Temples v. Cent. Of Ga. Rt. Co

• Decision Date: 16 February 1917
• Docket Number: (No. 7507.)
• Citation: 19 Ga.App. 307,91 S.E. 502
• Parties: TEMPLES v. CENTRAL OF GEORGIA RT. CO.
• Court: Georgia Court of Appeals

91 S.E. 502

(19 Ga.App. 307)

TEMPLES

v.CENTRAL OF GEORGIA RT. CO.

(No. 7507.)

Court of Appeals of Georgia, Division No. 1.

Feb. 16, 1917.

(Syllabus by the Court.)

Error from City Court of Albany; Clayton Jones, Judge.

Action by W. H. Temples against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

See, also, 15 Ga. App. 115, 82 S. E. 777.

John Henry Pool, of Albany, for plaintiff in error.

Pottle & Hofmayer, of Albany, for defendant in error.

WADE, C. J. [2-4, 7] The fourth, fifth, sixth, and eighth grounds of the motion for a new trial are expressly abandoned in the brief of counsel for the plaintiff in error. No review of the evidence developed at the trial of this case is necessary, nor is it necessary to amplify any of the rulings in the head-notes, except those in the first, fifth, and sixth headnotes, referring to the seventh, twelfth, thirteenth, and fourteenth grounds of the motion for a new trial.

The seventh ground of the motion for a new trial assigns error on the following excerpt from the charge of the court:

"The burden of proof in this case rests upon the plaintiff. There is no presumption of negligence against the defendant. The fact that the plaintiff may have been injured raises no presumption of negligence against the defendant, but the burden rests upon the plaintiff throughout the case to prove that any injury he may have received was caused by the defendant's negligence."

It is clear that there is no substantial merit in this exception. Under the allegations of the amended petition of the plaintiff and the admissions made in the plea of the defendant, the plaintiff was employed by the defendant in interstate commerce at the time he suffered the alleged injury, and the federal Employers' Liability Act of 190S (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]) therefore governs, to the exclusion of the state statute. Landrum v. Western & A. R. Co., 90 S. E. 710 (1).

"As the action is under the federal Employers' Liability Act, rights and obligations depend upon it and applicable principles of common law as interpreted and applied in federal courts. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. Rep. 635, 58 L. Ed. 1062, L R. A. 1915C, 1, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Central Vermont R. Co. v. White, 238 U. S. 507, 35 Sup. Ct. Rep. 865, 59 L. Ed. 1433 [Ann. Cas. 101GB, 252] 9 N. C. C. A. 265; Great Northern R. Co. v. Wiles, 240 U. S. 444, 36 Sup. Ct. Rep. 406 [60 L. Ed. 7321." Southern Ry. Co. v. Gray, 241 U. S. 334, 36 Sup. Ct. 558, 60 L Ed. 1030.

This being true, no presumption of negligence on the part of the defendant was created by proof of the injury resulting to the plaintiff while so engaged in interstate commerce. Ivey v. Louisville & Nashville R. Co., 18 Ga. App. 434, 89 S. E. 629. It was held by the United States Supreme Court in Southern Ry. Co. v. Prescott, 240 U. S. 632, 640, 36 Sup. Ct. 469, 473 (60 L. Ed. 836), in passing upon the liability of a carrier under a bill of lading for an interstate shipment, that the question as to responsibility under the bill of lading was a federal question, and that:

"The railway company was therefore liable only in case of negligence. The plaintiff, asserting neglect, had the burden of establishing it. This burden did not shift."

This is equally true in a personal injury suit brought under the federal Employers' Liability Act. The charge of the court complained of amounted to no more than a mere statement of the law that the burden of proof rested upon the plaintiff, or that he must prove his case by a preponderance of evidence, and was equivalent to the final instruction, "If you believe by a preponderance of the evidence that the plaintiff should prevail, " etc., given by request of counsel for the plaintiff. As was said by Justice Lumpkin in Hawkins v. Davie, 136 Ga. 550, 552, 71 S. E. S73:

"Where the presiding judge, in an ordinary action at law, correctly charges the jury in regard to the general burden of proof, he is not required, as an essential part of his charge, to discuss the shifting of the burden of introducing evidence on special points which may arise during the progress of the case; and it will not be held error that he omits to do so."

See, also, Martin v. Nichols, 127 Ga. 705, 709, 56 S. E. 995; Brandon v. Pritchett, 133 Ga. 480, 66 S. E. 247 (2); Central of Georgia Ry. Co. v. Manchester Mfg. Co., 6 Ga. App. 254, 64 S. E. 1128.

There was no request for a charge upon any rule of evidence or upon the shifting of the burden of proof.

The twelfth ground of the motion for a new trial is as follows:

"Because the court erred in appointing Dr. J. C. Keaton [and] Dr. J. M. Barnett to examine the person of plaintiff, to which plaintiff objected at the time of the appointment, upon the ground that said examination caused plaintiff nervous derangement and physical pain and exhaustion; that plaintiff was willing to be examined in the presence of the jury, and expected to be examined that way; that defendant's doctors had already made ample examination of plaintiff—which objections were then and there overruled, and the appointment made, and an examination made, in pursuance thereof."

The thirteenth ground of the motion for a new trial is as follows:

"Because the court erred in admitting the following material evidence [set out in an exhibit attached] of Dr. J. M. Barnett: Of the exam ination made by him of the person of plaintiff, W. H. Temples, under the order of the court. Movant objected to the evidence at the time it was offered, and did then and there urge the following grounds of objection: Because said Dr. J. M. Barnett had twice previously testified upon behalf of the defendant."

To these two grounds of the motion the trial judge attaches the following note:

"In reference to grounds 12 and 13 defendant made due application for a commission of doctors to examine the plaintiff, which was duly assigned for hearing and heard on the 13th day of October, 1915. After hearing same on the pleadings and evidence submitted, including the briefs of evidence of the two previous trials, I announced that under all of the circumstances I thought the appointment of a commission was proper and would grant an order accordingly. Suggestions were made as to whether or not the doctors should be appointed from other cities, or whether or not they should be residents of Albany, and both sides seemed to prefer the appointment of resident doctors, and I invited suggestions from both sides informally, in an effort to get doctors who would be agreeable to both sides. When the name of Dr. Keaton was suggested, I mentioned the fact that he was my brother-in-law, and both sides stated that would not affect the matter, and made no objection personally to his appointment. It was further stated that he was the only doctor in the city who had an X-ray machine. Dr. Barnett's name was suggested by me, as I recall it, because he was generally recognized as one of the most competent physicians and surgeons in South Georgia, and the court knew also that he was a man of high honor and integrity. Plaintiff's counsel said that he previously testified in the case, but the record showed also that he had never examined the plaintiff, had previously testified on hypothetical questions, and that there was practically no dispute between the doctors who testified on both sides in the former trials in regard to the answers on these hypothetical questions. When this appeared, counsel for the plaintiff stated that, while he objected to the appointment of a commission, he had no objections to offer to Dr. Barnett or Dr. Keaton, his objections going to the appointment of any commission of doctors. From all that occurred and was said at the hearing, I understood that the appointment of the two physicians named was satisfactory to both sides, as they were to the court, in so far as their professional and personal standing, ability, integrity, and impartiality were concerned, and I never heard any suggestion to the contrary from plaintiff or his counsel until after the physicians named had examined the plaintiff. The court ordered the examination of the plaintiff to take place at Columbia, Ala., where plaintiff was, and refused to order it done at Albany; but it was agreed by counsel that plaintiff's counsel was to try to get his client to come to Albany at defendant's expense, in which event it was agreed that the examination might be held at Albany. At a hearing before me about two or three weeks before the case was assigned for trial I was informed that the plaintiff refused to come to Albany and would not let the doctors examine him if they came to Columbia, Ala., unless his doctor was present. Defendant then insisted on the right to have its doctor also present, and I was asked by both sides to construe the order previously granted, which I did by inserting in the order, by consent of both sides, that no one should be present except the doctors heretofore appointed. It was brought to the attention of the court later, some time having been consumed in the effort to have the examination made at Albany, that the doctors had not been able to go to Columbia, for various reasons, one of them when a date had been set, on account of the continued critical illness of one of the mem-bers of the family where one of the doctors appointed lived. The case had been assigned for trial for the 16th day of November, 1915. on Tuesday, and, for the reasons above stated, it was brought to the attention of the court that defendant's counsel had requested plaintiff's counsel to have his client come to Albany on the day before the case was set so that the doctors could examine him, then otherwise, they stated, they would be compelled to ask the court to postpone the case sufficiently long to have the examination made on the day the case was assigned for trial. About two days before the case...