Opinion
5 Div. 463.
June 30, 1949.
Appeal from Circuit Court, Chilton County; Arthur Glover and Oakley W. Melton, Judges.
J. B. Atkinson, of Clanton, for appellant.
The conduct of the janitor in entering the jury room while the jury was deliberating, constituted ground for a new trial. 16 A. E. Ency. of Law 519; Craig Co. v. Pierson Lumber Co., 169 Ala. 548, 549, 53 So. 803; Barnett v. Patillo, 251 Ala. 1, 36 So.2d 451; 64 C.J. 1015; Briggs v. Prowell, 215 Ala. 604, 112 So. 197.
Gerald Gerald and Reynolds Reynolds, all of Clanton, for appellees.
Where janitor went into room where jury was deliberating in a civil case, to repair a toilet out of order, engaging in said duty for about five minutes, during which time no conversation took place between said janitor and jury, and nothing in janitor's conduct could have influenced jury, trial court properly denied motion for new trial on such ground. Tatum v. State, 20 Ala. App. 436, 102 So. 726; Broyles v. State, 23 Ala. App. 101, 121 So. 450; Mullins v. State, 24 Ala. App. 78, 130 So. 527; Id., 222 Ala. 9, 130 So. 530; Harris v. State, 233 Ala. 196, 172 So. 347; Dulaney v. Burns, 218 Ala. 493, 119 So. 21; Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Boswell v. Land, 217 Ala. 39, 114 So. 470; Louisville N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001.
The appellant as administratrix sued appellees' partnership for damages under the homicide statute for the alleged negligent death of her husband. The testimony is in conflict: the chief contention being on which side of the road the accident occurred, and whether both lights were burning at the time on appellees' truck. There was verdict for defendants.
By agreement between counsel for the respective parties the only issue presented on appeal to this Court is the alleged misconduct of the courthouse janitor in entering the jury room while the jurors were deliberating, and this action on the part of the janitor forms the basis for the 6th, 7th, 8th, 22d, 23d and 24th grounds of plaintiff's motion for a new trial.
According to the affidavit of the janitor, J. R. Owens, the bailiff in charge of said jury reported to him that the toilet to the jury room was out of order, and that while he was en route to the hardware store across the street to secure a vacuum pump he talked for "a moment" with R. W. Taylor (one of the defendants) who was standing on the sidewalk talking with J. T. Rockett. He then proceeded to the jury room to repair the plumbing where he remained for five minutes or more and that, other than speaking to the jury, he did not carry on any conversation. During the time he was in the jury room the jurors were engaged in deliberation. The evidence rebutted the presumption that the conversation with R. W. Taylor, or the janitor's presence in the jury room was prejudicial, and clearly showed that the janitor was administering to the needs of the jury. Harris v. State, 233 Ala. 196, 172 So. 347; Alabama Power Co. v. Hall, 212 Ala. 638, 639 (13-15), 103 So. 867; Dulaney v. Burns, 218 Ala. 493 (11-13), 119 So. 21; Boswell v. Land, 217 Ala. 39, 114 So. 470; Louisville Nashville R. R. v. Holland, 173 Ala. 676 (15), 55 So. 1001.
Affirmed.
BROWN, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur.