Harper Motor Lines, Inc. v. Roling, s. 21909 and 21910
| Decision Date | 25 March 1963 |
| Docket Number | Nos. 21909 and 21910,s. 21909 and 21910 |
| Citation | 130 S.E.2d 817,218 Ga. 812 |
| Parties | HARPER MOTOR LINES, INC., et al. v. T. B. ROLING. HARPER MOTOR LINES, INC., et al. v. Hoyt D. COBB. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The statutes of this State authorize joinder of the liability insurer of a motor
common carrier certified for both intrastate and interstate commerce in a suit for damages against the motor carrier and its driver although, at the time of the injury sued upon, the motor carrier is operating solely in interstate commerce.
(a) Therefore, the grounds of the demurrers to the petitions which complain of misjoinder of such insurer and mention of insurance were properly overruled.
(b) The above ruling also controls the grounds of defendants' pleas in abatement which attack joinder of the motor carrier's insurer as not being authorized by statute.
2. (a) Grounds 2 and 3 of the demurrers to the petitions, attacking the constitutionality of sections 7 and 30 of the 1931 Motor Common Carriers Act, as amended, in their entirety, were properly overruled as those sections contain provisions which clearly are not subject to the criticisms made.
(b) The grounds of defendants' pleas in abatement which attack the constitutionality of the joinder portion of section 7 of the act are without merit.
(c) In view of the rulings made in Divisions 1(b) and 2(b), these pleas were properly dismissed.
3. (a) Certain grounds of the demurrers to the petitions having been abandoned, are not considered.
(b) Grounds 17 of the demurrers, complaining that reliance upon Code Ann. § 68-1626(a) as negligence is surplusage, were properly overruled.
Heard & Leverett, Elberton, for plaintiff in error.
William O. Carter, Hartwell, for defendant in error.
Was the motor common carrier's liability insurer properly joined as a defendant in these actions for personal injuries against the motor carrier and its driver?
The plaintiffs contend that our statutes authorize such joinder here because this motor carrier was qualified and certified for intrastate as well as for interstate commerce. But the defendants assert that they do not authorize it here, where the motor carrier, although qualified and certified for both intrastate and interstate commerce, was actually operating solely in interstate commerce at the time of the injury sued upon; and that if the statutes do authorize such joinder they are unconstitutional.
These issues stem from rulings made on the pleadings in damage suits filed in the Superior Court of Stephens County, Georgia, by Hoyt D. Cobb and T. B. Roling against Harper Motor Lines, Inc., its driver, Thomas Hubert Howard, and its insurance carrier, Allstate Insurance Company. Cobb and Roling claimed that they sustained personal injuries from a collision between a truck operated by Cobb, in which Roling was a passenger, and a tractor-trailer owned by Harper Motor Lines, Inc., and driven by Howard.
The defendants interposed general and special demurrers attacking the petitions as a whole and various paragraphs on grounds going to the merits of the cause of action, the allegations as to negligence, mention of insurance, misjoinder of the motor carrier's liability insurer, and the constitutionality of certain statutes relating to joinder of such insurer. They also filed pleas in abatement based on the misjoinder and constitutional grounds. The trial court dismissed the plea and overruled all of the grounds of the demurrers, and it is to those rulings that error is assigned.
1. The applicable statutes are section 7, as amended (Ga.L.1937, pp. 730, 731; Code Ann. § 68-612), and section 30 (Code § 68-633) of the Motor Common Carriers Act of 1931 (Ga.L.1931, pp. 199 et seq.).
That act prescribes the conditions and regulations under which motor common carriers are permitted to operate upon highways in this State. It requires that all such carriers, except those engaged solely in interstate commerce, obtain a certificate of convenience and necessity from the Georgia Public Service Commission in order to operate on the highways of Georgia.
Section 7 of the act deals with intrastate carriers. It requires that they, as a prerequisite to obtaining the required certificate, file a bond or liability insurance policy with the Commission (unless self-insurance is permitted by the Commission) for the protection of their passengers, baggage and shippers and of the public against injury caused by the carrier's negligence. As originally enacted in 1931, section 7 was silent as to joinder of such surety or insurer in suits against the motor carrier. However, an amendment to this section in 1937 (Ga.L.1937, pp. 730, 731) expressly repealed it but re-enacted all of its original provisions verbatim, along with the addition of two sentences, which are at the center of the controversy here. Those two sentences are:
Plaintiffs assert that those quoted words authorize joinder of the motor carrier's insurer if the motor carrier is qualified and certified for intrastate commerce, without regard to the commerce actually done. They take the position that certification as an intrastate carrier and procurement of insurance coverage, filed with and approved by the Commission, are sufficient to subject the carrier to joinder under this section.
Section 30 of the 1931 act relates to interstate carriers and to carriers engaged in both interstate and intrastate commerce. By its terms a motor common carrier engaged solely in interstate commerce may operate on the highways of this State without a certificate but must register its routes and certain other information with the Commission and 'shall give the bond or indemnity insurance prescribed by this Act (omitting the protection in respect of their own passengers and cargoes) * * *.' It also recites that (Emphasis ours.)
Defendants contend that the language here subjects a carrier, which is qualified and certified for both intrastate and interstate commerce, to the provisions of the act dealing with intrastate carriers when it is actually carrying on intrastate commerce and to the provisions dealing with interstate carriers when it is actually operating in interstate commerce. Their position is that since section 7, supra, deals with intrastate carriers, a carrier certified for both types of commerce would be subject to that section and its joinder provisions only if and when the commerce actually being done by the carrier was intrastate.
This brings us to the focal point of the issue. Where a carrier is qualified and certified for both intrastate and interstate commerce, does the joinder provision of section 7 apply when the commerce being done by the carrier at the time of the injury sued upon is solely interstate?
After considerable study of this problem we conclude that under such circumstances joinder is authorized.
This precise question has not heretofore been passed upon by this court. However, the United States Court of Appeals for the Fifth Circuit, in Acme Freight Lines, Inc. v. Blackmon, 131 F.2d 62 (5 Cir., 1942), determined that Georgia law allows such joinder. It held that 'where, as here, persons are injured upon the highways of Georgia by the negligence of the carrier [qualified and certified as a common carrier for hire both in interstate and intrastate commerce], they are properly entitled to rely upon the protection required by Georgia law, and this is true whether the particular vehicle was at the time of the accident engaged in interstate or intrastate commerce.' See also, Gallahar v. George A. Rheman Co., Inc., 50 F.Supp. 655 (S.D.
The new section 7, provided by the 1937 amendment referred to above, recites: 'It shall be permissible under this Act for any person having a cause of action arising hereunder * * * to join the motor carrier and the insurance carrier in the same action * * *.' No distinction is...
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