Action by Mrs. Phillips and Miss Cunningham against the county, to recover the value of land taken, and for damages resulting from acts of the defendant in widening a public road. At the first trial they obtained a verdict for $675 ; a second trial resulted in a verdict for $833.31 in their favoi’. The county excepted to the refusal of a new trial, and to the consideration by the court of certain affidavits by nine of the jurors who tried the case, which were submitted by the plaintiffs’ counsel after the motion for new trial was heard but before the decision thereon.
One of the grounds for new trial is, that the court, when requested by defendant’s counsel, refused to order the first verdict to be covered or concealed from the jury, although the court charged them thus : “You will perceive, gentlemen, by examining the declaration, that there is a verdict and judgment upon it by a jury that tried the case formerly. You are to pay no regard to that verdict and judgment. It is to have no effect upon your deliberations in this case. You are to try it just as if the case had never been tried before.” The affidavits of the nine jurors were to the effect that they did not know what the former verdict was, and did not read it until they had made the present verdict. On receiving these affidavits the court notified defendant’s counsel, and suggested that he might obtain affidavits of the jurors if he wished; but this he declined to do, and objected to the consideration of the affidavits taken, on the ground that they were inadmissible at that stage, the hearing of the motion having been had. The objection was overruled. In overruling the motion the judge stated that if the decision in the Dooley case, 86 Gra. 294, had been before him on the trial, he would have adopted the suggestion made therein as to the verdict on former trial, but the case was not presented, and he did not think he had the right to mutilate or conceal any part of the record without the consent of the parties. He further stated that, this being the second verdict for the plaintiffs and the evidence being sufficient to support it, he did not think he had the legal right to disturb it, citing 7 Ga. 295.
W. S. Thomson, for plaintiff in error.
Arnold & Arnold, contra.
Another ground for new trial was, that the court erred in charging the jury thus: “If you believe from the evidence that the plaintiffs were the owners and in possession of the land described in this declaration, and defendant in the manner alleged took the strip described, or any part thereof, and appropriated the same for public purposes such as widening the road, the plaintiffs would be entitled to recover on this branch of the case such sum as the evidence shows was the actual market value of the land so taken. And this would be true notwithstanding the defendant granted the order to take said property and widen said road on the condition that it should be done without expense to the county, unless you find that the plaintiffs had notice of the existence of such conditional order before the work was done. The mere record of said order on the minutes of the county commissioners would not be notice.”