I cannot agree with the majority of the judges in their view that when the evidence in this case is viewed in its most favorable light to appellee no liability has been shown on the part of appellant. The evidence is in sharp conflict as to all the material issues in the case and the question of fact was submitted to the jury by the court under correct instructions. The majority of the court have clearly invaded the exclusive province of the jury and determined the question of fact as to liability themselves. There is nothing in the record that shows that the verdict was the result of passion or prejudice and where the evidence *Page 133 is conflicting the question of fact as to liability was one for the jury and not for the court. May high regard for the position of a jury in our system of jurisprudence and the solemnity of a jury verdict is such that I am not willing to follow the majority into the field of the determination of questions of fact. To do this, in my humble judgment, will tend in the end to destroy the jury system or else result in a constitutional amendment preventing judges from interfering with jury verdicts at all. My high regard for the jury system and the solemnity of jury verdicts and the duties devolving upon jurors cannot be better expressed than the recent charge of Judge Gordon W. Chambers, Judge of the city court of Richmond county, Ga., to a jury which had been summoned to determine issues of fact in cases which they were to try. The charge he made them is as follows: "Gentlemen of the Jury, by being selected for jury service you have been elevated to the peerage of democracy. As such you have a noble opportunity for service, obligated by patriotic duty to God and country. This duty is deserving of the consecrated dedication of a conscientious concentration of your abilities and the just impulses of your honor.
"You are a shield of protection against false accusers, transitory passions and prejudice.
"You are determiners of truth revealing the character of our country as a land of the free and home of the brave.
"You are the preservers of liberty that walks with progress and restrains only libertine license to insure its own freedom.
"You are the protectors of all legal rights of society, citizenship and the state.
"You are guarantors of justice, constitutional and statutory, exactly, evenly and universally applied.
"You are the custodians of American civilization, for without law there can be no civilization, without courts there can be no law and without truth and independence there can be no courts.
"The only title of nobility recognized by America's loyal house is in the peerage of the jury box where trial *Page 134 by peers determine the truth of issues between the state and its citizens.
"This title carries no feudal privilege or materialistic value, however, it merits the accolade of achievement — the accomplishment of the aristocracy of service.
"This high honor carries only the title as a word of address or as an adjective of description, `Gentlemen of the Jury'."
The sentiment contained in this charge should sink into the hearts and minds of every judge in the United States so that they might leave the proper regard for the solemnity of jury verdicts.
Judge Mehaffy requests that I note him as joining in this dissenting opinion, which I take pleasure in doing.