Lee v. Central of Georgia Railway Co. , 147 Ga. 428 ( 1917 )

Gilbert, J.

1. The Court of Appeals has jurisdiction to hear and determine this case. It does not “involve the construction of the constitution of the State,” nor is it a case “in which the constitutionality of any law of the State of Georgia ... is drawn in question,” in contemplation of the amendment to the constitution, ratified November'7, 1916, relating to the jurisdiction of the Supreme Court.

The record of the case, together with the query propounded by the Court of Appeals, shows that the trial judge, in rendering the judgment granting a new trial, declared a part of a statute of the General Assembly “unconstitutional,” without indicating whether it offended against the State or the Federal constitution, and without pointing out what portion of either constitution it offended. The question propounded assumes that the ruling has reference to the constitution of Georgia. Even with this qualification the rulihg is not sufficiently specific to afford a review of the same; ’ ■ A reviewing court can not ascertain what section or paragraph of the constitution the trial judge had in mind; and it is,an unvarying rule that this court will not search through and consider the entire constitution, State or Federal, to determine whether the act offends in some particular, where none is specified. Griggs v. State, 130 Ga. 16 (60 S. E. 103); Anderson V. State, 2 Ga. App. 1 (58 S. E. 401). The judgment, therefore, in this ease should be treated without reference to the constitutionality of the act, since this has not been drawn in question.

3. The second question is answered in the negative. An employee of a railway company engaged in interstate commerce can riot maintain a joint action against the company and its engineer under the “Federal employer’s liability act” of 1908, where concurring negligence of the interstate carrier and its engineer in' the course of interstate commerce is alleged as the cause of the injury to 'the plaintiff. And this is true irrespective of any allegation as to a violation of the “safety-appliance act” of Congress.

The Federal employer’s liability act imposes a duty upon the carrier, and this law is exclusive. All State laws which were applicable to Such a case prior to the above enactment are suspended. Landrum v. W. & A. R. Co., 146 Ga. 88 (90 S. E. 710); N. Y. Central R. Co. v. Winfield, 244 U. S. 147 (37 Sup. Ct. 546, 61 L. ed. 1045, Ann. Cas. 1917D, 1139); N. Y. Central &c. R. Co. v. Tonsellito, 244 U. S. 360 (37 Sup. Ct. 620, 61 L. ed. 1194). This law, however, does not apply to the engineer. It is statutory, and its applicability is limited by its own terms to interstate common carriers. “As only common carriers are liable under the act, an individúal'or a corporation not a common carrier can not be made a joint defendant. Nor can an employee of a defendant railroad company be joined with it as a defendant.” Richey,. Fed. Em. L. Act (2d ed.), § 128, and authorities cited. See also Taylor v. Southern Ry. Co., 178 Fed. 380. In the case of Western & Atlantic R. Co. v. Smith, 144 Ca. 737 (87 S. E. 1082), this court decided 'that in a suit under the State law an employee of a railroad conipany could not join as defendants, in the same action, the employer company and another railroad company not sustaining the relation of employer. In such a case the rules of law applicable to the several defendants are not the same. To join defendants in.one suit they must .owe the same duty. 38 Cyc. 483. Where there is no-joint duty there can be no joindéri ' 29 Cyc. 565, note 71. In'a suit where the laws of this State are applicable to both the engineer and the carrier, they may be jointly sued for an injury caused by concurring negligence of the two. Southern Ry. Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191).

A conclusion contrary to the one stated above, even if it could be reconciled with the Federal statute, would lead to confusion and injustice. "Under our Civil Code, § 4513, “if judgment is entered jointly against several trespassers and is paid off by one, the others’shall be liable to him for contribution.” If the carrier and its engineer were jointly liable under the conditions stated in 'the second question, a joint judgment would result against them, and they would be equally bound, regardless of the fact that the duties imposed upon them are not the same. . The jury would have no power in such a case to specify the particular damages to be recovered of each, since Civil Code § 4512 is not applicable to* personal torts. McCalla v. Shaw, 72 Ga. 458; Cox v. Strickland, 120 Ga. 104 (47 S. E. 912, 1 Ann. Cas. 870).

All the Justices concur, except Fish, C. J., absent, and Atlcinson, J., disqualified.