Mccorkle v. Pullman Co
| Decision Date | 21 October 1939 |
| Docket Number | No. 27701.,27701. |
| Citation | 5 S.E.2d 382 |
| Parties | McCORKLE. v. PULLMAN CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied Nov. 4, 1939.
Syllabus by the Court.
1. The motion to dismiss the writ of error is without merit.
2. Where a non-resident plaintiff brings suit in this State against a non-resident foreign corporation, although the petition alleges that the defendant "has an office, officers, and agents within the jurisdiction of this Honorable Court, upon whom service may be perfected, and for the purposes of this suit said defendant is subject to the jurisdiction of" the superior court of Fulton County, but where the cause of action does not arise out of any of the business transacted in this State by the defendant, and where the cause of action bears no relation to the business transacted in this State by the defendant, the courts of this State have no jurisdiction. Applying the foregoing principles to the facts of the present case, the court did not err in sustaining the general demurrer on the ground of lack of jurisdiction, and in dismissing the action.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by Otis Cleveland McCorkle against the Pullman Company to recover for personal injuries. To review an adverse judgment, the plaintiff brings error.
Judgment affirmed.
Otis Cleveland McCorkle filed suit against the Pullman Company in the superior court of Fulton County, the petition alleging that the defendant was a non-resident corporation, having an office, officers, and agents within the jurisdiction of the court upon whom service might be perfected, and that for the purposes of the suit the defendant was subject to the jurisdiction of the court, and for reasons hereinafter shown defendant had damaged him in the sum of $5,000; that defendant, during all the times mentioned in the petition, was engaged in the business of furnishing sleeping car facilities for the benefit of the traveling public, including the plaintiff, said sleeping cars being attached to regular trains operated by the Chicago and Eastern Illinois Railway Company, the Central of Georgia Railway Company, the Atlantic Coast Line Railway Company and the Florida East Coast Railway Company, among other railways to which the defendant company attaches its sleeping car facilities for the benefit of the traveling public; that on December 12, 1936, in Chicago, Illinois, at about 5:20 p. m. plaintiff boarded, as a regular passenger, one of the Pullman cars run and operated by said defendant company which was attached to train No. 5 of the Chicago and Eastern Illinois Railway Company and took his seat in the smoking compartment of said sleeping car to await the departure of said train which left at 5:22; that at said time he hadpurchased and had in his possession railroad transportation to Atlanta, Georgia, and boarded said Pullman car with the intention of buying Pullman transportation to Atlanta; that plaintiff approached the agent of the defendant at Chicago, Illinois, and attempted to purchase a Pullman ticket to Atlanta, Georgia, and was by him advised that the diagram had already been sent to the Pullman conductor, said agent then instructing plaintiff to board said Pullman car where he could" purchase space from the conductor; that plaintiff was born and reared in the State of Georgia, and at the time of the filing of his suit was residing with his brother in Atlanta, Georgia; that it was the duty of the defendant company to use ordinary care and diligence for the safety, convenience and protection of its passengers, their baggage and their personal effects, to use ordinary care and diligence in providing a safe place for its passengers to ride while using the accommodations furnished by said defendant company, in protecting its passengers and patrons from violence and robbery, threatened or committed by fellow passengers or trespassers, in keeping and maintaining sufficient employees and agents on each sleeping car, operated by said defendant company, to protect its passengers from violence, assault or robbery committed by fellow passengers or trespassers; that it was the duty of the agents and employees of the defendant company while working in its sleeping cars to come to the assistance of any passenger being threatened with assault, violence or robbery from fellow passengers or trespassers, especially when such passengers should call for help and assistance; that plaintiff proceeded as a regular passenger on said sleeping car, owned, controlled and operated by said defendant company, and rode in the smoking compartment of said sleeper from Chicago in the State of Illinois along and over the tracks and roadbed of the Chicago and Eastern Illinois Railway Company, to a point approximately thirty miles from Chicago and to a point near Crete, in the State of Illinois, at which time and place plaintiff attempted to enter the gentlemen's toilet adjacent to said smoking compartment; that as plaintiff pushed inward the door of said toilet he perceived that there were two men in the toilet, and, before plaintiff could close the door and withdraw, one of the men reached out and grabbed plaintiff and the other man struck plaintiff over the head with a gun; that upon being assaulted as aforesaid the plaintiff cried out in a loud voice for help; that no agent or employee of said defendant company responded to plaintiff's cry for help, and said man whose name is to plaintiff unknown continued to beat plaintiff over the head with the gun until plaintiff lost consciousness; that after plaintiff lost consciousness said assailants threw plaintiff off of the train and from the sleeping car run and operated by the defendant company while said train was being run and operated at a rapid rate of speed, the exact speed being unknown to plaintiff but which he alleges on information and belief was not less than 35 miles an hour at that time; that the agents and employees of the defendant company assigned to work and supervise said sleeping car could and should have heard plaintiff's cry for help when assaulted and had sufficient time thereafter to have prevented the further assault and beating of him, the robbery of him, and his being thrown from said moving train, but they negligently and carelessly failed or refused to supervise and police said car and failed and refused to answer his call for help, to come to his assistance, and to prevent his being further assaulted, robbed and ejected from said train as aforesaid, all of which plaintiff says was and is a violation of that ordinary care and duty owed by defendant to him and was and is negligence on the part of defendant. The petition sets out injuries received by the plaintiff and loss of certain personal property by reason of the robbery for all of which he sues, as well as for pain and suffering and reduction of earning capacity.
The defendant filed general and special demurrers to the petition as amended, one ground being that the court had no jurisdiction and should decline to take jurisdiction because the case involved a controversy between two non-residents on account of an alleged occurrence in no manner connected with the State of Georgia or business carried on within the State, and another ground to the same effect raising the point that to entertain jurisdiction would be to violate the Fourteenth amendment of the United States Constitution U.S.C.A. by depriving the defendant of property without due process of law because the Georgia courts have no jurisdiction of such cause of action. The court sustained the demurrer on the sole ground that it was without jurisdiction to try the case and that the plaintiff had no absolute right to require the court to try it, and the exception here is to this judgment.
Clint W. Hager, of Atlanta, for plaintiff in error.
Howell & Post, of Atlanta, for defendant in error.
1. In this court the defendant in error filed a written motion to dismiss the bill of exceptions on the ground that it was not filed within the time required by law. It is pointed out that the bill of exceptions bears a certificate of approval from the presiding judge under date of April 4, 1939; that the March, 1939, term of Fulton superior court began on the first Monday in March, March 6, 1939; that the January term, in which the judgment complained of, was rendered on February 20, 1939, necessarily adjourned by operation of law at midnight, Saturday, March 4, 1939; that it was necessary that the bill of exceptions be tendered within thirty days from the adjournment of court, and that the date of the signature of the judge, which it is averred must be taken as the date on which tender of the bill of exceptions was made, shows that the tender was made thirty-one days after the adjournment of court and, therefore, was too late. The date of tender and not the date of the judge's signature controls. Code, § 6-1312, codified from the act of 1896, Ga.L.1896, p. 45, provides: "No bill of exceptions shall be dismissed upon the ground that the same was not certified by the judge in the time required by law for tendering and signing bills of exceptions; but if it shall appear from the bill of exceptions that the same was tendered to the judge within the time required by law, a mere failure on his part to sign the same within the time prescribed shall be no cause for dismissal, unless it should appear that the failure to sign and certify the same by the presiding judge within the time prescribed by law was caused by some act of the plaintiff in error or his counsel." Code, § 6-902, prescribes the time in which ordinary bills of exceptions shall be tendered, and the effect of the act of 1896 is to render bills of exceptions valid where tendered within the proper time although not certified and signed until a later date, unless the delay in signing is caused by the plaintiff or his counsel. Atlanta Home &c. Co. v. Met. Cas. Ins. Co., 49...
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