Pickering v. Wagnon
| Citation | 86 S.E.2d 621,91 Ga.App. 610 |
| Decision Date | 21 January 1955 |
| Docket Number | No. 35407,No. 1,35407,1 |
| Parties | Mattie PICKERING v. S. L. WAGNON |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
1. The plaintiff is entitled to a panel of twenty-four competent and impartial jurors from which to strike a jury.
2. Special ground 2 is without merit.
3. Under the facts of this case, to charge the doctrine of 'sudden emergency' was not error for the reason assigned.
4. The court was authorized under the pleadings and the evidence to charge on the theory 'accident'.
5,8. It is error for the trial judge to instruct the jury as to what acts would constitute negligence, unless the acts are declared to be negligence by a statute or valid city ordinance.
6,7. The charges excepted to in special grounds 7 and 8 were not error.
Mrs. Mattie Pickering (referred to in this opinion as the plaintiff) brought suit in Murray Superior Court agaisnt Samuel L. Wagnon (to whom we shall refer as the defendant), for the homicide of her husband, G. C. Pickering.
The facts of the case necessary to relate, succinctly stated, are as follows: 'G. C. Pickering on the morning of December 27, 1951, as he left the driveway at his house and was crossing the Dalton-Chatworth paved highway to enter a bus, was struck by an automobile owned and operated by the defendant. The automobile approached and came upon Mr. Pickering from his left.
The case proceeded to trial, a verdict was found for the defendant; the plaintiff filed a motion for new trial, which as amended was denied, and the plaintiff excepted.
Adams & McDonald, Isaac C. Adams, Dalton, for plainitffin error.
H. E. Kinney, Pittman, Hodge & Kinney, Dalton, for defendant in error.
Special ground 1 of the amended motion contends that the plaintiff was not furnished with a full panel of qualified jurors from which to select a jury, because Nell Springfield was a policyholder in State Farm Mutual Automobile Insurance Company, a mutual insurance company that insured the defendant against injuries that he might inflict upon others by reason of the opereation of his automobile.
The plaintiff shows in this ground that, before she began striking the jury, her counsel called to the court's attention that any policyholder, of said company or relative of policyholder, within the sixth degree, or employee, would be disqualified from considering said case, and requested that such persons should be removed from the panel, and that a full panel of qualified jurors be furnished the plaintiff from which to strike the jury. Thereafter, the court inquired of all jurors whether or not any were policyholders, employees, or related by blood or marriage to any policyholder of State Farm Mutual Automobile Insurance Company. Harold Springfield did not disqualify himself and was left on the panel. The plaintiff struck him from the panel and thereby exhausted her peremptory strikes.
An affidavit of Nell Springfield was made a part of the motion, and it showed the relationship of Harold Springfield to her at the time of the trial, and also that she was a policyholder in State Farm Mutual Automobile Insurance Company. A copy of the policy was also made a part of the record.
It was also made to appear that the plaintiff and her attorney acted with due diligence, and that neither learned of said disqualification of Harold Springfield until after the verdict was returned.
The plaintiff contends that she was entitled to her peremptory strikes on qualified jurors, and was denied this right because she was forced to use one of these strikes in striking the name of a disqualified juror from the panel put upon her.
A policyholder in State Farm Mutual Automobile Insurance Company is a stockholder, is entitled to a dividend on the net earnings of the company, and has the right to vote, which is pointed out in one of the provisions of the policy. Therefore, being a policyholder, she was in fact a stockholder, which would disqualify her or a relative of hers within the sixth degree, from serving on the jury in this case. Bibb Mfg. Co. v. Williams, 36 Ga.App. 605, 607, 137 S.E. 636.
It has been held by our appellate courts, in cases too numerous to cite, that a juror who is related to a stockholder is incompetent to serve as a juror on the trial of an action agaisnt the company, unless the losing party has consented for the juror to serve on the jury. This is true though this relationship be unknown to the juror. McElhannon V. State, 99 Ga. 672(1), 26 S.E. 501; Moore v. Farmers' Mut. Ins. Ass'n, 107 Ga. 199, 33 S.E. 65.
The defendant cites in support of his position several cases which hold that it was not a reversible error for the court to require the plaintiff to use one of his peremptory strikes in removing the juror from the panel. But those cases are distinguished from the case at bar, because in those cases the plaintiff did not exhaust his peremptory strikes and consequently was not harmed by being deprived of a strike. But in the present case the record shows that the plaintiff did exhaust his peremptory strikes.
Each party may demand a full panel of twenty-four competent jurors from which to strike a jury. Code, § 59-704. From the panel of twenty-four jurors, each party is entitled to six peremptory strikes.
The plaintiff used one of his six peremptory in striking Springfield who was disqualified, thereby denying him one of his strikes, to which he was entitled, because Springfield should never have been on the panel. The plaitniff had the right to twenty-four impartial jurors from which to strike a jury. Mayor, etc., of City of Columbus v. Goetchius, 7 Ga. 139; Howell v. Howell, 5. Ga. 145. In this case the plaintiff was denied that right, and the denial was harmful error. Atlantic Coast Line R. Co. v. Bunn, 2 Ga.App. 305, 58 S.E. 538. 'A big part of the battle is the selection of the jury, and an impartial jury is the corner stone of the fairness of trial by a jury.' Melson v. Dickson, 63 Ga. 682, 686; Atlanta Coach Co. v. Cobb, 178 Ga. 544, 548, 174 S.E. 131.
Special ground 2 complains of the following charge: 'If you find from the evidence in this case, gentlemen, that both the defendant and the plaintiff's deceased husband were guilty of negligence on the occasion inquired about by her, but if you find that the negligence of the defendant, if you find that he was negligent, was greater than or exceeded the negligence of the deceased, Mr. Pickering, then in that event the plaintiff might be entitled to recover, but the amount of recovery, if any would be reduced in proportion as the negligence of her deceased husband, if he was negligent, contributed to the injury and damage complained of in this petition.'
This charge was not error though it would have been more appropriate to have charged in the language of Code, § 105-603.
Special ground 3 assigns error on the following charge: 'When the driver of an automobile is confronted with a sudden emergency, if he finds he is so confronted, is not liable because he might not exercise good judgment under the circumstances, but is held liable in such emergency for the exercise of ordinary care and diligence under the circumstances.' This ground is without merit, for the reason assigned. Whitfield v. Wheeler, 76 Ga.App. 857, 860, 47 S.E.2d 658.
Special ground 5 asserts that the court erred in charging the following:
The first of the plaintiff's insistences is that the court used the word 'casualty' in two entirely different senses. In considering this charge as a whole, this was a mere slip of the tongue or inadvertence, and not a reversible error. Carter v. Buchanan, 9 Ga. 539; City of Atlanta v. Champe, 66 Ga. 659.
The second contention is that the charge was error because there was no issue as to an unavoidable accident. The contention is without merit; the defendant in his answer contended that the damages were the result of an accident so far as he was concerned, which was enough to authorize the charge on the theory of accident, and there was evidence sufficient to sustain a finding by the jury that the defendant used proper care; therefore the theory of accident was involved, and the charge was not error. Richter v. Atlantic Co., 65 Ga.App. 605, 609, 16 S.E.2d 259.
5. Special ground 6 complains that the court instructed the jury: 'And I charge you it was the duty of G. C. Pickering in this case to watch for traffic on the highway before attempting to cross the same, and if he failed to look, and you find that such failure was the preponderating cause of his injury and death, then I charge you that the plaintiff is not entitled to recover in the case.' The charge invaded the province of the jury and was error. Davis v. Whitcomb, 30 Ga.App. 497(2), 118 S.E. 488.
6. Special ground 7 of the amended motion assigns as error the following charge: 'If there is anything present at the time and place of the injury which would cause an ordinarily prudent person to reasonably apprehend the probability, even if not the possibility of danger to him in doing an act which he is...
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