Southern Bell Telephone & Telegraph Co. v. Glawson
79 S.E. 136
Ga.
1913
Check Treatment
Lumpkin, J.

1. Thе first question propounded by the Court of Appeals raises an interesting question of practice. It involves what is commonly called the doctrine of “the law of the case.” This doctrine is thus stated in 26 Am. & Eng. Ene. L. (2d ed.) 184: “The doctrine of The law of thе case’ may be stated thus: A matter decided on one appeal can not be re-examined on a seсond appeal in the same ease; for the decision of an appellate court, whether right or wrong, in a case before it, is conclusive upon the points presented throughout all the subsequent proceedings in the сase, both upon the appellate court itself and upon the trial court. Concisely it is said that the decision on appeal becomes The law of the case.’ ” In this court the rule is well settled. In Western and *509Atlantic R. Co. v. Third Nat. Bank, 125 Ga. 489 (54 S. E. 621), it was held: “A decision by the Supremе Court is controlling upon the judge of the trial court, as well as upon the Supreme Court when the case reaches that court a second time. The principle in the decision may be reviewed and overruled in another case ‍‌​‌‌​‌​‌​​​​​‌‌​‌‌​​​‌‌‌​​​‌​​​‌‌​​​‌​​‌​‌‌​​​‌​‍between different parties, but as between the parties the decision stands as the law of the ease, even though the' ruling has been disapproved by the Supreme Court in a case decided before the second appearance of the ease in that court.” See also Gilmore v. Johnson, 29 Ga. 67; Ingram v. Trustees of Mercer University, 102 Ga. 226 (29 S. E. 273), and citations; Allen v. Schweigert, 113 Ga. 71 (38 S. E. 397); McLendon v. Macon, Dublin & Savannah R. Co., 123 Ga. 253 (51 S. E. 317). Had the decision on the demurrer been rendered here, it would stand as the law of the ease, although a different ruling might have been made in regard to the principle involved bеfore the case reached this court for the second time. Does it alter the rule that the decision on the dеmurrer was made by the Court of Appeals, and that the case is in that court for the second time? We think not. It was argued, that, as the constitution declares that “the decisions of the Supreme Court shall bind the Court of Appeals as preсedents,” this abolished the “law of the case” rule under circumstances like those involved in the question now under considеration; and that the Court of Appeals was bound to follow the later decision of this court on the same principle in a different case, instead of its own former decision in the same case. To this contention there are two replies. The first is that, in the fallibility and imperfection which inheres in all human institutions, lawyers, and even judges, sometimes honestly differ as to the application of a precedent. The Court of Appeals is a court of last resort as to thе cases within its jurisdiction (omitting reference to constitutional questions and certified questions). Its decisions, within its jurisdiction, are finаl. They can not be treated as nullities. If by any chance the judgment in a particular case should be erroneous, it wоuld still be binding. Saffold v. Mangum, 139 Ga. 119 (76 S. E. 858); Buck v. Duval, 139 Ga. 599 (77 S. E. 809). Any other rule would create utter confusion. It is the duty of the superior courts to follow the decisions of the Supreme Court as precedents. Suppose a superior court should make errors in the effort to do so, but no exception should be taken to the judgment, *510it could not be disregarded as void. There must be somewhere an end of controversy, and that necessity ‍‌​‌‌​‌​‌​​​​​‌‌​‌‌​​​‌‌‌​​​‌​​​‌‌​​​‌​​‌​‌‌​​​‌​‍is what former Chief Justice Bleckley doubtless had in mind when in his opinion in Broome v. Davis, 87 Ga. 584 (13 S. E. 749), he humorously referred to “the fallibility whiсh is inherent in all courts except those of last resort.”

Again, the declaration that the decisions of the Supreme Court shall be binding on the Court of Appeals as precedents is only a part of a paragraph of the constitution. The same paragraph also declares that the laws relating to the Supreme Court as to practice and procedure, and in all other respects, except as otherwise provided by the constitution, shall аpply to the Court of Appeals until otherwise provided by law. Civil Code (1910), § 6506. While we can not agree with counsel for thе defendant in error that, relatively to the Court of Appeals, this provision crystallizes into an absolute rule of constitutional law every rule of practice of the Supreme Court, and that, as to the Court of Appeals, it can only be changed by the legislature, although the Supreme Court may change the rule for itself, yet it does analogize the practice in that court to the practice in this. And, as we have seen, what is known as the doctrine of “the law of thе case,” arising from a decision therein, is a settled rule in this court.

Counsel for the plaintiff in error relied ‍‌​‌‌​‌​‌​​​​​‌‌​‌‌​​​‌‌‌​​​‌​​​‌‌​​​‌​​‌​‌‌​​​‌​‍strongly on the decision in Messenger v. Anderson, 225 U. S. 436 (32 Sup. Ct. 739, 56 L. ed. 1152). But the statement there made, that the phrase “the law of the case” expresses the practice of the courts generally to refuse to open what has been, decided, rather than a limit on their рower, does not alter the fact that in courts of last resort the rule is generally followed. We need not distinguish between the propriety of the Federal Court of Appeals following a construction of a will by the highest court in the Statе where it was executed and a court of last resort following its decision in the same case. Illinois v. Illinois Central R. Co., 184 U. S. 77 (22 Sup. Ct. 300, 46 L. ed. 440); United States v. Camou, 184 U. S. 572, 574 (22 Sup. Ct. 505, 46 L. ed. 694); Great Wеstern Telegraph Co. v. Burnham, 162 U. S. 343, 344 (16 Sup. Ct. 850, 40 L. ed. 991).

To the first question propounded we accordingly answer that the former decision of the Court of Appeals ‍‌​‌‌​‌​‌​​​​​‌‌​‌‌​​​‌‌‌​​​‌​​​‌‌​​​‌​​‌​‌‌​​​‌​‍has settled the law of the case to the extent to which the decision went; and it should be fol*511lowed in this case, though, in others the subsequent decision of the Supreme Court should be followed.

2. The next question is whether we will review 'and reverse the decisions in Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183), Giddens v. Telegraph Co., 111 Ga. 824 (35 S. E. 638), Seifert v. Western Union Telegraph Co., 129 Ga. 181 (58 S. E. 699, 11 L. R. A. (N S.) 1149, 121 Am. St. R. 210), and Southern Bell Telephone & Telegraph Co. v. Reynolds, 139 Ga. 385 (77 S. E. 388). As to the first two cases we are unanimously of the opinion that the decisions were right аnd should stand. As to the last two decisions, which were concurred in by the entire bench, ‍‌​‌‌​‌​‌​​​​​‌‌​‌‌​​​‌‌‌​​​‌​​​‌‌​​​‌​​‌​‌‌​​​‌​‍our statute requires the concurrence of all the Justices to reverse them. Civil Code (1910), § 6207. The entire bench does not concur in so doing, and they must remain of force.

It may be added that there are a number of authorities adverse to the decisions last cited, but the ruling does not stand unsupported. Lebanon, Louisville &c. Tel. Co. v. Lanham Lumber Co., 131 Ky. 718 (115 S. W. 824, 21 L. R. A. (N S.) 115, 18 Ann. Cas. 1066); Evans v. Cumberland Telephone & Telegraph Co., 135 Ky. 66 (121 S. W. 959, 135 Am. St. R. 444); Southwestern Telegraph & Telephone Co. v. Solomon, 54 Texas Civ. App. 306 (117 S. W. 214); Volquardsen v. Iowa Telephone Co., 148 Iowa, 77 (126 N. W. 928, 28 L. R. A. (N. S.) 554); Robinson v. City of Evansville, 87 Ind. 334 (44 Am. R. 770).

All the Justices concur.