City of Columbus v. Ogletree , 102 Ga. 293 ( 1897 )

Lumpkin, P. J.,

dissenting. The view entertained by the majority as to the point of difference between them and myself is, I admit, well sustained by the authorities cited in the opinion filed by Mr. Justice Cobb. In my judgment, some of these authorities, though eminently respectable, go too far and should be disregarded. There are others, equally respectable, to the contrary.

There is not a particle of doubt that the amount of the verdict rendered in the present case was arrived at by adding together twelve numbers and dividing their sum by twelve. The evidence, with almost the same degree of probative force, :shows that each of the jurors suggested one of the twelve numbers to be so added and divided. The only question is, did they ;agree in advance to fix the amount of the verdict in this way? T think the evidence proves with reasonable certainty that they • did. Otherwise, the verdict would hardly have been for just .such a sum as $2,537.50. Upon the theory that the jury .agreed at the outset to find for the plaintiff the exact sum reached by the quotient process, the presence of the $37.50 in the verdict can be easily accounted for. In the absence of •.such an understanding, how came this fractional amount to remain as a part of the finding? What argument or reasoning could have been employed to convince a juror who favored a much smaller verdict that the recovery should have been just $37.50 more than $2,500.00? And coming down to the minutiae, what logic supported the retention of the 50 cents as a fair and proper portion of the plaintiff’s compensation for his injuries? Why did not some astute juror convince his fellows that the verdict should be for $2,537.25?

I do not care to make further suggestions upon this line; and will only add that the affidavit of a single juror, that the verdict was not arrived at by chance and under an agreement to fix its amount in the way indicated, would have put the matter at rest. Jurors can be heard to sustain, but not to impeach, their findings. Civil Code, §5338. I think the defendant established enough to put the plaintiff upon explanation ; and as the latter had abundant opportunity to make it, if the truth of the disputed issue was really on his side, his failure to do so ought to deprive him of the benefits of a verdict which was apparently rendered without fair and conscientious deliberation as to what the amount of it should be.