Atlanta Joint Terminals v. Knight , 98 Ga. App. 482 ( 1958 )

Townsend, Judge.

The first five special grounds of the motion for a new trial, numbered 4 through 8, inclusive, assign error on rulings of the trial court in permitting counsel for the plaintiff to put certain employees of the defendant on the stand for the purpose of cross-examination under the provisions of Code (Ann.) § 38-1801. Each of these grounds of the motion for a new trial complains of separate rulings by the court with respect to five different witnesses. As to each witness the defendants interposed objections to the cross-examination of the witness as agents of the defendants on the grounds that the employee was not an1 “agent” of the defendants as that term is used in Code (Ann.) § 38-1801; and, secondly, because this action being one under the Federal Employers’. Liability Act, the Federal law, under which the plaintiff has no such right, rather than the State law, was applicable. We shall dispose of these contentions in the inverse order in which they are made.

Rules of evidence prescribed by the General Assembly or laid down by judicial decision and prescribing what evidence is admissible or inadmissible, the quantum of proof necessary in given cases and the manner of producing and introducing evidence, and like rules, are rules of procedure rather than of substance. Such rules define and set out the manner and method of going ahead and conducting the suit and of enforcing the right as distinguished from rules of law defining the right itself. Intagliata v. Shipowners and Merchants Towboat Co. (Cal. App.), 151 Pac. 2d 133, 138. Such rules are governed by the law of the forum. 31 C. J. S. 509, Evidence, § 5. The procedure to be followed in the trial of cases brought in State courts under the Federal Employers Liability Act is the procedure prescribed in the jurisdiction where the case is brought rather than the form of practice and procedure prescribed for the Federal courts. Brenizer v. N. C. & St. L. Railway, 156 Tenn. 479 (3 S. W. 2d 1053). It follows that whether or not the plaintiff could call employees of the defendants as their agents and subject them to cross-examination under the provisions of Code (Ann.) § 38-1801 is a question of procedure in the State court and is to be governed by the rules and procedure laid down by the Georgia law rather than by the Federal rules.

A determination of the second question as stated above depends as contended by counsel for the plaintiff in error on whether the persons called for cross-examination were in fact agents of the defendant corporation within the meaning of that word as used in Code (Ann.) § 38-1801. That Code section provides that in the trial of all civil cases either the plaintiff or the defendant shall be permitted to make, in the case of corporations, any agent or officer a witness with the privilege of subjecting such witness to a thorough and sifting cross-examination and with the further privilege of impeachment as if the witness had testified in his own behalf and were being cross-examined. As applied to the facts of this case, there can be no doubt that the meaning and intent of the legislature in the use of the word “agent” in this Code section is doubtful so as to require judicial construction of this language. This necessity of construction was recognized in1 Garmon v. Cassell, 78 Ga. App. 730, 739 (52 S. E. 2d 631), where this court expressly rejected the contention that this language refers only to an agent who was an agent of the party with relation to, or who had some connection with, the particular transaction under investigation. In that case, Judge Felton, speaking for the first division, said, “We find no support for such a contention. The act itself makes no limitation.”

All of the witnesses involved were, at the time of the occurrence complained of and at the time of the trial, employees of the defendant or of one of the corporate, partners of the defendant, and, as such, were subject to all of the pressures and possible prejudices in favor of the defendant which that relationship would tend to engender.

All or any one of these employees might have been used by the defendants when the trial of the case progressed to the point at which they would present their evidence. Therefore, cross-examination of such employees as agents of the defendants under Code (Ann.) § 38-1801 was proper. These assignments of error are without error.

In grounds 9 and 10 of the motion for new trial, error is assigned on the admission in evidence over proper and timely objection by the defendant of the testimony of the witness Lazcnby elicited by the plaintiff on cross-examination to the effect that the sand pipe under the sand house through which sand is directed into the sand boxes of the engines was defective so that it hung down three or four feet below its intended position on certain occasions prior to and after the occurrence complained of in this action. This evidence was objected to on the ground that it was immaterial and irrelevant because the evidence was not related to what had occurred at the time the plaintiff was injured and that there was no other evidence that the sand pipe was defective in the particular way testified to by the witness Lazenby on the occasion of the plaintiff’s injury. The plaintiff contended that because of this defective condition the sand pipe was caused to hang in a lower position and could not be raised back up out of the way. He contended that on the occasion of the injury sued for this sand pipe was hanging down out of the proper position and that.his head struck the sand pipe causing the injuries complained of.

The fundamental rule is that the evidence must be relevant to the facts in issue and must tend in some measure to> prove or disprove such facts. 20 Am. Jur. 278, Evidence, § 302. However, as was said in Emerson v. Lowell Gas Light Co., 3 Allen (85 Mass.) 410, 417, “Each separate and individual case must stand upon and be decided by the evidence particularly applicable to it.” Whether particular evidence objected to on the ground of irrelevancy is in fact admissible or not in the final analysis depends very largely upon the circumstances of the particular case, and a decision of that issue must in many cases be left to the sound discretion of the trial judge. See 22 C. J. 743, 744, Evidence, § 834. Applying these principles to the instant case and in view of all the facts and circumstances shown by the evidence, we hold that the trial judge did not err or abuse his discretion in permitting the plaintiff to' elicit the testimony from the witness as complained of in these special grounds of the motion for a new trial. There was some other evidence introduced which would have authorized the jury to find that the plaintiff’s injury was occasioned by the low-hanging sand pipe and- this evidence of the witness Lazenby was admissible to illustrate the cause of the low-hanging sand pipe and -to illustrate the negligence of the defendant in permitting this cause to continue. The cases of Atlantic Coast Line R. Co. v. Brown, 93 Ga. App. 805 (92 S. E. 2d 874); Hollomon v. Hopson, 45 Ga. App. 762 (8) (166 S. E. 45); City of Dalton v. Humphries, 139 Ga. 556 (3) (77 S. E. 790) cited by the plaintiff in error "in support of its contentions do not require a different ruling from that here made.

In ground 11 the defendant complains of the refusal of the trial court to grant a mistrial on motion of the defendants on account of numerous similar instances of questioning of prospective jurors by counsel for the plaintiff. At the time of the occurrences complained of in this ground of the motion for a new trial, the jurors were being questioned by counsel for the plaintiff under the provisions of Code § 59-705. This Code section as amended provides: “In all civil cases it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail, or that he has a wish or desire as to which shall succeed. Upon challenge made by either party upon either of these grounds it shall be the duty of the court to hear such competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness, and the court shall determine the challenge according to the opinion it entertains of the evidence adduced thereon. In all civil causes the parties thereto, shall have the right to an individual examination of the panel of jurors from which the jury is to be selected, without interposing any challenge. . . Such examination shall be conducted after the administration of a preliminary oath to the panel . . . and in such examination, the counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the cause, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the, parties or counsel therefor, any fact or circumstance indicating 'any inclination, leaning or bias, which the juror might have respecting the subject matter of the suit, or counsel or parties thereto, and religious, social and fraternal connections of the juror.”

“Generally, a juror may be fully examined and asked any questions which are pertinent to show the existence of bias or prejudice with respect to the nature of the case or the subject matter of the litigation as well as with respect to- the parties personally.” 50 C.J.S. 1043, Juries, § 275(b). While hypothetical questions embodying a substantial outline of the case proposed to be made are not proper, because such questions tend to cause a juror to pledge himself to a future action if the evidence turns out to be that propounded by the hypothetical question, and thus fc> prejudge the case, nevertheless questions which only seek to ascertain that the juror’s mind is free of preconvictions which might cause him to do> just this are entirely proper. The first question propounded by counsel for the plaintiff was subject to the defect that it sought to pledge the juror to a specified verdict in case the evidence should be as propounded in the hypothetical question, and the court properly sustained an objection to this question and certain others along the same line. The questions finally permitted were as follows: “If it appeared to you that the damage inflicted was the result of the defendant’s negligence, do' you have any feeling that $300,000 asked by the plaintiff would be more than you would find, now, if you -thought that was the evidence?” On objection the question was rephrased: “I will put it this way: do you have any qualms 'against a judgment, which—I will ask you this question: $300,000 is quite a sum of money.” On further objection -the final questions were: “Would you have any hesitancy in bringing in a verdict of $300,000 if you believed when the evidence is submitted that this man had been damaged that much under the evidence that you had heard? In other wrords, I am not asking him to bring in a verdict, but some people just wouldn’t bring in a verdict for that much money. . . All right. You heard the question. I mean you don’t belong to any belief or have any belief that no man should ever have $300,000 if he is entitled to it? . . . And you have the courage to write such a verdict if you were accepted on the jury and you believed it to be just?” As to> another juror, counsel asked: “If we prove to you he is entitled to a judgment in that amount, will you bring in a verdict in -the amount of $300,000?” On objection the court rephrased this question as follows: “I understood the question to be if it were proved that the plaintiff was entitled to recover $300,000 if the juror would be willing to find a verdict to that effect. That means that if under the evidence and the law as given in charge if the plaintiff were entitled to recover $300,000 would the juror be willing to award that amount.” Again, counsel for the plaintiff asked a lengthy hypothetical question, which the court again rephrased, whereupon counsel asked: “Would you have any hesitancy, any feeling of reticence, to give such a verdict in the amount of $300,000 if you believed it was just and fair under the evidence and the law?” Again he asked, “If in your honest opinion the plaintiff is entitled to damages that he sues for $300,000, would you write such a verdict?” “In the light of the questions heretofore propounded I want to ask you would you have any hesitance in awarding $300,000 in this case?” “If you are convinced under the rules of law as given by the court that this man has been damaged $300,000, would you write a verdict for $300,000?” The last question was rephrased by the court as follows: “If the defendant was liable and you felt that the plaintiff was entitled to recover under the evidence and the law and you felt that his damages under the evidence and the law amounted to $300,000, would that be your verdict?”

In Temperly v. Sarrington’s Administrator, (Ky.) 293 S. W. 2d 863, questions asked prospective jurors on voir dire as to whether they had conscientious scruples which would prevent them from returning verdicts in the full amount sought if the law and evidence warranted such verdicts were held not an abuse of the trial court’s discretion.

Under the broad sanction of Code (Ann.) § 59-705 it must necessarily be held that prejudice as to the size of verdicts is as much comprehended under the subject matter of civil actions as the nature of the cause of action. The questions sought to probe the jurors’ minds for prejudice in 'an abstract sense. Accordingly, such questions should be phrased in the most general terms, and in such a manner that the juror cannot feel he is being pledged to a future action, but only that he is being queried on his present convictions. Here, some of the questions asked by counsel did not meet these i*equirements, but as to such questions the court either sustained an objection or rephrased the question so that it, came in a proper form, The court then very carefully instructed the jury that nothing which had occurred in the voir dire examination could in any way influence their judgment or their verdict. The questions which were answered were proper questions. One juror admitted that he would hesitate to return a verdict in the amount sued for; the others replied to the contrary. The actual amount of the verdict was $40,000, or about 13% of the amount mentioned in the voir dire questions.

Accordingly, even if it could be said that the voir dire questions finally permitted were objectionable, and even if the instructions of the court were not sufficient as a matter of law to cure any irregularity therein, it is obvious from the small size of the verdict compared with the amount sued for that the questions were not, as a matter of fact, harmful to the complainant. This ground is without merit.

Error is assigned in special ground 13 on the denial of a motion for mistrial made by counsel for the defendant because of certain remarks of counsel for the plaintiff incorporated into objections to questions asked on cross-examination of one of the plaintiff’s witnesses, a psychiatrist. One of the remarks incorporated in the objection was that counsel was trying to trick his witness “by asking him a question when the witness previously probably has made a different answer to it.” Another was, “This man has just gotten back from the Bar Association where he made an address and we pulled him off the train and put him right up.” At this point the court instructed the jury to disregard the remark, and said to- counsel for the plaintiff: “That is an improper statement, Mr. Garland; it has nothing to do with this case.” By so- doing, the court met the requirements o-f Code § 81-1009, both as to- instructing the jury and 'as to rebuking counsel. Wells v. State, 194 Ga. 70 (5) (20 S. E. 2d 580); McCoy v. Scarborough, 73 Ga. App. 519, 523 (37 S. E. 2d 221). This court does not agree with the contention of the plaintiff in error that the statements made by opposing counsel in his objection (improper as some of them admittedly were) were so inflammatory and prejudicial that no ■action on the part of the court short of the grant of a mistrial could have cured them. The instructions on that point were full and fair, and the discretion of the trial court in taking corrective action short of the grant of a mistrial will not be disturbed.

Special ground 12 assigns error because the court refused to grant a mistrial on account -of an alleged prejudicial statement made by counsel for the plaintiff in the presence of the jury. It is sufficient to say as to this ground that it shows that counsel for the plaintiff made in the presence of the jury an explanatory statement which completely removed any harmful effect that the statement complained of may have had. For this reason, this ground of the motion does not show error.

Grounds 14 and 15 complain of alleged prejudicial statements for the plaintiff in his closing argument to- the jury, but neither of these grounds shows that any ruling of the court was invoked on account of such statements. They, likewise, therefore, show no error requiring the grant of a new trial. Ground 16 of the amended motion is merely an amplification of the general grounds which have been expressly abandoned by counsel for the plaintiff in error in this court and this ground requires no ruling thereon.

The trial court did not err in denying the motion for new trial.

Judgment affirmed.

Felton, C. J., and Nichols, J., concur. Gardner, P. J., and Quillian, J., concur specially. Carlisle, J., dissents.