Macon Busses v. Dashiell

• Citation: 35 S.E.2d 666,73 Ga.App. 108
• Decision Date: 24 October 1945
• Docket Number: 31016.
• Parties: MACON BUSSES, Inc., v. DASHIELL.
• Court: United States Court of Appeals (Georgia)

35 S.E.2d 666

73 Ga.App. 108

MACON BUSSES, Inc., v. DASHIELL.

No. 31016.

Court of Appeals of Georgia, Division No. 2.

October 24, 1945

Syllabus by the Court.

1. The provision for writs of error to the Court of Appeals or the Supreme Court from the municipal court of the City of Macon as authorized by the constitutional amendment of 1927 Ga.L.1927, p. 117, and the enabling act of 1935, Ga.L.1935 p. 534, was not altered or changed by the adoption of the amendment revising the Constitution on August 7, 1945. Therefore, the motion to dismiss the bill of exceptions for want of jurisdiction in this court to entertain the same is denied.

2. The exceptions to the charge of the court, contained in special grounds 4, 5, 6 and 7 of the motion for new trial and which are dealt with in divisions 3, 4 and 5 of the opinion in this case, show no error.

3. The assignment of error in ground 9 of the amended motion for new trial on the admission of evidence there excepted to is without merit.

4. The verdict was authorized by the evidence and the court did not err in overruling the motion for new trial.

Jesse W. Bush and Harris, Russell, Weaver & Land, all of Macon, for plaintiff in error.

R. D. Feagin, of Macon, amicus curiae.

Thos. W. Johnson and Hendley Napier, both of Macon, for defendant in error.

SUTTON Presiding Judge.

E. B. Dashiell sued the Macon Busses, Inc., in the municipal court of the City of Macon, for damages to his automobile in the sum of $300. The petition as amended alleged that on February 1, 1945, at about 1 o'clock a. m. the plaintiff, while driving his 1941 Ford coupe on the Riggins Mill Road in Bibb County, in the direction of Camp Wheeler, came over a hill at a point near the Herbert Smith air port, and ran into a bus owned and operated by the defendant; that the rear of the bus was 18 to 20 inches to the left of the center line of the road on the plaintiff's side, and the plaintiff in coming over the hill and facing the lights of the bus could not see that the rear of the bus was across the center line of the road; that the accident was caused by the negligence of the defendant in that the bus was on the wrong side of the road; that plaintiff's automobile was damaged to such extent that it required $234.90 to repair it; and the market value of the automobile prior to the accident was $931 and after the accident the market value was $631.

The defendant in its answer denied it was negligent in any manner whatsoever and alleged that plaintiff himself was negligent and failed to exercise ordinary care and diligence, and further alleged that if it were negligent, which it expressly denied, plaintiff could have avoided the consequences thereof by the exercise of ordinary care and diligence.

The defendant also filed a general and special demurrer to the petition, which the court overruled.

A verdict and judgment for $300 were rendered for the plaintiff; and the exceptions here are by the defendant to the overruling of its demurrers and motion for a new trial.

1. Counsel for the defendant in error have made a motion to dismiss the bill of exceptions on the following grounds: '(1) This court is without jurisdiction to consider this appeal. (2) Since the ratification of the revised Constitution of Georgia in the election of August 7, 1945 and since Article 6, Section 2, Paragraph 8 became the last expression of the Constitution as to the jurisdiction of the Supreme Court and the Court of Appeals of Georgia, a bill of exceptions and writ of error will not lie direct to the Court of Appeals or to the Supreme Court from the Municipal Court of the City of Macon; and neither the Court of Appeals nor the Supreme Court has jurisdiction to entertain and hear said appeal in this case under the law as laid down in Griffin v. Sisson, 146 Ga. 661 and [Id.]. 19 Ga.App. 828 .'

The motion to dismiss the writ of error states that since the adoption of the revised Constitution on August 7, 1945, this court does not have jurisdiction to entertain this appeal under the law as laid down in Griffin v. Sisson, 146 Ga. 661, 92 S.E. 278, and Id., 19 Ga.App. 828, 92 S.E. 558. It was held in the Griffin case that the constitutional amendment of 1912, Ga.L.1912, p. 30, amending Art. 6, Sec. 7 Par. 1 of the Constitution, and which authorized the General Assembly to abolish justice courts in any city of this state having a population of over 20,000 and establish in lieu thereof such court or courts or system of courts as the General Assembly deemed necessary, together with the provision for the correction of errors in and by said courts by the superior court, Court of Appeals or the Supreme Court, was impliedly repealed by the constitutional amendment of 1916, Ga.L.1916, p. 19, which allows writs of error to the Supreme Court and the Court of Appeals only from superior courts, from the city courts of Atlanta and Savannah and such other like courts; and held that the municipal court of Atlanta is not a court like the city court of Atlanta or that of Savannah and that a writ of error would not lie from that court to the Court of Appeals, or, in other words, that the provision of law for a writ of error from the municipal court of Atlanta to the Court of Appeals was repealed by the constitutional amendment of 1916. This decision was rendered by the Supreme Court in April, 1917. In August, 1927 (Ga.L.1927, p. 117), Art. 6, Sec. 7, Par. 1 of the Constitution was amended by re-enacting the constitutional amendment of 1912 with the further provision that the General Assembly was authorized to abolish justice courts and the office of notary public and ex officio justice of the peace in any county of this state having within its borders a city having a population of over 20,000 and to establish in lieu thereof such court or courts or system of courts as the General Assembly might deem necessary together with the provision for the correction of errors in and by said courts by the superior court, or the Court of Appeals or the Supreme Court as the General Assembly might provide or authorize. In 1933, Ga.L.1933, p. 294, the legislature passed an act which makes provision for direct bills of exceptions to the Court of Appeals or the Supreme Court from the municipal court of Atlanta. In Dillon v. Continental Trust Co., 179 Ga. 198, on page 203, 175 S.E. 652, on page 656, the Supreme Court ruled, among other things, that 'In view of the express constitutional provision contained in the amendment of 1927 and the act of the Legislature to which we have referred, bills of exceptions from the municipal court of Atlanta to the Court of Appeals will lie. The amendment of 1927 abrogates or repeals the amendment of 1916 to such an extent as to re-enact the amendment of 1912 allowing direct appeals from the municipal court of Atlanta'; and on page 204 of 179 Ga., on page 656 of 175 S.E., that 'In view of the plain language of the constitutional amendment of 1927 and the enabling act of 1933, we are of the opinion that the Court of Appeals has jurisdiction to determine the questions raised in a bill of exceptions from the municipal court of Atlanta.' By virtue of the authority of the constitutional amendment of 1927, just referred to, the General Assembly in 1935, Ga.L.1935, p. 534, provided for a writ of error to the Court of Appeals or the Supreme Court from the municipal court of the City of Macon. Art. 6, Sec. 7, Par. 1 of the Constitution as amended by the constitutional amendments of 1912 and 1927, Code, § 2-3501, was re-enacted and brought forward in the new Constitution as Art. 6, Sec. 7, Par. 1, without any material alteration or change. Art. 6, Sec. 2, Par. 9 of the Constitution, consisting of the constitutional amendment of 1906, Ga.L.1906, p. 24, and the constitutional amendment of 1916, Ga.L.1916, p. 19, Code, § 2-3009, fixing the jurisdiction of the Court of Appeals, was re-enacted and brought forward in the revised or new Constitution as Art. 6, Sec. 2, Par. 8, in the same language or substantially the same language as contained in said Code, § 2-3009. The authority and provision for bringing cases to the Court of Appeals from the municipal court of the City of Macon have not been changed in any manner by the adoption of the revised or new Constitution, on August 7, 1945. And applying the rule made by the Supreme Court in the case of Dillon v. Continental Trust Co., 179 Ga. 198, 175 S.E. 652, the writ of error in this case from the municipal court of the City of Macon will lie and is not subject to the motion to dismiss on the ground that this court is without jurisdiction to entertain the same. Moreover, the present case was tried and verdict and judgment rendered therein, motion for new trial overruled, and the bill of exceptions was filed in this court before the adoption of the present Constitution on August 7, 1945. And Art. 12, Sec. 1, Par. 5 of the Amendment adopted August 7, 1945, revising the Constitution, provides in plain and unambiguous language that: 'All judgments, decrees, orders, and other proceedings, of the several courts of this state heretofore made within the limits of their several jurisdictions, are hereby ratified and affirmed, subject only to reversal by motion for a new trial, appeal, bill of review or other proceedings, in conformity with the law of force when they were made.' "The Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the constitution to a given state of facts, and that do not involve the construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the...