Hilton & Dodge Lumber Co. v. Ingram

• Decision Date: 16 February 1911
• Citation: 70 S.E. 234,135 Ga. 696
• Parties: HILTON & DODGE LUMBER CO. v. INGRAM.
• Court: Georgia Supreme Court

70 S.E. 234

135 Ga. 696

HILTON & DODGE LUMBER CO. v. INGRAM.

Supreme Court of Georgia

February 16, 1911

Syllabus by the Court.

"In a civil cause, it is a good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which should succeed." Pen. Code 1910, § 859. A party may avail himself of this cause of challenge by motion to put the jurors on their voir dire. In such case the court may propound the questions indicated in the Code section to each juror, or he may propound them to the entire panel, adopting such plan as will assure a response to each question from each individual juror. This is accomplished when the judge after propounding the questions, directs that any juror answering both or either questions in the affirmative shall stand up. A preliminary oath should be administered to the jurors before propounding the questions; but if this is inadvertently omitted, and the attention of the court is not called thereto, it is too late after verdict to make this objection for the first time.

The charge on the master's liability to a servant for failing to furnish a safe place to work, to which exception was taken, when considered in connection with its context, was not erroneous.

It is often impossible to state a complete proposition of law in one sentence. Therefore the whole instruction on that subject must be considered. The various excerpts to the charge relating to a master's duty to a servant in the employment of other servants, when considered together and with the entire charge, were not open to the criticisms on the disjointed segments.

Civ Code 1910, § 4426, declares: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases the defendant is not relieved although the plaintiff may in some way have contributed to the injury sustained." It was not error to give in charge the principle therein contained, on request, although the plaintiff in his pleadings sought to recover full damages for the injuries alleged to have been sustained.

Under the facts of the case, this court cannot say that the verdict, which has the approval of the trial judge, is so excessive as to justify an inference of gross mistake or undue bias on the part of the jurors.

Error from Superior Court, Glynn County; T. A. Parker, Judge.

Action by W. H. Ingram against the Hilton & Dodge Lumber Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. G. Brantley and W. E. Kay, for plaintiff in error.

Toomer & Reynolds and D. W. Krauss, for defendant in error.

EVANS P.J.

This case comes to us for the fourth time. 108 Ga. 194, 33 S.E. 961; 119 Ga. 652, 46 S.E. 895, 100 Am.St.Rep. 204; 125 Ga. 658, 54 S.E. 648. The parties have waged legal combat for several years with varying success. We have carefully considered the voluminous record, and have reached the conclusion that the final chapter should be written. The suit is by a servant against his master to recover for an injury sustained while engaged in the master's business. The master operated a sawmill. One department of the business was the trucking of lumber from the mill to the lumber yard over an elevated platform or brow, under which the plaintiff worked as a lumber inspector. He was injured by a piece of lumber falling through an aperture or hole from the elevated platform or brow and striking him while he was at work underneath the platform. One of his legs was broken. The declaration alleged negligence on the part of the master in two respects: (1) In having an incompetent, ignorant, unskilled, and inexperienced person performing the difficult and responsible work of trucking lumber and timber upon the elevated platform or brow. (2) In failing to provide a safe place for the servant in performing his work, the unsafe place being caused by the master's "maintaining" and allowing a hole to be and remain in such brow or platform. The last verdict was for the plaintiff, and we are called upon to consider the correctness of the judgment refusing the defendant a new trial.

1. On the call of the case and the announcement of both parties that they were ready for the trial, counsel for the defendant moved that the entire panel of 24 jurors be put upon the voir dire and questioned as to their competency and impartiality. Whereupon the court, without directing that any juror be sworn and without swearing any of them, propounded to the entire panel of 24 at one time these questions, suggested by the defendant's counsel: "Have you formed or expressed an opinion as to which party ought to prevail in this cause? Have you any wish or desire as to which party ought to succeed in this cause?" And directed that any juror answering both or either questions in the affirmative should stand up. One or two jurors stood up, and thereupon the court pronounced the remainder of the panel competent and impartial. The error assigned is the failure of the court, upon motion of defendant's counsel to put the jurors upon the voir dire, to order the jurors sworn and question separately. If we construe the assignment of error as complaining that each juror was not separately examined touching his competency and impartiality, the assignment is not meritorious. This court has commended the practice of administering to a panel of jurors at once the oath preliminary to their examination on their voir dire as to their competency. Roberts v. State, 65 Ga. 431. In felony cases the statute requires that on calling each juror he shall be presented to the accused in such a manner that he can distinctly see him, and then the state or the accused may make certain objections, and then certain questions are to be propounded; and if the juror is found competent he shall be put on the prisoner, and, unless peremptorily challenged, he shall be sworn to try the cause. Pen. Code 1910, §§ 999, 1001, 1003. And, because of this prescribed way of making up the jury which is to try him, it was held that in the trial of a felony there is no authority of law for examining on the voir dire more than one juror at a time. Williams v. State, 60 Ga. 367, 27 Am.Rep. 412. But in civil cases the jury is selected from a panel of 24, which number is reduced to 12 by either party striking 6 jurors. Each party may demand a full panel of 24 competent and impartial jurors from which to strike a jury, and it is good cause of challenge "that a juror has expressed an opinion as to which party ought to prevail, or that he has a wish or desire as to which party should succeed." Pen. Code 1910, §§ 857, 858, 859. We cannot see any impropriety in the court's propounding the questions to the jury as a panel, where it is evident that the form of examination insures certainty as to an expression of competency or incompetency from the individual juror. The whole purpose of the examination is to elicit an expression from each juror as to his competency; and, if this can be done by examining the panel, we can see no harm in the practice. Much time will be saved and no hurt caused to the parties. So far as my observation or experience extends, the method of testing the competency of the panel in a civil case has been pursued by the trial court in this case. If we construe the assignment of error to raise the point that no preliminary oath was administered, it is too late to raise the point after verdict. Candler v. Hammond, 23 Ga. 493; Smith v. State, 81 Ga. 479 (2), 8 S.E. 187.

2. In charging on the law relating to the defendant's obligation to furnish a safe place to work, the court said "It is further contended on the part of the plaintiff that the Hilton & Dodge Lumber Company, the defendant, was...