Central of Georgia Ry. Co. v. Gwynes

• Decision Date: 15 June 1922
• Docket Number: 2872.
• Parties: CENTRAL OF GEORGIA RY. CO. v. GWYNES.
• Court: Georgia Supreme Court

113 S.E. 183

153 Ga. 606

CENTRAL OF GEORGIA RY. CO. v. GWYNES.

No. 2872.

Supreme Court of Georgia

June 15, 1922

Syllabus by the Court.

On certiorari for review of a judgment of a justice's court rendered against a railroad company in a suit for damages caused by negligence in operating its trains on the 1st day of January, 1920, it is not too late for the company to insist that the justice's court should have taken judicial notice of the existence of the act of Congress authorizing the President of the United States to assume control of transportation companies (U. S. Comp. St. 1918 U.S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p) and of the proclamation of the President assuming such control although attention was not called to the existence of such act of Congress and proclamation at the time of the rendition of the judgment in the justice's court.

Additional Syllabus by Editorial Staff.

The Proclamation by the President taking control of the railroads as authorized by the act of Congress (U. S. Comp. St. 1918 U.S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p) is a matter of record, and has such binding effect and relation to the statute, and is of such universal public notoriety that it stands on the same basis as an act of Congress as respects judicial notice, under Civ. Code 1910, §§ 5797, 5818.

Certified Question from Court of Appeals.

Action by G. A. Gwynes against Central of Georgia Railway Company. Judgment for plaintiff, and defendant brought error to the Court of Appeals, which certified a question to the Supreme Court. Question answered.

The Court of Appeals propounded the following question as necessarily to be answered for a proper decision of the case:

"Where a suit was brought in a justice's court against a railroad corporation for damages, and the railroad corporation filed an answer denying liability, and on the trial of the case evidence was submitted, and a verdict and judgment rendered against the railroad company, and no evidence was offered in behalf of the defendant, was it too late, on certiorari, for the railroad company to set up that the judgment in the justice's court was contrary to law and without evidence to support it, upon the ground that the magistrate should have taken notice, without proof, that when the damage was done the railroad was under the control of the federal government under the provisions of the act of Congress providing for federal control (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p), and therefore not liable for the damage sued for? In other words, if this was a defense, ought it not to have been set up by the company in the trial court?"

Jule Felton and Jule W. Felton, both of Montezuma, for plaintiff in error.

J. J. Bull & Son, of Oglethorpe, for defendant in error.

ATKINSON J.

The question concedes in effect that federal control under the provisions of the act of Congress was proper matter for judicial cognizance; and the sole inquiry is whether it was not necessary for the railroad company to make the point in the justice's court; and, having failed to do so, was it not too late to insist upon it for the first time on certiorari?

In Civil Code 1910, § 5734, it is declared:

"The existence and territorial extent of states, their forms of government, and symbols of nationality, the laws of nations, and general customs of merchants, the admiralty and maritime courts of the world and their seals, the political Constitution and history of our own government, as well as the local divisions of our own state, the seals of the several departments of the government of the United States, and of the several states of the Union, and all similar matters of public knowledge are judicially recognized without the introduction of proof."

In section 5818 it is declared:

"The public laws of the United States, and of the several states thereof, as published by authority, shall be judicially recognized without proof."

There is a similar provision that laws and resolutions of the General Assembly, as published by authority, shall be held, deemed, and considered public laws, and recognized judicially without proof. Civil Code 1910, § 5797. In the case of Combs v. State, 81 Ga. 780, 8 S.E. 318, it was held:

"In a prosecution under one of the local option laws passed by the Legislature, it is not necessary for the state either to allege in the indictment, or to prove before the jury, that such laws are operative in the counties which have adopted them by a vote of the people. They are public local laws, published by authority, and may be judicially recognized without proof. Where the local option act in question provided for consolidation and return of votes to the clerk of the superior court; that the clerk should announce the result by publication; and that the act should take effect on the day of publication, and also that such notification of the result should be entered on the minutes of the superior court, and should be competent evidence to show when the act took effect; and the judge below had these minutes before him--there was no error in his reading from them and instructing the jury as matter of law as to when the act went into effect. Whether a law is in existence is for the court to say, and not for the jury."

In Gainesville Midland Railway v. Vandiver, 141 Ga. 350, 352, 80 S.E. 997, 998, involving right of employee to recover damages for personal injury from common carrier engaged in interstate commerce it was said:

"Acts of Congress, where applicable, are domestic laws, and our courts will take judicial knowledge of them without their being pleaded or proved."

In Ragland v. Barringer, 41 Ga. 114, it was held, one judge dissenting:

"Where a statute required the Governor to issue a proclamation, and he did it, and that proclamation was used as evidence in a cause, it was not necessary to set out the proclamation in the bill of exceptions. The courts will take judicial notice of its contents."

This case was distinguished in Western & Atlantic R. Co. v. Hyer, 113 Ga. 776, 39 S.E. 447, two of the justices dissenting; but the distinction pointed out also distinguishes the latter case from the case under consideration. It was held by the majority:

"A mere statement in a brief of evidence that the plaintiff 'introduced in evidence the mortality and annuity tables in the seventieth Georgia Report' does not authorize this court to take judicial cognizance of the contents of the tables published by the official reporter as an appendix to that volume."

The proclamation by the President as authorized by the act of Congress is a matter of record in the executive department of the federal government, and has such binding effect and relation to the statute, and is of such universal public notoriety as that for all purposes of judicial congizance by courts it stands on the same basis as the act of Congress. So treating the act of Congress and the proclamation as standing on the same basis, how shall the question propounded be answered?

In Atlantic Coast Line R. Co. v. Holliday, 73 Fla. 269 (17), 74 So. 479, it was held:

"Even though both the plaintiff and the defendant ignore a statute and proceed as though such statute did not exist or had no applicability, and fail to bring the same to the attention of the trial judge, by whom it was also evidently overlooked, if such statute is applicable and controlling, it is the duty of an appellate court to take judicial cognizance of it."

In 23 C.J. § 2005, cases are cited on page 172 for the proposition that, while in some instances a fact within the realm of judicial knowledge need not be alleged or proved, yet it must be suggested or presented to the court in some way, but draws a distinction where the matter for judicial cognizance is a law, and states "An...