Powell v. Augusta & S.R. Co.

• Decision Date: 05 March 1887
• Parties: POWELL and Wife v. AUGUSTA & S. R. CO. AUGUSTA & S. R. CO. v. POWELL and Wife.
• Court: Georgia Supreme Court

3 S.E. 757

77 Ga. 192

POWELL and Wife v. AUGUSTA & S. R. CO.

AUGUSTA & S. R. CO. v. POWELL and Wife.

Supreme Court of Georgia

March 5, 1887

Appeal from superior court, Richmond county; RONEY, Judge. Foster & Lamar, for plaintiffs.

BLECKLEY C.J.

The suit was for a personal injury to Mrs. Powell, and the jury rendered a verdict for $7,500 damages. The court, upon motion of the defendant, granted a new trial on the sole ground that the damages were excessive. There were divers other grounds embraced in the motion, all of which were presented in the supreme court by a cross-bill of exceptions. We shall dispose of the questions raised, without much explanation of the machinery by which they were evolved.

1. Except in a mind disappointed by the verdict, there could be no possible doubt of the legitimacy of the jury. It was legally selected and organized. Whether, on a new trial in a civil case, the jury shall be taken from the grand jury, or the traverse juries, or partly from each, is matter of discretion with the presiding judge. Acts 1884-85, p. 93; Code, §§ 2925, 3932; Maddox v. Cunningham, 68 Ga. 433; Burge v. Hamilton, 72 Ga. 635. No abuse of the discretion appears in this case.

2. To insist on a prosecution for felony in order to open the way to a recovery for the civil injury is to walk backwards. The old law on the subject has been left behind. Prosecution for felony is not a condition precedent to the recovery of damages (actual or punitive) for a personal injury. Code, § 2970; Railroad v. Meigs, 74 Ga 857.

3. The testimony of Mrs. Powell, the plaintiff, was taken by interrogatories. One of the cross-interrogatories inquiring as to her ability to attend court, was not answered in express terms either way. But the answer she gave clearly implied an affirmative response,--so clearly that there could be no rational doubt of its meaning. Where a cross-interrogatory, such as "Are you not able to attend the court in person?" is clearly answered in the affirmative by implication, the failure to answer expressly will not oblige the court to suppress or exclude the direct interrogatories and answers.

4. It was suggested, but I believe not argued, that as Mrs. Powell resided in the county, and was not unable to appear and testify in person, her evidence taken by interrogatories could not be read. A female witness, though a party to the suit, and residing in the county, is not obliged, as a general rule, to attend court in order to testify. The Code § 3877, par. 4, in enumerating those whose testimony may be taken by interrogatories "at the instance of either party," specifies as one class "all female witnesses." Being a party does not hinder the examination of a witness by interrogatories at his own instance, on other grounds recognized by statute. Cutcher v. Jones, 41 Ga. 675. And we see not why being a party should take away the privilege of a female witness. Doubtless, for special reasons shown to the court, personal attendance might be required, but the present instance stands on the general rule.

5. The evidence of Mrs. Davis objected to was contained in answers to interrogatories, and these appear in the record; but neither from the motion for a new trial, nor from the bill of exceptions, can we ascertain what particular part or parts of this evidence were pointed out to the court below as objectionable. Certainly the whole of it was not inadmissible. This being so, the objection was probably too broad, comprehended too much, and for that reason might have been overruled. Unless all the evidence of a witness is objectionable, the particular part which is objectionable should be specified in the motion for a new trial or in the bill of exceptions. This may be done either by quotation, or by reference to the brief of evidence; but, if by reference, it should be definite and distinct, so that this court could know where to begin and where to stop. The reference which we have now is to the whole of Mrs. Davis' evidence, or to the whole of certain answers; but as neither of these wholes is, as a whole, bad, we cannot say that the court erred in overruling the objection.

6. The questions objected to as leading were not well formulated, but considering the sex and age of the witness, and the nature of the subject-matter, their from neither led nor misled her, in all probability. We mean she would, most probably, have testified as she did had the questions been faultless. It is not good practice, however, to put questions with a single alternative, when it can be avoided without too much circumlocution. The witness being a matron 40 years of age, such questions as whether or not the plaintiff suffered an abortion, and whether or not flooding was caused thereby, are not so leading as to require the exclusion of the answers.

7. Medical evidence of the condition of the injured party after the suit was brought, as well as before, is admissible to show the nature and effects of the injury, and whether temporary or permanent.

8. If the injury resulted in abortion, evidence touching the consequences of abortion upon the mother's future health is evidence relating to the past injury, and not to future injuries.

9. A question put to a medical witness thus: "How would those troubles affect the nervous system?" does not inquire for dicta or opinions of the profession at large but for the individual opinion of the physician under examination. And, though not confined to the nervous system of this particular woman, the question is relevant as an inquiry concerning a pathological law to...