 et seq. (3d ed.1984). Our own Sup......
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