Ellison v. Georgia R.R. & Banking Co.

• Decision Date: 19 October 1891
• Citation: 13 S.E. 809,87 Ga. 691
• Parties: Ellison v. Georgia Railroad & Banking Co. Georgia Railroad & Banking Co. v. Ellison.
• Court: Georgia Supreme Court

13 S.E. 809

87 Ga. 691

Ellison v. Georgia Railroad & Banking Co.

Georgia Railroad & Banking Co. v. Ellison.

Supreme Court of Georgia

October 19, 1891

Syllabus by the Court.

1. Courts of final review are bound by the rule of stare decisis, both as a canon of public good and a law of self-preservation. Nevertheless, where a grave and palpable error, widely affecting the administration of justice, must either be solemnly sanctioned or repudiated, the maxim which applies is fiat justitia ruat coelum.

2. Amendment is a resource against waste. It proceeds on the principle that it is better to preserve what has been done and improve it, than to throw it away. There is as much reason for correcting important defects as the less important, and those of substance as those of form.

3. Amendment of substance at an early stage has always been allowable as matter of judicial discretion. The act of 1854 made it matter of right at any stage. The Code does the same "provided there is enough to amend by," and with a further restriction against adding new parties or a new cause of action. The act made the right at law as broad as in equity, and vice versa, and this feature is retained by the Code.

4. As a declaration must contain all the substance requisite to enable the plaintiff to recover, no amendment of its form would be of any value without a complete cause of action in substance. Hence, in order for a declaration to be amendable in form, a substantial cause of action must appear; otherwise there is not enough to amend by.

5. But when the amendment needed is one of substance itself "enough to amend by" does not mean the same as "enough to be good in substance without amendment." On the contrary, failing to be good in substance is generally the reason why amendment of substance is needed. "Enough to amend by" is to be determined by what is enough relatively to the particular amendment needed and offered. There may be enough to amend by in one respect, though not in another. The Code does not make the standard for form and substance the same. In this regard it has been misconstrued, and the case of Martin v. Railroad, 78 Ga. 307, based upon such misconstruction, is hereby overruled.

6. Enough to amend by in matter of substance, in aid of an incomplete cause of action, is the least amount of substance in a declaration which will serve to show that, according to the original design of the pleader, what is offered to be added rightly belongs to the cause of action which he meant to assert, and that the addition proposed would make the cause of action complete. There must be a plaintiff, a defendant, jurisdiction of the court, and facts enough to indicate and identify some particular cause of action as the one intended to be declared upon, so as to enable the court to determine whether the facts proposed to be introduced by the amendment are part and parcel of that same cause. Any amendment whatever which, if allowed, would leave the cause of action incomplete, should be rejected.

7. Under the Code, a declaration which has all the requisites to make it good and sufficient in substance, save that it omits to allege some fact essential to raise the duty involved in the cause of action which the pleader evidently intended to declare upon, is amendable by supplying the omitted fact at any stage of the case. Thus, where the duty claimed was the duty of forbearing to obstruct a sewer-pipe which conveyed waste-water from the plaintiff's premises and discharge the same on the defendant's land, the declaration was amendable by alleging an easement subjecting his land to the burden of receiving the water so discharged. Also, in an action by a mother suing for the homicide of her son, where the fact omitted from the declaration was that she was dependent upon him for a support, the declaration was amendable by alleging that fact.

8. Where two railway companies, each under its own franchise, use the track of one of them in common, at a terminal point, the one owning the track is responsible for the consequences of its negligence in failing to render harmless to the employes of the other company a low bridge spanning the track, if the duty of taking proper precautions for that purpose was upon it, and it alone. The mother of an employe of the other company, if otherwise in a situation to sue, may recover for the homicide of her son, caused by such negligence. In such case, though it be not alleged that the company not owning the track (that is, the master of the employe) was ignorant of the danger or of the conditions which caused it, it will not be assumed, in deciding upon a demurrer to the declaration, that it was negligent in running the train to which the employe was attached when injured; consequently the question whether any negligence of that company could be imputed to the employe, so as to render him chargeable with contributory negligence, is not now for decision.

Cross-errors from superior court, Fulton county; Marshall J. Clarke, Judge.

Action by M. E. Ellison against the Georgia Railroad & Banking Company. Judgment for defendant. Both parties bring error. Judgment reversed on plaintiff's assignment of error.

Bleckley C.J.

1. Some courts live by correcting the errors of others and adhering to their own. On these terms courts of final review hold their existence, or those of them which are strictly and exclusively courts of review, without any original jurisdiction, and with no direct function but to find fault, or see that none can be found. With these exalted tribunals, who live only to judge the judges, the rule of stare decisis is not only a canon of the public good, but a law of self-preservation. At the peril of their lives they must discover error abroad, and be discreetly blind to its commission at home. Were they as ready to correct themselves as others, they could no longer speak as absolute oracles of legal truth; the reason for their existence would disappear, and their destruction would speedily supervene. Nevertheless, without serious detriment to the public or peril to themselves, they can and do admit now and then, with cautious reserve, that they have made a mistake. Their rigid dogma of infallibility allows of this much relaxation in favor of truth unwittingly forsaken. Indeed, reversion to truth, in some rare instances, is highly necessary to their permanent well-being. Though it is a temporary degradation from the type of judicial perfection, it has to be endured, to keep the type itself respectable. Minor errors, even if quite obvious, or important errors, if their existence be fairly doubtful, may be adhered to, and repeated indefinitely; but the only treatment for a great and glaring error affecting the current administration of justice in all courts of original jurisdiction is to correct it. When an error of this magnitude, and which moves in so wide an orbit, competes with truth in the struggle for existence, the maxim for a supreme court,-supreme in the majesty of duty as well as in the majesty of power,-is not stare decisis, but fiat justitia ruat coelum.

2. Scarcely any right of procedure is more important to suitors or more frequently called into exercise in actual practice than that of amending their pleadings. Amendment is a resource against waste. In pleading, as in every art, the philosophy of amendment, or of bettering the results of work imperfectly executed, is comprehended in the frank recognition of two things, both of which are made manifest by actual experience. The first is that, in the practice of any art, it is generally better to preserve what has been done, improving it, and taking some benefit from it, than to throw it away, and begin over. The second is that, in the practice of any art, save by the most finished and accomplished experts, many errors and mistakes will be committed; some by reason of ignorance or other incompetency; some by reason of haste or carelessness; and some by reason of inherent difficulty and uncertainty as to what is exactly the right thing to do, the right manner of doing it, or the right materials to be used. Carried out consistently to its rational limits, the principle of amendment applies to both substance and form, and with quite as much force to the important as to the less important. No sensible builder discards what he has done, and goes back to the first block and the first blow, unless he has utterly failed in his foundation. If he has used too much material, or not enough, or some of an improper kind, or has put together his materials, or some of them, informally or unskillfully, he corrects his mistake with the least sacrifice possible, and retains everything which he can render useful in completing the structure which he intended and endeavored to build. The law has all the wisdom and prudence of all the trades. When practicable, it will conserve its own work, the work of its magistrates and ministers, and that of suitors in its courts, and their counsel.

3. There never was a time when pleadings were not amendable. Both form and substance were amendable at common law certainly so by leave of the court in the exercise of its discretion in the early stages of the suit. To the English statutes of force in Georgia relative to disregarding or amending defects of form, passed for the purpose of preventing the miscarriage of justice in consequence of such defects, and found in Schley, Dig. 196, 223, 231, 244, 326, were added by state legislation the acts of 1799 and 1818, (Cobb, Dig. 486, 488.) But as in England, so with us, the amendment of substance was left chiefly to the discretion of the court down to the passage of the act of 1854, save that by a standing rule of the superior courts, after an appeal was entered, either party might amend at...