American Fidelity & Cas. Co. v. Thompson

Decision Date05 September 1946
Docket Number31290.
Citation39 S.E.2d 443,74 Ga.App. 189
CourtGeorgia Court of Appeals
PartiesAMERICAN FIDELITY & CASUALTY CO., Inc., v. THOMPSON.

Syllabus by the Court.

A passenger riding on the busses of common carriers for hire from a point in Florida through Georgia and into South Carolina, on a through ticket and continuous journey, her destination being known to the initial carrier, although she changed from the bus of the first carrier to the bus of a connecting carrier at a point in Florida, was transported throughout the journey in interstate commerce.

(a) The rights and remedies of a passenger in interstate commerce, for injuries sustained on account of the negligence of the carrier, are controlled by the Federal Motor Carrier Act, and state statutes regulating motor transportation do not apply.

(b) The court erred in admitting in evidence the Florida statutes and in overruling the defendant's motion for new trial.

Andrews & Nall, A. Walton Nall, Hal Lindsay, and A. C. Latimer all of Atlanta, for plaintiff in error.

Wm Lamar Hailey, of Hartwell, for defendant in error.

PARKER Judge.

Mrs. Thompson (the defendant in error) sued Florida Motor Lines Corporation, a common carrier for hire, and American Fidelity and Casualty Company, Inc. (the plaintiff in error), as its insurer, for damages for injuries alleged to have been received in an accident at Fort Pierce, Florida. It was alleged that Florida Motor Lines Corporation operated busses between Jacksonville and Miami, Florida, and also operated 'in interstate commerce in transporting passengers for hire into or through Georgia with trips originating in Florida' (par. 4); and that plaintiff purchased a ticket at the bus terminal in West Palm Beach, Florida, which entitled her to passage on the defendant carrier's bus from West Palm Beach 'via and through the State of Georgia' to Greenwood, South Carolina, and that after boarding the bus she was transported as far as Fort Pierce where the injuries were sustained (par. 9).

American Fidelity and Casualty Company, Inc., filed an answer subject to a general demurrer and plea of misjoinder of causes of action, but the answer only appears in the record. No appearance was made for the other defendant so far as the record shows. The plaintiff amended her petition by striking the name of Florida Motor Lines Corporation as a party defendant, and by alleging that at the time of the accident referred to in the original petition the Florida Motor Lines Corporation 'was engaged wholly in intrastate business and that the ticket referred to in paragraph nine of plaintiff's petition designated that she [was] entitled to passage on bus of Florida Motor Lines only so far as Jacksonville, Florida, and from thereon to Greenwood, South Carolina, over the Greyhound Line'.

The plaintiff testified on the trial in part as follows: 'I had gotten on the bus at West Palm Beach coming to Greenwood, South Carolina. * * * My ticket was bought to Greenwood, South Carolina. * * * I bought a ticket at West Palm Beach to Greenwood, South Carolina, over the Florida Motor Lines and got on the bus to go to Greenwood. I was going to stop in Greenwood where I had two daughters. I was not going to stop anywhere between West Palm Beach and Greenwood; I was going direct.' Upon being recalled after the defendant had rested, the plaintiff testified further as follows: 'You ask me whether I planned any stop-over from West Palm Beach to Greenwood, and you state my answer was that I did not--I didn't stop but I changed busses at Jacksonville, is the only stop. I didn't stop to visit anybody, but I mean I changed busses in Jacksonville, I left the Motor Line bus there and caught a Greyhound. I bought a ticket from the Florida Motor Lines in West Palm Beach. That ticket called for Jacksonville because the bus didn't come out of there. The Florida Motor Lines doesn't run out of Jacksonville, and the remaining portion of the ticket called for Greenwood on the Greyhound bus. I bought my ticket in West Palm Beach direct through to Greenwood, and made a change in Jacksonville; changed busses in Jacksonville.'

The plaintiff offered in evidence the provisions of the Florida statutes applicable to the regulation and control of auto transportation companies transporting persons or property, and providing for the giving of bonds or the filing of insurance policies to indemnify passengers and the public sustaining personal injuries for any act of negligence of such companies and for damages to property. The statutes tendered in evidence authorized a direct action on such bonds or insurance policies 'by any person or persons who shall have sustained an actionable injury protected thereby.' F.S.A. § 323.06. Counsel for the defendant objected to this evidence upon the ground that it was immaterial and inapplicable, and because the statutes did not authorize the direct action against the defendant, and that such action would have to be maintained, if at all, under the Federal Motor Carriers Act, 49 U.S. C.A. § 301 et seq., in which case a judgment must first have been obtained against the motor carrier before suit against its insurer could be maintained. These objections were overruled and the evidence admitted. The trial resulted in a verdict for the plaintiff. A motion for new trial was duly filed by the defendant. One of the contentions made therein is that the plaintiff was an interstate passenger on the bus, having bought a through ticket from West Palm Beach, Florida, to Greenwood, South Carolina, and that in transporting the plaintiff as a passenger the motor carrier was engaged in interstate commerce, and that the Florida statutes introduced as the basis of the plaintiff's action could have no application; that if such statutes were applied to the transaction involved they would impose a burden upon interstate commerce and would be in violation of the federal constitution. The motion for new trial was overruled and the defendant excepted.

Although some other contentions were either made by the defendant upon the trial, or are included in the amended motion for new trial, we think this case is controlled by the answer to one question, namely: Was the motor carrier transporting the plaintiff at the time she was injured in interstate commerce? If the plaintiff was traveling in an intrastate operation the suit was maintainable under the direct action statutes of the State of Florida on which it was based. On the other hand, if the plaintiff was being transported as a passenger in interstate commerce at the time of her injury the action was not properly brought and a new trial must be granted.

Interstate commerce consists of intercourse and traffic between the citizens and inhabitants of different states. American Mills Co. v. Doyal, 46 Ga.App. 236, 167 S.E. 312; Orange Crush...

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