Jones v. Mayor, etc., of Athens
| Decision Date | 08 November 1961 |
| Docket Number | No. 39017,No. 1,39017,1 |
| Citation | 123 S.E.2d 420,105 Ga.App. 86 |
| Parties | D. J. JONES v. MAYOR, ETC. OF ATHENS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In order for the direction of a verdict to be error, it must appear that there was some evidence which, with all reasonable deductions and inferences therefrom, construed in its light most favorable to the losing party, would support a different verdict.
2. When a verdict is demanded by the evidence, the admission of irrelevant evidence, regardless of its propriety, is not ground for a new trial.
3. Where constitutional issues are raised for the first time in the superior court on certiorari from a judgment of an inferior tribunal, the superior court cannot consider, nor can this court review, the constitutional questions thus sought to be made.
4. (a) When a police officer is discharged pursuant to notice and hearing provided by statute, his discharge is authorized upon proof of an offense included in the specific charge of which he was given notice.
(b) The law does not require notice to the person charged following his hearing and discharge.
5. The judgment of a quasi-judicial tribunal acting in an administrative capacity will not be reversed because a witness is allowed to testify on direct examination in response to a leading question, unless there was an abuse of discretion resulting in prejudice to the complaining party.
6. The judgment of a quasi-judicial tribunal acting in an administrative capacity without a jury will not be reversed because of the admission of illegal testimony when there was sufficient legal evidence to sustain the judgment.
7. The judgment of a quasi-judicial tribunal acting in an administrative capacity will not be reversed because of prejudicial remarks made by members thereof, when no objection is made thereto during the hearing.
Dennis J. Jones was a policeman employed by the City of Athens, and on December 16, 1959, the Chief of Police of Athens filed written charges with the Civil Service Commission of the City of Athens against Jones, which charges alleged that Jones violated Rule 1 of said Commission in that he conspired with one Fred Smith on November 28, 1959, to commit burglary and that he violated Rule 11 of said Commission in that he did conspire and agree with Robert Hart on November 28, 1959, to permit the said Hart to escape arrest if he would inform Jones of the time and place he would be driving a liquor car and would abandon the car and contents to Jones. A trial on said written charges was held on December 21, 1959, by the Civil Service Commission for the City of Athens and the Commission found that Jones be discharged. Jones filed a petition for certiorari to the Superior Court of Clarke County, Georgia, in which he sought to have his discharge reviewed and the errors alleged in the said petition corrected. The petition was sanctioned and the writ of certiorari was issued directed to said Civil Service Commission for the City of Athens. The Commission filed its answer. Jones filed his traverse to portions of the answer which was subsequently amended by the Commission and the traverse was renewed to the answer as amended, the traverse being directed to paragraphs 9, 10, 11, 13, 14, 22, and 23 of the answer. The issues formed by the renewed traverse to the answer were submitted for determinaton to the July, 1960, term of the Superior Court of Clarke County, Georgia. Both sides introduced evidence on said issues formed by said traverse and the court on motion by counsel for the Civil Service Commission directed the jury to find in favor of the response of the Commission and against the renewed traverse. Jones filed his motion for a new trial which was later amended. The court overrule the motion for a new trial as amended on each and every ground stated therein. On May 20, 1961, the court overruled the petition for certiorari on each and every ground and directed that the same be dismissed. Jone excepts to the judgment dismissing the certiorari and to the overruling of his motion for a new trial.
Rupert A. Brown, Joseph J. Gaines, Athens, for plaintiff in error.
James Barrow, Athens, for defendant in error.
1. We will first consider whether it was error to direct a verdict against the traverse. The only issues of fact raised by the traverse were these: (1) Was there an adequate deliberation by the Commissioners, i. e., did they arrive at their decision upon consideration of the evidence produced at the hearing? (2) Was Jones discharged by unanimous vote of the Commissioners? (3) Did the questioning of witnesses at the county courthouse in the presence of the Commissioners come about and was it conducted in the manner alleged in paragraph 14 of the answer?
All other issues raised by the traverse were issues of law.
On questions (2) and (3) there is no evidence that could be construed as conflicting with that supporting the directed verdict.
On question (1) the testimony of each of the Commissioners was that his decision was based on the evidence before them at the hearing. Jones testified to the effect that he felt the Commissioners were necessarily prejudiced against him because they had heard testimony from their witnesses prior to the hearing. He stated that Mr. McDorman had in the past told him if he didn't quit catching liquor cars he was going to be in trouble--and he felt that catching too much liquor was the only mark against him. A jury would not have been justified to find from this 'speculation' of Jones that the Commissioners did not make their decision on the evidence before them. A directed verdict is proper when the evidence demands the verdict and when no other verdict could be legally found. Whitlock v. Michael, 208 Ga. 229, 65 S.E.2d 797. In order for the direction of a verdict to be error, it must appear that there was some evidence which, with all reasonable deductions and inferences therefrom, construed in its light most favorable to the losing party, would support a different verdict. Ayares Small Loan Co. v. Maston, 78 Ga.App. 628, 51 S.E.2d 699. There was no such evidence in this case. Therefore, the overruling of Grounds 1, 2 and 3 of the amendment to the motion for new trial, complaining of the direction of a verdict in favor of the response to the petition for certiorari and against the traverse thereto, was not error, nor was the overruling of the general grounds of the motion for new trial.
2. Ground 4 of the motion for new trial contends that certain testimony of Assistant Chief Hardy was erroneously admitted. The record indicates that Hardy's testimony, as to what Robert Hart and Fred Smith had told him officer Jones had said and done, was admitted to explain Hardy's motive in investigating officer Jones' activities. Its admission was objected to because it was hearsay and harmful to the movant.
Ground 5 complains the admission of testimony of Chief Hardy (set out on four pages of the motion for new trial) containing further statements of what Hart told Hardy, and also what other police officers had told him in corroboration of Hart's statements. The evidence is objected to on the grounds that it was hearsay, harmful to movant; that it admitted hearsay which allegedly corroborated other hearsay; that it permitted the witness to testify concerning the alleged corroboration of Smith and Hart's story, invading the province of the jury, harmfully to movant.
Hardy's motive in investigating officer Jones and his purported corroboration of information he received were not relevant to any of the issues tried on the traverse. Since the case was not submitted to the jury and we have held the court's direction of a verdict was proper the admission of this irrelevant evidence, regardless of its propriety, could not have harmed the movant. McTyre v. Stearns, 142 Ga. 854, 83 S.E. 955; Freeman v. City of Atlanta, 18 Ga.App. App. 696, 90 S.E. 368; Hilliard v. General Motors Acceptance Corp., 54 Ga.App. 105, 187 S.E. 218; Riggs v. Scarboro, 57 Ga.App. 457, 195 S.E. 918; Green, the Georgia Law of Evidence, 26, § 10.
Grounds 4 and 5 of the amendment to the motion for new trial show no error.
3. The grounds of the petition for certiorari will be considered in this and the following divisions of the opinion. Grounds (a) through (e) attempt to present this question: Was the action of the Commissioners in assembling, for the purpose of determining whether or not to make charges, and hearing witnesses, who subsequently testified at the hearing on Jones' discharge, give sworn statements concerning Jones' conduct, following which charges were made against Jones, prohibited by the Constitution of the State of Georgia (Code Ann. §§ 2-102, 2-103, Const. art. 1, § 1, pars. 1, 2), in that the Commissioners thereby acted as investigators, accusers, and triors, and in that Jones was thereby deprived of a fair trial by an impartial tribunal? It does not appear from the record that this issue was raised at the hearing before the Commissioners. Where constitutional issues are raised for the first time in the superior court on certiorari from a judgment of an inferior tribual, the superior court cannot consider, nor can this court review, the constitutional questions thus sought to be made. Thompson v. Allen, 195 Ga. 733, 25 S.E.2d 423; Brackett v. City of Atlanta, 51 Ga.App. 92, 179 S.E. 584.
4. Grounds (f) through (i) contend that there was no evidence supporting Jones' discharge upon the charges made against him, and that his discharge was unauthorized because he was not given written notice of it after the hearing as required by statute.
(a) Rule 11 of the Civil Service Commission subjects a member of the police department to 'dismissal or other appropriate punishment when charged with and found guilty of * * * conduct unbecoming an officer and detrimental to the service.' Officer Jones was charged with...
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