Jones v. Mayor &C. of Athens

123 S.E.2d 420, 105 Ga. App. 86, 1961 Ga. App. LEXIS 570
CourtCourt of Appeals of Georgia
DecidedNovember 8, 1961
Docket39017
StatusPublished
Cited by25 cases

This text of 123 S.E.2d 420 (Jones v. Mayor &C. of Athens) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Mayor &C. of Athens, 123 S.E.2d 420, 105 Ga. App. 86, 1961 Ga. App. LEXIS 570 (Ga. Ct. App. 1961).

Opinions

Hall, Judge.

We will first consider whether it was error to direct a verdict against the traverse. The only issues of fact raised by the traverse were these: (1) Was there an adequate deliberation by the Commissioners, i.e., did they arrive at their decision upon consideration of the evidence produced at the hearing? (2) Was Jones discharged by unanimous vote of the Commissioners? (3) Did the questioning of witnesses at [89]*89the county courthouse in the presence of the Commissioners come about and was it conducted in the manner alleged in paragraph 14 of the answer?

All other issues raised by the traverse were issues of law.

On questions (2) and (3) there is no evidence that could be construed as conflicting with that supporting the directed verdict.

On question (1) the testimony of each of the Commissioners was that his decision was based on the evidence before them at the hearing. Jones testified to the effect that he felt the Commissioners were necessarily prejudiced against him because they had heard testimony from their witnesses prior to the hearing. He stated that Mr. McDorman had in the past told him if he didn’t quit catching liquor cars he was going to be in trouble— and he felt that catching too much liquor was the only mark against him. A jury would not have been justified to find from this “speculation” of Jones that the Commissioners did not make their decision on the evidence before them. A directed verdict is proper when the evidence demands the verdict and when no other verdict could be legally found. Whitlock v. Michael, 208 Ga. 229 (65 SE2d 797). In order for the direction of a verdict to be error, it must appear that there was some evidence which, with all reasonable deductions and inferences therefrom, construed in its light most favorable to the losing party, would support a different verdict. Ayares Small Loan Co. v. Maston, 78 Ga. App. 628 (51 SE2d 699). There was no such evidence in this case. Therefore, the overruling of Grounds 1, 2 and 3 of the amendment to the motion for new trial, complaining of the direction of a verdict in favor of the response to the petition for certiorari and against the traverse thereto, was not error, nor was the overruling of the general grounds of the motion for new trial.

Ground 4 of the motion for new trial contends that certain testimony of Assistant Chief Hardy was erroneously admitted. The record indicates that Hardy’s testimony, as to what Robert Hart and Fred Smith had told him officer Jones had said and done, was admitted to explain Hardy’s motive in investigating officer Jones’ activities. Its admission was objected to because it was hearsay and harmful to the movant.

[90]*90Ground 5 complains of the admission of testimony of Chief Hardy (set out on four pages of the motion for new trial) containing further statements of what Hart told Hardy, and also what other police officers had told him in corroboration of Hart’s statements. The evidence is objected to on the grounds that it was hearsay, harmful to movant; that it admitted hearsay which allegedly corroborated other hearsay; that it permitted the witness to testify concerning the alleged corroboration of Smith and Hart’s story, invading the province of the jury, harmfully to movant.

Hardy’s motive in investigating officer Jones and his purported corroboration of information he received were not relevant to any of the issues tried on the traverse. Since the case was not submitted to the jury and we have held the court’s direction of a verdict was proper, the admission of this irrelevant evidence, regardless of its propriety, could not have harmed the movant. McTyer v. Stearns, 142 Ga. 850 (83 SE 955); Freeman v. City of Atlanta, 18 Ga. App. 696 (90 SE 368); Hilliard v. General Motors Acceptance Corp., 54 Ga. App. 105 (187 SE 218); Riggs v. Scarboro, 57 Ga. App. 457 (195 SE 918); Green, The Georgia Law of Evidence, p. 26, § 10.

Grounds 4 and 5 of the amendment to the motion for new trial show no error.

The grounds of the petition for certiorari will be considered in this and the following divisions of the opinion. Grounds (a) through (e) attempt to' present this question: Was the action of the Commissioners in assembling, for the purpose of determining whether or not to make charges, and hearing-witnesses, who subsequently testified at the hearing on Jones’ discharge, give sworn statements concerning Jones’ conduct, following which charges were made against Jones, prohibited by the Constitution of the State of Georgia (Code Ann. §§ 2-102, 2-103), in that the Commissioners thereby acted as investigators, accusers, and triors, and in that Jones was thereby deprived of a fair trial by an impartial tribunal? It does not appear from the record that this issue was raised at the hearing before the Commissioners. Where constitutional issues are raised for the first time in the superior court on certiorari from a judgment [91]*91of an inferior tribunal, the superior court cannot consider, nor can this court review, the constitutional questions thus sought to be made. Thompson v. Allen, 195 Ga. 733 (25 SE2d 423); Brackett v. City of Atlanta, 51 Ga. App. 92 (179 SE 584).

Grounds (f) through (i) contend that there was no evidence supporting Jones’ discharge upon the charges made against him, and that his discharge was unauthorized because he was not given written notice of it after the hearing as required by statute.

Rule 11 of the Civil Service Commission subjects a member of the police department to “dismissal or other appropriate punishment when charged with and found guilty of . . . conduct unbecoming an officer and detrimental to the service.” Officer Jones was charged with violating Rule 11 in that he did “conspire and agree . . . with Robert Hart to permit the said Robert Hart to escape arrest in the event the said Robert Hart would inform [him] of the time and place when he would be driving a liquor car and would abandon the car and contents to [Jones].” Hart testified that Jones made to him a proposal such as described in the charge. The petitioner contends that the evidence fails to support the discharge because Hart testified that he did not make an agreement or deal with Jones. What Hart meant by this statement is indicated by his testimony: “We didn’t make no deal because I didn’t get no whisky in”; that is, no deal was made in that no understanding was carried out. However, if we interpret Hart’s testimony to prove that there was no agreement between Jones and Hart, it would not require setting aside the Commission’s discharge. There was proof of “conduct unbecoming an officer and detrimental to the service” in Jones’ proposal to Hart as well as in other evidence. The notice given Jones went further than was necessary to charge an offense under Rule 11. The wording of the notice did not impair Jones’ opportunity to prepare and present his defense, nor affect the fairness of the hearing, as a violation that was unquestionably proved was included in the specific offense that was charged in the notice.

Section 12 of Ga. L. 1918, pp. 528, 531, provides that: “No employee . . . shall be . . . discharged by the Commission [92]*92until he has been presented with reasons for such . . .

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Jones v. Mayor &C. of Athens
123 S.E.2d 420 (Court of Appeals of Georgia, 1961)

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Bluebook (online)
123 S.E.2d 420, 105 Ga. App. 86, 1961 Ga. App. LEXIS 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-mayor-c-of-athens-gactapp-1961.