Physioc v. Shea

Jackson, Chief Justice. 1. The new trial was properly granted on the ground that the court erred in his remarks to the jury in regard to allowing them their meals only at their own expense, after [470] they had been out all night without supper or breakfast. It operated as a threat to starve such as had no money into finding a verdict, for in ten minutes, after being hung all night, they agreed on a verdict. The old idea of starving juries to coerce a verdict has past away. Our own Code explodes it. Code, §3947. The same section also empowers the judge to furnish refreshment at the expense of the county. 37 Ga., 195. 2. It should have been granted, because the verdict is contrary to the law and the evidence. Shea might well have discharged Physioc, who seems to have been off on a spree for from one to several days, according to the differing recollection of different witnesses as to the time he re mained off on the frolic, yet off on a spree according to all, thus neglecting his business as foreman or boss over the other tailors employed by Shea, and taking some of them with him, according to some testimony in the record. If the law would have justified him in discharging Physioc, and Physioc could not have complained of that, can he complain when he only reprimanded him ? Surely not. Therefore, whether he discharged him or spoke harshly to him only, Physioc ought not to recover. It may be that the pleadings did not permit the consideration of his justification in discharging him, if he did. Yet, as the new trial should and will be granted any way on the first ground, the pleadings can be amended for the new trial, if deemed advisable. At all events, under the facts, we are clear that a new trial should have been granted as well on the 1st, 2d, 3d and 4th grounds as on the 5th or 6 th. From the bill of exceptions, it seems to have been granted on the 5th and 6th only, which involve the same point, while in the record it is granted on the 3d and 6th, which 3d ground is that the verdict is against the weight of evidence and without evidence to support it. Ordinarily the record would prevail, but as the interlocutory bill of exceptions, which is filed by the defendant in error to the main bill of exceptions, also recites that it was granted on [471] the 5th and 6th, and as this is part of the record, we assume that the truth is that way. The judgment is affirmed because the presiding judge erred as set out in the 5th and 6th grounds of error in the motion, and also because, in our judgment, the verdict is not supported sufficiently by' the evidence, and is therefore against law and equity. There was no error, therefore, in granting the new trial. Judgment affirmed.