Southern Ry. Co. v. Overnite Transp. Co.

• Decision Date: 08 May 1969
• Docket Number: No. 25112,25112
• Citation: 168 S.E.2d 166,225 Ga. 291
• Parties: SOUTHERN RAILWAY COMPANY v. OVERNITE TRANSPORTATION COMPANY.
• Court: Georgia Supreme Court

Page 166

168 S.E.2d 166

225 Ga. 291

SOUTHERN RAILWAY COMPANY v. OVERNITE TRANSPORTATION COMPANY.

No. 25112.

Supreme Court of Georgia.

May 8, 1969.

Rehearing Denied May 22, 1969.

Neely, Freeman & Hawkins, Edgar A. Neely, Jr., Atlanta, for appellant.

Baxter L. Davis, Nall, Miller, Cadenhead & Dennis, Gerald A. Friedlander, Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

When this case was here previously, we affirmed the judgment of the trial court and held that Code Ann. § 114-403 (Ga.L.1963, pp. 141, 145) was constitutional as against the numerous attacks made on its validity by the demurrers of Southern Railway Co. Southern Railway Co. v. Overnite Transportation Co., 223 Ga. 825, 158 S.E.2d 387. Overnite then filed a motion for summary judgment in the trial court with an affidavit attached. Southern responded to this motion by amending its answer and again asserting that Code Ann. § 114-403 is unconstitutional. Southern did not submit any evidence under the facts alleged therein opposition to the motion for summary judgment. The trial judge granted Overnite's motion for summary judgment and Southern appeals to this court. Held:

1. The appellant insists that it is entitled to introduce evidence in support of its amended answer and to show that Code Ann. § 114-403 is unconstitutional under the facts alleged therein. In our opinion the constitutional attacks in the instant case raise questions of law only. These were fully considered and decided adversely to appellant in Southern Railway Co. v. Overnite Transportation Co., supra. The appellant cannot relitigate the rulings of this court by the constitutional questions raised in its amended answer. Southern Cotton Oil Co. v. Raines, 171 Ga. 154(3a), 155 S.E. 484; Wilson v. Missouri State Life Ins. Co., 184 Ga. 184, 186, 190 S.E. 552; Lowe v. City of Atlanta, 194 Ga. 317, 21 S.E.2d 171; and Williams v. O'Connor, 208 Ga. 801, 69 S.E.2d 726.

'No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. It is the body of the case and not certain of its limbs only, that the final judgment takes hold upon. He must discharge all his weapons, and not reserve a part of them for use in a future rencounter. He must realize that one defeat will not only terminate the campaign, but end the war.' Perry v. McLendon, 62 Ga. 598, 604; R. O. A. Motors, Inc. v. Taylor, 220 Ga. 122, 127, 137 S.E.2d 459.

2. In its enumerations of error the appellant contends that the trial court erred in granting the motion for summary judgment in favor of Overnite Transportation Company in the amount of $4,646.95 for workmen's compensation and medical expenses paid to its employee because the affidavit in support thereof showed that the sum had not been paid by Overnite but had been paid by its insurance carrier Transport Insurance Company.

Appellee contends that under the previous decision of this court the law of the case established that Overnite could recover as employer even though its insurance carrier made the workmen's compensation payments. It also contends that regardless of the law of the case Code Ann. § 114-403 authorizes the employer to recover under these circumstances because it is the person 'called upon' to pay.

The petition states that Overnite paid the compensation. However, the...