Lee v. Central of Ga. Ry. Co.

• Decision Date: 17 November 1917
• Docket Number: 185.
• Citation: 94 S.E. 558,147 Ga. 428
• Parties: LEE v. CENTRAL OF GEORGIA RY. CO. ET AL. CENTRAL OF GEORGIA RY. CO. ET AL. v. LEE.
• Court: Georgia Supreme Court

94 S.E. 558

147 Ga. 428

LEE v. CENTRAL OF GEORGIA RY. CO. ET AL.

CENTRAL OF GEORGIA RY. CO. ET AL. v. LEE.

No. 185.

Supreme Court of Georgia

November 17, 1917

Syllabus by the Court.

Upon argument of counsel on motion for new trial after verdict in an action of tort, the judge of the city court of Savannah declared unconstitutional a provision of the act of 1915 (Acts 1915, p. 123, § 5), amending the act creating that court; no question of the constitutionality of this provision having otherwise been raised. Held, that the Court of Appeals of this state has jurisdiction of a writ of error from the judgment granting a new trial.

Additional Syllabus by Editorial Staff.

An employé of a railway company engaged in interstate commerce cannot maintain a joint action against the company and its engineer under the federal Employers' Liability Act of 1908 (U. S. Comp. St. 1916, §§ 8657-8665), where the concurring negligence of the railroad and its engineer in interstate commerce is alleged as the cause of the injury and where a violation of the Safety Appliance Act of Congress (U. S. Comp. St. 1916, § 8605 et seq.) is also charged against the railroad.

Certified Questions from Court of Appeals.

Action by B. C. Lee against the Central of Georgia Railway Company and others. To the granting of a second new trial, there were exceptions and a cross-bill of exceptions, and the Court of Appeals certified two questions. First question answered in the affirmative, and second question answered in the negative.

p>Page Osborne, Lawrence & Abrahams, of Savannah, for plaintiff.

Lawton & Cunningham and H. W. Johnson, all of Savannah, for defendants.

GILBERT J.

1. The Court of Appeals has jurisdiction to hear and determine this case. It does not "involve the construction of the Constitution of the state," nor 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.

The record of the case, together with the query propounded by the Court of Appeals, shows that the trial judge in rendering the judgment granting a new trial declared a part of a statute of the General Assembly "unconstitutional" without indicating whether it offended against the state or the federal Constitution, and without pointing out what portion of either Constitution it offended. The question propounded assumes that the ruling has reference to the Constitution of Georgia. Even with this qualification the ruling is not sufficiently specific to afford a review of the same. A reviewing court cannot ascertain what section or paragraph of the Constitution the trial judge had in mind; and it is an unvarying rule that this court will not search through and consider the entire Constitution, state or federal, to determine whether the act offends in some particular, where none is specified. Griggs v. State, 130 Ga. 16, 60 S.E. 103; Anderson v. State, 2 Ga.App. 1, 58 S.E 401. The judgment, therefore, in this case should be treated without reference to the constitutionality of the act, since this has not been drawn in question.

2. The second question is answered in the negative. An employé of a railway company engaged in interstate commerce cannot 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. And this is true irrespective of any allegation as to a violation of the Safety Appliance Act of Congress.

The federal Employers' Liability Act imposes a duty upon the carrier, and this law is exclusive. All state laws which were applicable to such a case prior to the above enactment are suspended. Landrum v. W. & A. R. Co., 146 Ga. 88, 90 S.E. 710; N.Y. Central R. Co. v. Winfield, 244 U.S 147, 37 S.Ct. 546, 61 L.Ed. 1045, Ann.Cas. 1917D, 1139. ...