Moreland v. State

Beck, P. J., and Gilbert, J.,

concurring specially. We agree that the question is answered correctly, but dissent from the view that the question, as propounded, is such a question as is contemplated by the constitution, authorizing the 'Court of Appeals to certify questions to this court. As we view the question, it simply inquires whether certain stated facts are sufficient to authorize the verdict rendered by the jury. In Lynch v. Southern Express Co., 146 Ga. 68, 71 (90 S. E. 527), a decision concurred in by all the Justices, this court said: “With a view of preserving uniformity of decision, the constitution provides for the certifying of constitutional questions’ to the Supreme Court, and further provides that 'The Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court shall give' its instruction on the question certified to it, which shall be binding on the Court of Appeals in such case. The manner of certifying questions to the Supreme Court by the Court of Appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its rules prescribe, until otherwise provided by law/ Constitution of Georgia, art. 6, sec. 2, par. 9 (Civil Code of 1910, § 6506). Two features stand prominent in this constitutional provision: one is that the question certified is to be one of law; and the other is that the purpose of the certification is to settle the question of law for application by the Court of Appeals in a 'proper decision’ of the case by them. There can be no doubt that the words, 'question of law,’ as used in the constitution, considered abstractly or in connection with the context, were not intended to embrace questions of fact, or mixed questions of law and fact; the manifest object being to submit to the Supreme Court a definite question of law. The propriety of granting a non-suit or of directing a verdict depends upon the effect to be given the evidence.”

In Louisville &c. R. Co. v. Hood, 149 Ga. 829 (102 S. E. 521), the same subject was discussed. The above extract from the Lynch ease was quoted and approved, and it was said that “the ruling made in the Lynch ease, supra, has been followed in subsequent decisions by this court.” In the Lynch case the question propounded was whether the evidence was sufficient to withstand *474a motion to nonsuit or direct a verdict. In the later case above cited, the Court of Appeals set out the evidence at length and then inquired whether, “under such circumstances, the plaintiff was entitled to recover even if the defendant were negligent,” etc. These cases, we think, definitely rule that questions like the one now under consideration are not such as the Court of Appeals may propound nor such as the Supreme Court may answer.