Page images


placed once in jeopardy, and claimed his , but the mechanical act of receiving the verdischarge. This court held that “a verdict | diet, as the consent had provided it should so received having been, on his motion, set i be received. If he had been present, the aside as illegal, when afterwards arraigned act would have been no less mechanical. for trial on the same indictment for the In Nolan's Case, 53 Ga. 137, 55 Ga. 521, offense before another jury, the prisoner 21 Am. Rep. 281, 1 Am. Crim. Rep. 532, the may plead specially his former jeopardy in event contemplated did not happen.” bar of a second trial, and, if supported by We conclude from these authorities that the record and the extrinsic facts, the plea the question here raised could have been should be sustained, and thereupon the pris- adjudicated under a motion for a new trial, oner should be discharged.”

and that a failure to include this ground in It will be observed that the defendant in such motion would preclude the defendant, the Nolan Case treated the verdict as a after the denial of the motion, and the nullity and made a motion to set it aside affirmance of the judgment by this court, as such, which was done, instead of making from seeking to set aside the verdict as a a motion for a new trial, and setting up nullity. his defense as an irregularity, and seeking 3. The motion to set aside the verdict a new trial because of some error commit- complains of the reception of the verdict in ted at the trial. In the latter case he the involuntary absence of the defendant, would waive the fact that the verdict was while he was incarcerated in jail, and in a nullity, but insist that it was merely the absence of his counsel. Paragraph 2 of irregular and erroneous, requiring a new the motion avers that he did not waive that trial. Judge Bleckley, delivering the opin- right, nor did he authorize anyone to waive ion in the last Nolan Case, said: “One it for him, nor did he consent that he should trial, and only one for each crime, is a not be present; that he did not know that fundamental principle in criminal proces the verdict had been rendered and the jury dure, and must be the general rule prac- discharged until after the reception of the tically ministered in all free countries. For verdict and the discharge of the jury; and the public authority, whether king or com- that he did not know of any waiver of his monwealth, to try the same person over and presence made by his counsel until after over again for the same offense, would be sentence of death had been pronounced upon rank tyranny.

Though some ex. him. Paragraph 3 of the motion alleges ceptions to the general rule are to be ad that on the day the verdict was rendered, mitted, as when a new trial is had on the and shortly before the judge who presided prisoner's motion, or when judgment upon on the trial of the case began his charge to a void indictment has been arrested, the the jury, the judge privately conversed with transcendent importance of the rule itself two of the counsel for the defendant, and in requires that the exceptions should be few the conversation referred to the probable and strictly guarded.”

danger of violence to the defendant and his In the instant case, the defendant made a counsel if he or they were present when the motion for a new trial, which was overruled verdict was rendered and it should be one by the court (paragraphs 6 and 7 of de- of acquittal, and after the judge had thus fendant's motion; also Frank v. State, 141 expressed himself he requested counsel to Ga. 243, 80 S. E. 1016), thus treating the agree that the defendant should not be verdict, not as a nullity, but as an irreg- present at the time the verdict was ularity. In Smith v. State, 59 Ga. 513, 27 | dered and the jury polled; that under these Am. Rep. 393, it was held that, although circumstances counsel did agree with the the prisoner be in custody, he may consent judge that the defendant should not be that the verdict shall be received in his present at the rendition of the verdict, and absence, and that a verdict thus received he was not present at the rendition of the was valid, notwithstanding he was at the verdict, nor were his counsel present. It time confined in jail. The facts in this case is contended that it is the constitutional were somewhat similar to the Nolan Case right of the defendant to be present at every as to the agreement. The court said: "He stage of the trial, and that he cannot waive ought to have been brought from the jail, that right, nor can his counsel waive it for so as to be present at the reception. But him, and that his absence at the reception we think it was merely an irregularity, and of the verdict vitiates the whole trial. that no matter of substance was involved. It is the undoubted right of a defendant Having surrendered his right to poll the who is indicted for a criminal offense in jury, no other of any value to him remained, this state to be present at every stage of for the exercise

of which his pres- his trial. But he may waive his presence ence was important. Had he been in court, at the reception of the verdict rendered in the result must have been the same as it his case. In Cawthon v. State, 119 Ga. 395, wag Nothing took place in his absence '46 S. E. 897, a waiver was made by the de


fendant's counsel in his presence as to his that hold to the contrary is not, in my personal presence at the reception of the opinion, satisfactory or by any means converdict. This court held in that case: clusive. Counsel is generally much better

“8. Even if an attorney, by virtue of the able to take care of the rights of the acrelation of attorney and client existing be- cused than he is himself, and the accused is tween himself and one charged with a fel- | better protected from improvident waivers ony, has no implied authority to waive the by his case being left to the control of his right of his client to be present at the re-counsel than if he were to take charge of ception of the verdict, if the attorney makes the same in his own behalf.” an express waiver to this effect in the pres- As said by this court in effect in the case ence of the client, who does not at the time of Lampkin v. State, 87 Ga. 517, 13 S. E. repudiate the action of his counsel, a ver 523, it is not sound practice for counsel to dict afterwards received in the absence of make a waiver of their client's presence at the accused and in consequence of the the reception of the verdict, take the waiver will not be held to be invalid at chances of acquittal for their client, and the instance of the accused, seeking, after the then, after verdict of guilty, for the defend. reception of the verdict, to repudiate the ant to be allowed to repudiate the action action of his counsel in making the waiver. of counsel and employ other counsel to set

“9. Before a verdict received in the ab. aside the verdict because of the absence sence of the accused will be held to be in- of the defendant at the time it was renvalid, it is incumbent upon the accused to dered. Who was better prepared to protect show that he was in custody of the law at the interests of the defendant-trained and the time the waiver was made, that he expert counsel, or the defendant himself! made no waiver of his right to be present, True, he had the right to conduct the trial and that he did not authorize his counsel in person, if he so desired; but the defendto make such waiver for him, and, if an ant had committed his case to able and exauthorized waiver has been made by counsel, perienced counsel, who, in the exercise of that he has not ratified the same or allowed their relation as attorney to the client, the court to act upon the waiver of counsel waived his right to be present, and they after he has notice that the same has been having made the waiver, the defendant by made."

his conduct having acquiesced to it, he Judge Cobb, who delivered the opinion of should be bound by it. the court in the Cawthon Case, after citing In the instant case the defendant, in his a number of authorities pro and con, said motion to set aside the verdict as a nullity, (p. 413): “These decisions seem to draw says that he did not know of the waiver of no distinction between a waiver made by his presence made by his counsel. After the counsel in the presence of his client and one verdict of guilty was rendered against him made in his absence. While counsel may in the trial court, the defendant made a have no implied authority, growing out of motion for a new trial on various grounds, the relation of attorney and client, to make and, the motion having been overruled, a a waiver of this character for his client in writ of error was sued out to this court, his absence, we can see no good reason why and the judgment of the lower court was the accused would not be bound by an ex. affirmed. See Frank v. State, supra. The press waiver made in his presence. Such seventy-fifth ground of that motion contains a waiver is to all intents and purposes the the following recital, among others: “The waiver of the client. It would be trifling defendant was not in the court room when with the court to allow it to act upon a the verdict was rendered, his presence havwaiver thus made, and then impeach its ing been waived by his counsel." action on the ground that counsel had been We pause here long enough to say that guilty of an unauthorized act. And while this court will take judicial notice of its we recognize fully that there are limita- own records, and will of its own motion, tions upon the authority of counsel, the or at the suggestion of counsel, inspect the client, even though he be charged with a records of this court in a former appeal capital felony, should not be allowed to im- of the same case. Strickland v. Western & peach the authority of his counsel, when A. R. Co. 119 Ga. 70, 45 S. E. 721; Dimhe acts in his presence, unless he promptly mick v. Tompkins, 194 U. S. 540, 548, 48 repudiates the unauthorized act before the L. ed. 1110, 1113, 24 Sup. Ct. Rep. 780; court bases action upon it. Speaking for and authorities there cited; Mississinewa myself, I am inclined to the opinion that | Min. Co. v. Andrews, 28 Ind. App. 496, 63 the right to make the waiver resides in the N. E. 231; Culver v. Fidelity & Deposit Co. counsel, whether the accused be present or 149 Mich. 630, 113 N. W: 9; Studabaker v. not at the time of the waiver; his authority Faylor, 52 Ind. App. 171, 98 N. E. 318; arising from the mere relation of attorney Mayhew v. State,


Tex. Crim. Rep. 155 and client. The reasoning of the courts's. W. 191 (5); South Florida Lumber &


p. 850.

Supply Co. v. Read, 65 Fla. 61, 61 So. 125; | to have the motion heard by both the trial Bohanan v. Darden, 7 Ala. App. 220, 60 court and the supreme court, and after a So. 955; Alabama City G. & A. R. Co. v. denial by both courts of the motion, to Bates, 155 Ala. 347, 46 So. 776 (2); Mc- now come in and by way of a motion to Nish v. State, 47 Fla. 69, 30 So. 176; West- set aside the verdict include matters which fall v. Wait, 165 Ind. 353, 73 N. E. 1089, were or ought to have been included in the 6 Ann. Cas. 788; 1 Chamberlayne, § 683, motion for a new trial.

While a defendant indicted for crime in The motion under review recites that this state has the legal right to be person"the said judge, Hon. L. S. Roan, upon con- ally present at every stage of his trial, as sidering the motion for new trial made by before stated, there are certain matters this defendant, after the reception of said which he may waive, and which many prisverdict as above stated, rendered his judg- oners do waive, at their trial. They may ment denying said motion, and in render waive copy of indictment, formal arraigning said judgment stated that the jury had ment, and list of witnesses before the grand found the defendant guilty,” etc.

jury, all of which are important rights. When, therefore, the defendant by motion They may waive a preliminary hearing befor a new trial invoked from the court a fore a committal court, a jury of twelve to ruling upon alleged errors that had been try them, or any legal objection to jurors committed upon the trial (reciting on the who have qualified on their voir dire; they face of the motion a knowledge of his ab- may even waive trial entirely, plead guilty sence when the verdict was returned, and of murder, and be sentenced to hang. the waiver of his presence), he will not now Sarah v. State, 28 Ga. 576 (2), 581; Wigbe heard to say that the verdict was a nul- gins v. Tyson, 112 Ga. 745, 750, 38 S. E. lity on account of his not being present 86. These are rights personal to the deat its rendition, after the motion for a fendant, and it would be absurd to say that new trial has been denied, and the judg. when his counsel had waived his presence ment denying it affirmed by this court. at the reception of the verdict, and this Frank v. State, supra. And, moreover, an waiver had been brought to his attention extraordinary motion for a new trial was in ample time for him to move for a new made, and has likewise been refused, and trial on that ground, which he fails to do the judgment overruling it affirmed by this until after he makes a motion for a new court. Frank v. State, 142 Ga. 617, 83 trial on other grounds, with knowledge of S. E. 233. He had the right to invoke a the fact of his absence when the verdict ruling on that question in the motion for was rendered, and then, after the motion a new trial, and, failing to do so, he can- so made has been finally adjudicated against not now be heard to say that he will treat him, he can successfully move to set aside the verdict as a nullity and move to have the verdict as a nullity. We may add that it set aside as such. It would be a re- the allegations of the petition show that at proach upon the court's administration of the rendition of the verdict the jury was the law to allow a defendant to make a polled by the court, under an agreement motion for a new trial, with a knowledge had with defendant's counsel when the of his absence when the verdict against him waiver was made. vas rendered, and have the grounds of the In this state, after a verdict of guilty of motion adjudicated by the court, and then murder and the overruling of a motion for move to set the verdict aside as void. The a new trial, a writ of error will lie to this defendant necessarily knew, when sentenced court, assigning error on the overruling of by the court, (for he was then present), the motion. In some jurisdictions the practhat the verdict had been rendered against tice is different. But on examination of the him. His counsel must have known it, for cases in other jurisdictions in which a they filed his motion for a new trial. He complaint of the reception of a verdict in and they are presumed to know the law. the absence of the accused was made and His motion for a new trial recited that his sustained, it will be found that very compresence at the reception of the verdict had monly this was treated as a ground for rebeen waived by his counsel. Under these manding the case for another trial. We circumstances it must be held that the de- know of no provision in the Constitution fendant acquiesced in the waiver of his of the United States, or of this state, nor counsel of his presence at the reception of 1 of any statute, which gives to an accused the verdict. It would be trifling with the person a right to disregard the rules of court to allow one why had been convicted procedure in a state, which afford him due of crime, and who had made a motion for pr ess of law, and demand that he shall a new trial on over 100 grounds, including move in his own way and be granted absothe statement that his counsel had waived lute freedom because of an irregularity (if his presence at the reception of the verdict,'there is one) in receiving the verdict. If


Frank v. State, 141 Ga. 243, 80 s. E. R folk County for the determination of

an accused person could make some of his fright does not apply where physical inpoints of attack on the verdict, and reserve juries are caused by a fall consequent upon other points known to him, which he could

a faint caused by an explosion due to anthen have made, to be used as grounds other's negligence. for further attacks on the verdict, there Negligence explosion liability of would be practically no end to a criminal

property owner.

2. One is not liable for injuries caused

by an explosion of a tank of gas upon his 4. Comparing the grounds of the motion premises, if it was not at the time in his to set aside the verdict in this case on the custody and control. ground of disorder in the court room dur

Same - res ipsa loquitur absence of ing the progress of the trial, of cheering and custody. applause outside the court room, and of the 3. The rule of res ipsa loquitur does not oral remarks of the trial judge before sign- establish negligence against the owner of ing the order denying a new trial, with the property upon which a tank of gas exgrounds of the motion for a new trial made plodes, in the absence of anything to show in the former record in this case (see

that it was in his control. Strickland y. Western & A. R. Co. 119 Ga. 70, 45 S. E. 721), when it was here under

(June 16, 1914.) review upon the denial of that motion

by the 1016), it will be seen that the questions there made as to these matters were sub- the Supreme Judicial Court of an action stantially the same as those sought to be brought to recover damages for personal inraised by the present motion, and the ques-juries caused by the explosion of a tank of tions there raised were adjudicated by this gas. Judgment for defendant. court in that case adversely to the conten

The facts are stated in the opinion. tions of the defendant. This court, there

Mr. Harold C. Haskell, for plaintiff: fore, will not again consider those same

Defendant owed to the plaintiff the duty questions when sought to be raised by the of using reasonable care to keep the premismotion to set aside the verdict now under

es where she was employed in a safe and review.

suitable condition, she being there by imJudgment affirmed.

plied invitation as the employee of a joint

occupant of said premises. All the Justices concur, except Fish, Ch.

Wright v. Perry, 188 Mass. 268, 74 N. E. J., absent.

328, 18 Am. Neg. Rep. 461; Gile v. J. W.

Bishop Co. 184 Mags. 413, 68 N. E. 837. Application for the allowance of a writ of

The doctrine of res ipsa loquitur applies error denied by the Supreme Court of the in this case. United States, December 7, 1914 (235 U. S.

Beattie v. Boston Elev. R. Co. 201 Mass. 694, 59 L. ed. —, 35 Sup. Ct. Rep. 208).

3, 86 N. E. 920; McNamara v. Boston & M. R. Co. 202 Mass. 491, 89 N. E. 131; Minihan

v. Boston Elev. R. Co. 197 Mass. 367, 83 N. MASSACHUSETTS SUPREME JUDI

E. 871; O'Donnell v. Boston Elev. R. Co. CIAL COURT.

205 Mass. 200, 90 N. E. 977; Pinney v. Hall,

156 Mass. 225, 30 N. E. 1016; Cassady v. ELLA CONLEY, by Next Friend, Old Colony Street R. Co. 184 Mass. 156, 63

L.R.A. 285, 68 N. E. 10, 14 Am. Neg. Rep. UNITED DRUG COMPANY.

559; Levin v. New York C. R. Co. 133 N. Y.

Supp. 467; Kearner v. Charles S. Tanner (218 Mass. 238, 105 N. E. 975.)

Co. 31 R. I. 203, 29 L.R.A. (N.$.) 537, 76

Atl. 833; White v. Boston & A. R. Co. 144 Fright fainting fall injury liability.

Mass. 404, 11 N. E. 552, 9 Am. Neg. Cas. 1. The rule disallowing damages for | 461. Note. - Right to recover for physical in- , III. Fright resulting from wilful tort, 833.

jury resulting from fright caused by IV. Fright because of another's danger, a urongful act.

833. 1. Introduction, 830.

I. Introduction. II. Fright caused by negligence. a. Treating physical injury resulting The earlier cases on this question are dis

from fright as a mere incident cussed in the note to Huston v. Freemansof the fright, 832.

burg, 3 L.R.A. (N.S.) 49, and supplement b. Remoteness of the damage, 832. thereto appended to the case of Chittick v. c. Doctrine of expediency, 832. Philadelphia Rapid Transit Co. 22 L.R.A. d. Miscellaneous cases, 833.

(N.S.) 1073.


[ocr errors]


There being evidence of physical injury | herself she fell and sustained the injuries subsequently to the accident, the question complained of. In either event the defendwhether such injury was the result of the ant would be responsible for the injuries accident was obviously for the jury. sustained.

Copson v. New York, N. H. & H. R. Co. Cameron v. New England Teleph. & Teleg. 171 Mass. 233, 50 N. E. 613; Berard v. Co. 182 Mass. 310, 65 N. E. 385, 13 Am. Neg. Boston & A. R. Co. 177 Mass. 179, 58 N. E. Rep. 86; Homans v. Boston Elev. R. Co. 180 586; Driscoll v. Gaffey, 207 Mass. 102, 92 Mass. 456, 57 L.R.A. 291, 91 Am. St. Rep. N. E. 1010; Cassady v. Old Colony Street 324, 62 N. E. 737, 11 Am. Neg. Rep. 248. R. Co. 184 Mass. 156, 63 L.R.A. 285, 68 N. Messrs. Sawyer, Hardy, & Stone for E. 10, 14 Am. Neg. Rep. 559.

defendant. The facts would have warranted the jury in finding that the plaintiff was thrown by Crosby, J., delivered the opinion of the the force of the explosion and so rendered court: unconscious, or that in attempting to save This is an action brought by a minor,

The difference of opinion as to the right wrongful obstruction of a natural waterway to recover for physical injury resulting in such a manner as to discharge the water from fright, discussed in the notes to which upon plaintiff's land causing damage therethis is a supplement, continues in the recent to, and affecting the health of his wife, who

That there may be a recovery is af. was one of the occupants of a dwelling firmed in Spearman v. McCrary, 4 Ala. App. situated thereon, the question of fright 473, 58 So. 927, certiorari denied in 177 Ala. was not considered, but the wife, who 672, 58 So. 1038, where a recovery was al was afflicted with a hemorrhage due primalowed against the owner of an automobile, rily to a small fibroid tumor, which made who, in operating it upon the public high- her very nervous was affected by the flowing way, caused a mule hitched to a buggy con of the water into the plaintiff's cellar. In taining two of the plaintiff's small children the course of the opinion the case of Mitchell to run away, so frightening and unnerving v. Rochester R. Co. 151 N. Y. 107, 34 L.R.A. her that she fainted and swooned, was made 781, 56 Am. St. Rep. 604, 45 N. E. 354, 1 sick and subjected to physical suffering. Am. Neg. Rep. 121, referred to in the earlier After examining the different reasons given note, is cited, and it is stated that mental by the courts for denying a recovery in suffering is not a legal element of damages such cases, the court concludes that a re in such cases, and there can be no recovery covery may be had although the plaintiff except for physical ills which be has not sustained any physical injury other ascribed directly and with reasonable cerwise than the result of fright or mental tainty to the defendant's wrongful act. It shock.

is further stated that the defendant in this But see Baehelder v. Morgan, infra, II. d. case should not be held liable for the mental

So, a recovery has been held allowable for and nervous disturbance of the plaintiff's nervousness which was the proximate re- wife due to a cause entirely separate from sult of fright.

the flooding of the plaintiff's premises. The rules announced in Green v. Shoe- In an action for trespass to real property maker, 111 Md. 69, 23 L.R.A.(N.S.) 667, 73 brought by a husband and wife occupying Atl. 688, cited in note in 22 L.R.A. (N.S.) the same, in which it was sought to recover 1074, were held applicable to an injury re- damages for fright to the wife resulting sulting to a young woman from a fall due from the trespass, it is stated that the fact to fright when she was crossing a railroad that the defendants did not commit an astrack directly in front of an engine, caused sault or a battery upon the plaintiff cannot by the whistle being suddenly blown in an change the result; that they unlawfully entirely unreasonable manner, and the trespassed upon their property, and if their cylinder cocks opened permitting an un acts did not by themselves constitute an usual and unnecessary quantity of steam to actionable wrong, the jury could at least escape making an unusual noise. Baltimore consider them an aggravation of damages. & 0. R. Co. v. Harris, 121 Md. 254, 88 Atl. May v. Western U. Teleg. Co. 157 N. C. 416, 282.

37 L.R.A.(N.S.) 912, 72 S. E. 1059. See Miscarriage following fright or shock note to this case in 37 L.R.A.(N.S.) 912, on caused by the negligence of the operator of personal wrong as aggravation of damages an automobile in colliding with a carriage for trespass on realty. in which the plaintiff was riding was held Even the courts which deny a recovery in Pankopf v. Hinkley, 141 Wis. 146, 24 for physical injury resulting from fright alL.R.A.(N.S.) 1159, 123 N. W. 625, to entitle low a recovery where the fright causes the the one thus suffering to maintain an action person to take some action which results in against the operator of the automobile, al. a direct physical injury. CONLEY V. UNITED though there was no physical contact with Drug Co. the person.

Compare with Baltimore & 0. R. Co. v. See also Salmi v. Columbia & N. River R. Harris, supra. Co. post, 834.

In Kennell v. Gershonovitz, 84 N. J. L. In Cook v. Mohawk, 207 N. Y. 311, 100 N. 577, 87 Atl. 130, the rule disallowing damE. 815 an action by a landowner for the ages for fright was held not applicable to


« PreviousContinue »