Tennessee Coal, Iron & R. Co. v. George

• Decision Date: 05 June 1912
• Docket Number: 3,846.
• Citation: 75 S.E. 567,11 Ga.App. 221
• Parties: TENNESSEE COAL, IRON & R. CO. v. GEORGE.
• Court: Georgia Court of Appeals

75 S.E. 567

11 Ga.App. 221

TENNESSEE COAL, IRON & R. CO. v. GEORGE.

No. 3,846.

Court of Appeals of Georgia

June 5, 1912

Syllabus by the Court.

Section 906 of the Revised Statutes of the United States (U. S. Comp St. 1901, p. 677), which was enacted to carry into effect article 4, § 1, of the federal Constitution, requires the courts of the several states to enforce any transitory cause of action created by a statute of a sister state, not opposed to the settled policy of the state wherein the cause of action is sought to be enforced. But neither the Constitution of the United States nor any act of Congress passed in pursuance thereof authorizes the Legislature of one state to deny to one having a transitory cause of action originating in that state under one of its statutes the right to appeal to the courts of another state for the enforcement of his cause of action.

In civil cases it is discretionary with the trial judge whether he will permit the jury to be polled; and the reviewing court will interfere only in a clear case of abuse of discretion. There was none such in the present case.

Under the facts of this case, it was not error, requiring the grant of a new trial, to permit the plaintiff to testify that there was nothing he could have done which he did not do to prevent the injuries he received.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Wiley George against the Tennessee Coal, Iron & Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The plaintiff brought his action by attachment in the city court of Atlanta, claiming damages for personal injuries, alleged to have been received by him while in the defendant's employ as a locomotive engineer in the state of Alabama. The plaintiff pleaded, as the basis of his right to recover section 3910 of the Code of Alabama of 1907. That section provides that, when a personal injury is received by a servant in the service of business of his master, the master is liable in damages to the servant as if he were a stranger and not engaged in the service of the master, in several named cases, among which are the following: (1) When the injury is caused by reason of any defect of the ways, works machinery, or plant connected with or used in the business of the master; (2) when the injury is caused by reason of the negligence of any person in the employment of the master, who has any superintendence intrusted to him while in the exercise of such superintendence; (3) when such injury is caused by the negligence of any coemployé of the master to whose orders or directions the injured servant was, at the time of the injury, bound to conform, and did conform, if such injuries resulted from obedience to such orders; (4) when the injury is caused by reason of the act or omission of any servant in the service or employment of the master done or made in obedience to the rules or regulations of the master, or in obedience to particular instructions given by any person delegated with the authority of the master; (5) when the injury is caused by reason of the negligence of any person in the employment of the master, who has charge or control of any signal, locomotive, or other named appliance of the master. It is further provided in the section that the master is not liable, if the servant knew of the defect causing the injury, and failed in a reasonable time to give information thereof to the master, or to some person superior to himself, unless the master or such superior already knew of the defect; nor is the master liable under subdivision 1 of the section, unless the defect arose from, or had not been discovered or remedied owing to, the negligence of the master, or of some person in the service of the master and intrusted by him with the duty of seeing that the ways, works, and other named appliances were in proper condition; provided, that in no event shall it be contributory negligence or an assumption of the risk on the part of a servant to remain in the employment of the master after knowledge of the defect or negligence causing the injury, unless he be a servant whose duty it is to remedy the defect, or who committed the negligent act causing the injury complained of.

The plaintiff was injured while undertaking to repair a locomotive, and on account of certain defects in the locomotive, which are set forth in detail in the petition. In defense to the action, the defendant pleaded, among other things, section 6115 of the Code of Alabama of 1907, which is in the following language: "All actions brought under sections 2486 and 3910 must be brought in a court of competent jurisdiction within the state of Alabama and not elsewhere." Upon motion of the plaintiff, the court struck this plea, and this is the primary error assigned in the record. A verdict in favor of the plaintiff was returned, and the defendant's motion for a new trial was overruled.

In this court the plaintiff in error expressly abandoned those grounds of its motion in which complaint is made that the verdict is not authorized by the evidence and is excessive. The only ground insisted upon here is the overruling of its objection to the following question propounded by the plaintiff's attorney to the plaintiff, while testifying in his own behalf: "Was there anything else you could have done to keep the engine still when you were under it?" The objection was that the question called for an expression of an opinion on the part of the witness in reference to a matter which was solely for decision by the jury. The witness answered the question as follows: "Nothing on earth that I know of." There is a further assignment of error in the bill of exceptions as follows: After the verdict of the jury had been announced, and before the jury were dispersed and the verdict had been recorded, defendant's counsel made the following statement and motion: "Having reason to suspect a practice with the juries in this county of arriving at verdicts in illegal ways, such as by agreements in advance to abide by the vote of less than the whole 12 as to whether the finding should be in favor of the plaintiff or the defendant, and by agreements in advance to fix the amount of recoveries as damages as the average arrived at by totaling the amounts expressed by each individual juror and dividing the sum by 12, and thus producing a quotient or speculative verdict, I respectfully request on behalf of the defendant, that this jury be polled, and each juror interrogated as to whether the verdict rendered is his individual verdict, unaffected by any agreement among the jurors in advance of arriving at it, by which it was found to be in favor of the plaintiff, and independent of any agreement with the other jurors in advance of arriving at it, by which the amount of it was fixed by any calculation of averages of the estimates of individual jurors." The court overruled this motion and declined to propound the questions suggested by counsel, though it seems from a statement in the brief of counsel for the plaintiff in error that the court was willing to permit the usual question to be propounded to each of the jurors, "Is this your verdict?"

Smith, Hammond & Smith, of Atlanta, for plaintiff in error.

R. R. Arnold and Lamar Hill, both of Atlanta, for defendant in error.

POTTLE, J. (after stating the facts as above).

1. Both in the trial court and in this court, the plaintiff in error, in support of its plea that the action could not be maintained because of the provisions of section 6115 of the Code of Alabama of 1907, invoked article 4, § 1, of the Constitution of the United States which is in the following language: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effects thereof." Section 6115 was adopted, with the Code of 1897 in solido, some time after the passage of the act contained in section 3910, and in the argument for the defendant in error some importance is attached to this fact. We prefer, however, to deal with the point as if the restriction of the right to sue to the courts of competent jurisdiction in Alabama had been part and parcel of the statute creating the cause of action. It is broadly contended by counsel for the plaintiff in error that the full faith and credit clause of the federal Constitution would compel courts of Georgia to give effect to the limitation contained in section 6115, and to refuse to take cognizance of a suit based upon the provisions of section 3910. In other words, it is insisted that the state of Alabama has the power to create a right and limit its enforcement to the courts of that state. Counsel for the defendant in error reply that the laws of Alabama can have no extra-territorial effect; that, while any condition or limitation prescribed by the Legislature of that state, which goes merely to the manner in which the right shall be exercised, is binding upon the courts of that state, yet that all conditions or limitations which affect merely the remedy have no force beyond the limits of the state, but are matters as to which the lex fori controls.

It is of course, well settled that the courts of one state will enforce any transitory cause of action arising in another state which is not opposed to the settled policy of the state wherein it is sought to enforce the right. The question therefore presented for our determination is whether or not the Legislature of one state can create a statutory right which gives rise to a transitory cause of action, and at the same time localize the right, so as to prevent its enforcement beyond the limits of ...