Russell v. Brunswick Grocery Co.

Evans, J. 1. A very sharp issue of fact was made by the traverse to the garnishee’s answer. It was admitted that the insurance company, being indebted to L. M. Russell on a policy of insurance, had paid over to Mrs. L. M. Russell, on her giving a bond to dissolve the garnishment, the amount due thereon. The husband’s name was L. M. Russell; the wife’s name was L. M. Russell. The answer of the garnishee alleged that the policy was issued to the wife and the money was due to her. The traverse denied the policy was issued to the wife, but averred that it was issued to the husband and the money was due to him. The traverse was drawn to meet the answer and presented the issue which the judge submitted to the jury.' The condition of the bond given by Mrs. Russell to dissolve the garnishment is in the exact language of the Civil Code, § 4720, providing for the condition of bonds given by claimants to dissolve garnishments. The court properly held that she had dissolved the garnishment as claimant of the fund, and not as defendant in the original suit. 2. The court fairly submitted the real and only issue in the case to the jury. That issue was whether the policy of insurance had been issued to the husband and was his property, or had been issued to the wife and was her property. Throughout, the entire [43] charge this issue was made clearly to’ appear. While the charge of the court may contain an irrelevant and immaterial rule of evidence, and a few verbal inaccuracies, such as using the word “ testimony” where the word “evidence” would be more technically accurate, yet, taken as a whole, the issue was fairly submitted to the jury, and these verbal inaccuracies, construed in the light of the whole charge, were not calculated to mislead or confuse them. 3. The verdict of the jury in the first trial was indorsed upon the traverse and was not concealed or erased when the papers were given to the jury. The judge certifies that no request was made to detach or conceal the former verdict. If a request had been made, the judge would have probably complied with it. The omission to conceal from the jury the verdict previously returned in the case seems to have been a clear inadvertence. Each juror made affidavit that he was not influenced by the former verdict, but that his verdict was based solely on the evidence given on the trial now under review. The inadvertent sending to the jury-room pleadings containing a verdict formerly rendered in the same case by a prior jury will not be sufficient ground for vacating a verdict, unless some harmful result is shown. Southern Ry. Co. v. Coursey, 115 Ga. 602 (1); Shuman v. Smith, 100 Ga. 415; Ga. Pacific Ry. Co. v. Dooley, 86 Ga. 300. 4. The evidence was conflicting. The plaintiff company sold its goods to the husband, and very probably some of these very goods were covered by the policy of insurance; the storehouse was' rented to the husband; and the testimony of the insurance agent who issued the policy very strongly suggests conviction that he was dealing with the husband when .he wrote the policy of insurance. This is the second verdict for the plaintiff; the trial judge approved it; and no material error of law having been committed, this court will not disturb the judgment of the trial court. . Judgment affirmed. All the Justices concur.