Salter v. Glenn, Duffield & Co. , 42 Ga. 64 ( 1871 )

Lochrane, C. J.

The record in this case comes before this Court on exceptions taken to the judgment of the Court below granting a new trial. It appears that Glenn, Duffield & Company brought their action on an account against Salter to recover a balance alleged to be due of $6,834 50. To this action Salter, by plea, set up a contract entered into between himself and the plaintiffs to purchase cotton for them, and for which he was to receive certain commissions. The plea sets out fully the contract, the cotton bought, the account between these parties, alleging the sum of $8,008 56 to be due him, for which he prays judgment against the plaintiffs. The case came on for trial at the August Term, 1869, and the jury found for the defendant against the plaintiffs the sum of $3,737 09.

At the same term of the Court a motion for a new trial was made by the plaintiffs upon several grounds, and the Judge granted the new trial on three of the grounds taken, to-wit: First, Because the jury found contrary to the evidence, and against the decided weight of the evidence. Second, Because there was a decided interference with two of the jury that had a tendency to impair the purity of jury trials, and especially as the finding of the jury was against the evidence, and without sufficient evidence to sustain the verdict. Third, Because the Court erred in charging the ninth request of the defendant’s counsel, which was as follows : “ 9th. That whilst it is true, as a general rule, that two or three witnesses are better than one, and will be more readily credited, yet, in this case, upon the point of what this contract was, made between one of the plaintiffs, (Mr. Wright,) alone and the defendant, it is witness against witness, and the plaintiffs cannot sustain their version of the contract without additional proof.” And these are the grounds presented for review as the assignments of error in this case.

1. It is not a question under our Code, sections 3860 to 3670, inclusive, but that the Superior Courts may grant new trials and the judges may “ exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of evidenceCode, section 3666. And in cases not provided for in the Code, this sound legal discretion is to be exercised “according to the provisions of the common law and practice of the Courts.”

In this case the defendant in error urges with earnestness and confidence, that the discretion of the Judge has been abused in granting a new trial on the first ground, that the verdict was contrary to the evidence. It will be seen that the exercise of this discretion is lodged by the law in the Superior Courts, and how far it may be reviewed on writ of error we will briefly examine before passing on the merits of its exercise in this case, remarking that it has been often held by this Court, as a rule, that this Court will be more indisposed to control the decision below in granting than in refusing a new trial: 35th Georgia, 291; 36th Georgia, 321, 604. This general principle may be found as universally admitted and the reasons which have led to it are not only reasonable but legal. Many of the cases go farther than mere indisposition or reluctance, and broadly assert that only in extreme cases will it be done: 26th Georgia, 164. These terms do not define accurately the ground of interference. They are based upon principles well recognized ; but the difficulty arises on the application of them to the case. In 36th Georgia the principle is more clearly stated. Judge Walker delivering the opinion says : “ When the Court below grants a new trial and no principle of law is violated, this Court will not disturb the ruling.” In 40th Georgia, 91, by Brown, Chief Justice, the judgment of the Court is substantially the same, the question being did the Court abuse his discretion in granting a new trial.

After this brief glance at what has been decided, we lay down the rule as now established, that the Court below is invested with a sound legal discretion in granting or refusing new trials, and where, in the legitimate exercise of that discretion, no rule of law, or the principles of equity regulated by law has been violated, and the power vested in the Superior Court has been judicially administered, this Court will not assume the control of the legal discretion of the Judge below. Our right only arises in an abuse of it, or in some error of law committed by the Court in its exercise. We are not prepared to treat the judgments of the presiding Judge, fresh in the memories of the trial and witnesses to the proceedings in the Court, and with a better opportunity relating to do justice between the parties as matters of little weight. On the contrary, with a full appreciation of the ability of the judges below, we consider their judgments, particularly in matters of granting or refusing new trials, with close scrutiny before we will assume the control of setting them aside.

In this case, we do not deem it necessary to go through this volume of testimony, nor express our opinions of its merits or demerits, further than is demanded for the purposes of our judgment. We find that the testimony conflicts as to the material points of the matters in issue. First, as to the matter of compensation, how much the defendant was to receive ; and second, as to the Beall and Jordan lots of cotton, whether he was entitled to his commissions on these lots. In the Beall cotton, the rescission of the purchase, its effect, and the consent thereto, the whole matter arising out of the contract and compensation was fairly laid before the jury, and there was evidence either way to have sustained the verdict, sufficient not to have set it aside. And in matters of verdicts found by juries upon facts fairly submitted, Courts, because of individual opinions of the evidence, ought not to infringe the rights of juries by setting aside their verdicts, except such verdict is strongly and decidedly against the weight of the evidence, or contrary to evidence and the principles of justice and equity.

And where Courts set aside verdicts except upon principles laid down, it is error; for the law nowhere authorizes such judicial interference with the fundamental rights of trial by jury. Dissatisfaction with the finding of the jury is no ground to set it aside. There must be an act in the verdict violative of law. That act may consist in the jury finding against the decided weight of the evidence; for the law demands that they shall find according to the evidence under the rules of law, and the law directs the verdict in cases of decided weight or preponderance. And in this case we hold that the first ground did not invoke judicial interference to set aside the verdict.

2. The second ground of error is the granting a new trial upon the misconduct of the jury. There is nothing in which Courts will go farther than in their protection of the jury box. Here every precaution is necessary for the proper and pure administration of justice. But in the jury box, if purity and integrity are not preserved, every principle of right and virtue dies. This Court has been vigilant in protecting the jury from even the suspicion of injustice. In Walker vs. Walker, 11 Georgia, 204, where one of the jurors was entertained at the expense of a party, the verdict was set aside, notwithstanding the affidavit of Respass, the juror, that he had been intimate for twenty years with the party, had not conversed with him about the trial, nor was he influenced by the act, etc. And again, where the attorney took home the horse of one of the jurymen, in their decision, as well as many which might be quoted, Courts have gone far to set aside verdicts when the jury have been tampered with. But in this case, the evidence on the part of the jurors accused seems to exculpate them from any criminal intent on their part. In the case of Goodwin, the statement of Gray was contradicted both by the juror and by the witness who was present, and we do not think that what transpired was sufficient to set aside the verdict.

In relation to the other two jurors, the evidence discloses that, casually, they went to the grocery to get a drink. The plaintiff was there, and the defendant was called in. He drank after they drank, and going to the counter to treat to cigars, one of the jury took twenty-five cents from the roll of money and handed it to the clerk. The evidence is that he carried off the bottle of whisky. It is true, both parties were present, both looking on and participating. It is also true, that counsel knew of what transpired before concluding the case, and yet went on with the argument. All these facts are true, and we may, in the most generous view of this case, think that nothing really corrupt was intended, or did, in fact, transpire, and yet we are not altogether satisfied with the meeting and mingling of jurors and parties at this grocery. This Court, in 18 Georgia, 534, has held it insufficient to set aside a verdict, when some of the jurors entered a grocery and had conversation with various persons, not in relation to the case, and in presence of the bailiff and the accused. But the Court regarded the conduct reprehensible, notwithstanding the exculpatory affidavits of the jurors and bailiff, and only affirmed the verdict because no injury resulted from the improper conduct.

We might remark that the practice of receiving exculpatory affidavits is not generally received in support of verdicts, no more than in impeachment of them, and is restricted to such issue only as applies to the juror himself, in case of purging contempts. The mere fact of taking a drink in a grocery will not vitiate, but where the party treating calls in the defendant, and he and the plaintiff are both present and one of the jurors takes off the bottle, there may be something in this unexplained liberality that might have been intended to, and in fact did influence the result. In the case of misconduct, in 2 Swan, 348, the Court evidently held the treating of the juror to soda water, etc., by defendant, improper, but inasmuch, under the practice of Tennessee, as it appeared, he was in favor of a verdict for plaintiff, it was held insufficient to set aside the verdict. And in 8 Grattan it is not misbehaviour for jurors to drink with a witness for the Commonwealth, if it is done in the presence of the sheriff and as a courtesy. Such is the principle held in 32 Maine, 334. Misconduct, without injury to either party, will not vitiate. But in the case under review, the misconduct, although explained, is still uncertain as to its effects upon the finding.

If it was known to the plaintiff, however, it was his duty to have made objection, if he believed it was injurious to him or his interests, and having failed to make it known at the time, he will be held, under the circumstances, to have waived it; and it is too late to complain after the verdict is found against him. And we do not hold that a new trial ought, on this ground, to have been ordered.

3. We come now to the last proposition in this case, and that is upon the Judge’s charge, as requested. We are clearly of opinion this this charge was error, and the Court ought, to have granted a new trial on this ground. “ If the jury believe that the contract was made between one of the plaintiffs, Mr. Wright alone, and the defendant, it is witness against witness, and the plaintiffs cannot sustain their version of the contract without additional proof.” In Brooks vs. Smith, 21st Georgia, 261, this Court held: “Where the testimony seems to be equally balanced, a single witness deposing on each side, the Court will not grant a new trial because the verdict is contrary to the evidence. It is for the jury alone to decide upon the credibility of the witnesses. This ease is decided by the principle laid down in 39 Georgia, 359-60, and in the case of Brown vs. Reed, at this term; and we therefore affirm the judgment of the Court below granting a new trial on this ground.

Judgment affirmed.