Finley v. Southern Railway Co. , 5 Ga. App. 722 ( 1909 )

Russell, J.

Finley, a minor,* by his next friend, sued the Southern Railway Company, together with Oscar Turner and Walter Hagan (who were the yardmaster and assistant yardmaster respectively of the defendant corporation), for $20,000. On the trial the jury rendered a verdict in favor of the plaintiff for $8,000; and, upon.motion, the judge of the city court granted a new trial. The plaintiff excepted, and asks that the judgment granting a new trial, apparently on a point of law alone, be reversed, with direction to the lower court to pass upon the single question whether the verdict is supported by the evidence. The contention of the plaintiff is that the trial judge erred in his construction of the petition, and in his application of the evidence thereto. It is insisted that the allegations of the petition were, amply supported by the evidence, and that the vferdict set aside was required by the evidence. In granting the motion for new trial the trial judge passed the following order: “The only negligence complained of in this suit and charged to have caused the plaintiff’s injury is that of the two individual defendants, of the railroad company through their conduct. There is no complaint of the engineer’s negligence, — such an allegation would have made a severable cause of action, and the court would not have charged that the verdict must be against all or none. Under the pleading the defendant railroad company was not called upon to defend as to the engineer’s negligence. As I regard it, it is not a question of variance between the pleading and the evidence, — the eviclence was all admissible to show how the accident occurred, and it completely disproves the negligence alleged. I do not see how the plaintiff can recover on this pleading, on the evidence in the-record. I believe for this reason the law requires the grant of a new trial; and it is so ordered.” The plaintiff insists that it does not appear from this judgment but that the court was satisfied with the amount of the verdict, and contends that the judge might' approve the finding of the jury after the ruling by this court upon the law, and upon direction given by us that his discretion be exercised solely upon the point of the sufficiency of the evidence. To use the language employed by counsel for the plaintiff in his brief, it is proposed “that this court shall direct the court below to pass upon the verdict, subject to right directions received therefrom as to the law, and if, subject to these directions, he approves, the verdict be allowed ta stand.”

1. We entertain no doubt of the prerogative of this court, in a proper case, to make a tentative, or even a final, disposition of a case by appropriate direction. In fact we have several times exercised the power. The constitutional amendment creating the Court of Appeals gave this court, as to the cases within its peculiar jurisdiction, the same powers as the Supreme Court within its peculiar jurisdiction. Among the powers of the Supreme-Court, enumerated in the Civil Code, §5498, it is empowered “to-hear and determine all causes, civil and criminal, that may come-before it, and to grant judgments of "affirmance or reversal, or any other order, direction, or decree required therein, and, if necessary, to make a final disposition of the cause, but in the manner prescribed elsewhere in this code.” Like authority is conveyed in §5586 of the Civil Code, in these words, “it shall be within the power of the Supreme Court to award such order and direction in the cause in the court below as may be consistent with the law and justice of the case.” Indeed, this would seem to be a power inherent in all courts of review, in the absence of statute. Following these code sections, this court has in numerous cases given •direction touching the proceedings in the lower court, when we-considered the direction to be in conformity with the law or in the interest of justice. See Askew v. So. Ry. Co., 1 Ga. App. 79 (58 S. E. 242); Bashinsky v. Western Union Tel. Co., 1 Ga. App. 765 (58 S. E. 91); Jarrell v. American Machine Co., 2 Ga. App. 769 (59 S. E. 186); Dunn v. Western Union Tel. Co., 2 Ga. App. 845 (59 S. E. 189); Oglesby v. State, 1 Ga. App. 195 (57 S. E. 938); Hartman Stock Farm v. Henley, 4 Ga. App. 60 (60 S. E. 808); Dennis v. Schofield, 1 Ga. App. 491 (57 S. E. 925); Cole v. State, 2 Ga. App. 738 (59 S. E. 24); Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060), and a number of other cases. These rulings go. back to Davis v. Guerry, 51 Ga. 74, and Irwin v. Riley, 68 Ga. 606. See also Harvey v. Jewell, 84 Ga. 238 (10 S. E. 631); Morton v. Frick, 87 Ga. 230 (13 S. E. 463); Central Ry. Co. v. Kent, 91 Ga. 687 (18 S. E. 850); and Comer v. Dufour, 96 Ga. 736 (22 S. E. 543, 30 L. R. A. 300, 51 Am. St. R. 89). In Central Ry. Co. v. Kent, supra, the court disagreed upon another point, and Chief Justice Bleckley dissented, entertaining the view that the evidence in that case warranted the verdict rendered; but there was no division upon the proposition that under the section of the code above cited, the court had the right to order the case dismissed. Following Judge Bleckley, we would be unwilling to set aside the verdict of a jury upon issuable facts, and indeed, if in any case this is the only issue presented, we are without jurisdiction to do so. But in the Kent case, supra, there was no division of opinion on the part of the Supreme Court as to the power of that court, in a proper case, to dismiss a cause from the lower court. In fact, at no time has the court questioned its constitutional right to direct a final disposition of a cause in the lower court. In Comer v. Dufour, supra, the facts being undisputed, the superior court was ordered to render a final judgment in favor of the defendant. And likewise we apprehend it to be within the appropriate jurisdiction of this court to exercise directory powers in any case where there is no issue of fact. See also Green v. Hill, 101 Ga. 258 (28 S. E. 692); Gibson v. Wilkins, 110 Ga. 94 (35 S. E. 316) ; St. Amand v. Lehman, 120 Ga. 258 (47 S. E. 949) ; Brown v. Joiner, 77 Ga. 232 (3 S. E. 157); Ford v. Harris, 95 Ga. 97 (22 S. E. 144); Sims v. Cordele Ice Co., 119 Ga. 597 (46 S. E. 841); Brown v. Bowman, 119 Ga. 153 (46 S. E. 410).

As said by Judge Hall, in speaking of the Supreme Court, in Harris v. Hull, 70 Ga. 838, “One great purpose in establishing this court was to terminate suits, and with this view, it is made its •duty not only to grant judgments of affirmance or reversal, but any other order, direction, or decree required, and, if necessary, to make a final disposition of the cause (Code, §218 [Civil Code of 1905, §5586]), and it i's empowered to give the cause in the court below such direction as may be consistent with the law and justice of the case. Ib. §4284 [Civil Code of 1905, §5498]. Litigation should never be protracted where this, with due regard to the rights of parties, can possibly be avoided. Interest reipubliece ut sit finis litium is a maxim so old that its origin is hidden in a remote antiquity, and the policy which it inculcates is so essential as not to admit of question or dispute.”

Of course, this power, like the performance of any other duty of grave moment, is to be most cautiously exercised, but the framers of our organic law foresaw that eases might arise in which a court of last resort could well be intrusted with the power, not only of ordering amendments or directing their rejection in the court below, and of moulding judgments by the application of the law to admitted facts, or of removing future ambiguity by construing and applying the law, but also of summarily directing, in a proper case, a final judgment in behalf of one of the parties to the cause. Without any purpose of discussing at this time the full and exact scope of this court’s directory powers, it is sufficient to say that we deem that we have the power, in any case in which it appears that the trial judge has not exercised his discretion in the consideration of a motion for new trial, to order that that discretion be exercised; and we would feel it to be our duty to reverse the judgment of the lower court in the present case if we were not satisfied that the trial judge exercised his discretion upon every point raised by the motion for new trial. Furthermore, we are convinced that the judgment he rendered on the motion is right.

2. Eecognizing the duty the exercise of which has been invoked by counsel for the plaintiff in error, we have carefully examined the record to ascertain whether the learned trial judge, either through failure to exercise any part of his discretion or on account of misconstruction of the pleadings, or misapprehension of the issues, erred in setting aside the verdict of the jury and awarding a new trial. We do not understand that the plaintiff in error insists that the judge abused his discretion in passing upon the facts. The complaint is more especially addressed to the insistence that the judge erred in granting a new trial, upon his construction of the pleadings, and upon the ground that the finding of the jury was contrary to the charge of the court. We are of the opinion that the trial judge properly granted a new trial, though not for the precise reasons stated by him, and that he should have granted a new trial (even conceding the strongest contentions of the plaintiff in error to be well taken), for tire reason, as stated in the judgment, that the verdict, as construed with the pleading in the case, can not be supported by the evidence. It may be true, as insisted by counsel for th.e plaintiff in error, that what the judge meant by this was different from what we now mean; but in passing upon the first grant of a new trial by the lower court, this court will be slow in limiting the meaning of the language employed in the grant of a new trial, and will sustain the grant if, upon investigation of the record, it is found that the judgment awarding a new trial is, for any reason, right.

This suit proceeded against three defendants. The verdict was rendered against all of them, and judgment was entered accordingly. Eegardless of all other questions in the case the judgment of the judge of the city court, awarding a new trial, is right, because there is no evidence which would have authorized the jury to find a verdict against the defendants Turner and Hagan. Brownlee v. Abbott, 108 Ga. 761 (33 S. E. 44). The action in the Brownlee case was trover, but under the decision in Mashburn v. Dannenburg, 117 Ga. 584 (44 S. E. 97), the same rule applies (as: reasonably it must) to all actionable torts. In the Mashburn case it is pointed out that the plaintiff may proceed against either one or all of several joint tort-feasors, and if he elects to sue more than one and obtains a verdict against more than one, the verdict as to each must be authorized by the evidence. It is not alleged in the petition that either Turner or Hagan ordered the engineer of the defendant company to suddenly project his engine against the cars upon track No. 17, whereby the plaintiff was injured, nor is it proved that they either directed the movements alleged to be the cause of the injury or were present when it was done. The company might be liable for the negligence of its engineer in suddenly crashing his engine into a' line of box-cars, thereby causing a violent and dangerous collision. The company would be liable if, under the general direction of Turner and Hagan, or of either of them, this had happened through any inattention on their part in the conduct of the company’s business; but Turner and Hagan themselves would not be individually liable, unless they ordered the movement which caused the catastrophe. There is no evidence which authorized the finding of the verdict against these two defendants; and as the court did not have the right to strike them either from the verdict or from the judgment (Irwin v. Riley, 68 Ga. 608), the court was required to set aside the verdict as to -them, and also as to their eodefenclant. From this it results that there is no reason why the judgment of the lower court should be reversed. If that court released Iiagan and Turner from the jury’s finding, as it should have done, the verdict’s confining circle was broken as to all included therein. A single chain had fastened the three defendants together, and when the chain was broken and two of the prisoners were released, the third was unconfined, regardless of whether a portion of the chain might still be on his person.

3. We think, however, that the court erred in charging the jury that the plaintiff must recover against all of the defendants or against none. Joint tort-feasors may be sued together, and recovery may be had against one or more of them as the liability of each may appear from the evidence. One or more may be found liable; others may be adjudged not guilty of the tortious act alleged. Hollingsworth v. Howard, 113 Ga. 1099 (39 S. E. 465); W. U. Telegraph Co. v. Griffith, 111 Ga. 558 (36 S. E. 859), ■ and citations. A plaintiff can sue one or more than one, or he can ■sue all, of several joint tort-feasors, in the same action, and the jury by its verdict can bind one and relieve another, as the evi■clence may authorize; but if the verdict be rendered against all of the defendants, the judgment thereon is single and must stand or fall alone. Such a judgment is in law a creature of such nature that it can not survive the severance or amputation of any one ■of its members.

4. We are of the opinion also that the court erred in charging the jury that the plaintiff could only recover upon such acts of negligence as were shown to be chargeable to the servants Hagan and Turner. The court was right in charging the jury that the plaintiff could only recover upon the allegations of negligence set forth in the petition. But the defendant company, as a tortfeasor, though sued jointly with Hagan and Turner, might be liable for the negligence of some employee other than they, if, as is alleged in the petition, the negligence of the engineer contributed to the injury; and though this statement might have been specially demurrable, the name of the engineer was not called for, and it is certain, from the allegations of the petition, that he was neither Turner nor Hagan.

We have referred to these two latter matters in order that upon another trial the jury may be properly instructed as to these points. But upon the main issue involved, the court was not in error in •awarding a new trial. Judgment affirmed.