Southern Bell Tel. & Tel. Co. v. Glawson

• Decision Date: 13 August 1913
• Citation: 79 S.E. 136,140 Ga. 507
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. GLAWSON et al.
• Court: Georgia Supreme Court

79 S.E. 136

140 Ga. 507

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. GLAWSON et al.

Supreme Court of Georgia

August 13, 1913

Syllabus by the Court.

Where a petition has been dismissed in the trial court upon general demurrer, and that judgment has been reviewed by the Court of Appeals, and reversed in a decision holding that the petition sets forth a cause of action, and, subsequently to the rendition of such decision by the Court of Appeals, the Supreme Court renders a decision in another case, the effect of which is to show that the decision of the Court of Appeals is erroneous, and, after the rendition of such decision by the Supreme Court, the case first mentioned again comes before the Court of Appeals upon writ of error, assigning error upon the judgment overruling a motion for new trial filed by the defendant, the Court of Appeals, upon a consideration of the second writ of error, is bound by its own decision in the former case, and should not in that case follow and apply the contrary decision of the Supreme Court though it should do so in other cases.

This court declines to overrule the decisions in Chapman v Western Union Telegraph Co., 88 Ga. 763, 15 S.E. 901, 17 L.R.A. 430, 30 Am.St.Rep. 183, Giddens v. Western Union Telegraph Co., 111 Ga. 824, 35 S.E. 638, Seifert v Western Union Telegraph Co., 129 Ga. 181, 58 S.E. 699 11 L.R.A. (N. S.) 1149, 121 Am.St.Rep. 210, and Southern Bell Telephone & Telegraph Co. v. Reynolds, 139 Ga. 385, 77 S.E. 388, and they should be followed by the Court of Appeals as precedents.

Action by J. L. Glawson and others against the Southern Bell Telephone & Telegraph Company. Judgment for plaintiffs, and defendant brings error to the Court of Appeals, which certifies certain questions to the Supreme Court. Questions answered.

H. E. W. Palmer, B. J. Clay, and McDaniel & Black, all of Atlanta, and W. P. Wallis, of Americus, for plaintiff in error.

Robt. L. Berner, of Macon, and J. A. Hixon, of Americus, for defendants in error.

LUMPKIN J.

1. The first question propounded by the Court of Appeals raises an interesting question of practice. It involves what is commonly called the doctrine of "the law of the case." This doctrine is thus stated in 26 Am. & Eng. Enc. L. (2d Ed.) 184: "The doctrine of 'the law of the case' may be stated thus: A matter decided on one appeal cannot be re-examined on a second appeal in the same case; for the decision of an appellate court, whether right or wrong, in a case before it, is conclusive upon the points presented throughout all the subsequent proceedings in the case, both upon the appellate court itself and upon the trial court. Concisely, it is said that the decision on appeal becomes 'the law of the case."' In this court the rule is well settled. In Western & Atlantic R. Co. v. Third National Bank of Atlanta, 125 Ga. 489, 54 S.E. 621, it was held: "A decision by the Supreme Court is controlling upon the judge of the trial court, as well as upon the Supreme Court when the case reaches that court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case, even though the ruling has been disapproved by the Supreme Court in a case decided before the second appearance of the case in that court." See, also, Gilmore v. Johnson, 29 Ga. 67; Ingram v. Trustees of Mercer University, 102 Ga. 226, 29 S.E. 273, and citations; Allen v. Schweigert, 113 Ga. 71, 38 S.E. 397; McLendon v. Macon, Dublin & Savannah R. Co., 123 Ga. 253, 51 S.E. 317.

Had the decision on the demurrer been rendered here, it would stand as the law of the case, although a different ruling might have been made in regard to the principle involved before the case reached this court for the second time. Does it alter the rule that the decision on the demurrer was made by the Court of Appeals, and that the case is in that court for the second time? We think not. It was argued that, as the Constitution declares that "the decisions of the Supreme Court shall bind the Court of Appeals as precedents," this abolished the "law of the case" rule under circumstances like those involved in the question now under consideration, and that the Court of Appeals was bound to follow the later decision of this court on the same principle in a different case, instead of its own former decision in the same case. To this contention there are two replies: The first is that, in the fallibility and imperfection which inheres in all human institutions, lawyers, and even judges, sometimes honestly differ as to the application of a precedent. The Court of Appeals is a court of last resort as to the cases within its jurisdiction (omitting reference to constitutional questions and certified questions). Its decisions, within its jurisdiction, are final. They cannot be treated as nullities. If by any chance the judgment in a particular case should be erroneous, it would still be binding. Saffold v. Mangum, 139 Ga. 119, 76 S.E. 858; Buck v. Duval, 139 Ga. 599, 77 S.E. 809. Any other rule would create utter confusion. It is the duty of the superior courts to follow the decisions of the Supreme Court as precedents. Suppose a superior court should make errors in the effort to do so, but no exception should be taken to the judgment, it could not be disregarded as void. There must be somewhere an end of controversy, and that necessity is what Chief Justice Bleckley doubtless had in mind when in his opinion in Broome v. Davis, 87 Ga. 584, 13 S.E. 749, he humorously referred to "the fallibility which is inherent in all courts except those of last resort."

Again the declaration that the decisions of the Supreme Court shall be binding on the Court of Appeals as precedents is only a part of a paragraph of the Constitution. The same paragraph also declares that the laws relating to ...