Folkes v. Central of Georgia Ry. Co.

• Citation: 202 Ala. 376,80 So. 458
• Decision Date: 20 June 1918
• Docket Number: 4 Div. 796
• Parties: FOLKES v. CENTRAL OF GEORGIA RY. CO.
• Court: Supreme Court of Alabama

80 So. 458

202 Ala. 376

FOLKES v. CENTRAL OF GEORGIA RY. CO.

4 Div. 796

Supreme Court of Alabama

June 20, 1918

On Rehearing, November 14, 1918

On Rehearing.

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Action by Central of Georgia Railway Company against Eunice O Folkes, administratrix of the estate of A.M. Folkes deceased. From decree overruling demurrer to bill, defendant appeals. Reversed and remanded.

Sayre and Somerville, JJ., dissenting.

Bill by appellee (complainant) against appellant (respondent) seeking an injunction restraining the respondent from the further prosecution of her suit, as administratrix of the estate of A.M. Folkes, deceased, against complainant corporation, in the superior court of Chatham county, in the state of Georgia.

The bill shows that the respondent is a resident of Houston county, Ala., and has been duly appointed administratrix of the estate of A.M. Folkes, deceased; that she instituted a suit for damages against complainant in the Georgia courts to recover for the death of her intestate, alleged to have been caused by the negligence of complainant. It is then averred upon information and belief, that respondent's intestate at the time of the accident was driving an automobile along a public highway in Houston county, Ala., and drove the same upon the tracks of the complainant railway, directly in front of an approaching train, and said automobile was struck resulting in the death of respondent's intestate; that there was no intervening object to prevent respondent's intestate from seeing the approaching train, and neither the engineer, fireman, nor any other person in charge of said train had any knowledge of his peril on said track in time to have prevented the injury; that it is either true respondent's intestate failed to stop, look, and listen before going upon the track, at such a distance from the track that he could stop his automobile, or else respondent's intestate, after having stopped, looked, and listened, saw the approaching train, and nevertheless went upon said track directly in front of it, measuring the distance and time it would take to cross, and thereby assuming the risk. It is further averred that the witnesses reside in the state of Alabama, and that the result of bringing the suit in Georgia is to obtain an advantage to which the plaintiff in said action, in Georgia, is not entitled in Alabama, and to unnecessarily impose hardship, oppression, and injury upon the complainant; that under the laws of Alabama complainant has a complete defense in the contributory negligence of the respondent's intestate as a matter of law, but in the state of Georgia the courts do not hold that it is the duty of travelers on highways to stop, look, and listen for approaching trains before attempting to cross a railroad track; that it is held that it is not the absolute duty to stop, look, and listen, but such failure is contributory negligence only when, under the facts and circumstances, the jury should conclude that the failure to stop, look and listen was not the exercise of that ordinary care which every prudent man observes, and that in such cases the courts of the state of Georgia will not follow the rule as established in Alabama, but follow that as established by its own decisions.

The prayer is for a temporary injunction, and, upon a final hearing, it is prayed that the injunction be made perpetual, restraining the respondent from prosecuting her action in the superior court of Georgia.

The bill, with the exhibits attached, discloses that complainant is a corporation organized, existing, and doing business under the laws of the state of Georgia, with its principal place of business in Savannah, Ga., and that it has complied with the laws of Alabama, and is fully authorized to do business in this state, and has been so engaged for a number of years.

The respondent demurred to the bill for want of equity, and upon the further ground that the bill fails to allege that it is an Alabama corporation or citizen of Alabama; that the bill shows that the Central of Georgia Railway Company is a corporation organized under the laws of the state of Georgia, with its principal place of business in the state of Georgia, and that suit was properly filed in Chatham county, Ga. Decree was rendered overruling the demurrer, and from this decree the respondent prosecutes this appeal.

A.E. Pace, of Dothan, for appellant.

B.F. Reid, of Dothan, for appellee.

GARDNER J.

The bill in this case was filed upon the authority of Weaver v. A.G.S.R.R. Co., 76 So. 364. The averments of the bill in the instant case bear very close analogy to those found in the Weaver Case, supra, and the only question for determination here is whether or not the point of difference, hereinafter noted, suffices to deny in the instant case the principle therein recognized.

It is well settled, as stated in the Weaver Case, supra, that in a transitory action of this character the plaintiff could properly sue in the state of Georgia, and that, therefore, that court had acquired jurisdiction of the cause, and may properly proceed with its trial and determination if there prosecuted by the plaintiff. It was there held also that, when both parties to an action in a sister state are residents of another, the courts of equity in the latter may act in personam upon those parties, and direct them, by injunction, to proceed no further in such suit, when the equities of the case demand the exercise of this power by a court of equity in the state having jurisdiction of the parties. It was there said:

"A purpose to evade the effect of the law of the domicile of the parties, by suing in a foreign state where the substantive law is materially different, is everywhere recognized as a sufficient ground for injunctive relief. *** This is founded on the just conception that there is essential injustice in the enforcement of rights and duties according to any other standard than that fixed by the law of the place where the parties reside, and where the right or duty arose and the alleged breach occurred."

In the Weaver Case it appears that the respondent was a resident of the state of Alabama, and that the complainant, the Alabama Great Southern Railroad Company, was an Alabama corporation. In the instant case the complainant is a corporation organized under the laws of the state of Georgia, with its principal place of business in that state. The authorities, so far as our investigation extends, seem to apply the principle only in those cases where both parties to the suit are residents within the territorial limits of the state in which the injunction proceeding is sought. Allen v. Buchanan, 97 Ala. 399, 11 So. 777, 38 Am.St.Rep. 187; Story, Eq.Jur. vol. 2, § 899; 1 High on Injunctions, § 106; 6 Pom.Eq.Jur. § 670; notes to Eingartner v. Ill. Steel Co., 59 Am.St.Rep. 879; Cole v. Cunningham, 133 U.S. 107 (118), 10 Sup.Ct. 269, 33 L.Ed. 538.

Indeed, we have been unable to find any cases, and none have been called to our attention by counsel, where injunctive relief has been awarded upon the application of a nonresident. But the numerous cases which have been examined in this connection relate to such suits in which both the complainant and respondent were residents of the same state.

In St. L. & S.F.R.R. Co. v. James, 161 U.S. 545, 16 Sup.Ct. 621, 40 L.Ed. 802, it was held:

"There is an indisputable legal presumption that a state corporation, when sued or suing in a circuit court of the United States, is composed of citizens of the state which created it; and hence such a corporation is itself deemed to come within that provision of the Constitution of the United States, which confers jurisdiction upon the federal courts in 'controversies between

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