Bituminous Casualty Corporation v. RDC, INC., Civ. A. No. 2324.

• Decision Date: 17 December 1971
• Docket Number: Civ. A. No. 2324.
• Citation: 334 F. Supp. 1163
• Parties: BITUMINOUS CASUALTY CORPORATION et al. v. R. D. C., INC., The City of Chattanooga, Tennessee, d/b/a Electric Power Board of Chattanooga and Henry Burchard. R. D. C., INC., v. SOUTHERN UNIVERSAL MANUFACTURING COMPANY, formerly known as Southern Universal Textile Processors, Inc.
• Court: U.S. District Court — Northern District of Georgia

334 F. Supp. 1163

BITUMINOUS CASUALTY CORPORATION et al. v. R. D. C., INC., The City of Chattanooga, Tennessee, d/b/a Electric Power Board of Chattanooga and Henry Burchard.

R. D. C., INC., v. SOUTHERN UNIVERSAL MANUFACTURING COMPANY, formerly known as Southern Universal Textile Processors, Inc.

Civ. A. No. 2324.

United States District Court, N. D. Georgia, Rome Division.

December 17, 1971.

E. Lamar Gammage, Jr., Cedartown, Ga., for plaintiffs.

Luther, Anderson and Ruth, Chattanooga, Tenn., Stolz, Fletcher & Watson, Lafayette, Ga., for R.D.C. and Henry Burchard.

L. Hugh Kemp, Dalton, Ga., and Oscar M. Smith, Rome, Ga., for The City of Chattanooga.

ORDER

O'KELLEY, District Judge.

This is an action by four insurers, as subrogees, against the defendants for recovery of $398,502.75 paid to their insured Manhattan Sponging Works, Inc., which was allegedly a tenant in premises owned by defendant R.D.C., Inc. of Rossville, Georgia. That amount was paid to Manhattan for its property destroyed by fire which is alleged to have been negligently caused by the actions of defendants.

The plaintiffs are all non-residents of Georgia. Defendant R.D.C., Inc. is a Georgia corporation located in Rossville. The City of Chattanooga d/b/a/ Electric Power Board of Chattanooga is a municipality of Tennessee with its principal offices in said City. Henry Burchard is a resident of Dade County, Georgia.

Jurisdiction is asserted over the City of Chattanooga d/b/a Electric Power Board by virtue of its transaction of business within this State as contemplated by Georgia Code Ann. § 24-113.1. (The Long Arm Statute).

Plaintiffs allege that the City of Chattanooga d/b/a Electric Power Board, owns and operates a franchise from the City of Rossville to furnish electric power and electrical facilities to an industrial complex owned and operated by R.D.C., Inc. in Rossville. Burchard was an employee of R.D.C., Inc. on June 10, 1967 when a fire resulted from the alleged negligence of the defendants.

Plaintiffs allege that various acts and omissions by defendants contributed to and caused that fire which destroyed Manhattan's property for which plaintiffs were obliged to pay Manhattan the claimed amount.

Defendant Chattanooga has filed a motion to dismiss the Complaint upon several grounds (all of which will not be dealt with herein). The first specific grounds are for (1) lack of jurisdiction over defendant, (2) improper venue, (3) insufficiency of process and, (4) insufficiency of service of process.

Plaintiff argues that since that fire occurred in June 1967, jurisdiction over this defendant was not conferred because the term "non-resident" as used in Georgia Code Ann. § 24-113.1, as amended 1966, did not include corporations. Section 24-117, as amended 1968, defines a "non-resident" as including a corporation as used in § 24-113.1.

This theory of plaintiffs must fall, however, in view of this Court's recent decision of Griffin v. Air South, Inc., 324 F.Supp. 1284 (N.D., Ga., 1971) wherein it was held:

"In Hare v. United Airlines Corp., 295 F.Supp. 860 (N.D., Ga., 1968), this Court considered the question of whether the 1968 amendment to § 24-117 (Ga.Laws, 1968, p. 1419), which specifically included corporations in the meaning of the term `non-resident,' should be held retroactive. We considered Ga.Code Ann. § 102-104,<sup>2</sup> as well as Focht v. American Casualty Co., 103 Ga.App. 138, 118 S.E.2d 737 (1961) (holding no retroactive application), and Pritchard v. Savannah St. & R. R. R. Co., 87 Ga. 294, 13 S.E. 493, 14 L.R.A. 721 (1891) (holding retroactive application). We accepted the test in Pritchard as stating the correct rule: `Laws curing defects in the remedy, or confirming rights already existing, or adding to the means of securing and enforcing the same, may be passed.' 87 Ga. at 297, 13 S.E. at 494. Applying that test to § 24-113.1(c), we find that it does not change the right against a defendant. As we said in Hare: `Had a corporation been subject to the jurisdiction of the court prior to the amendment, it clearly could have been sued.' 295 F. Supp., at 862. That is exactly the case here, and the amendment only adds `to the means of securing and enforcing' a preexisting right. The Court concludes, as we did in Hare, supra, that Pritchard, supra, is controlling and that Beech was properly served under § 24-113.1(c)."

The thrust of defendant Chattanooga's argument is that a non-resident corporation may not be subjected retroactively to the jurisdiction of this State and Court by virtue of § 24-113.1. This contention is laid to rest by Griffin v. Air South, Inc., supra.

Its next argument relates to insufficiency of process and service thereof. Movant contends that without jurisdiction the process and service are meaningless. There is no showing of any irregularity in the process or service thereof. Service was by a U.S. Marshal upon the Mayor of the City of Chattanooga. Service was made pursuant to Ga.Code Ann. § 24-115. Therefore, the Court finds that the jurisdictional issue withstands the challenge. The Court having jurisdiction, it proceeds to determine another of movant's grounds for dismissal of the Complaint.

Defendant moves to dismiss because defendant, City of Chattanooga d/b/a Electric Power Board of Chattanooga, has never received any notice of a claim against the municipality or the Board arising out of the alleged cause of action as required by Ga.Code Ann. § 69-308. It moves also on the basis that plaintiffs have not alleged that said notice has been given as required by that section.

Ga.Code Ann. Section 69-308 provides in part:

"Demand prerequisite to suit for injury to person or property; suspension of limitations. — No person, firm or corporation, having a claim for money damages against any municipal corporation on account of injuries to person or property, shall bring any suit at law or equity against said municipal corporation for the same, without first, and within six months of the happening of the event upon which such claim is predicated, presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injury, as nearly as practicable, and the negligence which caused the same, and no such suit shall be entertained by the courts against such municipality until the cause of action therein shall have been first presented to said governing authority for adjustment: . . ." Emphasis Added.

The Georgia Court of Appeals held in City of Atlanta v. Barrett, 102 Ga.App. 469, 471-472, 116 S.E.2d 654, 656 (1960) that:

"It is well established in Georgia that failure to comply with the provisions of this law within the time required thereby is a bar to any right of action against a municipality (Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S.E. 978; Newton v. City of Moultrie, 37 Ga.App. 631, 141 S.E. 322), and that the giving of such notice is a condition precedent to the bringing of any action against a municipality. City of Atlanta v. Scott, 66 Ga.App. 257, 18 S.E.2d 76.

"While it is true that the Supreme Court has held in at least one case that the requirement of notice is a mere segment or element of the general subject and is inseparable from the requirement as to the time within which such notice must be given (City of Atlanta v. Hudgins, 193 Ga. 618, 631, 19 S.E.2d 508), no ruling has been called to

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