Lee v. Cent. Of Ga. Ry. Co

• Decision Date: 21 January 1918
• Docket Number: (Nos. 7296, 7297.)
• Citation: 21 Ga.App. 558,94 S.E. 888
• Parties: LEE . v. CENTRAL OF GEORGIA RY. CO. et al. CENTRAL OF GEORGIA RY. CO. et al. v. LEE.
• Court: Georgia Court of Appeals

94 S.E. 888

(21 Ga.App. 558)

LEE .

v.CENTRAL OF GEORGIA RY. CO. et al.

CENTRAL OF GEORGIA RY. CO. et al.

v.LEE.

(Nos. 7296, 7297.)

Court of Appeals of Georgia,

Division No. 2.

Jan. 21, 1918.

Rehearing Denied Feb. 1, 1918.

(Syllabus by the Court.)

Error from City Court of Savannah; Davis Freeman, Judge.

Suit by B. C. Lee against the Central of Georgia Railway Company and another. Judgment for defendants, and plaintiff brings error, and defendants assign cross-error. Writ of error on main bill of exceptions dismissed, and judgment on cross-bill reversed.'

See, also, 94 S. E. 558.

Osborne, Lawrence & Abrahams, of Savannah, for plaintiff in error.

Lawton & Cunningham and II. W. Johnson, all of Savannah, for defendants in error.

HARWELL, J. Lee brought suit against the Central of Georgia Railway Company and O'Donnell, its engineer, for personal injuries alleged to have been sustained by him while coupling cars. The petition originally contained two counts, the first count being based upon the federal Employers' Liability Act, and the second count upon the Georgia statute, the first count alleging that the injury occurred while the plaintiff was employed in interstate commerce, and. the other alleging that it occurred while he was employed in intrastate commerce. It was also alleged in each count that the railway company was guilty of a violation of the Safety Appliance Act of Congress in respect to the coupling apparatus. The defendants admitted in their amended answers that the plaintiff was injured while employed by the railway company in interstate commerce. Thereupon the plaintiff expressly abandoned the second count of the petition, and the case proceeded to trial solely upon the first count, which was founded upon the federal Employers' Liability Act. The first verdict and judgment in favor of the plaintiff was set aside by the court, and a new trial granted. A second verdict against both defendants jointly, upon which a joint judgment was rendered against them, was likewise set aside, and a new trial granted upon the defendants' motion. The trial judge, in his order upon the second motion for new trial, said:

"This leaves for consideration the second ground of the motion. Involved in this is the question of the constitutionality of that portion of the fifth section of the act approved August 13, 1915, entitled 'An act to alter, amend, and revise the several laws relating to the city court of Savannah, ' which reads as follows: 'No second new trial shall be granted in any case excent for errors of law where there is no evidence to support the verdict.' * * * I think that the portion of the act referred to is unconstitutional, and that I amat liberty to consider the second ground of the motion."

The court thereupon granted a new trial upon the second ground of the motion, which was based upon the ground that the verdict is decidedly and strongly against the weight of the evidence. The plaintiff excepts to this second grant of a new trial. The defendants filed demurrers upon the ground that there was a misjoinder of parties defendant, and upon the further ground that there was a misjoinder of causes of action. The demurrer to the first count of the petition is based upon the ground that there Is no authority of law to join as defendants a railway company and one of its employes, as an individual defendant, in a suit under the federal Employers' Liability Act. The demurrer to the first count of the petition also attacks it upon the ground that the plaintiff! sets up a cause of action against a railway company arising under the federal Employers' Liability Act, and in the same ! count sets up a cause of action against its engineer, the defendant O'Donnell, under the laws of the state of Georgia. The defendants demurred also upon other grounds, which it is not necessary to recite. The defendants further amended their answers, in paragraphs 7 and 8 substantially raising the same question of misjoinder of parties defendant and misjoinder of causes of action upou the grounds stated in the demurrers. The court overruled all of the demurrers of the defendants, and also refused to allow paragraphs 7 and 8-of the amendments to the answers. The defendants filed exceptions pendente lite to the order of the court overruling the demurrers and disallowing these amendments, and in a cross-bill of exceptions bring these questions to this court for decision. This statement of facts is all that is necessary to an understanding of the decision of the court.

The following questions in the instant case were certified to the Supreme Court by this court, namely:

"(1) In a case tried in the city court of Savannah a second new trial was granted the same party upon the sole ground that the evidence strongly preponderated in his favor, and in the order granting the new trial the judge of that court declared unconstitutional so much] of the act approved August 13, 1915, relating to the city court of Savannah (Acts 1915, p. 123, § 5), as provides: 'No second new trial shall be granted in any case except for errors of law, or where there is no evidence to support the verdict.' This ruling was made upon oral argument only of counsel for the movant; _ there being no pleadings in which the constitutionality of the act in question was attacked. The losing party excepts to the grant of the second new trial. Conceding that the evidence supports the verdict, and that no error of law appears, has the Court of Appeals jurisdiction to hear and determine this case, or does it 'involve the construction of the Constitution of the state, ' or 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?

"(2) May an employe of a railway company engaged in interstate commerce maintain a joint action against the company and its engineer, under the federal Employers' 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,...