Louisville & Nashville Railroad v. Tomlin , 161 Ga. 749 ( 1926 )

Gilbert, J.

We will first consider the insistence that the petition fails to comply with rule 2 of this court, with reference to petitions for certiorari. This is in effect a motion to dismiss the case. In so far as applicable to the present discussion, rule 2 is as follows: “The petition must specify plainly the decision complained of, and the alleged errors. It will not be sufficient to set out the contentions and assignments of error made in the original bill of exceptions or motion for a new trial, but it shall be necessary to plainly and specifically set forth the errors alleged to have been committed by the Court of Appeals. . . Argument and brief of authorities must not be included in the petition, but must be submitted separately. In considering the question of the grant of the petition for certiorari, and, if granted, in disposing of the case, this court will only consider the questions raised in such petition.” 153 Ga. 890. The amendment to the constitution of this State (Ga. Laws 1916, p. 19), providing for the writ of certiorari from this court to the Court of Appeals, was ratified on November 7, 1916. In the first case thereafter (Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 620, 91 S. E. 873) in which this court dealt with the subject, it was said: “When considered in connection with the whole constitutional scheme of two reviewing courts, and in the light of the history of the two courts, it is manifest that a careless exercise of the power would defeat the very purpose of the institution of the Court of Appeals. So exercised it would be but the prolongation of litigation by the interposition of an intermediate court, and might burden the dockets of this court with cases which the framers of the constitutional amendment intended ordinarily to terminate in the Court of Appeals. This court, therefore, should be chary of ac-’ tion in respect to certiorari, and should not require by certiorari any case to be certified from the Court of Appeals for review and determination, unless it involves gravity and importance. It was not intended that in every case a complaining party should have more than one right of review.” Presiding Justice Evans, who spoke for the court, discussed the- practice of the Supreme Court of the United States in granting writs of certiorari; and the provision of the Congress of the United States providing for the exercise of the power by that court, after which he said: “The constitutional amendment of 1916 is so coincident in verbiage with the provision in .the act of Congress for review by certiorari of decisions of the Circuit Court of Appeals by the Supreme Court of the United States, that we may indulge the thought that it was modeled by its framers on the act of Congress of 1891. At all events, the striking similarity in phraseology and the desirability of uniformity in construction impel us to follow, so far as the same may be applicable to our system of procedure, the construction placed on this language in the act of Congress by the Supreme Court of the United States.” The decision in the Yesbih case has since been considered the chart and guide for this court in all subsequent cases where the rules there announced were applicable. In King v. State, 155 Ga. 707, at p. 712 (118 S. E. 368), Chief Justice Russell, speaking for the court, citing and approving the Yesbih case, said: “It was not the purpose of the amendment of 1916 to the constitution, whereby provision Avas made for the issuance of a writ of certiorari to the Court of Appeals, that such review was conferred upon all litigants as a matter of right. If this had been true, there would be but little reason for the existence of the Court of Appeals; for the losing party in practically every case, if dissatisfied Avith the judgment of the Court of Appeals, Avould demand and avail himself of the writ of certiorari, and this court would have to decide cases of Avhich, under the constitution, the Court of Appeals has exclusive jurisdiction, as Avell as those in which jurisdiction has been reserved to the Supreme Court, just as this court did before the creation of the Court of Appeals.” This ruling was concurred in by all of the Justices, and is now binding upon this court. • ' ■

Rule 2 with regard to specifying error was considered and applied in Parks v. Hardwick, 158 Ga. 71 (2) (122 S. E. 553). In that case only one assignment of error was considered sufficient. The other allegations of the petition for certiorari were held insufficient “to present any question for decision by this court,” because there was a failure to comply with rule 2. The application of rule 2, with regard to specifying error, again came before this court in Jones v. Pacific Fire Insurance Co., 159 Ga. 248 (125 S. E. 470). The petition for certiorari was granted, but when the case was subsequently taken up for decision and when the petition was more closely scrutinized, it was found that the petitioner had failed to comply with rule 2. The only question involved was whether or not the court erred in refusing to reinstate a case previously nonsuited, and in which the facts were disputed; and this court said: “Thus the whole controversy became one of fact; and even conceding the law to be as contended by plaintiff, the petition for certiorari was improvidently granted. It failed to assign error on any question of law. No question of gravity or importance is involved in the case as it comes to this court. Only a disputed issue of fact is involved.” The case of Southern Power Co. v. North Carolina Public Service Co., 263 U. S. 508 (44 Sup. Ct. 164, 68 L. ed. 413), was cited and followed. This case was also concurred in by all the Justices. The decision, therefore, is binding. The Jones case was followed in Clark v. Fire Associaiion of Philadelphia, 159 Ga. 567 (126 S. E. 387), the court holding that there had been “no sufficient compliance” with rule 2, and the certiorari was dismissed. This also was concurred in by all the Justices. Rule 2, wherein it is stated that “this court will only consider the questions in such petition,” was construed and applied in Mitchell v. Owen, 159 Ga. 690 (5), 701 (127 S. E. 122). After considering that portion of the rule as brought in question in that ease, this court said: “Accordingly no question will be considered by this court in the present case except such as is plainly specified in the petition for certiorari as having been committed by the Court of Appeals. To follow a different rule, that is, to review and determine every question made in all cases as originally presented to the Court of Appeals, would be to consume a vast amount of time and labor much needed by the court for contested issues, and to subject ourselves to the just criticism that in a great majority of instances time and labor was wasted upon questions no longer disputed or contested by the losing party.”

All of the foregoing rulings of this court are in exact accord with decisions of the Supreme Court of the United States, and definitely establish the following principles applicable to the practice now under consideration. First: This court will follow the precedents established by the Supreme Court of the United States so far as the same may he applicable to our system of procedure. Central of Ga. Ry. Co. v. Yesbik, supra; Jones v. Pacific Fire Insurance Co., supra. Second: Under the constitutional provision “It was not intended that in every case a complaining party should have more than one right of review.” Central of Ga. Ry. Co. v. Yesbik, supra, King v. State, supra. Third: The writ of certiorari will only be granted where the case involves questions of great public concern or matters of gravity and importance. Central of Ga. Ry. Co. v. Yesbik, supra; King v. State, supra; Jones v. Pacific Fire Insurance Co., supra; Law Ow Bew, ex parte, 141 U. S. 583 (12 Sup. Ct. 43, 35 L. ed. 868). In re Woods, 143 U. S. 202 (12 Sup. Ct. 417, 36 L. ed. 125); Law Ow Bew v. U. S. 144 U. S. 47 (12 Sup. Ct. 517, 36 L. ed. 340); American Construction Co. v. Jacksonville etc. R. Co., 148 U. S. 372 (13 Sup. Ct. 158, 37 L. ed. 486); Forsyth v. Hammond, 166 U. S. 506 (17 Sup. Ct. 665, 41 L. ed. 1095); Fields v. U. S. 205 U. S. 292 (27 Sup. Ct. 543, 51 L. ed. 807); Hamilton Brown Shoe Co. v. Wolf, 240 U. S. 251 (36 Sup. Ct. 269, 60 L. ed. 629). Fourth: “Upon review by certiorari the court is not called upon to consider questions not raised by the petition for the writ.” Alice v. Houston Pasture Co., 247 U. S. 240, 242 (38 Sup. Ct. 496, 62 L. ed. 1096); Webster Electric Co. v. Splitdorf Electric Co., 264 U. S. 463 (44 Sup. Ct. 342, 68 L. ed. 792). Central of Georgia Ry. Co. v. Yesbik, supra; King v. State, supra, at p. 712; Jones v. Pacific Fire Insurance Co., supra. Fifth: After the grant of a writ of certiorari, which is generally ex parte, the writ will be dismissed if it is ascertained from the argument of the ease or subsequent examination that the questions involved are not of great public concern or gravity and importance. Jones v. Pacific Fire Insurance Co., supra; U. S. v. Rimer, 220 U. S. 547 (31 Sup. Ct. 596, 55 L. ed. 578); Furness, Withy & Co. v. Yang-Tsze Insurance Association, 242 U. S. 430 (37 Sup. Ct. 141, 61 L. ed. 409); Layne v. Western Well Works, 261 U. S. 387 (43 Sup. Ct. 422, 67 L. ed. 712); Southern Power Co. v. North Carolina Public Service Co., 263 U. S. 508 (44 Sup. Ct. 164, 68 L. ed. 413). In addition to the above, this court adopted a rule effective January 1, 1923, providing in part: (a) “The petition must specify plainly the decision complained of and the alleged errors. It will not be sufficient to set out the contentions and assignments of error made in the original bill of exceptions or motion for a new trial, but it shall be necessary to plainly and specifically set forth the errors alleged to have been committed by the Court of Appeals, (b) Argument and brief of authorities must not be included in the petition, but must be submitted separately.” ' 153 Ga. 890.

(a) In paragraph 6 of the petition for certiorari the applicant undertakes to assign error on the ruling of the Court of Appeals. In the “first” subdivision the petitioners “assign error” upon the decision of the Court of Appeals as contained in the first headnote, which is quoted in the statement preceding this opinion. While the petition uses the phrase “assigns error” and “said decision is erroneous,” these are general terms, and of course do not plainly specify any particular error. To say that the decision is erroneous because'“(1) a verdict could have been rendered for the defendant upon the facts,” and “(2) a verdict-according to defendant’s contentions was demanded upon the ground of the assumption of risk,” and “(3) a verdict for the amount of the contribution to the beneficiaries during the years which each would have been entitled to such benefit, and not beyond, might have been rendered,” and “ (4) a verdict greatly reduced by contributory negligence of the decedent might have been rendered, there being evidence of gross contributory negligence in the aspect of the case most favorable to plaintiff,” obviously does not point out any “questions of great public concern, or matters of gravity and importance.” The only questions involved are questions of fact, all of which, as shown by the brief of evidence, are disputed issues and present purely jury questions, though the petition, as stated above, insists “that a verdict according to defendant’s contentions was demanded upon the ground of assumption of risk.” This insistence, in our opinion, is not borne out by the brief of evidence. Under the facts of the case that was purely a jury question. The next reference in the petition to error is the statement, “It is respectfully urged that reversible error was committed by the trial court in its charge, and that this error was never corrected in the manner provided according to the decisions of the Supreme Court of Georgia.” Here no specific error is pointed out. The petition next contains the statement, “The seventh ground of the amended motion for new trial complains of the charge of the court upon the measure of damages under the employer’s liability act of Congress, as follows,” and then follows a lengthy extract which is found to be a reproduction of the seventh ground of the amended motion. Following this excerpt the petition states: “In giving this instruction the court committed clear error of the most hurtful character, since the jury was instructed to arrive at the gross amount of damages to which the respective beneficiaries would be entitled, by combining the annual losses of the beneficiaries and by multiplying the combined annual losses by the combined expectancies of the beneficiaries,” and then follows the latter portion of the above excerpt beginning at the words, “then by multiplying the total losses,” etc. The petition then states that “this extract from the charge can not be read without revealing the glaring error which it embodies. It was properly made a basis of ground for new trial, and it is respectfully submitted that such error” was not cured by subsequent instructions of the court. This is followed by citation of and quotations from a number of decisions of this court, as shown in the statement preceding.

If there is any specific error pointed out thus far, it must be found in the statement that the jury were instructed to find the gross amount of damages to which the respective beneficiaries would be entitled, by combining the annual losses of the beneficiaries and by multiplying the combined annual losses by the combined expectancies of the beneficiaries. The petition, in the first subparagraph, offends the rule against including argument and brief of authorities in the petition, and for that reason the first subparagraph presents no question for consideration. It is insisted in the motion for a rehearing that the citation of authority in this paragraph of the petition was really “not by way of argument and brief of authorities, but as an integral and substantive part of the assignment itself.” The petition, in our opinion, does not authorize that construction. The rule is futile if it can be avoided in that manner. If so construed in this case, counsel in any other case would be entitled to include briefs of authority and argument in- the petition, under the guise of a clarification or elaboration of the petition and by merely denominating the insertion as “an integral and substantive part of the assignment itself.” Moreover, in this instance the authorities cited do not refer to the issue made by the assignment of error. They support the argument that the error committed by the court was not corrected in a subsequent portion of his charge, as the law required. We think it is manifest that there was failure to comply with rule two in this respect. Again, the issue raised in this paragraph of the petition was as to whether or not the trial court erred in instructing the jury as to the method of computing the amount of damages in the event of a recovery. In any view of this question, we are unable to see how it is of gravity and importance. It has been the unbroken practice of the Supreme Court of the United States to dismiss writs of certiorari previously granted, whenever, upon final examination, it is found that the same do not present questions involving questions of great gravity and general importance. In U. S. v. Rimer, supra, the petition for certiorari was granted upon the belief that “the decision below involved a principle concerning the collection of internal revenue taxes of far-reaching importance.” When the court came to consider the case for decision, the conclusion was reached that it was neither from its character nor importance within the scope of the grant of power given by the judiciary act of 1891 to review by certiorari, and the writ was accordingly dismissed. In Furness, Withy & Company v. Yang-Tsze Insurance Association, supra, it was said: “Petitions for writs of certiorari are at the risk of the parties making them, and whenever in the progress of the cause facts develop which if disclosed on the application would have induced a refusal, the court may upon motion by a party or ex mero motu dismiss the writ.” In Layne v. Western Well Works, supra, a writ -of certiorari was granted to settle a supposed conflict of decisions between two circuit courts of appeal concerning the' validity and scope of a patent. When the case was examined for decision, it was found that no conflict existed, and the writ of certiorari was dismissed as improvidently granted. In that case it was said: “It is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the circuit courts of appeal.” In Southern Power Co. v. North Carolina Public Service Co., supra, the writ of certiorari was granted on the belief that the decree rendered by the trial court would deprive petitioner of due process of law. On the argument of the case it developed that the controverted question was whether the evidence sufficed to establish actual dedication of petitioner’s property to public use— primarily a question of fact; and accordingly the writ of error was dismissed as improvidently granted.

In most of these cases the Supreme Court of the United States was dealing with petitions for certiorari to the Circuit Court of Appeals of the United States. The Circuit Court of Appeals, as constituted, is more of an intermediate court than the Court of Appeals of Georgia. The latter court, as we have shown above, was intended, under the constitution, to be a court of final resort except where the contrary was expressly stated. It has been declared by the Supreme Court of the United States: “The jurisdiction of this court to review judgments and decrees of the Circuit Courts of Appeals on certiorari under § 240, Jud. Code, is to be exercised sparingly and only in cases of peculiar gravity and general importance and in order to secure uniformity of decision.” Hamilton Brown Shoe Co. v. Wolf, supra. This is an ordinary damage suit where a recovery is sought for the negligent homicide of an employee, and there is nothing of peculiar gravity or general importance. In no sense could the decision be of general public importance, whatever may have been decided on the question whether the trial court erred in instructing the jury as to the method of computing damages. It is insisted by counsel in the motion for rehearing that the dismissal of the writ will preclude the petitioners “from their right to seek review by certiorari in the Supreme Court of the United States.” Whether this is true we express no opinion. The controlling question is whether the petition filed in this court complies with the rules heretofore adopted, and states a case which, under the rulings of this court and of the Supreme Court of the United States, is entitled to be decided. We think the Supreme Court of the United States, as well as this court, has decided that question. Without reiterating the rulings made by this court, we refer to two cases in which the Supreme Court has considered petitions for certiorari involving questions very closely akin to the questions in this case. In the case of In re Woods, supra, that court said: “Whether the law in respect of recovery by a servant against his master for injuries received in the course of his employment was properly applied on the trial of a case does not fall within the category of questions of such gravity and general importance as to require a review of the conclusions of the Circuit Court of Appeals in reference to them.” In Davis v. Currie, 266 U. S. 183 (45 Sup. Ct. 88, 69 L. ed. 234), certiorari was granted to review a judgment of the Supreme Court of South Carolina. The petition for certiorari presented a single question: “Can damages for humiliation and wounded feelings be awarded the respondent against the petitioner, the United States Railroad Administration, under the provisions of the Federal control act, the proclamations of the President, and the general orders of the director-general pursuant thereto?” At the hearing counsel relied on the following: “ 'The judgment against the director-general of railroads for wounded feelings and humiliation arising out of a wanton, willful, and malicious act of his servant is unauthorized, involving essentially the infliction of a penalty upon the government.’ The argument was that although the trial court distinctly limited the jury to actual damages, nevertheless it necessarily follows from the size of the verdict that punitive damages were assessed against and a penalty was imposed upon the United States.” The writ was dismissed.

(b) The second subparagraph complains that the Court of Appeals erred in holding that the trial court did not err in the following excerpts from the charge to the jury: (1) “The children were entitled during their minority to the care, training, and education that might be afforded by their father if he had lived, and this is an item upon which damage may be allowed to them, so far as they are concerned, the law declaring that that is a matter that could be hired to be done by somebody else, and thus would constitute pecuniary loss.” (2) “And so far as the children are concerned, you could estimate what their losses would be from the loss of the care, training, and education that they might have received from their father, and thus ascertain the total sum that would be the pecuniary losses of the wife and children.” The petition states that these excerpts were made the basis of grounds four and five of the motion for a new trial. The sole criticism of these excerpts, as shown from the statement preceding, is to the effect that no evidence had been introduced at the trial, showing or tending to show the value in money of the care and training and education that might have been afforded to the children by their father, and that there was no basis by which the jury could estimate the pecuniary losses sustained by the children from being deprived of such care, training, and education through their father’s death, but upon the other hand the jury was left to speculation, conjecture, and the various and diverse experiences of the members thereof to determine what monetary loss should be allowed as damages to the children on account of the loss of care, training, and education, growing out of the death of their father. In the petition for certiorari and in the motion for rehearing it is insisted that these grounds of the petition with reference to recovery in behalf of the minor children involve “a construction of the-Federal employer’s liability act,” and that while an examination of the,evidence is necessary to determine the issue, “nevertheless a question of law for decision by the appellate court was made.” When we examine the charge of the trial court we find that the law in regard to the Federal employer’s liability act was given to the jury in exact accord with the construction placed upon it by the Supreme Court of the United States as contended for by these petitioners; therefore it is clear that no question involving the construction of that law is involved. The only question in issue is whether or not there was evidence before the jury on that question, which authorized the court to instruct the jury on the subject. Only a question of fact which requires examination of the entire brief of evidence is raised to ascertain the existence or non-existence of evidence bearing upon only one branch, and at that necessarily a minor branch, of the total recovery in the case. We have no means of ascertaining whether the jury in-eluded any recovery on this branch of the case or not; but if they did, we do not understand this to be a question of gravity and importance, as contemplated in the Tesbilc ease or the cases from the Supreme Court of the United States above cited.

(c) The third subparagraph contains the following: “Petitioners assign error upon the decision of the Court of Appeals of the State of Georgia, affirming the judgment of the lower court, as set forth in the opinion thereof, and avers that the evidence demanded that a new trial be granted and that therefore the Court of Appeals erred in its holding that the judgment of the lower court should be affirmed.” The petition then alleges that the “Court of Appeals overlooked the defense of assumption of risk as being a complete defense to the action.” Then follow extracts from the evidence of one of the witnesses for the plaintiff, wherein this witness testifies in effect that at the time of the injury to the deceased by the railway cars he saw the deceased and the cars rolling toward him and saw the deceased about the time he went in between the cars to make the coupling, describing the surroundings in the railroad yard; from which it is argued that there was no obstruction preventing the deceased from seeing the cars and, therefore, knowing the speed at which the cars were moving. From this it is argued that the deceased voluntarily, with knowledge of all of the facts, assumed the risk incident, and that his injury was the result of his own negligence and not that of the defendants. Then follow quotations from several decisions of the Supreme Court of the United States, from which it is argued in the petition that “had the Court of Appeals not ignored the construction placed upon the employer’s liability act of Congress by the Supreme Court of the United States, and if it had applied such construction to the facts in this case, the result would have been the reversal of the judgment of the lower court, and the holding as contended for by the plaintiff in error in that court that the evidence demanded a judgment for the defendant railroads.” In view of the failure to comply with rule 2 in regard to including argument and brief of authorities, we hold that this subparagraph of the petition can not be considered. Moreover, here again no question of gravity and general importance is involved; only a question of fact as to whether the evidence supports the verdict. No construction of the Federal employer’s liability act is involved.

Applications for certiorari have nearly doubled in number within the past four years. A lax enforcement of construction rules applicable thereto would naturally further increase the number. Manifestly this would be contrary to public interests, as well as contrary to the true interests of the constitution. It would tend to convert the Court of Appeals into a mere intermediate court, and to overwhelm this court with the examination of evidence. Notwithstanding the disappointment that occasionally follows a failure to secure an additional review in this court, it is of first importance to all concerned that we adhere to rules and decisions which conduce to uniformity of procedure.

It follows from what is said above, that the case is dismissed on the ground that the petition for certiorari was improvidently granted.

The third headnote does not require elaboration.

Writ of certiorari dismissed.

All the Justices concur, except Bussell, G. J., who dissents.