HEAD, J.
This is an action for damages for personal injuries sustained by appellee as a passenger, by a collision of trains on appellant’s road. On tbe main case, the questions arising for decision grow out of exceptions to testimony and charges given and refused. Appellant’s counsel insist specially, in argument, upon one only of tbe objections to testimony, and we will not comment on them, in detail. We have carefully examined’ and considered them all and find none well taken. If it was illegal for plaintiff to prove by tbe witness, Dr. Wilson, on cross-examination, that he was tbe employed physician of another railroad company, no objection was made to it until after the evidence was closed and the case partially argued, when defendant moved to exclude it. We think it was then too late to insist, as a legal right, upon its exclusion. If it was illegal, its exclusion rested in the discretion of the court, at that stage of the trial.—1 Thompson on Trials, § 715.
The first charge requested by the defendant was that there is no evidence which tends to show that the defendant has. been guilty of any corporate negligence that contributed to the injury. For a disposition of this question, we refer to what we said in reference to a similar charge in the case of K. C., M. & B. R. R. Co. v. Sanders Admr., at the present term. This charge was properly refused.
There was evidence tending to show that plaintiff prior to injury was capable of earning fiOO.OO per month, and that his services were worth that much; and that after the injury he was unable to attend to any business or do any work up to the time of the trial. Wherefore the second charge requested was manifestly bad.
The testimony of the witness Briggs tends to show that Bussell, the engineer of defendant, who was charged with negligence causing plaintiff’s injury, was under a contract and duty not to go into saloons, or drink whiskey while in the “employ” of defendant. The defendant’s third charge would construe this to mean that Bussell was not in the [168]*168employ of defendant during tbe interval from bis arrival in Birmingham — -a terminus of the road — on one day, until his departure therefrom, on the next, in the service of the company. Obviously, such is not the meaning of the contract.
Under the facts of this case, it was, at least, a question for the jury whether punitive damages should be awarded or not. It has been too long and well settled to be now overturned that punitive damages may be awarded against the master for the acts and omissions of the servant although the master, aside from the conduct of the servant, may be entirely blameless. "We are not unmindful of the forcible argument of appellant’s counsel in opposition to this view. We have duly considered the argument, but can not follow it without departing from the general current of the law as it is declared every where, so far as we are advised. The fourth charge was therefore properly refused.
In McDonnell v. Ala. Gold Life Ins. Co., 85 Ala. 401, we held that the court will take judicial notice of the mortality tables showing the natural expectancy of duration of one’s life at a given age. On that authority charge five was bad and properly refused.
We ruled charge six bad in L. & N. R. R. Co. v. Davis, at the present term, and have no doubt of the correctness of that ruling.
We have carefully examined charges numbered 1, 2, 3, 4 and 5 which the court at first refused and afterwards gave by consent of the plaintiff, marking thereon “given by consent,” and find that each of them was properly refused. The defendant can not complain, therefore, that they were after-wards given by consent, and so marked. We do not declare what our ruling would be if a good charge had been so refused and then given and so marked.
The defendant moved the court for a new trial on several grounds specified in the motion, among them, newly discovered evidence, and misconduct of the jury, and the bailiff having them in charge. 1. The newly discovered evidence relied on, as set out m the affidavits in support of the motion, is certainly very material to the inquiry of the extent of plaintiff’s injury, and it is not cumulative of other testimony introduced by the defendant. The real question upon this branch of the motion is, whether that degree of diligence which the law exacts to discover and produce the evidence at the trial was exercised. The law is very strict in this regard. Trials and judgments will not be set aside and litigation revived to let in new evidence, except upon a clear showing of the importance of the evidence, and a high de-[169]*169gree of diligence on tbe part of tbe movant to discover and produce it on tbe trial. Tbe new evidence consists in tbe testimony of several persons going to show that tbe plaintiff suffered, long before tbe railroad collision, with tbe urinary troubles wbicb be claimed, in the law suit, resulted from injuries received by that collision. The affidavit of diligence is made by one Crater, an attorney and claim agent cu tbe defendant, who stated that almost continuously since tbe accident, on tbe 25th day of October, 1890, to tbe time of tbe trial, in June, 1891, be and others employed by him were diligently engaged in investigating tbe claims and demands of tbe various persons claiming to have received injuries in tbe collision, and diligently inquired into and investigated as to tbe injuries plaintiff claimed to have received, whether actually received at said time, or at all, or were injuries and complaints or ailments with wbicb be bad been suffering or afflicted long prior to tbe date of said collision; that about sixty days prior to tbe date of tbe affidavit, be first learned (except such information as given by tbe complaint in tbe cause) that plaintiff would testify and attempt to prove be bad urinary diseases on account of said collision, such as inability to retain urine in bis bladder and uncontrolled dribbling therefrom, but was unable to, and did not ascertain what be would claim or testify concerning said diseases in tbe full detail thereof, until be beard him testify on tbe trial ; that about sixty days prior to tbe trial, be bad been continuously engaged in investigating, personally, and by employing others, the truth or falsity of plaintiff’s claims, and interviewed and enquired of a large number of citizens of Walker county, neighbors of plaintiff, and was unable to find, prior to tbe trial, any one who bad or would admit that be bad any information as to said urinary disease; that he lias been continuing bis investigation, personally, and through, others since said trial, and on June 25th, 1891, was informed for tbe first time that plaintiff bad been for tbe past ten years and longer, at times suffering from urinary diseases and voluntary dribbling of tbe urine, and inability to retain tbe same in bis bladder, and loss of sexual power ; that be is now informed and believes, and states that defendant can prove by six or eight or more reputable and creditable persons, that plaintiff bad been .afflicted as above stated. He also stated that before tbe trial, be inquired of about twenty-one citizens of Walker county concerning said urinary diseases. Crater procured tbe affidavits of two persons, J. B. Martin and T. W. Washington, who are neighbors of plaintiff, and who made oath as to tbe urinary troubles with which [170]*170plaintiff had long suffered, and states that he had not been able to procure the affidavits of the others for the want of time.
Free access — add to your briefcase to read the full text and ask questions with AI
HEAD, J.
This is an action for damages for personal injuries sustained by appellee as a passenger, by a collision of trains on appellant’s road. On tbe main case, the questions arising for decision grow out of exceptions to testimony and charges given and refused. Appellant’s counsel insist specially, in argument, upon one only of tbe objections to testimony, and we will not comment on them, in detail. We have carefully examined’ and considered them all and find none well taken. If it was illegal for plaintiff to prove by tbe witness, Dr. Wilson, on cross-examination, that he was tbe employed physician of another railroad company, no objection was made to it until after the evidence was closed and the case partially argued, when defendant moved to exclude it. We think it was then too late to insist, as a legal right, upon its exclusion. If it was illegal, its exclusion rested in the discretion of the court, at that stage of the trial.—1 Thompson on Trials, § 715.
The first charge requested by the defendant was that there is no evidence which tends to show that the defendant has. been guilty of any corporate negligence that contributed to the injury. For a disposition of this question, we refer to what we said in reference to a similar charge in the case of K. C., M. & B. R. R. Co. v. Sanders Admr., at the present term. This charge was properly refused.
There was evidence tending to show that plaintiff prior to injury was capable of earning fiOO.OO per month, and that his services were worth that much; and that after the injury he was unable to attend to any business or do any work up to the time of the trial. Wherefore the second charge requested was manifestly bad.
The testimony of the witness Briggs tends to show that Bussell, the engineer of defendant, who was charged with negligence causing plaintiff’s injury, was under a contract and duty not to go into saloons, or drink whiskey while in the “employ” of defendant. The defendant’s third charge would construe this to mean that Bussell was not in the [168]*168employ of defendant during tbe interval from bis arrival in Birmingham — -a terminus of the road — on one day, until his departure therefrom, on the next, in the service of the company. Obviously, such is not the meaning of the contract.
Under the facts of this case, it was, at least, a question for the jury whether punitive damages should be awarded or not. It has been too long and well settled to be now overturned that punitive damages may be awarded against the master for the acts and omissions of the servant although the master, aside from the conduct of the servant, may be entirely blameless. "We are not unmindful of the forcible argument of appellant’s counsel in opposition to this view. We have duly considered the argument, but can not follow it without departing from the general current of the law as it is declared every where, so far as we are advised. The fourth charge was therefore properly refused.
In McDonnell v. Ala. Gold Life Ins. Co., 85 Ala. 401, we held that the court will take judicial notice of the mortality tables showing the natural expectancy of duration of one’s life at a given age. On that authority charge five was bad and properly refused.
We ruled charge six bad in L. & N. R. R. Co. v. Davis, at the present term, and have no doubt of the correctness of that ruling.
We have carefully examined charges numbered 1, 2, 3, 4 and 5 which the court at first refused and afterwards gave by consent of the plaintiff, marking thereon “given by consent,” and find that each of them was properly refused. The defendant can not complain, therefore, that they were after-wards given by consent, and so marked. We do not declare what our ruling would be if a good charge had been so refused and then given and so marked.
The defendant moved the court for a new trial on several grounds specified in the motion, among them, newly discovered evidence, and misconduct of the jury, and the bailiff having them in charge. 1. The newly discovered evidence relied on, as set out m the affidavits in support of the motion, is certainly very material to the inquiry of the extent of plaintiff’s injury, and it is not cumulative of other testimony introduced by the defendant. The real question upon this branch of the motion is, whether that degree of diligence which the law exacts to discover and produce the evidence at the trial was exercised. The law is very strict in this regard. Trials and judgments will not be set aside and litigation revived to let in new evidence, except upon a clear showing of the importance of the evidence, and a high de-[169]*169gree of diligence on tbe part of tbe movant to discover and produce it on tbe trial. Tbe new evidence consists in tbe testimony of several persons going to show that tbe plaintiff suffered, long before tbe railroad collision, with tbe urinary troubles wbicb be claimed, in the law suit, resulted from injuries received by that collision. The affidavit of diligence is made by one Crater, an attorney and claim agent cu tbe defendant, who stated that almost continuously since tbe accident, on tbe 25th day of October, 1890, to tbe time of tbe trial, in June, 1891, be and others employed by him were diligently engaged in investigating tbe claims and demands of tbe various persons claiming to have received injuries in tbe collision, and diligently inquired into and investigated as to tbe injuries plaintiff claimed to have received, whether actually received at said time, or at all, or were injuries and complaints or ailments with wbicb be bad been suffering or afflicted long prior to tbe date of said collision; that about sixty days prior to tbe date of tbe affidavit, be first learned (except such information as given by tbe complaint in tbe cause) that plaintiff would testify and attempt to prove be bad urinary diseases on account of said collision, such as inability to retain urine in bis bladder and uncontrolled dribbling therefrom, but was unable to, and did not ascertain what be would claim or testify concerning said diseases in tbe full detail thereof, until be beard him testify on tbe trial ; that about sixty days prior to tbe trial, be bad been continuously engaged in investigating, personally, and by employing others, the truth or falsity of plaintiff’s claims, and interviewed and enquired of a large number of citizens of Walker county, neighbors of plaintiff, and was unable to find, prior to tbe trial, any one who bad or would admit that be bad any information as to said urinary disease; that he lias been continuing bis investigation, personally, and through, others since said trial, and on June 25th, 1891, was informed for tbe first time that plaintiff bad been for tbe past ten years and longer, at times suffering from urinary diseases and voluntary dribbling of tbe urine, and inability to retain tbe same in bis bladder, and loss of sexual power ; that be is now informed and believes, and states that defendant can prove by six or eight or more reputable and creditable persons, that plaintiff bad been .afflicted as above stated. He also stated that before tbe trial, be inquired of about twenty-one citizens of Walker county concerning said urinary diseases. Crater procured tbe affidavits of two persons, J. B. Martin and T. W. Washington, who are neighbors of plaintiff, and who made oath as to tbe urinary troubles with which [170]*170plaintiff had long suffered, and states that he had not been able to procure the affidavits of the others for the want of time.
It will be observed the complaint, which was filed January 10th, 1891, alleges that plaintiff was rendered incapable of controlling his urine, and that his vital power was greatly lessened or destroyed. On that subject, he testified on the trial, to no more than this. The trial was concluded on the 19th day of June, 1891. The motion for a new trial was heard June 30th, 1891. The dates of the affidavits are not given, though they were in possession of counsel' when the motion was docketed June 27th, 1891. It thus appears that, within the space of a week, or probably less, after the verdict, Crater was, by means of his own diligence, enabled to find six or eight credible witnesses who will testify to the facts stated, and to obtain the affidavits of two of them. It is expressly shown that he discovered this testimany by his diligence, and not by accident, voluntary disclosures or other fortuitous circumstance, after all • diligence on his part had been exhausted. It is very clear to our minds, that he was stimulated by the verdict to a point of effort which he ought to have reached, but did not, before the trial In such cases, new trials will not be awarded to let in the newly discovered evidence.
2. Misconduct of the bailiff and jury: When the jury had been out eight or nine hours considering of their verdict, there was a knock at the door of the jury room, and Thomas E. Parker, who had charge of the jury as one of the sheriff’s deputies, went and unlocked the door and opened it from twelve to eighteen inches, when one of the jurors inquired of him where the judge was, saying the jury could not agree ; and, when told by Parker that the judge was not in the court-house, the jury, or some of them, asked that he be sent for, as there was no chance for them to agree upon a verdict; Parker replied, he could not send for the judge ; that the judge had ordered him to keep them together and carry them to supper, and if they could not agree by 10 o’clock, he would carry them to the hotel for the night. Some of the jury then asked Parker how long the judge would keep them together if they did not agree on a verdict, whereupon Parker said he did not know, and had nothing to do with'it, but that he supposed the court would keep them until Saturday night, or that he might keep them together until the adjournment of court. The conversation took place at night, about 8 o’clock. There was no one in the courtroom but Parker and the clerk, the jury being in the jury [171]*171room, but some of them could be seen at tlie door. One of the jurors, as shown by his affidavit, understood Parker to say that if they did not agree on a verdict the judge would keep them together until Saturday, if not longer. Others understood that he said the judge would keep them together eight days ; and it was reported by those who were at or near tlie door, to the body of the jury in tlie jury room, that the bailiff or clerk had said they would be kept together eight days, unless they agreed on a verdict. Between 9 and 10 o’clock the jury agreed on a verdict and returned it to the clerk. They had been engaged in the trial of the cause eight days, and during that time one of the jurors had a very sick daughter, about two years old. An uncle of the child was also a member of the jury. Several of the jurors make oath that prior to said conversation there appeared no prospect that the jury would agree on a verdict.
The question'now is, do these facts entitle the defendant to a new trial? It is stated as a rule, in. 16 Am. & Eng. Encyc. Law 519, that, “Misconduct, as the term is used in connection with the subject under discussion (new trials) is any unlawful behavior of those entrusted, in any degree, with the administration of justice, by which the rights of the parties and the justice of the case may have been affected. It need not be shown, necessarily, that the misconduct relied on as ground for a new trial actually controlled or determined the verdict, if it is made apparent that the verdict might have been affected by it:” This test is sustained by the authorities cited in its support. In Johnson v. Root, 2 Cliff (U. S.) 108, it is said: “Irregularity on the part of the party charged, or of the jury must be satisfactorily proved, in order to lay the foundation for the interposition of the Court; but when the irregular conduct is established it is not necessary that it should certainly apt-pear that it influenced the jury. In that state of the case, it is sufficient that the irregularity appears to be of a character that it might have affected the impartiality of the proceedings. Buch was the rule laid down in Commonwealth v. Toby, 12 Pick. 520, and it appears to be correct.” In Johnson v. Witt, 138 Mass. 79, it was said that the law will not inquire what was the effect of intermeddling with the jury, if it was of such a nature as to have any tendency to affect the verdict injuriously to the party against whom it is found. See also Read v. Cambridge, 124 Mass. 567. In Thompson & Merriam on Juries, § 362, it is stated as a general rule : “Whether communications between members of the jury and the officer having them in charge will avoid [172]*172tlie verdict, will depend upon tlie nature of tbe communications. Where they are such tliat it is obvious that no prejudice could have resulted from them, they will not afford ground for a new trial; but if the communications were such that prejudice may have resulted the rule is different. The same author also lays down as a general rule in § 349, citing many authorities, the following : “The Courts generally agree that where the interference of strangers with the jury has not been promoted by the prevailing party, has not been attained with corruption and it does not reasonably appear that substantial prejudice has resulted to the party complaining, the verdict will not be disturbed for this reason, whether the cause be civil or criminal, capital or otherwise.” In Thompson on Trials, § 2556, it is said : Communications between the jurors and officers having them in charge rest on much the same grounds as communications with strangers, though possibly viewed with greater jealousy. Such communications will not afford ground for new trial Avhere it is obvious that no prejudice resulted; otherwise where prejudice may have resulted.”
In Thompson & Merriam on Juries, § 349, sub-div. 3, it is said: “In civil cases the Courts generally hold that, in order to set aside a verdict because improper communications have been had between members of the jury and third persons, the affidavits must do something more than raise suspicions that improper influence might have been brought to bear on the jury. A verdict which twelve men have rendered under the solemnity of their oaths, is certainly entitled to some consideration; and it would not only be unjust to the party who has obtained it to set it aside for some irregularity which has happened without his fault, unless prejudice clearly appear; but it would be entirely opposed to the policy of the law, which favors the ending of litigation and the quieting of controversies.”
The cases wherein the application of these general principles has been attempted are inharmonious. In Slater v. Mead, 53 How. 57, the jury after being out a long time, reported that they could not agree. The judge said to them : “You must agree upon a verdict. I can not discharge you until you agree upon a verdict.” The verdict was set aside as induced by constraint. But in White v. Calder, 35 N. Y. 183, it Avas held not to be error for the judge to refuse to discharge the jury until they had agreed upon their verdict, and that it was wholly within his discretion when to discharge them.
[173]*173In O'Bear v. Gray, 68 Ga. 182, the bailiff who bad tbe jury in charge, after they had been out for some time considering of their verdict, being very restive and impatient, and while they were standing about five to seven, told them that in his opinion the judge ivould keep them out a week or compel them to agree. The Court said : “According to the recorded judgment of this Court in the case of Gholston v. Gholston, which was a libel for divorce and reported in 31 Ga. 625, it was held that a jury was improperly influenced by the Sheriff’s telling them that unless they speedily agreed upon a verdict, the judge would carry them to Elbert county, and that he was making preparations for that purpose. The deliberations of a jury are not to be interferred with whilst they are considering the law and the testimony which must alone control their verdict. They are by no means to be influenced by the fear of a week’s confinement, to alarm them into an agreement. Such a suggestion, even by the very officer in whose custody they are placed, would be highly improper and especially so in view of the fact that they are thus placed to prevent every outside influence by word, sign or speech, from affecting unlawfully their finding.” And it seems, the Court deemed the action of the bailiff in this case alone sufficient ground for a new trial, but there were other concurrent causes and the ruling in favor of a new trial was based upon all.
In Leach v. Wilbur, 9 Allen (Mass.) 212, the jury had retired about 5 P. M. on Thursday, and on Friday morning, between 4 and 5 o’clock, one of them asked the bailiff how long the Court was going to keep them there, to which the officer replied that he did not know but they would have to stay there till Saturday night, and a little after five o’clock they agreed, sealed up their verdict and separated. Motion for a new trial overruled. The Court said: “That an irregularity occurred must be conceded, as the more proper course for the officer would have been to decline giving any answer to the inquiry of the juror. But there was no officious intermeddling on the part of the officer, nor any attempt, or previous purpose on his part to hasten the jury to an agreement as to their verdict. His answer to the inquiry of the juror affirmed nothing but his want of knowledge how long the jury would be required to remain together. The defendant may properly object to the motion to set aside this verdict, there being no evidence of any design on the part of the officer to favor either party, or that any such effect was produced by this reply.”
In Wiggins v. Downer, 67 How. Pr. 65, it appeared from [174]*174the affidavits of three of the jurors that after the jury had deliberated for about fifteen hours they sent word to the Court by the officer in charge that they could not agree ; that the constable retired for a moment and upon returning stated that the judge said, “they must agree, or he would keep them until to-morrow noon.” One of the three jurors said the substance of the statement of. the constable was, that “the judge said he would not discharge them; that they must agree.” The Court said: “Assume that the constable did make the alleged statement, and that the jury thought it was a message from the Court, the impropriety of such a proceeding is conceded, but would it be such an irregularity as should avoid the verdict ? Would it amount to an illegal constraint ?For there must always be some constraint; but abuse should not be permitted.” The case of Erwin v. Hamilton, 50 How. 32, decided in 1875, was cited, wherein the jury after announcing their inability to agree, were told in effect by the judge that he could" not discharge them, but would return after supper and wait a reasonable time for a verdict, and if they failed to agree by that time, the Court would adjourn until the following Monday, at three p. m., then distant nearly seventy hours, when they could bring in a sealed verdict. Held, no ground for a new trial.
In Pope v. State, 36 Miss. 121, the officer in charge told the jury while deliberating, in a case of felony, “that unless they decided the case one way or the other they would have nothing more to eat and no water to drink.” Some of the jurors understood him to say this by direction of the court, yet it was held no ground for a new trial. But in Cole v. Swan, 4 G. Greene 32, the officer informed the jury that unless they agreed on a verdict they would be kept from Saturday till Monday evening without anything to eat, whereby one of the jurors was induced to consent that a verdict might be returned, and a new trial was granted; the court saying that in case of any conversation between the officer and the jury, the verdict mu/Jit to be set aside the moment the fad comes to the knowledge of the court. The words we have italicized certainly express an extreme view, opposed by the great weight of authority, and tend to weaken the force of the decision as an authority. Moreover, the fact that one of the jurors made oath that he was induced to agree seems to have been considered, when its consideration was unlawful.'
After giving the question extended discussion and consideration, we reach the conclusion that this ground of motion for a new trial ought to have been sustained. We deduce [175]*175from tbe authorities, as a sound proposition, that where misconduct on the part of the jurors, or the officers haying them in charge, is shown, and it reasonably .appears, from the nature of the misconduct and the attendant circumstances, that the verdict may have been unlawfully influenced thereby, a new trial ought to be granted. The remarks actually made by the bailiff, Parker, to some of the jurors, in response to inquiries, were, in themselves, the. mere honest and innocent expressions of his opinion of what the judge could or might do in reference to keeping the jury together, but the affidavits show, undeniably, that as the result of the interview, the jurors, or most of them, were made to understand and believe that the bailiff had declared, absolutely, that the judge would keep the jury together for the space of eight days unless they sooner agreed upon a verdict. The influence wrought upon their minds was therefore precisely the same as if the bailiff had, in fact, declared as they understood. It' was improper, and, therefore, unlawful, in the first instance, for the jurors to institute such an investigation and interview with the bailiff. An inquiry, how long the court would compel the jury to be kept together, unless they agreed upon a verdict, had a direct bearing upon the discharge of their duties as jurors. No communication with an outsider, whether officer or stranger, having such a bearing, is lawful. To hold such communication is misconduct on the part of the juror who does it, as well as the officer or stranger who engages in or tolerates it; and if the verdict is produced or affected by such misconduct, whether the improper influence which entered into it was justified by anything said or done by the officer or stranger or not, the mischief, effecting injustice to a party litigant, has been accomplished, for the redress of which there is no remedy but to set aside the verdict. The mis- ■ conduct in this case, consisted in holding any interview at all on the subject. The evil result was that the jury, whether justifiably or not, was made to believe that the judge would keep them together eight days longer. There is no room for doubt that this interview may have unlawfully influenced the verdict that was rendered. The jury had been engaged upon the'trial about a week or more; they had been out considering their verdict about eight hours without being able to agree; they had appealed to the bailiff to send for the judge at night to discharge them, on the. ground that it was impossible for them to agree ; and one or two of the jurors make oath that there appeared no prospect that they would ever agree; yet within two hours after the [176]*176interview they returned a verdict and were discharged. Upon these facts, the court should have granted a new trial, and for the error in refusing it the judgment is reversed and the cause remanded.
Reversed and remanded.