91 Ga. 687 | Ga. | 1893
The main case was decided July 26th, 1893. The first head-note expresses the view of it then entertained by Justice Simmons and the writer. The second headnote states the dissent of Chief Justice Bleckley to the judgment rendered. Afterwards, a motion for a rehearing was made by counsel for the defendant in error, for the purpose of asking a modification of the judgment, in so far as it directed a dismissal of the case in the court below. This motion by a unanimous judgment of the court, covered by the third and fourth head-notes, was denied September 30, 1893.
A brief discussion of the case upon its merits, and of the motion for a rehearing, will now be presented.
This case was first before this court at the October term, 1889. 84 Ga. 351. It was then held that the court below committed certain specified errors in ruling out testimony, and that the charge of the court did not prominently bring to the attention of the jury the point upon which the case should turn. A new trial was granted by this court, and at the next hearing a second verdict was rendered in favor of Mr. Kent, the plaintiff. A motion for a new trial was made and overruled, and the case was again brought to this court. 87 Ga. 402. After a most anxious and careful examination of the entire record, a majority of the court became fully satisfied that the plaintiff', upon the facts presented, was not entitled to a recovery: first, because it was manifest, beyond doubt, that the washout was caused by the act of God, unmixed with negligence on the part of the railroad company; and second, because, in our judgment, the company had conclusively and satisfactorily shown that it had exercised all the diligence required of it by law in ascertaining the existence of the washout, and was not negligent in failing to discover it in time to give warning-of its existence to Mr. Kent before the locomotive he was driving ran into it.
It sufficiently appears from the foregoing that when the decision reported in 87 Ga. was made, a majority of this court were convinced that, under the evidence as it then appeared in the record, in no view of the case was the plaintiff* entitled to recover. In other words, we were fully satisfied that the washout which produced the calamity resulting in the plaintiiPs injuries was caused by the act of God, and that there was no want of diligence on the part of the company in failing to-discover it in time to give notice of it to the plaintiff'. Accordingly, another new trial was granted, and it resulted in a third verdict, ujton substantially the same facts, in favor of the plaintiff*. At the last trial there was some additional evidence, but all the members off the court are satisfied that it does not in any material or substantial particular change or vary the case upon its actual merits as it appeared when here the last time. Entertaining this view, Justice Simmons and the writer felt constrained to set the verdict aside, and also to order that the case be dismissed. All of us feel certain that the full truth of this case has been developed, and that further trials of it could not biing out anything new that would be material in substance. On each trial, the-
In Harris v. Hull, ex’r, 70 Ga. 838, 839, Justice Hall said: “One great purpose in establishing this court was to terminate suits, and with this view, it is made its duty not only to grant judgments of affirmance or reversal, but any other order, direction or decree required, and if necessary, to make a final disposition of the cause (Code, §218), and it is empowered to give to the cause in the court below such direction as may be consistent with the law and justice of the case. Ib. §4284. Litigation should never be protracted where this, with due regard to the rights of parties, can possibly be avoided. Interest republican ut sit finis litium is a maxim so old that its origin is hidden in a remote antiquity, and the policy which it inculcates is so essential as not to admit of question or dispute.”
Again, in Robinson v. Wilkins, 74 Ga. 47, one of the head-notes reads as follows: “The Supreme Court is authorized to make final disposition of a case, and to give it such direction as is consistent with the law and justice applicable to it, and as will prevent the unnecessary protraction of litigation”; and, on page 50, the same learned Justice says: “We have authority to make a final disposition of this cause (Code, §218), and to that
~We do not mean to say that the two cases above cited correspond, as to the facts, with the one now before us, but the statements as to the powers of this court are clear, strong and unequivocal. Of course, the powers conferred by the two above mentioned sections of the code should be exercised with proper care and caution, and after careful search we find nothing in the past history or records of this court evincing any disposition on the part of those who have presided in it to exercise them otherwise. In the present case, the two Justices who gave the direction complained of are fully satisfied of its justice and propriety, and the court is unanimous as to its power to give the direction.
Judgment in the main case reversed with direction, the Chief Justice dissenting. Judgment on the motion to reinstate denied, all the Justices concurring.