168 Ga. 710 | Ga. | 1929
Lead Opinion
The exceptions are to the rulings in headnotes 1, 2, 6, and 8 in the decision of the Court of Appeals to whom the writ of certiorari was directed by this court upon application of plaintiff in error. Hall v. Slaton, 38 Ga. App. 619 (144 S. E. 827). The exceptions to headnotes 1, 2, and 8 are that they are contrary to law, because they purport to construe the "unwritten law” of the State of Alabama, when there is no such law known to the courts of this State; because they "in effect apply to this State the common law as declared by the law of a sister State, which is at variance with that declared by the courts of this State;” because they "tend to apply within this State the decisions of a court of a foreign jurisdiction, construing the common law at variance with the decisions of the courts of this State, construing the common law as applied and declared by the courts of this State;” and because “only a statute or the common law can be recognized and applied within this State,” whereas the decision complained of "recognizes that neither a statute of Alabama nor the common law is applicable to the facts of this case.” The exceptions to the ruling contained in headnote 6 are that it sets up a rule of legal liability at variance with former rulings of the Court of Appeals and the Supreme Court, the standard for determining liability being gross negligence under the law as already laid down, whereas this headnote makes that standard ordinary care; and that said headnote, rendered by the second division of said court, is at variance with the rule in such cases as laid down by the first division thereof in Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297), Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256), and Peavy v. Peavy, 36 Ga. App. 202 (136 S. E. 96).
The suit was brought by the administrator of Carl Hall. The petition alleges that the defendant, Slaton, a resident of Floyd County, Georgia, while in the State of Alabama, requested Carl Hall to go with him in his automobile to point out the location of a person sought by the defendant; that Hall occupied said automobile as a guest; and that, by reason of the negligence of the defendant, Hall was killed. As authority for bringing the suit as administrator, section 5696 of the Alabama Civil Code was pleaded, as follows: “Action for wrongful act, omission, or negligence causing death. A personal representative may maintain an action, and recover such damages as the jury may assess in a court of
On the hearing the defendant demurred to that portion of the petition .which pleaded the Supreme Court decisions. The demurrers were sustained, and the plaintiff excepted. The case proceeded before the jury, and after introduction of the plaintiff’s evidence the court awarded a nonsuit, and to this judgment plaintiff also excepted. The case went to the Court of Appeals upon writ of error, and that court reversed the judgment, holding that the trial court erred in sustaining the demurrers and in awarding the nonsuit. A petition for the writ of certiorari filed in this court was granted to review the rulings of the Court of Appeals. Error is assigned upon the rulings contained in headnotes 1 and 2 in the decision by the Court of Appeals, which are as follows: “1. In a suit instituted in a court of this State to recover damages for a fort committed in another State, where the plaintiff pleads in the petition, as the law of the other State applicable to the case upon its merits, not a statute of that State, but the law of that State as interpreted by the courts of that State and applied in that State, a rule which differs from the common-law rule as construed and applied by the courts of this State, the plaintiff is not pleading the common law of the foreign State, but is pleading that the law of the foreign State applicable to the case is other than the common law. Selma &c. R. Co. v. Lacy, 43 Ga. 461, 463; Pattillo v. Alexander, 96 Ga. 60 (22 S. E. 646, 29 L. R. A. 616). 2. In a suit instituted in a court- of this State to recover damages for a tort committed in another State, which is a State in which the common law prevails — as the State of Alabama, — the plaintiff may plead and prove, as the law applicable to the merits of the case, both the statutory and unwritten law of that State, which is other than the common law as would be applied to a similar situation by the courts of this State, and the courts of this State will apply to the case the law of the foreign State thus pleaded and proved, as
As interpreted by tbe Court of Appeals tbe petitioner did not plead the common law, but some law other than the common law. What was that law? Section 5696 of the Alabama Civil Code was pleaded, but that was merely a statute conferring power upon an administrator to bring suit within the State of Alabama, but not elsewhere, for damages in a case of homicide. It does not purport to prescribe in any way what rule of law shall be applied with respect to the degree of care required in such case, or the degree of negligence which would in law create a liability on the part of the defendant. The penal statutes do not prescribe such rule in a suit for damages, but are applicable in a prosecution by the State for a violation thereof. What law is declared by the Supreme Court of Alabama? Is it an "unwritten law” other than the common law, or is it merely the construction of Alabama statute law? In common parlance, the phrase "unwritten law” has been used in connection with criminal cases, as where a husband kills the debaucher of his wife. Of course the Court of Appeals did not have reference to the term in this sense. As we construe the meaning of the Court of Appeals, it referred to the decision of the Supreme Court of Alabama as a construction of "unwritten law” applicable to the case, not statutory and not common law. Such "unwritten law” is not recognized in the courts of this State. We are foreclosed on that question by repeated decisions of this court to the effect that where no statute of the foreign State is pleaded, it will be presumed that the common law prevails in such State. In this case no statute regulating the degree of care which is required to be exercised is pleaded, and we must, under our former decisions, assume that the common law prevails in the State of Alabama. Here we are met not only by the decision of the Court of Appeals that tbe common law was not pleaded, but that decision is reinforced by a declaration made in the brief of plaintiff, as follows: "The plaintiff’s cause of action, in the instant case, is not founded upon the common law, but upon statutes of the State of Alabama plead and proven, and the decisions of the Supreme Court of Alabama con
Furthermore where a statute of the foreign State is pleaded as the basis of right of recovery, the construction placed upon it by the highest court of such State will be accepted by the courts of this State as the proper construction. This principle is supported by an unbroken line of decisions. A difference arises between the parties in this case on whether the construction placed upon the common law by the courts of this State or by the courts of the foreign State will be accepted. As we construe the Alabama Supreme Court decisions pleaded in this case, they are constructions of the principles of common law applicable to this case. The demurrer of the defendant in the trial court challenged the right of petitioner to plead the construction of the Alabama Supreme Court of the common law, insisting that if the case was based on the common
Eor the above reasons, the rulings of the Court of Appeals in its first and second headnotes, that a law other than the common law and other than the statute law of Alabama, as construed and applied by the courts of that State, may be pleaded as applicable to this case, and in its eighth headnote that the court erred in sustaining the demurrers to the petition, are reversed. In our opinion the demurrers were properly sustained by the trial court.
Judgment reversed.
Rehearing
ON REHEARING.
One ground of the petition for certiorari assigned error on the judgment of the Court of Appeals reversing the judgment of the trial court ordering a nonsuit. When the case was decided by this court it was said, in the opinion: “We make no ruling upon the exception to the ruling of the Court of Appeals that the trial court erred in granting a nonsuit.” A rehearing was asked by the petitioner for certiorari, and granted because of the failure of this court to rule on that question. We applied the usual rule where
