8 Ga. App. 325 | Ga. Ct. App. | 1910
Lead Opinion
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 St. Supp. 1909, p. 1111), superseded section 3910 of the Bevised Statutes of Alabama, which was expressly pleaded by the plaintiff in his petition, we are nevertheless of the opinion that the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
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
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 lia
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,
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
Judgment affirmed.
Rehearing
ON PETITION EOR REHEARING.
The plaintiff in error says that the court should not have given any weight to the point that the amended ]ilea, though dilatory in nature, was not offered at the first term, because the objection on which the court disallowed it was that “the same set up no defense to plaintiff’s action,” and, therefore, the fact that it was not filed at the first term was waived. Cf. Wright v. Jett, 120 Ga. 995 (48 S. E. 345).
To make our ruling clearer and to test the sufficiency of the point now presented, let us look again to what the amendment to the plea set up, and to the purpose for which it was offered, as disclosed on
We did intimate that if it had been filed at the first term as a dilatory plea, it might have been well taken — that is to say, it might have been sufficient (if the facts set up therein were proved) to have caused the plaintiff’s action as pleaded to abate, so that he would have been put to the necessity of amending or of suing over. We understand that the test- as to whether a plea is dilatory or goes to the merits is this: If the defendant upon establishing the facts can defeat the plaintiff’s cause of action in whole or in part, or can obtain any substantial relief against the plaintiff, the plea is not dilatory, but is a plea to the merits. On the other hand, if the effect of sustaining the plea is not to deny or diminish the defendant’s liability on the cause of action asserted, or to obtain other substantial relief against the plaintiff, but is merely to defeat the plaintiff’s action as presently laid and to leave him with an unimpaired right to sue over again in some other form or way, or in some other court on the same cause of action, the plea is dilatory.
For instance, pleas which allege that the plaintiff has sued in the wrong court, or -that proper parties have not been joined, or that parties or causes of action have been misjoined, or that the defendant has not been legally served, or that the plaintiff has sued without complying with some statutory prerequisite, such as paying the
As- we attempted to show in the original opinion, the fact that the plaintiff was a servant engaged in interstate commerce did not tend to deny or to diminish the defendant’s liability to him upon the very cause of action he was asserting, and did not give the defendant any other substantial right against him which it could not assert under the pleas already filed in the case. The defendant, by the amendment to its plea, in effect merely asserted that the plaintiff should not be allowed to proceed with his suit as it was laid in his petition, but should be required to amend (if amendment were permissible), or to sue over again in another way or in another court, on the identical cause of action. The objection that the plea “set up no defense to the plaintiff’s action” was, therefore, as we see it, well taken; and the court did not err in sustaining the objection. Rehearingr denied.