After
Rehearing Judgment Adhered to February 26, 1926.
Syllabus by the Court.
The
case comes to this court on writ of certiorari to the Court
of Appeals. The defendant in certiorari made a motion in this
court to dismiss the case, on the ground that the petition
for certiorari failed to comply with rule 2 with regard to
the grant of writs of certiorari by this court. On
examination of the assignments of error contained in the
petition, after the grant of the writ, and after argument in
this court, it appears that the petition was improvidently
granted.
(a) The
petition offends rule 2, which provides: Argument and brief
of authorities must not be included in the petition, but must
be submitted separately.
(b) In
other portions of the petition the assignments of error are
based upon the contention that the evidence did not authorize
specified instructions to the jury. These do not assign error
on any questions of law of gravity and importance.
(c)
Whether or not the evidence supports the verdict in this case
does not present a question of gravity and general
importance.
There
being no valid assignments of error of gravity and general
importance, some of them failing to comply with rule 2
regulating the grant of writs of certiorari by this court
the writ of certiorari must be dismissed.
A
judgment dismissing the writ of certiorari was heretofore
rendered, whereupon the losing party filed a motion for
rehearing, which was granted. On the second consideration of
the case the judgment heretofore rendered is adhered to, but
the headnotes and opinion have been rewritten in the light of
the aforesaid proceedings and the filing of additional
briefs.
Russell
C.J., dissenting.
Certiorari
from Court of Appeals.
Suit by
Mrs. Katie Mae Tomlin, administratrix of W. C. Tomlin
deceased, against the Louisville & Nashville Railroad Company
and others. Judgment for plaintiff was affirmed by the Court
of Appeals (33 Ga.App. 585, 127 S.E. 416), and defendants
bring certiorari. Writ of certiorari dismissed.
Petition
for certiorari to Court of Appeals, which failed to comply
with rule 2, providing that argument and brief of authorities
must be submitted separately from petition, was improvidently
granted (Const. Amend. 1916; see Laws 1916, p. 19).
Louisville & Nashville Railroad Company and other railroad companies
operating under an agreement for terminal and yard purposes,
known as "Atlanta Joint Terminals," filed a
petition for certiorari, alleging error in the decision of
the Court of Appeals in a case brought by Mrs. Katie Mae
Tomlin, administratrix of W. C. Tomlin, deceased. The suit
was brought by Mrs. Tomlin in behalf of herself and two minor
children against the Atlanta Joint Terminals to recover
damages for the negligent homicide of her deceased husband.
The suit was based upon the federal Employers' Liability
Act, and the jury returned a verdict for the plaintiff. Upon
the overruling of a motion for new trial the defendants
excepted. The Court of Appeals affirmed that judgment,
whereupon the defendants filed this petition for certiorari.
Omitting the more elaborate statement of the case as made in
the petition, the following is the case made in this court
upon which the certiorari was granted:
"Petitioners assign error upon the ruling and decision
of the Court of Appeals in said case, affirming the judgment
of the lower court, and for more specific and distinct
assignments of error petitioners allege:
First. Petitioners assign error upon the decision of the
Court of Appeals of the state of Georgia, as set forth in the
opinion of said court in paragraph 1 thereof, as follows
'1. When considered in the light of the facts of the case
and the entire charge of the court, none of the excerpts from
the charge as complained of show reversible error.'
Petitioners aver that the said decision is erroneous, for
that said case is one in which a verdict could have been
rendered for the defendants upon the facts; that a verdict,
according to defendants' contentions, was demanded upon
the ground of the assumption of risk; that a verdict for the
amount of the contribution to the beneficiaries during the
years which each would have been entitled to such benefit,
and not beyond, might have been rendered; that a verdict
greatly reduced by contributory negligence of the decedent
might have been rendered, there being evidence of gross
contributory negligence in the aspect of the case most
favorable to plaintiff. In view of such evidence it could not
be determined what elements went to make up the verdict; the
same being for a gross sum. From this portion of the opinion
it is apparent that the Court of Appeals does not hold that
the portions of the charge complained of did not constitute
error, but only holds that, when considered in the light of
the facts and the entire charge of the court, none of the
excerpts complained of show reversible error. It is
respectfully urged that reversible error was committed by the
trial court in its charge, and that this error was never
corrected in the only manner provided, according to the
decisions of the Supreme Court of the state of Georgia.
7. The seventh ground of
the amended motion for new trial complains of the charge of
the court upon the measure of damages under the
Employers' Liability Act of Congress, as follows:
'Then, when you finally determine, gentlemen, the total
sum that would represent the losses of Mrs. Tomlin and her
two children, you would have to reduce that to its present
cash value. And in the matter of ascertaining that,
gentlemen, you would find first how much they would have lost
annually; what would be their annual loss. And in determining
this, gentlemen, you would take into consideration the fact
that old age as it comes on would have reduced Mr.
Tomlin's capacity to labor and earn money, and take into
consideration the uncertainty of business, the difficulty of
obtaining and keeping employment, and the fact that a person
rarely, if ever, labors every day of his life, and make due
allowance for all such considerations. Then you would
determine whether, if there was a reduction of his earning
capacity, there would be a reduced amount to go to these
beneficiaries, and in this way ascertain what you think would
represent their annual loss. Then, by multiplying the annual
loss by the number of years that you think they would have
lived-that is, the joint lives of Mr. and Mrs. Tomlin, and
the lives of the two children until they were 21 years
old-you would get the total amount of the loss. You would
ascertain these amounts to the wife and two children
separately, make the calculation separately, because Mrs.
Tomlin's expectancy, and her husband's expectancy,
may be greater than the period of minority of the children,
so, when you get the annual loss of each one, you would add
those sums together, and that would give you the total annual
losses. Then by multiplying the total annual loss by the
number of years of the expectancy involved, you would get the
gross sum or total sum to be allowed. As I said, gentlemen,
when you finally ascertain this sum, it becomes your duty to
reduce it to its present cash value, which would be a less
sum, and this can be done by any correct method of
calculation satisfactory to yourselves."
In giving this instruction the court committed a clear error
of most hurtful character, since the jury was instructed to
arrive at the gross amount of damages to which the respective
beneficiaries would be entitled, by combining the annual
losses of the beneficiaries, and by multiplying the combined
annual losses by the combined expectancies of the
beneficiaries. The language containing this error is found in
that portion of the instructions
hereinbefore quoted, as follows: 'Then, by multiplying
the annual loss by the number of years that you think they
would have lived, that is, the joint lives of Mr. and Mrs.
Tomlin, and the lives of the two children until they were 21
years old, you would get the total amount of the loss. You
would ascertain these amounts to the wife and two children
separately, make the calculation separately; because Mrs.
Tomlin's expectancy, and her husband's expectancy,
may be greater than the period of the minority of the
children. So, when you get the annual loss of each one, you
would add these sums together, and that would give you the
total annual losses. Then by multiplying the total annual
loss by the number of years of the expectancy involved, you
would get the gross sum or total sum to be allowed.' This
extract from the charge cannot be read without revealing the
glaring error which it embodies. It was properly made the
basis of ground for new trial, and it is respectfully
submitted that such error as is contained in this instruction
could not be cured, unless the same was specifically and
unqualifiedly withdrawn by the court from the jury's
consideration, and there is no pretense that this was done.
It was not corrected by any other portion of the charge. It
could only be corrected by pointing out to the jury the fact
that it was error and withdrawing it from their
consideration. The Court of Appeals has, therefore,
disregarded the decision of the Supreme Court of Georgia,
which set out the only proper method of correcting an
erroneous charge in the following cases, to wit: Savannah
Railway Co. v. Hatcher, 118 Ga. 273, 45 S.E. 239, in
which Mr. Justice Lamar, citing with approval Americus
Railroad Co. v. Luckie, 87 Ga. 6, 13 S.E. 105, and
Macon Railway Co. v. Moore, 99 Ga. 229, 25 S.E. 460,
and, after holding that the charge given was confusing, then
uses the following language: 'But the defendant in error
insists
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