Burke v. Greer, Civ. A. No. 1004.
| Decision Date | 18 September 1953 |
| Docket Number | Civ. A. No. 1004. |
| Citation | 114 F. Supp. 671 |
| Parties | BURKE v. GREER et al. |
| Court | U.S. District Court — Middle District of Georgia |
E. W. Maynard, H. T. O'Neal, Jr., Carlton Mobley, Macon, Ga., for the plaintiff.
Martin, Snow & Grant, Macon, Ga., for defendants J. C. Greer, Wallace Mac Greer.
Harris, Russell, Weaver & Watkins, Macon, Ga., for defendant James H. Vaughn and other defendants.
In this case the plaintiff seeks to recover on account of personal injuries, which he alleges were sustained as a result of the joint negligence of Wallace Mac Greer and James H. Vaughn, drivers of the two vehicles involved in an accident. Joined as defendants are J. C. Greer, owner of the vehicle in which the plaintiff was riding, and Alex S. Boone, Jr., doing business as the B. & B. Construction Company, the owner of the other vehicle involved.
The accident occurred in Bibb County, Georgia, within the Macon Division of the Middle District of Georgia. Both of the Greers are residents of Alabama and Vaughn and Boone are residents of Wilkinson County, Georgia, within the Macon Division of the Middle District of Georgia. The plaintiff is a resident of Tennessee. Jurisdiction is based on diversity of citizenship and the jurisdictional amount is present.
Suit was filed in this District and service was had on the nonresident defendants Greer in accordance with the Non-Resident Motorists Statute of Georgia, § 68-801, Ga. Code Ann. A motion to dismiss was filed on behalf of the defendants Greer, on the grounds that under 28 U.S.C.A. § 1391(a) the Middle District of Georgia is not the proper venue, since it is not the residence of the plaintiff or of all of the defendants.
The motion came on for a hearing and memoranda of authorities were submitted.
This question is one which has received frequent consideration in the Federal Courts and, with rare exception, the Courts, considering statutes very similar to § 68-801 of the Georgia Code Ann., have held that nonresident motorists, by using the highways of the state, not only consent to be sued in both state and federal courts of the state, but also waive the provisions of 28 U.S.C.A. § 1391(a) as to venue. That the benefits of this section can be waived has long been decided.
This Court is of the opinion that, in view of the decisions of Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 60 S.Ct. 153, 128 A.L.R. 1437, and Knott Corporation v. Furman, 4 Cir., 163 F.2d 199, the aforementioned holdings represent the sounder view of the question.
In a well reasoned opinion, in Archambeau v. Emerson, D.C., 108 F.Supp. 28, the Court discusses at length the question here presented and, in language which coincides with this Court's views, disposes of every point raised by the movants here. Similar statutes have been construed with the same result in the following cases: Olberding v. Illinois Central R. Co., 6 Cir., 201 F.2d 582; Jacobson v. Schuman, D.C., 105 F. Supp. 483; Garcia v. Frausto, D.C., 97 F. Supp. 583; Burnett v. Swenson, D.C., 95 F.Supp. 524; Urso v. Scales, D.C., 90 F. Supp. 653; Morris v. Sun Oil Co., D.C., 88 F.Supp. 529; Steele v. Dennis, D.C., 62 F. Supp. 73; Krueger v. Hider, D.C., 48 F. Supp. 708.
The Court is aware of and familiar with the decisions in Martin v. Fischbach Trucking Co., 1 Cir., 183 F.2d 53, and Waters v. Plyborn, D.C., 93 F.Supp. 651, but must respectfully disagree with the holdings of these Courts.
The Court is also aware of the recent decision of the Third Circuit in the case of McCoy v. Siler, 205 F.2d 498, 500, in which it was said: This Court must...
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Dibble v. Cresse, 17732.
...Here citing in support the decision and opinion of the United States District Court for the Middle District of Georgia, in Burke v. Greer, 114 F.Supp. 671, appellant insists that, though defendant has not waived the venue privilege, Sec. 1391 (a) supra, the fact that plaintiff joined her wi......