Yarbrough v. Georgia Railroad & Banking Co.

• Decision Date: 20 March 1933
• Docket Number: 9201.
• Parties: YARBROUGH v. GEORGIA R. & BANKING CO.
• Court: Georgia Supreme Court

168 S.E. 873

176 Ga. 780

YARBROUGH v. GEORGIA R. & BANKING CO.

No. 9201.

Supreme Court of Georgia

March 20, 1933

Syllabus by the Court.

Supreme Court will not pass on constitutionality of statute, unless record clearly shows that point was directly and properly made below and distinctly passed on by trial judge.

Where judgment showed trial judge sustained general demurrer to petition in death action on other grounds than grounds attacking constitutionality of governing statute, Court of Appeals, not Supreme Court, had jurisdiction of writ of error (Const. art. 6, § 1, par. 5; Civ. Code 1910, §§ 4424, 4425 as amended by Laws 1924, p. 60).

1. "This court will never pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge." Brown v. State, 114 Ga. 60, 39 S.E 873.

2. In a suit for damages the court sustained a general demurrer and dismissed the action, and the plaintiff brought the case to the Supreme Court. The demurrer presented several contentions, including an attack upon the constitutionality of certain statutes; but it appears from the judgment that the trial judge did not pass upon the constitutional questions, but sustained the demurrer upon other grounds. The case involves no other question such as would confer jurisdiction upon this court. Since the judge did not rule upon the constitutional questions, this court is without jurisdiction to entertain the writ of error, but jurisdiction is in the Court of Appeals.

Error from Superior Court, Greene County; James B. Park, Judge.

Suit by Mrs. I. R. Yarbrough against the Georgia Railroad & Banking Company. Suit was dismissed, and plaintiff brings error.

RUSSELL C.J., and ATKINSON, J., dissenting.

Craighead Craighead, Dwyer & Dwyer, of Atlanta, and Joseph P. Brown, of Greensboro, for plaintiff in error.

Noel P. Park and Miles W. Lewis, both of Greensboro, for defendant in error.

BELL Justice.

Mrs. I. R. Yarbrough brought suit against Georgia Railroad & Banking Company, to recover damages for the alleged negligent homicide of a minor son, I. W. Yarbrough. The court sustained a general demurrer and dismissed the action, and the plaintiff brought the case to this court.

We are of the opinion that the Court of Appeals, and not the Supreme Court, has jurisdiction. The question of jurisdiction depends on whether the case involves a constitutional question within the meaning of that provision of the Constitution which defines the jurisdiction of this court. Civil Code (1910), § 6502; see Ga. Laws 1916, p. 19. The plaintiff's right to sue depended upon the provisions of the Civil Code of 1910, sections 4424, 4425, as amended by Laws 1924, p. 60. The demurrer attacked the constitutionality of these statutes; but it appears from an examination of the judge's order sustaining the demurrer that he did not pass upon the constitutional questions. An examination of certain grounds of the demurrer and the judgment rendered thereon will demonstrate the correctness of this conclusion. The defendant demurred upon the following, among other grounds: (1) The petition set forth no cause of action; (2) the petition shows upon its face that the death of the decedent was due to his own negligence and want of ordinary care; (3) the petition shows that the acts of the agents and servants of the defendants were not the proximate cause of the death, but that the same was caused by the negligence of the deceased; (4) the plaintiff seeks to recover more than compensation for the alleged injury, in that she sues for the full value of the life of the deceased without any deduction for the expenses of the deceased had he lived.

Grounds 5 and 6 presented the contention that the act of the General Assembly as embodied in the Civil Code 1910, sections 4424, 4425, as amended by the act of August 18, 1924 (Ga. Laws 1924, p. 60), is unconstitutional and void, as being in violation of specified provisions of the state and Federal Constitutions, for reasons stated in those grounds.

The following is a copy of the material portions of the opinion and judgment of the trial judge: "This suit was based upon the allegations that I. W. Yarbrough, a son of the plaintiff, was killed by the operation of a freight train of the defendant on the night of October 29, 1931, in Greensboro, Georgia, as fully set forth in said original petition and the amendments thereto; and I refer to said pleadings as to the details of the allegations. The defendant demurred to said petition, on the general ground that no cause of action was set forth, and upon certain special grounds; and I refer to said original demurrer and the amendment thereto as to the details of the grounds embraced therein. The decisions of our Supreme Court and Court of Appeals are uniform on the principle of law, that if a person knowingly goes into a place of danger, when there is no urgent necessity for him to do so, he (is) guilty of such gross negligence that as a matter of law he cannot recover any damages for any injury he might sustain under such circumstances. In support of this principle of law, see the following authorities, to wit: Central Railroad, etc., Co. v. Rylee, 87 Ga. 491, 13 S.E. 584, 13 L.R.A. 634; Georgia Railroad Co. v. Fuller, 6 Ga.App. 457, 65 S.E. 313, and cases cited; Howard v. Augusta Southern R. Co., 6 Ga.App. 732, 65 S.E. 719; Central Ry. Co. v. Mullins, 7 Ga.App. 384, 66 S.E. 1028; Kennemer v. Western & Atlantic Railroad, 42 Ga.App. 266, 155 S.E. 771, and many cases cited; Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812, 127 S.E. 274, and the authorities cited. There are many other decisions of our courts on the same line, but it is unnecessary to quote any further authorities on this principle of law. Therefore it is ordered by the court that the general demurrer to the original petition and...