Atlanta Metallic Casket Co. v. Mosby Truck Service, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: EBERHARDT; FELTON, C. J., and RUSSELL
• Citation: Atlanta Metallic Casket Co. v. Mosby Truck Service, Inc., 131 S.E.2d 590, 107 Ga.App. 677 (Ga. App. 1963)
• Decision Date: 24 April 1963
• Docket Number: No. 1,No. 40061,40061,1
• Parties: ATLANTA METALLIC CASKET COMPANY v. MOSBY TRUCK SERVICE, INC

Page 590

131 S.E.2d 590

107 Ga.App. 677

ATLANTA METALLIC CASKET COMPANY v. MOSBY TRUCK SERVICE, INC.

No. 40061.

Court of Appeals of Georgia, Division No. 1.

April 24, 1963.

Syllabus by the Court.

The Nonresident Motorists Act (Code Ann. § 68-803) was effectively amended by Ga.L.1955, p. 650 so that the Civil Court of Fulton County now has jurisdiction of such actions.

Bullock, Yancey & Mitchell, Harris Bullock, Atlanta, for plaintiff in error.

Gambrell, Harlan, Russell, Moye & Richardson, E. Smythe Gambrell, Edward W. Killorin, Atlanta, for defendant in error.

EBERHARDT, Judge.

The question in this case is the jurisdiction of the Civil Court of Fulton County over nonresident motorists and the solution depends on statutory interpretation. Prior to 1955, the Nonresident Motorists Act ¹ provided that the courts 'having jurisdiction of tort and criminal actions' would have jurisdiction under the act. In 1955, the General Assembly amended the act as set out in the footnote. ² Plaintiff (plaintiff in error) filed suit against the nonresident defendant in the Civil Court of Fulton County for property damage as the result of an auto collision. The defendant filed a plea to the jurisdiction and a general demurrer raising the issue of the lack of jurisdiction of the Civil Court of Fulton County. ³ Both the plea and the demurrer were sustained and plaintiff appeals.

1. The primary contention made by the defendant is that the amendment of 1955 was not effective to delete the words 'and criminal' from the statute as it previously appeared so that nonresident motorists could be sued in courts having jurisdiction of 'tort actions' only. ⁴ This reasoning is based on the fact that the 'declaratory clause' does not mention the deletion of the words 'and criminal' but rather purports to add other language. However, the statute goes on to provide that the act 'when so amended, shall read as follows' setting out the law without the words 'and criminal.'

We feel that a definitive answer to this problem can be found in a series of cases beginning with Gilbert v. Georgia Railroad & Banking Co., 104 Ga. 412(1), 30 S.E. 673. In Gilbert, the Supreme Court was confronted with a situation where the declaratory clause set out certain amendments but the amendments did not appear in the language after the clause 'so that said section, when amended, shall read as follows.' Justice Cobb, speaking for the court, said: 'While, in amending statutes, it is proper to embrace in the first part of the amending act, as declaratory of the intention of the general assembly, what is to be the character of the amendment, still this part of the statute, which is merely declaratory of the legislative intention, is not to be looked to as the final determination of the general assembly. When a statute or section of the Code to be amended is recited in the statute in its amended shape, and it is in express terms declared therein that, when, amended the old law shall read in a certain way, this declaration by the general assembly, being the last expression of its intention as to what shall be the law of the state, absolutely controls where any conflict arises as to matter contained in this declaration of what the law shall be and what is set forth in the first part of the amending statute as declaratory of the legislative intention. If the declaratory part, which recites that certain amendments are to be made, is entirely omitted from the recital as to how the statute shall read when amended, it is to be presumed that it was the intention of the general assembly to omit from the new law that part of the amending statute which was not carried into the new law as recited in the statute, and that the failure to strike from the declaratory part of the law so much of it as was not to be embraced in the new law was by mistake or inadvertence. This being true, the proviso which is set forth in the first part of the act above quoted is no part of the law, and was properly disregarded by the codifiers. In the case of Goodno v. City of Oshkosh, 31 Wis. 127, it was held that 'where a statute provides that a specified section of a former statute 'shall be amended so as to read as follows,' etc., reciting section in full as amended, any provision of such section not found in the new statute is repealed.' To the same effect, also, is the case of Moore v. Mausart, 49 N.Y. 232. See, also, State v. Andrews, 20 Tex. 230; Suth.Stat.Cons. § 137. These authorities clearly show that where an amending act recites that the old act as amended shall read in a certain way, such recital as to what the law shall be after the passage of the amended act abrogates everything in the old law which is not contained therein. While not directly in point, we think the principle of these decisions is applicable to the present case. If the recital of how the law shall stand after the amendment abrogates an existing law, much more would it be held that a new declaration of the legislative intention contained in a clause in the first part of the act which is entirely omitted from the recital as to how the new law shall read, should never become operative.' Gilbert was followed as to the same statute in Gilbert v. Georgia R. & Bkg. Co., 105 Ga. 486, 30 S.E. 888 and Savannah, Fla. & W. Ry. Co. v. Tony, 108 Ga. 753, 32 S.E. 878.

Additional cases in accord with Gilbert are: Ryle v. Wilkinson County, 104 Ga. 473, 30 S.E. 934 where a proviso that did not appear in the declaratory clause was added to the law and held to be a part of the law, the court, per Presiding Justice Lumpkin, stating at p. 476: 'The work of amendment was not artistically done, but the result sought to be reached is clear and obvious. the general assembly designed that the Code section, after being amended, should read in a particular way, and there is no uncertainty as to what its reading should then be.'; Crine v. Morton Salt Co., 178 Ga. 754, 174 S.E. 347 where a certified question presenting essentially the same facts as Gilbert was answered in accordance therewith; Hart v. Head, 186 Ga. 823, 199 S.E. 125 where the caption of the act set forth a certain amendment that was not included in the body of the act; Tyler v. Huiet, 199 Ga. 845, 36 S.E.2d 358; and, Haire v. State, 43 Ga.App. 105, 157 S.E. 909 where the court answered its question 'Were there ever so many contradictions in one short Act?' by holding that the last of three directly contradictory sections of the same act should prevail.

The apparent contrary authority of Abernathy v. Mitchell, 113 Ga. 127(1), 38 S.E. 303 seems to have overlooked Gilbert and others mentioned above which are older, full bench decisions and binding on us.

Thus it can be seen that we follow an unbroken line of authority dating from Gilbert in 1898 and one that is in accord with the American majority. 1 Sutherland, Statutory Construction § 1932 (3rd Ed. 1943, 1962 Supp.); 50 Am.Jur. 263, Statutes, § 276. The rule represents a common sense approach that is both just and laudable.

2. Two additional factors fortify us in our decision, namely: (a) The legislative Journals for the 1955 General Assembly show beyond any peradventure the legislative intent with regard to the words 'and criminal.' The statute under consideration was specifically amended in the House ⁵ to delete the words 'and criminal' and the amendment was agreed to in the Senate. ⁶ The Journals were not introduced in evidence below, but Code § 38-102 allows this court to take judicial notice of them. While it is not entirely clear in this state when it is permissible to look to the Journals for legislative intent, there are many instances where this has been done without discussion. E. g., State Highway Dept. v. Hatcher, 218 Ga. 299, 302, 127 S.E.2d 803. 'Resort to aid of this kind is seemingly in conflict with the enrolled bill rule which provides that the courts cannot look behind the bill as enrolled and field with the Secretary of State. Actually it is not, since the enrolled bill rule refers only to the formal procedure of passage. Resort to the journals for the purpose of interpretation is far different; resort to the legislative journals in this case is to discover the meaning of the act.' 2 Sutherland, Statutory Construction § 5015, at 507 (3rd Ed. 1943).

(b) Another indication of legislative intent can be found in...