
    41 So.2d 400
    POPWELL v. CLANTON WHOLESALE GROCERY CO. et al.
    5 Div. 463.
    Supreme Court of Alabama.
    June 30, 1949.
    
      J. B. Atkinson, of Clanton, for appellant.
    Gerald & Gerald and Reynolds & Reynolds, all of Clanton, for appellees.
   FOSTER, Justice.

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.  