161 Ga. 749 | Ga. | 1926
We will first consider the insistence that the petition fails to comply with rule 2 of this court, with reference to petitions for certiorari. This is in effect a motion to dismiss the case. In so far as applicable to the present discussion, rule 2 is as follows: “The petition must specify plainly the decision complained of, and the alleged errors. It will not be sufficient to set out the contentions and assignments of error made in the original bill of exceptions or motion for a new trial, but it shall be necessary to plainly and specifically set forth the errors alleged to have been committed by the Court of Appeals. . . Argument and brief of authorities must not be included in the petition, but must be submitted separately. In considering the question of the grant of the petition for certiorari, and, if granted, in disposing of the case, this court will only consider the questions raised in such petition.” 153 Ga. 890. The amendment to the constitution of this State (Ga. Laws 1916, p. 19), providing for the writ of certiorari from this court to the Court of Appeals, was ratified on November 7, 1916. In the first case thereafter (Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 620, 91 S. E. 873) in which this court dealt with the subject, it was said: “When considered in connection with the whole constitutional scheme of two reviewing courts, and in the light of the history of the two courts, it is manifest that a careless exercise of the power would defeat the very purpose of the institution of the Court of Appeals. So exercised it would be but the prolongation of litigation by the interposition of an intermediate court, and might burden the dockets of this court with cases which the framers of the constitutional amendment intended ordinarily to terminate in the
All of the foregoing rulings of this court are in exact accord with decisions of the Supreme Court of the United States, and definitely establish the following principles applicable to the practice now under consideration. First: This court will follow the precedents established by the Supreme Court of the United States so far as the same may he applicable to our system of procedure. Central of Ga. Ry. Co. v. Yesbik, supra; Jones v. Pacific Fire Insurance Co., supra. Second: Under the constitutional provision “It was not intended that in every case a complaining party should have more than one right of review.” Central of Ga. Ry. Co. v. Yesbik, supra, King v. State, supra. Third: The writ of certiorari will only be granted where the case involves questions of great public concern or matters of gravity and importance. Central of Ga. Ry. Co. v. Yesbik, supra; King v. State, supra; Jones v. Pacific Fire Insurance Co., supra; Law Ow Bew, ex parte, 141 U. S. 583 (12 Sup. Ct. 43, 35 L. ed. 868). In re Woods, 143 U. S. 202 (12 Sup. Ct. 417, 36 L. ed. 125); Law Ow Bew v. U. S. 144 U. S. 47 (12 Sup. Ct. 517, 36 L. ed. 340); American Construction Co. v. Jacksonville etc. R. Co., 148 U. S. 372 (13 Sup. Ct. 158, 37 L. ed. 486); Forsyth v. Hammond, 166 U. S. 506 (17 Sup. Ct. 665, 41 L. ed. 1095); Fields v. U. S. 205 U. S. 292 (27 Sup. Ct. 543, 51 L. ed. 807); Hamilton Brown Shoe Co. v. Wolf, 240 U. S. 251 (36 Sup. Ct. 269, 60 L. ed. 629). Fourth: “Upon review by certiorari the court is not called upon to consider questions not raised by the petition for the writ.” Alice v. Houston Pasture Co., 247 U. S. 240, 242 (38 Sup. Ct. 496, 62 L. ed. 1096); Webster Electric Co. v. Splitdorf Electric Co., 264 U. S. 463 (44 Sup. Ct. 342, 68 L. ed. 792). Central of Georgia Ry. Co. v. Yesbik, supra; King v. State, supra, at p. 712; Jones v. Pacific Fire Insurance Co., supra. Fifth: After the grant of a writ of certiorari, which is generally ex parte, the writ will be dismissed if it is ascertained from the argument of the ease or subsequent examination that the questions involved are not of great public concern or gravity and importance. Jones v. Pacific Fire Insurance Co., supra; U. S. v. Rimer, 220 U. S. 547 (31 Sup. Ct. 596, 55 L. ed. 578); Furness, Withy & Co.
(a) In paragraph 6 of the petition for certiorari the applicant undertakes to assign error on the ruling of the Court of Appeals. In the “first” subdivision the petitioners “assign error” upon the decision of the Court of Appeals as contained in the first headnote, which is quoted in the statement preceding this opinion. While the petition uses the phrase “assigns error” and “said decision is erroneous,” these are general terms, and of course do not plainly specify any particular error. To say that the decision is erroneous because'“(1) a verdict could have been rendered for the defendant upon the facts,” and “(2) a verdict-according to defendant’s contentions was demanded upon the ground of the assumption of risk,” and “(3) a verdict for the amount of the contribution to the beneficiaries during the years which each would have been entitled to such benefit, and not beyond, might have been rendered,” and “ (4) a verdict greatly reduced by contributory negligence of the decedent might have been rendered, there being evidence of gross contributory negligence in the aspect of the case most favorable to plaintiff,” obviously does not point out any “questions of great public concern, or matters of gravity and importance.” The only questions involved are questions of fact, all of which, as shown by the brief of evidence, are disputed issues and present purely jury questions, though the petition, as stated above, insists “that a verdict according to defendant’s contentions was demanded upon the ground of assumption of risk.” This insistence, in our opin
If there is any specific error pointed out thus far, it must be found in the statement that the jury were instructed to find the gross amount of damages to which the respective beneficiaries would be entitled, by combining the annual losses of the beneficiaries and by multiplying the combined annual losses by the combined expectancies of the beneficiaries. The petition, in the first subparagraph, offends the rule against including argument and brief of authorities in the petition, and for that reason the first subparagraph presents no question for consideration. It is insisted in the motion for a rehearing that the citation of authority in this paragraph of the petition was really “not by way of argument and brief of authorities, but as an integral and substantive
In most of these cases the Supreme Court of the United States was dealing with petitions for certiorari to the Circuit Court of Appeals of the United States. The Circuit Court of Appeals, as constituted, is more of an intermediate court than the Court of Appeals of Georgia. The latter court, as we have shown above, was intended, under the constitution, to be a court of final resort except where the contrary was expressly stated. It has been declared by the Supreme Court of the United States: “The jurisdiction of this court to review judgments and decrees of the Circuit Courts of Appeals on certiorari under § 240, Jud. Code, is to be exercised sparingly and only in cases of peculiar gravity and general importance and in order to secure uniformity of decision.” Hamilton Brown Shoe Co. v. Wolf, supra. This is an ordinary damage suit where a recovery is sought for the negligent homicide of an employee, and there is nothing of peculiar gravity or general importance. In no sense could the decision be of general public importance, whatever may have been decided on the question whether the trial court erred in instructing the jury as to the method of computing damages. It is insisted by counsel in the motion for rehearing that the dismissal of the writ will preclude the petitioners “from their right to seek review by certiorari in the Supreme Court of the United States.” Whether this is true we express no opinion. The controlling question is whether the petition filed in this court complies with the rules
(b) The second subparagraph complains that the Court of Appeals erred in holding that the trial court did not err in the following excerpts from the charge to the jury: (1) “The children were entitled during their minority to the care, training, and education that might be afforded by their father if he had lived, and this is an item upon which damage may be allowed to them, so far as they are concerned, the law declaring that that is a matter that could be hired to be done by somebody else, and
(c) The third subparagraph contains the following: “Petitioners assign error upon the decision of the Court of Appeals of the State of Georgia, affirming the judgment of the lower court, as set forth in the opinion thereof, and avers that the evidence demanded that a new trial be granted and that therefore the Court of Appeals erred in its holding that the judgment of the lower court should be affirmed.” The petition then alleges that the “Court of Appeals overlooked the defense of assumption of risk as being a complete defense to the action.” Then follow extracts from the evidence of one of the witnesses for the plaintiff, wherein this witness testifies in effect that at the time of the injury to the deceased by the railway cars he saw the deceased and the cars rolling toward him and saw the deceased about the time he went in between the cars to make the coupling, describing the surroundings in the railroad yard; from which it is argued that there was no obstruction preventing the deceased from seeing the cars and, therefore, knowing the speed at which the cars were moving. From this it is argued that the deceased voluntarily, with knowledge of all of the facts, assumed the risk incident, and that his injury was the result of his own negligence and not that of the defendants. Then follow quotations from several decisions of the Supreme Court of the United States, from which it is argued in the petition that “had the Court of Appeals not ignored the construction placed upon the employer’s liability act of Congress by the Supreme Court of the United States, and if it had applied such construction to the facts in this case, the result would have been the reversal of the judgment of the lower court, and the holding as contended for by the plaintiff in error in that court that the evidence demanded a judgment for the defendant railroads.” In view of the failure to comply with rule 2 in regard to including argument and brief of authorities, we hold that this subparagraph of the petition can not be considered. Moreover, here again no question of gravity and general importance is involved; only a question of fact as to
Applications for certiorari have nearly doubled in number within the past four years. A lax enforcement of construction rules applicable thereto would naturally further increase the number. Manifestly this would be contrary to public interests, as well as contrary to the true interests of the constitution. It would tend to convert the Court of Appeals into a mere intermediate court, and to overwhelm this court with the examination of evidence. Notwithstanding the disappointment that occasionally follows a failure to secure an additional review in this court, it is of first importance to all concerned that we adhere to rules and decisions which conduce to uniformity of procedure.
It follows from what is said above, that the case is dismissed on the ground that the petition for certiorari was improvidently granted.
The third headnote does not require elaboration.
Writ of certiorari dismissed.