Opinion
8 Div. 959.
August 6, 1940. Rehearing Denied October 29, 1940. Reversed on Mandate January 14, 1941.
Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.
Action for damages for personal injuries by Fronie Milan against Southern Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari granted by Supreme Court in Southern Railway Co. v. Milan, 8 Div. 78, 199 So. 711.
The complaint alleges that plaintiff, on the date and at the place (a public crossing) in question, was riding as a passenger in an automobile on a public highway in Jackson County, and while so riding as a passenger in said automobile, said automobile was run upon or against by an engine or train of cars of defendant, injuring the plaintiff as specifically alleged, said injuries being proximately caused by the negligence of defendant's servants, agents or employes in charge of the operation of said train, etc.
The following charge was given at defendant's request: "G. The court charges the jury that if you are reasonably satisfied from the evidence that the driver of the truck in which plaintiff was riding did not stop, and look and listen for approaching trains before attempting to cross the railroad track and (on) the occasion of plaintiff's injury and that such action on the driver's part was the sole proximate cause of the collision and of plaintiff's injury, your verdict must be for defendant."
Attached to the motion for a new trial, as an exhibit, is an affidavit by B. L. Martin which is, in substance, that affiant was assistant chief claim agent of defendant, and in such capacity attended upon the trial of this cause; that after argument of the case to the jury and charge of the court the jury were excused until the following morning; that after reassembling on the following morning, and after deliberation, the jury returned a verdict in favor of plaintiff in the sum of $937.50; that after the verdict was rendered, one Hawkins, foreman of the jury trying the case, handed to affiant an envelope (also exhibited) upon which appeared the following figures:
750 1/4 1000 3/4 750.00 187.50 ------ 937.50
3/4 of 250 62.50 3 ----- 187.50
Affiant further said that said Hawkins gave him certain information as to the conduct of the jury and as to the meaning of the figures on the envelope. "Affiant says that there were twelve men who sat on the jury and that the figures on the envelope show to his mind a quotient verdict."
A. H. Carmichael, of Tuscumbia, Brown, Scott Dawson, of Scottsboro, and Stokely, Scrivner, Dominick Smith, of Birmingham, for appellant.
The juror testified that the juror's father and plaintiff's attorney's grandfather were second cousins. The juror and attorney were related within the prohibited degree of consanguinity and the juror was thus subject to challenge. Webster's New Int. Dict.; Danzey v. State, 126 Ala. 15, 28 So. 697; Code 1923, § 8610(11). Plaintiff's charge 3 was erroneous in requiring a verdict for plaintiff if defendant's servants were guilty of any negligence, whether or not it was the proximate cause of plaintiff's injury. Even if the charge were subject to the construction that by reference to the complaint, the jury must find that any negligence of defendant's agents proximately caused plaintiff's injury, it is still defective. Written instructions must be complete within themselves and cannot be good where, in order to arrive at their meaning, the jury must refer to the pleading in the case. Alabama G. S. R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84; Louisville N. R. Co. v. Laney, 14 Ala. App. 287, 69 So. 993; Birmingham Ry., L. P. Co. v. Fox, 174 Ala. 657, 56 So. 1013; Pennsylvania F. I. Co. v. Draper, 187 Ala. 103, 65 So. 923; Miller v. Johnson, 189 Ala. 354, 66 So. 486. The envelope delivered to Martin is evidence of a quotient verdict. It shows one-fourth of the jurors fixed their respective amounts at $750 and the remaining three-fourths fixed their respective amounts at $1000; that the difference between the two figures was adjusted by dividing $250 by four and multiplying by three, the result being $187.50, or three-fourths of the $250 difference. This $187.50 was added to the lower amount of $750, giving the result of $937.50 the exact amount for which the verdict was rendered. The result is the same as would be obtained by adding nine items of $1000 each and three items of $750 each and dividing the total thereof by twelve. This is a quotient verdict and should have been set aside. Southern Ry. Co. v. Williams, 113 Ala. 620, 21 So. 328; International Agr. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L.R.A., N.S., 415; Louisville N. R. Co. v. Bishop, 17 Ala. App. 320, 85 So. 859; George's Restaurant v. Dukes, 216 Ala. 239, 113 So. 53. The verdict was contrary to the weight of the evidence, and the motion for new trial on this ground should have been granted. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Jena Lbr. Co. v. Marlow Lbr. Co., 208 Ala. 385, 94 So. 492.
Proctor Snodgrass, of Scottsboro, for appellee.
The juror was not related to counsel for plaintiff, within the 9th degree, and was not subject to challenge. There was no error in giving plaintiff's charge 3, explanatory of defendant's given charge G. Birmingham S. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534. The evidence is insufficient to show a quotient verdict. The motion for a new trial was properly overruled. City of Eufaula v. Speight, 121 Ala. 613, 615, 25 So. 1009; Birmingham R., L. P. Co. v. Clemons, 142 Ala. 160, 37 So. 925; Cobb v. Hand, 12 Ala. App. 461, 68 So. 541; Birmingham R., L. P. Co. v. Moore, 148 Ala. 115, 42 So. 1024. The case was properly submitted to the jury on the testimony, and the insistence of appellant that the verdict is against the preponderance of the evidence is without merit.
This appeal is from a judgment in appellee's favor in a suit brought by her against appellant to recover damages for injuries suffered by her as the proximate result of a motortruck in which she was riding as a passenger being struck at a public road crossing by one of appellant's trains.
Able counsel for appellant have disregarded all pertinent rules in the construction of their brief filed here; but we will undertake to discuss all the assignments of error which they have "argued" therein.
They first insist that "the court erred in overruling defendant's (appellant's) objection to W. O. Proctor being put on the jury to try the case on the ground of his relationship to counsel for plaintiff."
Of course, W. O. Proctor was not "put on the jury to try the case;" but, if it makes any difference in the law, his name was put on the list from which the parties "struck," to obtain the jury, and was duly "stricken" by appellant.
As for the relationship between the venireman W. O. Proctor and Mr. James M. Proctor, one of plaintiff's (appellee's) counsel, the bill of exceptions recites: "Mr. W. O. Proctor said that his father and Mr. James M. Proctor's grandfather were second cousins and that, Mr. James M. Proctor and W. O. Proctor were fifth cousins." On this statement, which was undisputed, the trial court overruled appellant's objection to the name of W. O. Proctor being included on the list from which it was required to "strike the jury," and we think correctly so.
Code 1928, Sec. 8610, makes it a ground for "challenges for cause" if a juror "is related by consanguinity within the ninth degree, or by affinity within the fifth degree (computing according to the rules of the civil law), to any attorney in the cause to be tried." Applying these rules (Danzey v. State, 126 Ala. 15, 28 So. 697) it is at once apparent that there existed no ground for challenge for cause of the juror W. O. Proctor. He was not related to Mr. James M. Proctor within the ninth degree — rather, the tenth.
Appellant next insists the trial court erred in giving to the jury at appellee's request written charge 3, which is as follows, to-wit: "3. I charge you, Gentlemen of the Jury, that if you are reasonably satisfied from the evidence that the defendant, or the defendant's servants or agents were guilty of any negligence, as charged in the complaint, then the jury must return their verdict in favor of the plaintiff, notwithstanding the driver of the automobile was guilty of negligence and notwithstanding said negligence of said driver of said automobile proximately contributed to cause said train to collide with said automobile and proximately contributed to cause the plaintiff's injuries."
The argument for error, advanced by appellant, in the giving of the above-written charge to the jury, is plausible, persuasive, but we believe specious.
Under circumstances not dissimilar to those here obtaining, our Supreme Court has approved the giving to the jury at the plaintiff's request of a charge not distinguishable in principle from that just quoted. Birmingham Southern Railway Co. v. Harrison, 203 Ala. 284, 82 So. 534.
The same reasons relied upon by the Supreme Court to justify the giving of charge 3 in the Birmingham Southern Railway Co. v. Harrison case, cited, (said charge 3 being in all substantial respects the same as the charge 3 quoted above in this case) as related to the opposing party's given written charge 10, there discussed, apply here with reference to appellee's given charge 3, as related to appellant's given charge G. — mutatis mutandis.
This fact, of course, precludes our finding that the giving of said written charge 3, here, was error. Code 1923, Sec. 7318.
As for the only other action by the court urged upon us as error for which the judgment should be reversed — that of overruling appellant's motion to set aside the verdict and grant it a new trial — it seems proper that we merely observe that we are not persuaded.
One ground of said motion is that the verdict was what is known as a quotient verdict. Of course if it was, and this was shown to the court, it would have been the court's duty to set said verdict aside.
But we have carefully read and examined the evidence submitted to the court on this ground of appellant's motion for a new trial — which, by the way, consisted only of an affidavit of one of appellant's claim agents — and, according full verity to the matters deposed to by said agent, the same, to our minds, fall far short of furnishing that measure of proof which would authorize the court to take the action requested by appellant. There was no error in overruling this ground of the said motion.
Nor was there any in overruling the ground of the motion based upon the insufficiency of the evidence to support the verdict returned. The issues in the case were peculiarly for the jury; and it appears that the verdict finds ample support in the testimony.
In none of the assignments of error argued to us do we find merit, and the judgment is affirmed.
Affirmed.
On Rehearing.
It is unquestioned that "the degree of kindred must be computed in Alabama according to the rules of the civil law. * * * The civil-law rule is to begin with the intestate and ascend from him to a common ancestor, and descend from that ancestor to the claimant, reckoning a degree for each generation both in ascending and descending." Johnston v. Pierson, 229 Ala. 85, 155 So. 695, 696, and authorities cited in the opinion. Here, we should substitute the juror, W. O. Proctor, though apparently very much alive, for the "intestate;" and Mr. James M. Proctor, appropriately enough, it would seem, for the "claimant."
And, applying the rule quoted above, we now conclude, upon further consideration, that the juror, Proctor, was related to the lawyer, Proctor, within the ninth degree — specifically, in the eighth degree, and not in the tenth, as announced by us in our opinion on original submission.
But the inhibited juror did not sit on the trial of the case. His name was merely placed, erroneously as appears, upon the list from which the parties were required to "strike," in selecting the jury that did decide the issues. It was duly "stricken off" by appellant.
And, for aught that is made to appear, we are unable to say that the error, noted, "probably injuriously affected substantial rights" of the appellant. So, under Supreme Court Rule 45, we would not order a reversal of the judgment on account of same.
It is now definitely settled that not only must the appellant show error, but that he has been injured thereby.
The application for rehearing is overruled.
Opinion extended. Application for rehearing overruled.
Reversed and remanded under provisions of Code 1923, § 7318.