Hicks v. Louisville & Nashville Railroad

Bussell, Chief Justice,

dissenting. I sincerely regret that I cannot concur in the opinion of my very learned associates. It is stated in the opinion of the majority that “On principle, this case is identical” with Louisville & Nashville Railroad Co. v. Tomlin, 161 Ga. 749 (supra). As I dissented in the Tomlin case, I am not bound by that decision, because it is only the decision of five Justices; and unless I have changed my views since that time, it would at least be consistent if I should dissent in the present case. The ruling of the majority in the present case is in effect (as will appear from reading the opinion) based upon the proposition that this court will not look into the evidence, or decide any question arising from the evidence, in a petition for certiorari; and it is to' this proposition that I dissent *603toties quoties. The records of the decisions of this court in numerous cases show, without question, that this has not been the uniform rule heretofore adopted by the Supreme Court. The history of the present case is somewhat peculiar. Upon the first application for the writ of certiorari the petition was denied, after lengthy consideration. Hicks, being dissatisfied, filed a motion for reconsideration; and after still further investigation and consideration the writ of certiorari in this case was granted. In these circumstances, even a layman, if he understood the meaning of the word “improvidently,”' would hardly say that this writ was ‘“improvidently” granted. If this writ, as it now occurs to the majority of the court, was accidentally, or carelessly, or without due consideration granted upon the application of Hicks, surely a better word could be found than “improvidently.” And the fact that this court has heretofore sometimes used the term, or even that it has been sanctioned by so great a tribunal as the Supreme Court of the United States, does not alter the case. Long before the existence of either of these storehouses of jurisprudence the Savior gave us the parable of the prodigal son, who insisted upon receiving his share of his father’s estate, and wasted it in a far country. He acted “improvidently,” as he found out when he fain would have eaten the husks that were thrown to the hogs he fed, and he decided to return to his father’s house. Webster’s New International Dictionary defines “improvident” as “Not provident; wanting foresight or forethought; not foreseeing or providing for the future; negligent; thoughtless; thriftless. . . Syn. Inconsiderate, negligent, careless, heedless, shiftless, prodigal, wasteful.” An examination of the evidence in this case convinces me that my esteemed coworkers in the endeavor to discover justice have merely misapplied the law to the evidence, or the evidence to the law, as one may choose to state it. A reading of the opinion of the Court of Appeals will evince that that tribunal did not shirk or shun a thorough examination of the evidence. One reason why I can not concur in the judgment of my colleagues is that, so far as the subject of evidence is concerned, it is based upon the Tomlin decision, supra (from which I dissented), and presents strongly the proposition that the Supreme Court will not consider the evidence in the grant or refusal of the writ of certiorari. To this I can not assent. To say that when a verdict *604has no evidence to support it it is contrary to law is but to repeat a homely maxim. Several generations of practitioners, with the approval, of the bench, have inserted in what are known as the general grounds of a motion for new trial an assignment of error that “.the verdict is contrary to evidence and without evidence to support it,” and many rulings of this court have sustained that general ground and granted a retrial of the case.

There are several decisions of this court where a consideration of the evidence gave birth to a decision of the Supreme Court on petitions for the writ of certiorari. On certiorari to the Court of Appeals, in Thompson-Starrell Co. v. Johnson, 174 Ga. 656 (163 S. E. 745), Mr. Justice Hill, delivering the unanimous opinion of this court, said: “The findings of the industrial commission as to facts are conclusive where supported by evidence. The finding in this case was authorized.” In that case, as in this, the superior court affirmed the finding of facts, except that in the Thompson-Starrett case the facts were found by the industrial commission (now the Department of Industrial Eelations), and in the case now before us, by overruling a motion for a new trial, the judge affirmed the finding of facts by the jury. In the Thompson-Starrett case the judgment of the superior court was reversed, as in the case now before us, by the Court of Appeals, and the Supreme Court reversed the judgment of the Court of Appeals. However, as the question with which I am now dealing is as to a consideration of the evidence upon adjudicating the merits of a petition for certiorari, and as I assert that in many cases the evidence should be considered, it is only necessary for me to quote what this court held in the Thompson-Starrett case: “We have examined carefully the evidence introduced before the industrial commission on the application of the defendant in error for compensation, and are of the opinion that the finding of the commission was authorized; and therefore the judgment of the Court of Appeals, reversing the judgment of the superior court which affirmed the finding of the industrial commission, must be reversed.” An examination of the record in the Thompson-Starrett case shows that every assignment of error in the petition for certiorari was based wholly upon the evidence, and complained, as in the present case, in effect, that the Court of Appeals misconstrued the evidence. The case concerned only the running of a truck by Thompson*605Starrett Company, by the operation of which it was claimed Johnson was injured. It is true that in the petition for certiorari it was alleged that the matter was of “gravity and importance,” and the judgment in favor of the widow of Johnson was set aside. Can it be said -that a case in which the question of assumption of risk is involved, and in which the decision will affect several thousands of fellow servants, has less of “gravity and importance” than the Thompson-8tarrett case, which involved only the alleged negligent operation of a truck belonging to a private corporation ?

In Independence Indemnity Co. v. Sprayberry, 171 Ga. 565 (156 S. E. 230), Mr. Presiding Justice Beck, said: “Upon a careful review of all the evidence introduced before the industrial commission hearing the application of the plaintiff in error, upon which they based their opinion and finding and upon which they held that the employee, the applicant, failed to carry 'the burden in this case/ and that 'the accident did not arise out of and in the course of her employment/ this court is of the opinion that this finding was not without evidence to support it, and that the commission was authorized, in view of the law which makes their finding on the facts conclusive, to disallow the employee’s claim for compensation; and the judgment of the Court of Appeals, reversing the judgment of the superior court affirming the findings of the industrial commission, must be reversed.” In DeKalb Supply Co. v. Moore, 162 Ga. 758 (134 S. E. 620), five Justices reached their conclusions upon a consideration of the evidence. Mr. Justice Gilbert dissented for the same reasons for which he dissented in Bryant v. Georgia Railway & Power Co., 162 Ga. 511 (134 S. E. 319), and was of the opinion that the writ of certiorari should be dismissed as improvidently granted. Four of the Justices held that “the trial court did not err in granting a nonsuit,” and reversed the judgment of the Court of Appeals. Justice Beck dissented from the ruling made by the four Justices, “being of the opinion that the jury under the evidence was authorized to find that the case as made in the declaration had been proved.” He also declined to decide whether a cause of action was stated, for the reason that there was no exception to the judgment overruling the demurrer. In Bryant v. Georgia Railway & Power Co., supra, Mr. Justice Hill, delivering the opinion of the majority of the court, held that “Under the pleadings and the evi*606dence it was error for the Court of Appeals to affirm'the judgment of the trial court in awarding a nonsuit.” In the opinion he followed the ruling just quoted with the words, “and that the case should have been submitted to the jury, under proper instructions, to determine from the evidence whether the plaintiffs husband was guilty of such negligence under the circumstances as would debar his widow from recovering for his homicide.” This was followed by a recital of several pages of evidence quoted from the testimony of witnesses in the ease; and then the majority of the court held that “From the foregoing evidence we can not say as a matter of law that the plaintiff was guilty of such negligence as would bar a recovery,” and then numerous authorities of this State and others were cited in support of the proposition that the question had been transmuted from one of fact into one of law. From a reading of the decision in City of Brunswick v. Glogauer, 158 Ga. 792 (124 S. E. 787), it is very plain that, despite the ruling that the sufficiency of the evidence was not determined, the evidence was examined before a conclusion in the case was reached. The case was remanded for another trial, and it is not usual in such cases to rule upon the sufficiency or weight of the evidence. In Seaboard Air-Line Railway Co. v. Benton, 175 Ga. 491, 495 (165 S. E. 593), the writer of the opinion said: “On the facts the case was an exceedingly close one. We do not overlook the fact that on two trials juries have returned verdicts in favor of the plaintiff.” From this I think it must be inferred that the court could not have decided that the case was an exceedingly close one on the facts, without an examination of the facts as disclosed by the evidence. In the case of Emory University v. Shadburn, 180 Ga. 595 (180 S. E. 101), an examination of the record will disclose that the affirmance of the judgment of the Court of Appeals by this court must have been based upon the evidence in the case — the question whether under the facts of the case the hospital through its employees 'was liable for the injury to the plaintiff, or whether her injury was due to the neglect of a person who was not an employee of the hospital.

As appears from the opinion of the majority in the instant case, the applicant for certiorari assigned error on various excerpts from the opinion of the Court of Appeals. It therefore is unnecessary for me to reproduce them here. I think it will be obvious to *607any one who reads them that a majority of the assignments of error are not lacking in that minuteness of specification required by the rule of this court. It is also to be remembered that though the decision in Central of Georgia Railway Co. v. Yesbik, 146 Ga. 620 (91 S. E. 873), was rendered in 1917, still this court has never expressly included in its rules that “gravity and importance” is the only test for the grant or refusal of a certiorari. The case of King v. State, 155 Ga. 707 (118 S. E. 368), was cited in the Tomlin case, supra, and perhaps in other decisions. I had the honor of delivering the unanimous opinion'of the court in the King case. That decision involved only the question of confessions —how they should be admitted, and when they should not be admitted; and whatever was said in regard to the grant of a cer-. tiorari from the Court of Appeals was mere obiter, or at most merely illustrative in arguendo, and therefore, under well settled rules of construction, is not binding even upon the writer, and much less upon three of the Justices who concurred only in the headnote, viz.: “Incriminatory admissions and confessions are not admissible if there is evidence, arising from the testimony as to the circumstances under which the confession was made, that the making of the confession was induced by the slightest hope of benefit or the remotest fear of injury.” Under the rule laid down in the Yesbilc case, the first requirement is that the question must be one of “great public concern.” To this I agree, bearing in mind that some of the greatest principles of law had their origin in the adjudication of cases of very trifling amounts, and it is with this qualification that I accept the first portion of Mr. Presiding Justice Evans’ dictum. But the phrase “gravity and importance” is too vague, general, and indefinite to be comprehensible to me, and will be so until this court, with the same nicety and precision as are affixed to assignments of error in petitions for certiorari, has accurately defined the very general terms “gravity and importance.” As I view this cause in its present condition, the Court of Appeals failed to fit the law to the facts as it had them before it, and' therefore erred in reversing the judgment of the trial court. And since this court has those facts before it in the assignments of error in the petition for certiorari, and nevertheless declines even to attempt to correctly remodel the garment made by the Court of Appeals, with all respect to my distinguished *608colleagues I must say that in my humble opinion a great injustice is being worked, in which I decline to participate.