Opinion
7 Div. 373.
March 19, 1936.
Appeal from Circuit Court, St. Clair County, Pell City Division; Alto V. Lee, Judge.
Knox, Acker, Sterne Liles, of Anniston, and W. T. Starnes, of Pell City, for appellant.
If a juror possesses personal knowledge concerning the subject-matter of the suit which might cause him to be biased or prejudiced, and this fact is unknown to defendant and his counsel until after trial and verdict, defendant is entitled to a new trial. Failure of defendant's counsel to test the jury at the time of qualification does not deprive defendant of the right to a new trial. Birmingham Ry., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas. 1914C, 1037; Jones v. Coley, 219 Ala. 23, 121 So. 24; City of Birmingham v. Lane, 210 Ala. 252, 97 So. 728; Mills Lbr. Co. v. Hull, 222 Ala. 229, 131 So. 902; Lowman v. State, 167 Ala. 57, 52 So. 638; Pointer v. State, 24 Ala. App. 23, 129 So. 787; Citizens' L., H. P. Co. v. Lee, 182 Ala. 561, 62 So. 199; Leith v. State, 206 Ala. 439, 90 So. 687.
Frank B. Embry, of Pell City, and Victor H. Smith, of Birmingham, for appellee.
That information concerning matters in dispute may have been acquired by jurors before entering into the trial does not of itself disqualify a jury, unless the information was such as to bias the minds of the jurors to the extent that they could not give a fair trial. Sharp v. State, 23 Ala. App. 457, 126 So. 895; Seymore v. State, 23 Ala. App. 415, 127 So. 239; Davis v. State, 24 Ala. App. 190, 132 So. 458; Sandlin v. State, 19 Ala. App. 583, 99 So. 784; Smith v. State, 207 Ala. 428, 93 So. 397; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Larkin v. Baty, 111 Ala. 303, 18 So. 666. Defendant should have availed of the privilege afforded by the statute to examine the jurors on voir dire. Code 1923, § 8662; Taylor v. State, 222 Ala. 140, 131 So. 236; Batson v. State, 216 Ala. 275, 113 So. 300; Clay v. City Council, 102 Ala. 297, 14 So. 646.
The appellant insists upon but two of the assignments of error. The first contention is that the court should have granted it a new trial because one of the jurors had personal knowledge of some of the material facts in the case, and that another, before the jury was impaneled for the trial, "stated in substance that he hoped he was not selected to serve on the jury to try the case because he had either heard too much about, or that he knew too much about it." And it is argued that it was the duty of said jurors to disclose to the court such facts when they were examined on the voir dire.
There is no contention that the prevailing party had any knowledge that said jurors knew anything about the facts of the case. The jurors were not questioned by either of the parties, as they were authorized to do by section 8662 of the Code 1923; nor does it appear that the court was requested to question the jurors on the subject of their personal knowledge or information. In these circumstances the court will not be put in error for overruling the motion for a new trial. Batson v. State ex rel. Davis, Solicitor, 216 Ala. 275, 113 So. 300; Peterson v. State, 227 Ala. 361, 150 So. 156; Taylor v. State, 222 Ala. 140, 131 So. 236.
The evidence offered goes to show that the Coca-Cola bottle, from which the plaintiff allegedly drank, was in the same condition at the time it was offered in evidence, except that part of the liquid content had evaporated; that nothing had been put in the bottle and nothing taken therefrom, except such of the liquid as had evaporated. The defendant's objection to the bottle and its contents as evidence was not well taken, and was overruled without error.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.