Southern Railway Co. v. Ansley

68 S.E. 1086, 8 Ga. App. 325, 1910 Ga. App. LEXIS 150

• Court: Court of Appeals of Georgia
• Decided: September 28, 1910
• Docket: 2375
• Status: Published

Opinions

Russell, J.

F. H. Ansley sued the Southern Bailway Company for damages, and recovered a verdict for $11,000. No evidence was introduced except in behalf of the plaintiff, and it thus appeared, without dispute in the testimony, that in a head-end collision between two of the defendant’s trains of cars the plaintiff, who was an engineer, and who was engaged at his post of duty, received injuries, as a result of which he lost his leg and was permanently disabled from carrying on the occupation of an engineer. According to the testimony with reference to the value of the plaintiff’s services, the verdict was not excessive.

The several grounds of the motion for a new trial, and the exceptions pendente lite to the refusal of the judge to allow an amendment to the defendant’s plea, and his refusal to sustain the demurrer to the plaintiff’s petition, which are insisted upon, present really but one important point: Is the plaintiff entitled to recover, in view of the fact that his case was expressly based upon the statute of Alabama, and that the trial was had under the Alabama statute, and the jury were instructed solely with reference to the application of the Alabama law to the evidence ?

Conceding that the “employer’s liability act,” approved April 22, 1908 (35 Stat. 65, H. S. Comp. St. Supp. 1909, p. 1111), superseded section 3910 of the Bevised Statutes of Alabama, which was expressly pleaded by the plaintiff in his petition, we are nevertheless of the opinion that the defendant’s writ of error does not present such a case as would entitle it to a reversal of the judgment refusing a new trial, and that' the defendant can not justly complain of the court’s refusal to allow it to amend its answer. The writer confesses that he has not reached this conclusion without difficulty, because it would indeed be quite anomalous (as is strongly urged by counsel) to allow a plaintiff to sue upon one_ cause of action and to‘recover upon a different one. Nor do we rule that this can be done. We do hold, however, that the evidence sufficiently conforms with the material portion of the declaration to legally authorize a recovery. Paramount to every other consideration is the rule which requires that injury shall concur with error, before the finding of a jury should be set aside. We bear in mind the rulings in Exposition Cotton Mills v. W. & A. R. Co., 83 Ga. 441 (10 S. E. 113), and Bolton v. Georgia Pacific R. Co., 83 Ga. 659 (10 S. E. 352). These rulings, however, we deem to have been overruled and disapproved, or at least greatly limited, by the rulings of the Supreme Court in Ellison v. Ga. R. Co., 87 Ga. 691 (13 S. E. 809), and City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318). In the Anglin case, supra, the Supreme Court held that new and distinct averments of negligence may be made, so long as they are descriptive of the same wrong originally pleaded in the declaration. In the opinion delivered in behalf of the court by Chief Justice Simmons (p. 793) it is said: “So long 'as the facts added by the amendment, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction, the amendment is not objectionable as adding a new and distinct cause of action. Persuaded of the correctness of the above views, we feel constrained to overrule so much of the decisions of the following cases as is in conflict therewith: Central R. Co. v. Wood, 51 Ga. 515; Skidaway S. R. Co. v. O’Brien, 73 Ga. 655; Henderson v. Central Railroad, 73 Ga. 718; Cox v. Murphey, 82 Ga. 623 (9 S. E. 604); Roughton v. Georgia R. Co., 109 Ga. 604 (34 S. E. 1026); and also so much of any other cases as conflicts with the ruling now made. This puts this court back in line with its earlier decisions.” The court, therefore, in the Anglin case, overruled, without specially naming them, many cases which conflict with it in principle.

The first question which arose in this case was upon the refusal of the judge to allow the defendant to amend his answer so as to set up that the plaintiffs cause of actiop, if he had any, was dependent upon the Federal “employer’s liability act,” approved April 22, 1908. We are of the opinion that had this amendment been filed ás a dilatory plea, at the appearance term, it should have been allowed, and might have been a good plea. But as the amendment was not filed until a term subsequent to the appearance term, it can not be treated as a plea in abatement, and it is not apparent how the defendant was hurt, if hurt at all. The plea, which in substance alleged that the defendant, though it might be liable to the plaintiff for the particular wrong or injury for which he was suing, was not liable for the reason assigned in the plaintiff’s petition (the Alabama law), but for another reason (the Federal act), and, which did not set up any fact which on the merits of the transaction would or should, in legal contemplation, diminish the liability or change the rules of evidence, was a' dilatory plea; in no true sense can it be considered as a plea to the merits; and all dilatory pleas, of whatever nature, must be filed at the first term of the court.

If the plea had set up anything which would have diminished the defendant’s liability to the plaintiff, it would be different; for then it could be considered as a plea to the merits.. If the defendant ivas not deprived of any right (no matter how inconsequential it might be) by the refusal, of the court to allow the amendment, it would seem to be useless to order another trial in order that the same finding may be had upon the facts; for under the testimony a finding in behalf of the plaintiff Avas inevitable. It is argued that the right of removal is a valuable right. Agreed. But the defendant could not have removed this case to the United States court even if the amendment had been alloAved; because the plaintiff is a citizen of Alabama, and the Southern Bailway Company is also a non-resident of this State. The parties, therefore, being both nonresidents of Georgia, the action could not be removed on the ground of diverse citizenship. It is clear also that the defendant did not lose the right of removal by reason of the non-alloAvance of the amendment; because the petition to remove should have been filed at the first term. Furthermore, the defendant Avas not hurt, because by the terms of the Alabama statute the right of the plaintiff to recover was narrower than that conferred by the Federal statute, which the defendant endeavored to set up, and the consequent liability of the defendant was greater. Under the Alabama statute the plaintiff’s recovery could be defeated or diminished by proof of the fact that the plaintiff contributed to the result. Under the United States statute the recovery, if any, would be apportioned in proportion to the plaintiff’s negligence. Therefore, so far from the defendant being injured by,the refusal of the court to allow the proposed amendment, it seems to us the ruling really benefited the defendant. After a careful consideration of every phase of the case, we are unable to conceive how the plaintiff could have been injured by the refusal of the court to allow its amendment. Suppose that the defendant had proved that the train was engaged in interstate commerce. If the amendment had been allowed, the plaintiff might still have been entitled to recover something under the Federal “employer’s liábility act,” even if the defendant proved that the plaintiff was negligent. Under the Alabama statute, if it had been shown that the plaintiff contributed to his own injury, he could not recover at all. While it is not permissible to amend a declaration setting up the common-law liability of the carrier by asking a recovery upon its statutory, liability, we think that where the plaintiff proceeded upon a statute of Alabama, the.court was entitled to enter judgment, regardless of whether that statute was superseded or not; because, under the evidence, the defendant was plainly liable under the statute of the United States, which our courts are bound to enforce, under the express terms of the constitution of this State.

To the writer’s mind there is great force in the argument of learned counsel for the plaintiff in error, that this method of procedure will tend to allow the plaintiff to sue upon one cause of action and then to recover upon a totally different cause of action, thus taking the defendant completely by surprise. However, I agree that under, the trend of modern jurisprudence the real question, when the pertinency of an amendment is raised, is as to the identity of the transaction involved in the litigation. If the plaintiff sets forth a cause of action (though pleading the laws of another State) which would be good under the laws of this State (and statutes qf the United States passed in pursuance of the constitution of the United States are in fact the supreme law of this State), then, upon the facts showing the plaintiff to be entitled to a recovery against the defendant, the judge may administer the law as he knows it to be, and may disregard as mere surplusage any statement as to the law which may have been pleaded merely as basis for the admission of proof as to the nature of a foreign law clearly not applicable to the case. It is to be borne in mind that the statutes of foreign jurisdictions are pleaded solely for the purpose of admitting them in proof; the court not being presumed to know the statutes of a foreign jurisdiction, which are administered by comity only. Should it appear in any case that a foreign statute which has been pleaded has been superseded or repealed, and if it should further appear that — omitting all reference to the foreign law and justly treating it as surplusage — the plaintiff has set forth a substantial cause of action under the controlling law, he should not be denied his rights or delayed in their enforcement merely because of the presence of this surplusage.

It is insisted, however, that the ease was tried upon the theory that the plaintiff’s rights were predicated upon the statute of Alabama, and the charge of the court shows that the judge conceived that the case was properly based upon the law of Alabama, and the liability of the defendant governed thereby. In our opinion this does not alter the case. In Cabaniss v. State, ante, 129, where the? accused was charged with and convicted of a misdemeanor, this court held that a new trial was not required, although the trial proceeded as if the defendant was charged with a felony; and in Spence v. State, 7 Ga. App. 825 (68 S. E. 443), was held that, the jury having found the defendant guilty of voluntary manslaughter, and 'a finding for a higher offense being demanded by the evidence, he had no cause for complaint, although the judge did not instruct the jury upon the subject of voluntary manslaughter or treat it as applicable to the facts of the case. In the present case, if, as alleged by the defendant in its proposed amendment, the train upon which the plaintiff was employed 'as an engineer was in fact engaged in interstate commerce, then, under the evidence, the plaintiff’s recovery was fully authorized by the provisions of the Federal “employer’s liability act,” and a finding in accordance with both the law and the facts should not be set aside, unless the complaining party was deprived of some right, 'and, by reason of the loss of this right, was, in some degree at least, injuriously affected. We have shown that the defendant was not deprived of the right of removal by the court’s refusal to allow its amendment, and that it could not have been injuriously affected by-reason of the fact that - it was subjected to greater liability under the terms of the Federal statute than that imposed by the law of Alabama. In fact, if there had been any evidence tending to show that the plaintiff contributed to his own injury, the court’s application of the law of Alabama would have been beneficial to the defendant; and nothing is better settled than that one can not complain of an error which is favorable to him. Under our view of the case, the verdict established the liability of the defendant in an amount within the bounds of the evidence, and was authorized by the Federal “employer’s liability act,” as one of the laws of Georgia, which (not being a foreign law) was not required to be pleaded or referred to in the declaration. The plaintiff in error complains that the statute of the United States was not applied. We can not know it was not applied. In our view, even if it can not be presumed that the statute of the United States was applied by the jury (unwittingly perhaps, or intuitively, if you prefer), the fact remains that the evidence, arid the very law for the application of which the plaintiff in error calls, demanded the verdict. Although the judge did not charge the jury upon the liability of the defendant as measured by the “employer’s liability act,” why should the case be tried again to reach the same inevitable result, with the aid of proper instructions, as the jury has already attained without them. To do so would in our judgment be an inexcusable addition to the law’s delay. Especially is-this true when the defendant did not plead this merely dilatory matter at the first term. While the law allows dilatory matters to be pleaded, they must be pleaded promptly. Civil Code of 1895, § 5058.

Judgment affirmed.