Kirkland v. Atchison, T. & S. F. Ry. Co., 38786

• Decision Date: 21 June 1961
• Docket Number: No. 2,No. 38786,38786,2
• Citation: 104 Ga.App. 200,121 S.E.2d 411
• Parties: Flora Mae KIRKLAND et al. v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
• Court: Georgia Court of Appeals

Page 411

121 S.E.2d 411

104 Ga.App. 200

Flora Mae KIRKLAND et al. v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY.

No. 38786.

Court of Appeals of Georgia, Division No. 2.

June 21, 1961.

Rehearing Denied July 25, 1961.

Syllabus by the Court

1. Where a foreign railway company maintains a permanent office in a county in this State, having a general agent in charge thereof, and also a ticket agent, each having the power and authority to bind the company, as a carrier to transport passengers for hire, and where the general agent supervises eleven local employees of the defendant railway company, six of whom act as salesmen to solicit and obtain business for the company, such railway company is 'doing business' within this State so as to be amenable to process in such county in an action for damages for personal injuries sustained by one while being transported on one of its trains as a passenger. Likewise this rule would apply to an action by a husband for loss of services of his wife who was injured while being transported by the foreign corporation as a passenger on one of its trains.

2. An action as described above is not such a burden on interstate commerce as to be prohibited by the commerce clause of the United States Constitution.

Flora Mae Kirkland and Jack Kirkland filed separate suits for damages against the Atchison, Topeka & Santa Fe Railway Co. in the Superior Court of Fulton County. The defendant filed a traverse to the entry of service and a plea to the jurisdiction in each case upon the ground that the defendant was not subject to suit in Georgia.

Thereafter, it was agreed by the parties that the issue made by such traverse of entry of service and plea to the jurisdiction in each suit be tried together and be submitted to the trial judge without intervention of a jury upon the basis of (1) a stipulation of fact by the parties, (2) the testimony of Frank B. Brenner and Jack H. Brackeen taken by deposition, and (3) an affidavit of Floyd Struppi, general counsel for the defendant railway company.

Briefly, the stipulation shows that both plaintiffs are residents of the State of Georgia; that the physician who attended Mrs. Kirkland is a resident of the State of Georgia; that the defendant is a corporation of Kansas and is not, and was not when the actions were brought, licensed by or qualified with the Secretary of State to do business in the State of Georgia; that the defendant does not maintain any office in the State of Georgia other than the one referred to in the deposition of Frank B. Brenner and has not conducted or carried on any business activity in this State except as described in the deposition of Frank B. Brenner; that the defendant pays ad valorem tax on the furniture and fixtures located in its office in Atlanta, Georgia, at an assessed value of $1.940; that the defendant does not pay any income tax to the State of Georgia, and does not make any return or pay any tax to the State of Georgia except ad valorem tax as above mentioned; that the nature and scope of all business carried on by the defendant in the State of Georgia is set out in the deposition of Frank B. Brenner; that Mrs. Kirkland, plaintiff, did not purchase her ticket in the State of Georgia for the trip referred to in the petition, but purchased the same in the State of California, and that the defendant does not own or operate, and has never operated, any railway lines in the State of Georgia.

The affidavit referred to above states that the accident referred to in the petition occurred in New Mexico at a place more than 1,750 miles from Atlanta, and that the proper defense of the case on the trial thereof would require the attendance in Fulton Superior Court of Approximately six witnesses who are the employees of the defendant, at the expense of $2,400; that the employee witnesses are directly engaged in interstate commerce in connection with the operation of interstate trains operated by the defendant, and the absence of the witnesses from their work assignments would cause serious inconvenience in the handling of interstate business of the defendant and would constitute a substantial burden on interstate commerce which would be largely avoided if the trial of the above cases by held in the state where the accident took place.

The pertinent testimony of Frank B. Brenner shows briefly: He has resided in Atlanta for a period of ten years, and during such time, he has been employed by the defendant railway company, holding the title of general agent. The defendant leases an office in a building located in Atlanta, and he is in charge of such office. His work is 'to invluence the movement of freight and passengers over the Atchison, Topeka & Santa Fe Railway Company.' He supervises an office force of eleven employees of the defendant company, six of whom are designated as salesmen. Such office is open each working day from 8 a. m. to 5 p. m., for the benefit of anyone who may desire transportation by the defendant railway company. He further testified that such tickets were sold at this office to any individual who desired to take a trip between two points on defendant's railway lines. The money received from the sale of such tickets by an agent in the Atlanta office was deposited in an account, in a local bank, by the defendant's agent, and later transmitted to the defendant railway company at one of its offices outside this State. The local agents also make reservations for accommodations on the defendant's trains for those who purchase such passenger tickets.

He further testified that the salesmen under his supervision solicit freight business in the Atlanta area on behalf of the defendant railway company; that no bills of lading are issued by the defendant railway company at the Atlanta office, because such are made out by the 'originating carrier'.

The salary checks for the defendant's employees in its Atlanta office are sent from the defendant's office in Topeka, Kansas. An account in a local bank is maintained for small incidental expenditures of the office force, and other expenses incurred in its Atlanta office are submitted by the general agent to its headquarters for a voucher. The rent for the Atlanta office is paid by check issued at one of the defendant's offices outside this State.

Jack H. Brackeen testified that he had been employed by the defendant approximately ten years and had worked in its Atlanta office twelve and one-half months as a 'city ticket agent' under the supervision of Frank B. Brenner. His duties were to supervise the sale of passenger tickets over the defendant's railway system and to furnish the public generally with information such as pamphlets and folders concerning the defendant's railway service. By one judgment the court sustained the defendant's traverse of entry of service and plea to the jurisdiction in each case. The plaintiffs filed a joint bill of exceptions in which they assign said judgment as error.

Sam F. Lowe, Jr., Atlanta, Lennie F. Davis, Columbus, for plaintiffs in error.

Hugh M. Dorsey, Jr., Jule W. Felton, Jr., Atlanta, for defendant in error.

FRANKUM, Judge.

1. Where a foreign railway company has and maintains a general agent and also a ticket agent in a county in this State, each having the power and authority to bind the railway company, as a carrier to transport passengers for hire, by selling and delivering passenger tickets and receiving the purchase money for such passenger tickets, and where the company maintains a permanent office in such county with a general agent in charge thereof who supervises eleven local employees of the defendant company, six of whom act as salesmen to constantly solicit and obtain business for the company, such company is 'doing business' within this State so as to be amenable to process in such county in an action for damages by one for personal injuries alleged to have been sustained by reason of the negligence of the railway company while such person was being transported as a passenger on one of the defendant's trains. Reeves v. Southern Ry. Co., 121 Ga. 561, 49 S.E. 674, 70 L.R.A. 513. This is particularly true when the action relates to the nature of the activity that the railway company carries on in this State, viz., sale of passenger tickets, and an action for damages by one who sustained injuries while being transported as a passenger of the defendant railway company, as in the instant case. See Louisiana State Rice Milling Co. v. Mente & Co., 173 Ga. 1, 159 S.E. 497; cf. Southern Ry. Co. v. Parker, 194 Ga. 94, 21 S.E.2d 94; Louis ville & N. R. Co. v. Meredith, 194 Ga. 106, 21 S.E. 101; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Zuber v. Pennsylvania R. Co., D.C., 82 F.Supp. 670, 677. The rule of law announced in Vicksburg S & P. Ry. v. DeBow, 148 Ga. 738, 98 S.E. 381, sets forth the guiding principles applicable to the present issues in the instant case, but the result reached varies because the facts in the instant case are vastly different from those in the DeBow case. (Compare the foregoing statement of facts in the instant case with the facts shown in the DeBow case) Consequently, nothing held here is in conflict with Vicksburg S. & P. Ry. v. DeBow, supra, because in the DeBow case, it affirmatively appears that the agent did not have the authority to bind the foreign corporation by contract, or otherwise, or to sell passenger tickets, while in the instant case, the uncontradicted facts show that the defendant's agents had the power and authority to obligate the defendant railway company by selling and delivering passenger tickets to the purchasers thereof, and did sell and deliver passenger tickets and receive the purchase price therefor, thereby obligating the defendant railway company to transport the holders of such tickets as its passengers. See Aiken v. Southern Ry. Co., 118 Ga. 118, 44 S.E. 828, 62 L.R.A. 666. Such contract is implied by law....