Southern Ry. Co. v. Parker

Docket Number14059.
Decision Date28 May 1942
Citation21 S.E.2d 94,194 Ga. 94
PartiesSOUTHERN RY. CO. v. PARKER.
CourtGeorgia Supreme Court

Rehearing Denied June 20, 1942.

Certiorari from Court of Appeals.

Syllabus by the Court.

1. 'A foreign corporation doing business in this State and having agents located therein for this purpose may be sued and served, in the same manner as domestic corporations, upon any transitory cause of action whether originating in this State or otherwise; and it is immaterial whether the plaintiff be a non-resident or a resident of this State provided the enforcement of the cause of action would not be contrary to the laws and policy of this State.' Reeves v. Southern Railway Co., 121 Ga. 561, 49 S.E 674, 70 L.R.A. 513, 2 Ann.Cas. 207.

2. While certain pronouncements in that case may have been broader than its facts and thus not binding as authority as indicated in Louisiana State Rice Milling Company v Mente and Company, Inc., 173 Ga. 1, 159 S.E. 497 neither is the latter decision binding as a precedent, since it was not concurred in generally by all the justices, one having concurred 'specially.'

3. As applied to the facts of the instant record, the decision in the former case is now regarded by this court as correctly stating the law of Georgia, and therefore it is followed in preference to the other and later decision.

4. The foregoing rulings are made without reference to the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., under which the case arose, but on considering that statute, the conclusion is the same as to jurisdiction, on the facts appearing.

5. The case having come to this court by certiorari, on application of the foregoing rulings and of conclusions stated in the accompanying opinion, the Court of Appeals properly reversed the judgment of the trial court sustaining the defendant's plea to the jurisdiction, but the opinion of the Court of Appeals should be modified. Accordingly, the judgment is affirmed, with direction.

T. E. Parker filed in Fulton superior court a suit against Southern Railway Company, to recover damages from personal injuries alleged to have been sustained by him in South Carolina while employed by the defendant as a switchman in the defendant's railroad yard in the City of Greenville, in that State. The petition alleged that the defendant was a 'railroad corporation, having an office, agent, and place of doing business in said State and County,' that is in Fulton County, Georgia, where the suit was filed, and 'that at the time and place in question defendant was engaged in interstate commerce and petitioner was employed in such commerce.' These averments were admitted in the defendant's answer. Before answering however, the defendant filed a plea to the jurisdiction, in which plea as amended it was alleged:

1. 'That plaintiff is a non-resident of the State of Georgia, being a resident of the State of South Carolina, and the defendant is a non-resident of the State of Georgia, being incorporated and organized under the laws of the State of Virginia, and being a resident of said State of Virginia; that plaintiff's suit is based upon an alleged cause of action which is transitory in its nature and which arose without the State of Georgia, the accident giving rise to said suit having occurred in the State of South Carolina; and that said suit is based upon no transaction connected with the business done in this State, with the consequence that this court (the superior court of Fulton County) is without jurisdiction of said suit.'

2. In the circumstances above alleged, 'for this court to take jurisdiction of said case would constitute a violation of the Fourteenth Amendment to the Constitution of the United States, because the State of Georgia would thereby deprive this defendant of property without due process of law, because the courts of Georgia do not have any jurisdiction of such a cause of action as is claimed in said suit.'

By consent, the issues made by such special plea were tried before the judge without a jury; and, after introduction of evidence by both sides and submission of a stipulation, the judge found that the defendant is a Virginia corporation, with a place of business in Georgia; that at the time the plaintiff was injured and at the time of filing suit he was a 'legal resident' of South Carolina; that his injuries were sustained in South Carolina, and at the time they were sustained he and the defendant were engaged in interstate commerce. On basis of these findings, and noting that the suit was based on a transitory cause of action, the judge sustained the plea to the jurisdiction and dismissed the plaintiff's action. To this judgment the plaintiff excepted. This judgment was reversed by the Court of Appeals, and on application of the railroad company certiorari was granted by this court.

For the decision under review and a more complete statement of the facts, see Parker v. Southern Railway Co., 66 Ga.App. 295, 17 S.E.2d 750, 753.

The evidence showed, without dispute, that the plaintiff was a member of a switching crew working under Pierce C. Long, acting yard conductor, at the time he was injured; that his injury occurred at night while these employees were executing an order given to Long as conductor to go to a certain mill and get two cars, including a Southern car, and bring them to the yard; that the purpose of bringing the Southern car was to 'put it into a train for Atlanta.' It did not appear, however, whether Atlanta was the final destination of this car or whether it was destined to some point without the State of Georgia. Besides testimony as to the manner in which the injury occurred, it appeared from the plaintiff's petition that while he was standing on a described loading platform giving signals, he was struck by the door of the 'lead' or 'forward' car of the passing switch train consisting at the time 'of two cars and an engine, the forward car of which was to be left by said loading platform, and the other car, as aforesaid (the Southern car), was to be placed in a train bound for Atlanta.'

The opinion of the Court of Appeals, one judge concurring specially, was as follows:

'The issue of jurisdiction was made by the defendant by its plea in abatement, and the burden of proof was on the defendant to establish the truth of two allegations: 1, that the plaintiff was a non-resident of Georgia, and 2, that the operation of the engine by which the plaintiff was alleged to have been injured was not connected with and bore no reasonable relation to its business in Georgia. Assuming for the sake of argument that the evidence showed the plaintiff was a non-resident, a question which we do not now decide, it did not show that the operation of the engine at the time in question was not connected with the business of the defendant in Georgia. If the Southern car was ultimately destined to a point in Georgia the operation in question was connected with the defendant's business in Georgia, as we shall presently show. If it was simply to pass through Georgia on into another State the operation would not involve the defendant's business in Georgia. The evidence does not show what the final destination of the car was. It only showed that the car was destined to Atlanta or a point south of Atlanta. In order for the defendant to prevail on its plea it was necessary for it to show that the car was destined to a point outside the State of Georgia. Since it did not show such a fact to be true it did not carry its burden and it was error for the court to hold that the cause of action was a transitory one.

'It is argued by the defendant that the presence of the Southern car, attached to the engine, was merely incidental matter, and that the injury did not occur while the Southern car was being attached to the engine. It is true that the injury occurred after the Southern car was attached to the engine, but it occurred while the engineer was in the act of moving it to a place where it was to be attached to another train and sent to its destination. Another car also had to be picked up. Picking up the two cars on the same operation was to the advantage of the defendant in the saving of time, and to require the defendant to make two complete and separate operations in order to place two cars would be highly useless and impractical. The operations to all intents and purposes were one operation, and if one of its purposes was to place the Southern car where it could be sent to Georgia, it rendered the transaction one in which the defendant would be engaged involving directly its business in Georgia. Of course, if the Southern car had been merely attached to the engine and was eventually to be sent to Georgia, but was not at the time being placed to as to be sent to Georgia, the contention of the defendant would be correct. But such is not the case. Under the above rulings and under the rulings in Reeves v. Southern Ry. Co., 121 Ga. 561, 49 S.E. 674, 70 L.R.A. 513, 2 Ann.Cas. 207; Louisiana State Rice Milling Company v. Mente, 173 Ga. 1, 159 S.E. 497, and McCorkle v. Pullman Company, 60 Ga.App. 879, 5 S.E.2d 382, the court erred in sustaining the plea to the jurisdiction and in dismissing the action.'

The petition for certiorari assigned error on the grounds: that the decision of the Court of Appeals is in conflict with the decisions cited to sustain it, and is a misconstruction of decisions of the Supreme Court and of other decisions by that court; that it was error to rule and hold that 'the presence of the Southern car (as dead weight) in the train at the time of the switching movement in which the plaintiff was injured was sufficient to give the Georgia courts jurisdiction * * * of a transitory cause of action occurring in a foreign jurisdiction...

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